Plasti-Vac Corp.

National Labor Relations Board - Board Decisions

May 23, 1967

164 N.L.R.B. 922 (N.L.R.B. 1967)

922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plasti-Vac Corp. and International Union of
Electrical , Radio & Machine Workers,
AFL-CIO. Cases 4-CA-3893 and 4-RC-6613
May 23, 1967
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
alleges violations other than those found by the Trial
Examiner.
IT IS HEREBY FURTHER ORDERED that the election
conducted on December 17, 1965, in Case
4-RC-6613, be, and it hereby is, set aside.
[Text of Direction of Second Election omitted
from publication.]
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On February 15, 1967, Trial Examiner John H.
Eadie issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action. He also found that the
Respondent had not engaged in certain unfair labor
practices and recommended dismissal of those
allegations of the complaint. In addition, the Trial
Examiner found that the Respondent had engaged in
objectionable conduct prior to the election held in
Case 4-RC-6613, and recommended that the said
election be set aside, all as set forth in the attached
Trial Examiner's Decision. The Respondent and the
Charging Party filed exceptions to the Trial
Examiner's Decision and supporting briefs. The
Respondent also filed an answering 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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs,
and the entire record in these cases, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Plasti-Vac
Corp., Montgomery and Jersey Shore, Pennsylvania,
its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order.
IT IS HEREBY FURTHER ORDERED that the
complaint be, and it hereby is, dismissed insofar as it
TRIAL EXAMINER'S DECISION.
STATEMENT OF THE CASE
JOHN H. EADIE, Trial Examiner: This proceeding was
held before me in Williamsport, Pennsylvania, on various
dates starting on September 20 and ending on October 31,
1966, on the consolidated complaint of the General
Counsel and the answer of Plasti-Vac Corp., herein called
the Respondent.' The consolidated complaint alleges
violation of Section 8(a)(1) and (3) of the Act. The
Respondent's answer admits the jurisdictional allegations
of the complaint, but denies the commission of any unfair
labor practices. After the hearing the General Counsel and
the Respondent filed briefs with me.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Pennsylvania corporation. It is
engaged in the manufacture of parts and materials at its
two plants located in Montgomery and Jersey Shore,
Pennsylvania.
During the year preceding the date of the complaint
herein, the Respondent sold and shipped goods valued in
excess of $50,000 directly to customers located outside the
Commonwealth of Pennsylvania.
The complaint alleges, the Respondent's answer admits,
and I find that the Respondent is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical , Radio & Machine
Workers, AFL-CIO, herein called the Union , is a labor
organization which admits to membership employees of
the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
During October 1965 the Union commenced to organize
the employees of the Respondent. On November 16, 1965,
the Union filed a petition for certification. An election was
conducted by the Board on December 17, 1965. A tally of
ballots disclosed that 62 votes were cast for the Union and
153 votes were cast against it.
During working hours on November 16 and December 2,
1965, Con Sterling, vice president and general manager of
the Respondent, delivered antiunion speeches to the
' The charge in Case 4-CA-3893 was filed on February 9, 1966 the Petitioner's Objections 1 and 2" in Case 4-RC-6613 The
On June 27, 1966, the Board directed that a hearing be held "for consolidated complaint issued on June 30, 1966
the purpose of receiving evidence to resolve the issues raised by
164 NLRB No. 127
PLASTIC-VAC CORP. 923
assembled employees . He read the speeches through
without interruption and would not permit questions by
the employees until he had finished reading.2
B. Interference , Restraint , and Coercion
Carson Folk worked in the molding department at the
Montgomery plant . He distributed union leaflets , attended
union meetings , and solicited employees to sign cards. He
also was an observer for the Union at the election.
On or about November 10, 1965, Folk went to the office
of Thomas Shanahan , the Respondent 's personnel
manager , in order to speak to him about his rate of pay.
During the conversation Folk volunteered that he was
sorry that he had become involved in the union activity as
the Respondent had been fair to him . Shanahan told him
that it was "a free country" and that he had a right to do as
he saw fit.
Some few days before the election as Folk was reporting
for work , Shanahan spoke to him. Concerning this
conversation , Folk testified , "Carson, he says, it's sort of a
slap on the back ... as good as we were to you ... it's sort
of a let down ... I asked him what ; he said , well what
you're doing, it 's really hitting below the belt, isn't it. I
said , well I don 't know , I think the union would do good to
get in there."
Shanahan and Folk gave substantially the same
testimony as to the conversation on or about November 10.
Shanahan also testified that he had another conversation
with Folk the following day during which Folk told him
that he had changed his mind about "getting out of the
union" after talking with his brother , Dyson Folk.
Shanahan denied the statements attributed to him by
Carson Folk in the conversation shortly before the
election . I credit Folk 's testimony in this connection.
However, since Folk was a known union adherent , I do not
believe or find that Shanahan 's remarks were violative of
the Act.
