Rapid Mfg., Co.

National Labor Relations Board - Board Decisions

Nov 28, 1978

239 N.L.R.B. 465 (N.L.R.B. 1978)

RAPID MFG. COMPANY
Rapid Manufacturing Company and Plastic, Mould-
ers, and Novelty Workers' Union Local 132, Inter-
national Ladies' Garment Workers' Union, AFL-
CIO and Maria Viera and Elena Ocampos. Cases
22-CA-7342, 22-RC-6902, 22-CA-7438, and 22-
CA-7450
November 28, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On February 27, 1978, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief. The General Coun-
sel subsequently filed cross-exceptions and a brief in
support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, except
as modified below, and to adopt his recommended
Order.
Respondent manufactures destruct clips and injec-
tion moulding at its facility in Newark, New Jersey.
On or about September 20, 1976,1 the Union com-
menced an organizational campaign at Respondent's
plant in an attempt to organize its production and
maintenance employees. After obtaining valid au-
thorization cards from 25 of the 45 employees in the
appropriate bargaining unit,2 the Union requested
recognition as their bargaining representative on
September 24.3 On September 27, after Respondent
Unless indicated to the contrary, all dates are in 1976.
2 In his Decision, the Administrative Law Judge stated that there were 40
employees in the appropriate bargaining unit. However. both the official
tally of ballots and our unpublished Order directing hearing in Case 22--
RC-6902 indicate that approximately 45 employees were eligible to vote,
although only 40 employees actually cast ballots during the election on
November 9.
3 As of September 24, the Union had obtained a total of 27 signed author-
ization cards. The Administrative Law Judge excluded 2 of the 27 cards
from evidence. In the absence of exceptions, we adopt proforma the Admin-
istrative Law Judge's conclusion that Maria Irizarry's card was an "election
only" card and that, consequently, it was invalid under Board law. E.g..
N.L.R.B. v. Gissel Packing Co., Inc.. 395 U.S. 575. 584, fn. 5. 606-609. fn. 27
(1969), rehearing denied 396 U.S. 869. Cumberland Shoe Corporation, 144
NLRB 1268 (1963)., enfd. 351 F.2d 917 (6th Cir. 1965). At the hearing Re-
spondent contended. and the General Counsel conceded, that Maridel
Roman's card was also an "election only" card. Thus, 25 out of 45 employ-
ees, a majority, had signed valid authorization cards as of September 24. the
date on which the Union requested recognition.
failed to respond to the Union's letter requesting rec-
ognition, Local 132 filed an RC (certification of rep-
resentative) petition with the National Labor Rela-
tions Board requesting that a representation election
be held at Respondent's plant.
Thereafter, Respondent and the Union entered
into a standard Stipulation for Certification Upon
Consent Election agreement. In the ensuing election
on November 12, 1976, 16 employees cast ballots for,
and 20 employees cast ballots against, the Union.
Four ballots were challenged, a number insufficient
to affect the results of the election. Subsequently, the
Union filed timely objections to conduct affecting
the results of the election in Case 22-RC-6902. After
the Board ordered the consolidation of that case and
the three unfair labor practices cases here in issue, a
hearing was held before Administrative Law Judge
Blackburn.
The central question in this case is whether, under
the Supreme Court's decision in Gissel Packing Co.,
Inc.,4 the Administrative Law Judge correctly con-
cluded that the National Labor Relations Board may
order Respondent to recognize and bargain with the
Union because of the severity and impact of its pree-
lection misconduct.
In his Decision, the Administrative Law Judge
concluded that by the conduct of two of its agents,
Edith Ficeto and William Cruz, Respondent inter-
fered with, restrained, and coerced its employees in
the exercise of their Section 7 rights,5 in violation of
Section 8(a)(l) of the National Labor Relations Act,
as amended. Respondent's unfair labor practices in-
cluded the coercive interrogation of several employ-
ees concerning their union activities; threatening to
close the Newark plant and move it elsewhere if the
Union won the Board-conducted election; threaten-
ing to impose more onerous working conditions on
employees if the Union's organizational campaign
were successful; creating the impression that Re-
spondent had under surveillance the union activities
of employees; and offering and granting employees
benefits to induce them to vote against the Union.
After carefully reviewing the entire record and the
exceptions and briefs filed in this case, we have con-
cluded that Respondent violated Section 8(a)(l) of
4395 U.S. 575 (1969), rehearing denied 396 U.S. 869.
Sec. 7 provides:
Employees shall have the right to self-organization, to form. join, or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing. and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion, and shall also have the right to refrain from any or all such activi-
ties except to the extent that such right ma) be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment as authorized in section 8(aX3).
465
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act by the actions of its agents Ficeto and Cruz.6
Accordingly, we hereby adopt the Administrative
Law Judge's findings and conclusions concerning
said unfair labor practices.