Some few days before the election Carson Folk spoke to
Jack Girton , assistant to the plant manager , about an error
in his home address . Girton told him to see Shanahan
about it . Girton then asked him if he thought the Union
would get in the plant . When Folk replied that he thought
the Union had "a pretty good chance," Girton said , "you'd
better hope to God it don 't get in for your own sake."
Folk testified credibly to the above . Girton admitted that
he had a conversation with Folk about his address, but
denied making the above statement about the Union. His
denial is not credited . I find that Girton 's remark was
violative of Section 8(a)(1) in that it contains a threat of
reprisal.
Bobbie McClosky worked at the Jersey Shore plant. He
was an active union adherent and was an observer for the
Union at the election.
McClosky testified that about a week before the election
Dick Connor, plant manager of the Montgomery plant,
went to the Jersey Shore plant ; that Connor asked him
what was "bothering" him and why he was "doing it
against the company"; that Connor asked him if he would
go to the Montgomery plant and have a talk with him and
Girton ; that when Lawrence Hostrander, assistant plant
manager at Jersey Shore, thereafter tried "to coax" him to
renounce the Union, he called Connor ; that he told Connor
2 Copies of the speeches were received in evidence The
General Counsel does not contend that they were violative of the
Act
that he would let him know the following morning what he
was going to do; that the next morning he told Hostrander,
"just drop the whole subject because I'm going to go
through with what I started"_ that a few days later
Hostrander told him that Connor and Girton had called,
asking that he (McClosky) go to the Montgomery plant;
that he told Hostrander to tell them that he would not go to
see them "because they didn 't want to talk seniority"; that
about 5 minutes later Hostrander returned and said, "you
have to go down , they want to talk to you"; that he went to
the Montgomery plant the following morning and spoke to
Girton ; that Girton asked him why he was for the Union;
that they then discussed seniority and his failure to get "a
shipping and receiving job"; that Girton said , "I'll see
what I can do for you if you can wait until after January";
that Girton asked him if he would "drop the union"; and
that he replied that he would not wait and would not give
up the Union.
Connor testified to the effect that "in the area of
November" he visited the Jersey Shore plant ; that at the
time McClosky complained about his failure to get "the
shipping room job "; that he (Connor) suggested that he bid
for the "former 's job" as he had enough seniority; that
McClosky said that he did not want that job ; that in his
opinion McClosky was an adherent of the Union because
he wore union "literature"; that there was "no union talk"
during the conversation ; that during a later visit to the
plant he asked Hostrander to check with McClosky to
make sure that he did not want the former 's job ; that when
McClosky was called to the office , he again stated that he
did not want that job; that Hostrander later called him at
Montgomery and advised him that McClosky wanted to
talk to him; that he told Hostrander to tell McClosky that
he could talk to him (Connor) "anytime"; that McClosky
called him that same night at his home and told him that
he wanted to get out of the Union ; that when he replied
that he could not advise him as it was his problem,
McClosky said , "well I 'm going to let you know
tomorrow"; that a day or two later Hostrander called him
and told him , " Bobby changed his mind ; he doesn't want
to see you"; and that when McClosky went to the
Montgomery plant , he did not talk to him as he was "out of
town."
Hostrander denied that he had received any request
from Connor and Girton for McClosky to go to the
Montgomery plant and that he told McClosky that he had
to go. He testified that he did not know "anything" about
McClosky's visit to the Montgomery plant . Concerning his
only conversation with McClosky about the Union he
testified:
Right now I don't [know ] how it got started. But at
that time he changed his mind completely and he
asked me to go in and call Mr . Connor ; and at that
time I went in to call Dick and told him what had
happened and that Bob had wanted to talk to him.
And he talked to him on the phone at that time and
asked Dick if he could come down to see him the next
morning.
Girton admitted that he knew that McClosky was
"strongly pro-union ." He testified that on one occasion
when he visited the Jersey Shore plant McClosky told him
that he had become "involved in the union activity"
because he had been "embarrassed or belittled" by the
answer given him when he had inquired about "another
job." He admitted that he had a conversation with
McClosky at Montgomery "sometime prior to the election,
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasonably close to the election," but denied that he asked
him to renounce the Union or that he had "at anytime in
any manner" held out to him a promise of benefit if he
would renounce the Union. Concerning this conversation
Girton was questioned and testified as follows:
Q. What was the occasion for Mr. McClosky to
come to Montgomery?
A. I can only relate what he told me or what I was
told. He had to the best of my knowledge and belief
made arrangements for Mr. Connor to have a talk
regarding a particular job which he wanted but had
not received; he wanted more specific information
regarding the classification system, what it would
mean to him and to them when we put it into effect at
the Jersey Shore Plant. He told me at this time that he
was going to be an observer, I think, at the election; I
think I said good for him or something to this effect.
He asked me what we were going to do for them now,
and I explained to the best of my knowledge that
whatever we did at Jersey Shore in any matter
relating to this job classification system, we would do
it at both plants. He asked me what are you going to
do for us now, and I told him I couldn't do anything for
him then, nor could I tell him that I could do anything
for him later. He asked me when the job classification
program would go into effect in Jersey Shore, and I
told him we were targeted for January, or the 1st of
February. And I think somewhere around this point
he said, well, I can't wait; and left.
Q. Did you discuss as he said his bid on the
receiving and shipping job?
A. I don't think so; I don't think that we discussed
an actual bid because I think that the job he's talking
about didn't exist yet; I think that I could pinpoint the
dates and establish that the job did not in fact exist at
the time of our conversation.
Q. Well what specific job if you recall do you
believe that he was referring to if you did have a
conversation on it?
A. He made reference during our conversation to
working in the shipping and receiving department,
and all I could tell him was that we had not completed
our job classification program for Jersey Shore and to
tell him what classification he would be at that date in
December would just be impossible.
I am convinced and find from the above testimony that
Hostrander, Connor, and Girton were putting pressure on
McClosky to renounce the Union and that Girton made an
implied promise of benefit to McClosky if he would do so.
In so finding I credit McClosky's testimony. Portions of
the testimony of Hostrander, Connor, and Girton
corroborate the testimony of McClosky. There are
conflicts between the testimony of Hostrander and
Connor. McClosky testified that the conversations took
place within the week before the election. Although
Connor testified that his talk with McClosky took place
"in the area of November," Girton's testimony agrees with
that of McClosky, at least insofar as the time of their
conversation is involved. Accordingly, I find that Girton's
remarks to McClosky were violative of Section 8(a)(1) of
the Act.
McCloskey testified credibly that several days before
the election Hostrander told him that he would like to see
him resign as an observer for the Union as he did not want
one of his men engaging in such activity " against" him.
His denial is not credited. I find that his statement to
McClosky was violative of Section 8(a)(1) of the Act.
Roy Billman is a foreman at the Jersey Shore plant.
McClosky testified credibly that on the day of the election
Billman told him, "it [doesn't] make a difference one way
or the other if the union gets in ... if the union gets in or if
it don't get in, you'll be out the door." Billman denied the
statement attributed to him. His denial is not credited. It is
found that Billman's threat of reprisal was violative of
Section 8(a)(1) of the Act.
Charles Bardo worked in the molding department at the
Montgomery plant. Starting on November 8 he openly
wore union buttons while at work.
Bardo testified that at sometime between November 18
and the election he had a conversation about the Union
with Lloyd Bremigan, foreman on the second shift; that he
did not recall who raised the subject of the Union; that
Bremigan asked him how he felt about the Union and what
he expected to gain from it; that in reply he stated that he
was "on the fence" and complained that employee Bill
Updegraff had received a wage increase of 10 cents which
would "put him over the top rate in his classification"; that
Bremigan said that he did not believe this and called
Girton on the telephone in his presence; that he (Bardo)
then spoke to Girton; that Girton asked him if he would
"talk for the company" if he (Girton) could prove to him
that Updegraff did not get the raise; that the following day
he met with Bremigan , Girton, and Shanahan; that
Shanahan showed him a record which disclosed that
Updegraff's "previous rate and a seven-cent raise which
would have kept him in the proper rate for his
classification"; that that same night Bremigan came to
him with a pad containing a list of names; that Bremigan
asked him if he would work if the Union called a strike;
that when he replied that he would not work, Bremigan
remarked that he had not been convinced "in the office
about Updegraff"; that Girton later came to him and asked
what he would "like to see concerning Updegraff's raise";
that he answered that he wanted to see certain records;
that thereafter he met with Girton and Sterling in the
latter's office; that he was shown "certain items"
concerning Updegraff's increase; that as he was about to
leave the office Sterling, referring to "a bunch of company
pamphlets," asked if he would "care to pass them out";
that he replied, "No, thank you, I don't want to get into
that"; and that he did not wear any union buttons when he
was in the offices of Shanahan and Sterling.
Bremigan denied that he had asked Bardo "in those
words" how he felt about the Union or what he expected to
gain from it. He testified that Bardo "at times" during
conversation with him brought up the subject of the Union
and asked questions; that he answered Bardo's questions;
and that Bardo told him what he expected to receive if the
Union got in the plant. Otherwise he did not deny
statements or conduct attributed to him by Bardo.
I credit Bardo's testimony concerning his conversations
with Bremigan. Since Bardo was an open adherent of the
Union, I do not believe or find that Bremigan 's questioning
at the time as to what Bardo expected to gain from the
Union was violative of the Act. Bremigan's interrogation
concerning a strike will be discussed hereinafter.
With few exceptions Girton testified substantially the
same as Bardo. He denied that he asked Bardo to "work
for the company."3 In this connection he testified:
Hostrander denied having any conversation with 3 As related above, Bardo testified that Girton asked him to
McClosky concerning his being an observer for the Union. "talk for the Company "
PLASTIC-VAC CORP. 925
He was very outspoken in his criticism of the
company and its classification program and the wage
rates ... I simply asked him if he would not speak out
against us now that he understood that [Updegraff's
wage increase] was not unfair; these were the only
areas that I asked him to speak-not for the company,
but not against the company.