Reasoning that Respondent's unfair labor prac-
tices were serious in nature, the Administrative Law
Judge also concluded that Respondent's refusal to
recognize and bargain with the Union violated Sec-
tion 8(a)(5) and (1) of the Act. After applying the test
formulated by the Supreme Court in Gissel, he rec-
ommended that the election be set aside, that the
petition be dismissed, and that Respondent be or-
dered to recognize and bargain with the Union.7
However, the Administrative Law Judge's recom-
mendation that the Board issue a bargaining order
was based exclusively on Respondent's threat to
close the plant if the Union won the election in ques-
6 As more fully explicated in the record, Respondent, through its agent
Cruz, violated the Act by granting insurance benefits to 12 employees on
November 9, the last working day prior to the election on November 12.
The employees in question were newer employees, three of whom had been
hired as early as April or May 1976. As of November 9, none had been
enrolled in the insurance programs made available by Respondent, even
though all 12 were eligible for medical insurance coverage after 30 days of
employment and for life insurance coverage after 90 days of employment.
Further, the record reveals that employees of Respondent who were other-
wise eligible for group insurance coverage were treated as if they had in fact
been enrolled in the insurance programs, even if no formal enrollment had
actually taken place. Respondent's established practice in no way justified
its decision to complete the unnecessary enrollment of 12 employees on
November 9. The record clearly shows that the November 9 interviews,
which were individually conducted by Cruz in the office of the Company's
president, provided Respondent with an opportunity both to interrogate
employees about their union activities and to coerce employees into voting
against the Union because of the more limited insurance coverage offered
by the petitioning Union. This coercion, as well as the interrogation incor-
porated by Cruz into his interviews, interfered substantially with the Sec. 7
rights of employees, in violation of Sec. 8(a)(I), much like the announce-
ment by an employer of an unexpected wage increase shortly before an
election.
7 In his treatment of the Union's objections to conduct allegedly affecting
the results of the election in Case 22-RC-6902, the Administrative Law
Judge recommended that the election be set aside, that the petition be dis-
missed, and that Respondent be ordered to recognize and bargain with the
Union. In the alternative, he recommended that the petition not be dis-
missed and that a second election be conducted. The Administrative Law
Judge based his recommendtion that the election be set aside in part upon
conduct which occurred several days before September 27, 1976, the date on
which the Union filed its representation petition. Respondent has failed to
except to this portion of the Administrative Law Judge's analysis. However,
in adopting his recommendation that the election be set aside, we note that
the Board normally relies upon conduct which occurred during the "critical
period" preceding the election (i.e., during the period between the filing of
the representation petition and the election itself). See The Ideal Electric and
Manufacturing Company, 134 NLRB 1275 (1961): Goodyear Tire and Rubber
Company, 138 NLRB 453 (1962); and Apple Tree Chevrolet, Inc., 237 NLRB
No. 103 (1978). But see Lyon's Restaurants, a wholly owned subsidiary of
Consolidated Foods Company, 234 NLRB 178 (1978). On the other hand, the
Board normally bases its Gissel bargaining orders upon all unfair labor
practices committed by a particular respondent (as the Administrative Law
Judge did in this case). See, e.g., Baker Machine & Gear, Inc., 220 NLRB
194, 195 (1975); Idaho Candy Company, 218 NLRB 352, 358-359 (1975);
Milgo Industrial, Inc., 203 NLRB 1196, fn. 7, 1200-01 (1973), affd. without
published opinion 497 F.2d 919 (2d Cir. 1975). For example, in Baker Ma-
chine & Gear, Inc., supra, the Board concluded that the Respondent's duty to
bargain commenced on January 17, 1974, 8 days prior to the filing of the
petition, after reasoning that "[nlo element of retroactivity is present in
imposing the bargaining obligation as of the time the employer began his
subversion of the statute." 220 NLRB at 195.
tion. The Board has consistently viewed outright
threats of plant closure as coercion of a most serious
nature when made by an employer as a penalty for
unionization.8 However, in agreeing with the Admin-
istrative Law Judge's conclusion that the Board
should issue a Gissel bargaining order in this case, we
deem it appropriate to base our Order upon all of the
actions of Respondent which interfered with, re-
strained, and coerced employees in the exercise of
their Section 7 rights. We shall, therefore, now assess
the record evidence in this case from that standpoint.
The Union commenced its organizational cam-
paign on or about September 20, 1976, and filed its
representation petition 1 week later. Two days after
the Union initiated its campaign, Respondent com-
mitted its first uifair labor practices. On or about
September 22, in the presence of four other assembly
department employees,9 Edith Ficeto 'o told Milagros
Bruno (and, through Bruno, Rosa Santiago) that Re-
spondent's president had instructed her to determine
whether or not Bruno and Santiago had had any-
thing to do with the Union's organizational efforts,
inasmuch as both women had been seen speaking to
union organizers outside the plant. Ficeto then asked
Bruno what she planned to do about the Union. Bru-
no promised her she would not talk to any of the
union organizers. Not satisfied with her response, Fi-
ceto asked Bruno what she would gain if a union
came into the plant, inasmuch as a successful cam-
paign would simply mean that the Union would get
some money out of Bruno's paycheck every month.