Concerning Bardo's testimony about company leaflets
while in Sterling's office, Girton testified:
I recall that I had in my hand, as stated by Mr. Bardo,
these answers to the union literature; and all these
were answers to union literature that we printed. And
I had these in my hand prior to calling Mr. Bardo in
and had not taken them to the places that we wanted
them taken to be distributed, and I frankly have, I
have no recollection that anyone ever asked any
obvious union representative to pass out anti-union
literature.
Shanahan admitted that he had a conversation with
Bardo and Girton concerning Updegraff's wage increase.
He denied that Girton asked Bardo "to work for the
company." Sterling denied that he had asked Bardo to
distribute the Respondent's leaflets.
I credit Girton's testimony to the effect that he
requested Bardo not to talk against the Respondent
unfairly insofar as its classification program was
concerned. I do not find a violation of the Act in this
connection. However, I credit Bardo's testimony as to the
conversation in Sterling's office and find that Sterling's
interrogation with respect to the leaflets was violative of
Section 8(a)(1) of the Act. Bardo was not wearing any union
buttons on that occasion and previously he had told
Bremigan that he was "on the fence." Under the
circumstances I believe that Sterling's interrogation
constituted an unlawful inquiry as to Bardo's union
sympathies.
Employee Gary McCoy worked at the Montgomery plant
under Foreman Edward Sennett. McCoy testified without
contradiction that he wore a union button on November 8,
the first day that such buttons were distributed to the
employees; that at sometime during the week following
November 8 Sennett came to his machine and asked him if
he had received one of his cards; that when he replied that
he had not, Sennett handed him a card bearing the legend
"No IUE For Me"; and that he wore the card on his
clothing for about a week thereafter.
Employees Kenneth Meixel, Harry Mumma, William
Moore, and Dean Meixel also worked under Senneth.
Kenneth Meixel testified that about a month before the
election Senneth asked him if he wanted a card. Mumma
testified that at "sometime before the election" Sennett
asked him if he would take a card. Moore testified that
"less than a week after the union men started wearing the
buttons ... in the early part of November" Sennett asked
him if he would like to wear one of the cards. Dean Meixel
testified that at sometime before the election Sennett
asked him if he would wear a card.
Employee Betty McQuay worked at the Montgomery
plant under Foreman Tom Connor. McQuay testified that
at sometime before the election Connor asked her if she
wanted to wear a piece of cardboard bearing the legend
"No IUE For Me."
Girton testified that "very early in the morning" of
November 15 he learned of the antiunion cards; that he
reported this to Dick Connor and Sterling; that they in turn
contacted the Respondent's attorney who advised them to
"discourage" this activity; and that he followed this advice
"immediately." In this connection he testified as follows:
... I first of all investigated to find out where the
cards were coming from. My investigation showed
that some of the cards had been made up on the third
shift, where I couldn't find out where they had come
from. In one case , the first shift in particular, when I
went out the foreman,
*
. And I contacted the second shift foreman and
the third shift foreman to make a point of telling them
to not in anyway engage in this activity, which they
did not.
Dick Connor testified that when he arrived at the plant
about 8 a.m. on November 15 Girton informed him of the
antiunion cards; that he told Girton, "if any of the
company people are involved in this, stop it immediately";
that the cards found in the possession of "any company
people" were collected, put in a box, and taken to the
personnel office; and that this action was taken without
prior consultation with the Respondent's attorney.
I find that the above conduct of Sennett and Foreman
Connor was violative of Section 8(a)(1) of the Act. The date
when this occurred is significant only with respect to the
objections to the election. As related above, the Union filed
its petition on November 16. I find that Sennett and Tom
Connor engaged in the above conduct on November 15, in
accordance with the testimony of Girton and Dick Connor.
In his brief the General Counsel contends that Girton and
Connor should not be credited as to this date, pointing out
the inconsistency in their testimony with respect to when
the Respondent's attorney was consulted. However, it is to
be noted that the testimony of McCoy and Moore, the
General Counsel's own witnesses, agrees with that of
Girton and Connor insofar as the date is concerned.
It is undisputed that certain foremen of the Respondent
interrogated employees as to whether or not they would
work if the Union called a strike. The conversation
between Bardo and Bremigan concerning a strike has
been related and found above. Bardo testified credibly
that this conversation took place sometime between
November 18 and the election.
McCoy testified that during November, Sennett "Came
around with a list of names on a clipboard"; that Sennett
asked him if he would "cross a picket line" and "come into
work" if there was a strike; and that he saw Sennett
questioning other employees. McQuay testified that at
sometime before the election Foreman Connor asked her if
she would "come to work in the event of a strike"; and that
about that time she had heard "rumors" that the Union
was going to call a strike. Employee Mildred Munns
testified that at sometime after November 20 and before
the election Connor asked her if she would cross a picket
line in the event of a strike. Mumma, Moore, and Dean
Meixel testified that Sennett questioned them in this
connection. They also testified that about the time of the
questioning they heard rumors to the effect that the Union
might call a strike. When questioned during direct
examination as to the time of the interrogation, Moore
answered, "I'm not real sure about that, but it seems to me
like it was just about a week before the election."
Employee Dyson Folk testified that during "probably
the second week of December" Bremigan asked him what
he would do if the Union called a strike; that he replied
that he did not think it was "a fair question" and that it
was "an unfair labor practice to do something of this
kind"; that Bremigan said , "I got it direct from the office
to ask this question ... we'll check at the office to find out
926 DECISIONS OF NATIONAL
about the statement"; and that after Bremigan checked
with the office, he ceased questioning the employees.
Bremigan admitted that he asked employees if they
would come to work in the event of a strike. He testified
that he did not recall when this questioning took place, and
that at the time he had heard rumors of a strike.
Concerning the incident with Folk, he testified to the
following:
A. I went to the machine that he was running and I
asked him this particular question, if he would work
in the event of a strike; and he told me no but he felt
that I was wrong in what I was doing. So then I didn't
say anything to him about this; then I went to Mr.
Girton, which Mr. Girton at that time went to talk to
Dyson Folk. And Shortly afterwards Mr. Girton came
to me and told me to stop what I was doing.
Girton testified that beginning shortly after
November 10 he heard rumors of a strike. Concerning the
questioning of employees by foremen he testified as
follows:
Our business is of such a nature that it's imperative
that our schedules be met; as I mentioned earlier we
deal primarily in pharmaceuticals ; these items are
used by the government and are used by hospitals and
they're used by doctors. And it's extremely important
that we meet the schedules that we say are going to
meet. This strike rumor was very obvious as
mentioned in earlier testimony, and frankly we were
alarmed to the extent that we needed to know what
our position was going to be as regards to our
customers and to what extent it was going to be
necessary for us to automate and take care of our
problems during this period, should they strike. My
employers asked me ... how many people I felt would
be willing to work in the event of a strike and how
many machines I could automate and numerous other
questions relative to this.
And as I recall I did get the supervisors together as
a group and again depending on their opinions asked
them how many they felt would be willing to work in
the event of a strike.
Now either through some error in communication
or some misunderstanding, they decided to ask or
started to ask their people if they would be willing to
work in the event of a strike. And it came to my
attention within minutes after this started, and since
it was not our purpose in holding the meeting nor in
my employer's purpose, to ask each employee would
he be willing to work in the event of a strike, I stopped
it immediately.
Dyson Folk was the individual who advised me that
it was being done.
In view of the uncontradicted testimony of Munns I find
that the Respondent's foremen engaged in the above
conduct at sometime between November 20 and the
election. It is undisputed that there were rumors of a strike
in the plant. However, the evidence indicates that the
Respondent was involved in the origination of such
rumors. In his first speech to the employees Sterling
emphasized the possibility of a strike. Accordingly, I find
that the interrogation of employees concerning what they
would do in the event of a strike was violative of Section
8(a)(1) of the Act.
C. The Discharge of Dyson Folk
Folk's employment by the Respondent began on
LABOR RELATIONS BOARD
October 12, 1965. He worked in the molding department
on the second shift at the Montgomery plant. Prior to his
employment by the Respondent he suffered a head injury
while working on a fob in Charleston, South Carolina.
On October 11, 1965, Folk filed an application for
employment with the Respondent. The application
contains the question , "What physical defects have you?"
Folk answered, "None" to this question. However, he did
state in the application that he was injured on the job as
the reason for leaving his last employment. He was
interviewed on this application by Shanahan. Folk testified
that he told Shanahan at the time that due to his injury he
would be absent from work "for dental appointments and
U.S. Department of Labor hearings and also this oral
surgeon's appointments"; and that Shanahan sent him to a
Doctor Weaner in Montgomery for a physical examination.
Shanahan admitted that Folk told him about receiving a
head injury while on the job in Charleston. He denied that
Folk told him that he expected to be absent from work
because of any hearings or dental work. Shanahan
testified that he told Folk that he would be on probation for
90 days; that he explained to him the Respondent's
absentee policy for probationary employees; and that
Weaner, the Respondent's doctor cleared Folk for
employment.
Folk was very active on behalf of the Union during the
preelection campaign. He gave speeches, wore buttons,
attended all union meetings, and was present at the Board
hearing in the representation matter. He was known to
Girton as the "kingpin" of the Union.
As related above, Sterling made his first speech to the
employees on November 16. Folk testified that during this
speech he tried to ask Sterling some questions; that
immediately after the speech he was called to Shanahan's
office; that Shanahan, Girton, and Bremigan were present;
and that his meeting with them lasted about 2 hours.
Concerning the conversation Folk testified to the
following:
... Mr. Girton asked me why I started with the
union, what I was trying to do with the people that
worked there at the plant.
... Mr. Girton asked me why I didn't come to him
or come to somebody in the office, that the office
doors were always open, that they were to help me get
an employees' union; he said, what's it going to cost
you for the IUE a year. I said I didn't know offhand
what it would cost; he said approximately $12,000.00,
I believe this was the figure; I won't say for sure but
this was relative figure he used. And he said, hell, for
$3,000.00 a year I'll get you all of the legal counsel
you'll need.
* * * * *
I was asked what could be done to get me to
stop my union activities ; my brother Carson had
worked there for a number of years, he seemed
happy, the other employees were happy; and I was
hurting the people; what would they have to do to get
me to stop it.
Girton, in effect, denied that he, Shanahan, and
Bremigan met with Folk after Sterling's speech. He and
Shanahan testified that they talked to Folk on
November 25 concerning his absenteeism. Their
testimony concerning this meeting will be discussed
hereinafter. Girton denied the statements attributed to
him by Folk. However, when asked if he had made a
PLASTIC-VAC CORP.
statement to Folk about obtaining an attorney for $3,000,
Girton answered:
No. The comment to the $3,000.00 and a legal fee I
can connect only with a general comment that he
made to me about lawyers and I said something about
a retainer fee for a lawyer, you could probably retain a
lawyer for a year for $3,000.00. He made some joking
jab and I made some joking response.
Folk testified that later during the same day that the
above meeting took place Bremigan asked him how the
Union was "going" and how long it would take to get an
election set up, saying that he (Bremigan) did not know
"anything about union activities." Bremigan denied
asking Folk how the Union was going "in those words." In
explanation he testified:
Once again we would talk, and he would relate to me
that they had X number of signers and so forth that
they received; and he would also relate to me how
strong they felt that they was carrying the Jersey
Shore Plant in signers; and I would tell him that I
didn't feel that they were this strong and so forth like
this.
Shanahan testified that as of November 24 Folk had
been absent from work for 5 days;4 that at the time that he
discovered this the Respondent's attorneys, Mr.
McNerney and Mr. Vanderlin, were conferring with
Sterling and Girton; that he reported Folk's absentee
record to them, saying that he did not know why Folk was
absent at the time because "he didn't call in or report off";
that McNerney suggested that he have the Respondent's
plant security officer check on Folk to find out why he was
absent since he did not have a telephone; that McNerney
advised that the Respondent should not enforce its policy
on absenteeism during the period before the election
unless it wanted to be faced with an unfair labor practice
charge; that the following day, November 25, Folk was
called to his office; that he, Bremigan, and Girton were
present; that when Girton asked Folk why he had been
absent "for such a long time" and why he did not "report
off," Folk answered that he had been "having trouble with
bronchitis" and that his brother had reported that he was
sick; and that Folk was then informed that if his
absenteeism continued, it could result in "a
discontinuation of his probation." Bremigan testified that
he was present in Shanahan's office; that the meeting
concerned Folk's "absenteeism"; and that Folk was told
that he was "missing a deal of time and ... did not report
off from work and that this was a company rule that an
employee report off from work."
Girton testified that at Folk's request he had a
conversation with him after the meeting in Shanahan's
office. In this connection he testified to the following:
In the first instance he wanted to make me aware
that he wasn't, in his words, a union plant; and I told
him that I couldn't sit down and discuss with him
matters pertaining to the union in view of the fact that
we were presently in the process of being organized
by one.
* * * * *
He went into some detail about some personal
4 Absentee reports submitted by Bremigan to the personnel
department were received in evidence They disclose that Folk
was absent from work on November 13, 16, 19, 22, 23, and 24; that
927
problems that his brother was having and how they
related to his, meaning Dyson's, activity in the union.
He told me about his past history as a flight engineer
or a technician of some sort in the air force and as to
why he left that; in fact in effect he was giving me his
work history and record.
... he was telling me how much money, how much
profit the company had made over a period of time;
and he said that he had the records. As a matter of
fact he told me that he had federal records that
indicated how much money we had made, profit; and
I advised him at least it was my opinion that it was
impossible for him to have this kind of record. And he
said, well he had them and he would present them or
portions of them, portions of them because to show
me the record in its entirety would disclose the source
and that these documents were obtained illegally by
the union and therefore he would only show me
portions of them. And he said he would be doing this
within the next couple of days; I told him that would
be rather interesting in view of the fact that I hadn't
seen those kinds of records.
Folk during direct examination testified that he did not
receive any warnings about his absenteeism. During cross-
examination he testified that he had no recollection of
being called to the personnel office on November 25 but
that he did recall a discussion about "the bronchitis
business" and about obtaining illegally a copy of the
Respondent's income tax returns. He further testified that
it was "highly possible" that he did not recall the meeting
on November 25 and a later meeting because he had made
no note of them in his affidavit; that due to a "calcium
deposit in the right shoulder" a doctor told him "to take
five days off"; that Shanahan asked him for his reason for
being absent; that he told Shanahan about his ailment and
asked him "why the police had checked with my mother
and father rather than them checking with . Dr.
Weaner's office if there was any doubt to the time that he
had asked me to take off"; and that Shanahan replied,
"this was a security measure used on all employees."
Folk was absent from work on December 9. On the
absentee report for this date Bremigan noted, "sent word
in." Folk was scheduled to work on Saturday,
December 11, but was absent. On the absentee report
Bremigan noted, "no word." In a memorandum to Girton,
dated December 11, 1965, Bremigan stated, "Dyson Folk
was scheduled to work tonight, but he did not report for
work and he did not call in to report off. He has missed
other days. I feel that I cannot depend on this man. I do
not feel he should be scheduled for weekend work."
Girton testified that Folk again was called to the office
on December 13; that he, Shanahan, and Bremigan were
present; that they discussed Folk's absence on
December 11 without "calling in"; that Folk stated that he
rode to work with his brother and that he did not get to
work because his brother did not "show up"; and that Folk
was warned that if his excessive absenteeism continued,
the Respondent would "probably not be able to continue
him as a full time employee." Shanahan gave substantially
except for November 16 the reason given for the absence was
either that Folk was sick or that his wife was in the hospital, and
that on November 16 Folk did not report that he would be absent
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the same testimony as Girton concerning this meeting.5
Bremigan testified that he was present at this meeting;
that the subject of discussion was "absenteeism"; and that
Folk was "warned that he was to report off, which he was
not doing on some occasions."
Folk testified, in substance, that sometime during the
month before the election he had approximately 15
conversations with Girton. In this connection he testified:
Mr. Girton would ask me, well speak to me first of all
he'd ask how the union was coming along, how's your
card signing coming along and things of this type.
Girton admitted talking to Folk about the Union but denied
interrogating him about his union activities. Concerning
his conversations with Folk and the reason for them he
testified as follows:
A. It was my impression that Mr. Folk used me,
during the period from approximately the 15th or 16th
of November until December 17th which was pretty
much the union campaign period, as a chaplain. He
would come to me with the comment that someone
had torn a pro-union banner off his car or someone's
car; he would tell me that it wasn't nice for us to
answer their literature with the way we did; he would
come to me after we had written an answer to a flier
and tell me that the information, the correct
information we had gathered was incorrect, and I
would say it was not-conversations like this. These
went on almost on a daily basis if I passed anywhere
through the area where he came into work which I did
frequently.
Folk was absent from work on January 5, 6, and 7.
Bremigan noted "reported off" for January 5, "having
teeth pulled" for January 6, and "getting teeth out" for
January 7 on the absentee reports.
Folk testified that he was scheduled to enter the
Williamsport Hospital on January 15 for "dental surgery";
that during "the last part of December or the first part of
January" he spoke to Girton and Shanahan "about a leave
of absence" for this purpose; and that they read the
Respondent's "absence policy" to him and stated that
they would "make arrangements" if he would notify them
"within a twenty-four hour period prior to ... taking off."
Shanahan denied ever having a conversation with Folk
about a leave of absence.
On January 11 Folk was called to Shanahan's office and
discharged. Shanahan, Girton, and Bremigan were
present. Concerning the conversation at the time, Folk
testified that Shanahan and Girton told him that they had
to discontinue his employment because of his "absentee
record"; that Shanahan reviewed his record of absences
and called his attention to a document which contained the
Respondent's policy on absenteeism during the
probationary period; that Girton said that they had not
released him "during the campaign" because he was
active on behalf of the Union and that he could "never
understand what made [him] work for the union"; and
that at the close of the conversation Girton asked him if he
was returning "to the shipyard" where he would be
"happier in a union shop."
Girton testified that Folk was told that because he had
"missed an excessive amount of time during his
probationary period" he was being "discontinued ... as a
probationary employee"; that Folk accused him of
discharging him because of his "union activity"; and that
he assured Folk that "this was not the case" since his
"record spoke for itself." Bremigan testified that Folk was
told that he could not be accepted as a "permanent
employee" because of his "absenteeism"; that he
attended the meeting only "a short time"; and that he did
not hear any mention of the Union while he was present.
Shanahan testified that after Girton told Folk that his
probation was being discontinued, he mentioned that he
(Folk) had been warned previously about his absenteeism.
Folk did not impress me as a reliable witness. He was
evasive and contradictory. He admitted that his memory
was "very vague" as to the conversations about which he
testified. He testified to the effect that his head injury had
affected his memory. During cross-examination he was
questioned about his affidavit as it related to Sterling's
speeches. His testimony in this connection, in my opinion,
further put in question his credibility. Girton's admission
to having made a statement about a legal fee and his
failure to explain why he made such a statement tend to
support Folk's testimony concerning the alleged
conversation on November 16. On the other hand, Folk's
testimony in a number of respects corroborates the
testimony of the Respondent's witnesses, particularly in
connection with warnings about absenteeism. In short,
since Girton, Shanahan, and Bremigan heretofore have not
been credited, I suspect that at least some of the
statements attributed by Folk to Girton, Shanahan, and
Bremigan are true. But I find that I am unable to credit his
testimony as to these conversations for the above reasons.
Accordingly, I credit the above testimony of Girton,
Shanahan, and Bremigan.
The Respondent's witnesses testified at length
concerning the reason for Folk's discharge. In substance,
they testified that Folk's employment as a probationary
employee was discontinued because of his excessive
absenteeism during the probationary period of 90 days;
that its policy on probation, embodied in a "company
policy manual," was put into effect on November 1, 1965,
but was not distributed or shown to employees when hired;
that upon the advice of counsel Folk was not discharged
after he had been absent from work for more than 5 days;
that excuses for absences are not taken into consideration;
and that a number of other probationary employees were
discharged after the election.
A copy of the Respondent's policy, entitled, "Probation
and Training Periods for New Employees," was received
in evidence. It reads in part as follows:
The probation and training periods for a new
employee is ninety (90) calendar days from date of
hiring.
If an employee misses more than three (3) days
during the first seventy (70) days of probationary
periods, employee's work record will be reviewed to
determine if employees performance is satisfactory,
in all other aspects.
If employee's work record in all other areas is
satisfactory employee may be allowed to complete the
ninety (90) day probationary period, after having been
advised that his or her attendance has been
unsatisfactory. If employee should miss more than 5
5 Folk testified that during the "early or first part of December" overtime work and knew at 4 p in on Friday that he had been
Shanahan called him to the office because he had been absent scheduled for work on December 11, he absented himself from
from work, that he could not recall any of the conversation, and work without notice to Bremigan because of a union meeting and
that although he had told Bremigan that he should receive more because he had "tickets to the Penn State game "
PLASTIC-VAC CORP.
days in a ninety (90) day probationary period,
employee will not be acceptable for full time
employment due to excessive absenteeism.
The evidence shows that Folk was warned about his
absenteeism and informed about the Respondent 's policy
for probationary employees on two occasions before his
discharge. After the last warning he again was absent for 3
days. The Respondent 's records disclose that he "reported
off' on January 5 and gave reasons for his absences on
January 6 and 7. However , the absentee policy did not take
excuses into consideration . The necessity for formulating
such a policy is understandable in view of the undisputed
evidence that another employee is not called in to replace
the one who is absents
Accordingly, from all of the evidence I find that the
General Counsel failed to sustain the burden of proving
that the Respondent's discharge of Folk on January 11,
1965, was violative of the Act. It will be recommended that
the complaint be dismissed insofar as it relates to Folk.
IV. THE REPRESENTATION CASE
The Board's order of June 27 , 1966 , directed that a
hearing be held to resolve the issues raised by the Union's
objections 1 and 2. The pertinent objections are
(1) "engaged in wide-spread interrogation about union
activities of its employees ," and (2) "engaged in threats of
loss of jobs and other detriments if IUE won the election
and promised promotions , raises and other benefits if IUE
lost the election."
It has been found above that during the period from
November 16 to the date of the election Girton,
Hostrander , Billman , Sterling, Bremigan , Tom Connor,
and Sennett engaged in conduct violative of the Act.
Specifically , the findings involved interrogation of
employees concerning their union sympathies , threats of
reprisal because of such activity , and a promise of benefit
to McClosky by Girton if he would renounce the Union.
Accordingly, it will be recommended that the Union's
objections 1 and 2 , which cover the above conduct, be
sustained.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate , and substantial relationship to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
VI. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I shall recommend that it
cease and desist therefrom and that it take certain
6 Folk himself testified , "If a man isn ' t present , they dust don't
operate one machine "
In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice . In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals , the words "a Decree
929
affirmative action designed to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. By interfering with , restraining , and coercing its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
4. Between November 16 and December 17, 1965, the
Respondent engaged in conduct interfering with its
employees ' freedom of choice in selecting a bargaining
representative , and such conduct warrants setting aside
the election.
5. The Respondent has not committed any other unfair
labor practices alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law , and upon the entire record in the case,
I shall recommend that the Respondent, Plasti -Vac Corp.,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from interrogating its employees
concerning their membership in or activities on behalf of
the Union , or making threats of reprisal or promises of
benefit because of such activity.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Post at its plants in Montgomery and Jersey Shore,
Pennsylvania , copies of the attached notice marked
"Appendix."7 Copies of said notice, to be furnished by the
Regional Director for Region 4, after being duly signed by
the Respondent or its authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices
to employees are customarily posted . Reasonable steps
shall be taken to insure that said notices are not altered,
faced, or covered by any other material.
(b) Notify the Regional Director for Region 4, in writing,
within 20 days from the date of the receipt of this Decision,
what steps have been taken to comply herewith.8
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it relates to Dyson Folk.
Upon the basis of the applicable findings of fact and
conclusions of law , and upon that part of the entire record
pertinent to the objections in Case 4-RC-6613, it is
recommended that objections 1 and 2 be sustained; that
the election held on December 17, 1965, be set aside; and
that another election be conducted.
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
' In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read . "Notify said
Regional Director, in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX from becoming or remaining members of any labor
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT interrogate our employees
concerning their membership in or activities on behalf
of International Union of Electrical, Radio & Machine
Workers, AFL-CIO, or of any other labor
organization, or make threats of reprisal or promises
of benefit because of such activity.
All our employees are free to become, remain, or refrain
organization.
Dated By
PLASTI -VAC CORP.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1700 Bankers
Securities Bldg., Walnut & Juniper Sts., Philadelphia,
Pennsylvania 19107, Telephone 597-7601.