Finally, Ficeto told Bruno that Respondent's co-
owners (Quentin Gualtier and Ficeto's brother, Ar-
mando Cannella) would close the plant and would
move it elesewhere if the Union's organization efforts
were successful. Two days later, on September 24,
s E.g. Standard Knitting Mills, Inc., 172 NLRB 1122 (1968), where the
employer's threat was accompanied by a threat of loss of benefits. In Gissel
itself, the Supreme Court emphasized that "a reviewing court must recog-
nize the Board's competence in the first instance to judge the impact of
utterances made in the context of the employer-employee relationship." 395
U.S. at 620. In addition, the Court noted with approval "that the Board has
often found that employees, who are particularly sensitive to rumors of
plant closings, take such hints as coercive threats rather than honest fore-
casts." 395 U.S. at 620. Furthermore, in analyzing the interrelationship be-
tween an employer's first amendment rights and the Act's prohibition
against antiunion threats and coercion, the Court warned in Gissel that any
prediction concerning the precise effect which an employer believes union-
ization v ill have on his company "must be carefully phrased on the basis of
objective fact to convey an employer's belief as to demonstrably probable
consequences beyond his control or to convey a management decision al-
ready arrived at to close the plant in case of unionization." 395 U.S. at 618.
9The four employees in question were Rosa Santiago, Elena Ocampos,
Carmen Garcia, and Carmen Lopez. Bruno testified that all four women
were active in the Union and, further, that all four were listening to her
conversation with Ficeto.
50 Ficeto, who works as a group leader in Respondent's assembly depart-
ment, is the sister of Armando Cannella. Armando is active in the day-to-
day management of the Company and is Respondent's co-owner. Ficeto is
also the sister of Dante Cannella, who is a supervisor at the plant and who
is the son-in-law of Quentin Gualtier, Respondent's president and co-owner.
466
RAPID MFG. COMPANY
the Union demanded recognition, after having ob-
tained valid authorization cards from 25 employees
in a unit consisting of approximately 45 employees."
Thereafter, and several weeks before the election,
Ficeto initiated a conversation with Maridel Roman,
an inspector in the injection moulding department.
At the time of their conversation, Roman was en-
gaged in work-related activity in the assembly de-
partment. In the presence of three assembly depart-
ment employees,' 2 Ficeto discussed the Union's
organizational campaign with Roman. Initially, Fice-
to told Roman she believed she knew which employ-
ees would vote for the Union. Roman asked who.
Ficeto replied by looking back over her shoulder at
the other three employees, who were standing within
earshot, about 10 feet away. She then told Roman
that the employees in question should have known
better than to have attempted to bring a union into
the plant. Further, she stated that conditions at the
plant would only be worse with a union because the
Company would then have to "go by the rules." Ad-
ditionally, Ficeto told Bruno she knew her brother
[Armando] was not going to stand idly by, because
he knew that many of the employees did not want a
union at the plant. Ficeto then told Roman that her
brother was going to defend himself. Concluding her
remarks, Ficeto told Roman that Milagros Bruno,
Rosa Santiago, and Carmen should think over what
they were doing, so that they would not regret their
actions later. Immediately after Ficeto ended her
conversation with Roman, the onlooking employees
asked Roman what Ficeto had said. Roman con-
veyed to the three women Ficeto's words of advice.
Further acts of interrogation and coercion were
committed by Respondent's agent William Cruz on
Friday, November 9, immediately prior to the repre-
sentation election on Monday, November 12.' On
that date Cruz interviewed individually a number of
employees who were eligible for certain life and
health insurance benefits but whom Respondent had
not yet enrolled in the programs in question. Cruz
signed up 12 employees for those benefits on Novem-
ber 9, an action which we have found to be coercive
in the circumstances. The interviews took place in
the office of Respondent's president, Quentin Gualti-
er. During one such interview, Cruz questioned Mar-
idel Roman about her attitude toward the Union.
When faced with a noncommittal response from Ro-
man, Cruz pressed her to express her opinion. Ro-
See fn. 3, supra, for an analysis of the authorization cards in issue
12 The three employees were Milagros Bruno. Rosa Santiago. and either
Carmen Garcia or Carmen Lopez.
13 Cruz is an employee of Economic Growth Group. the consultant wshich
places Respondent's major medical, sick pa), disability, and life insurance
policies.
man responded by again telling Cruz that she had no
opinion concerning the Union.
During an interview with another employee, Maria
Viera, Cruz asked Viera if she knew what the Union
was. Viera responded affirmatively. Cruz then
warned her that, like a closed door, the Union would
be a barrier between the Company and its employees
if the Union got into the plant. Expanding on this
remark, Cruz explained that in the past an employee
could always work out any problem which arose sim-
ply by going to the owner's office and discussing it
with him. Cruz then expressly asked Viera whether or
not she was going to vote for the Union. Viera said
she was undecided. However, she also told Cruz she
might vote for the Union because she would receive
the same benefits whether or not the Union won the
election. At a later point during the interview, Cruz
attempted to rebut Viera's assertion by telling her
that she was eligible for $2,000 in life insurance un-
der the Company's plan but would receive only
$1,000 in coverage under the Union's plan.
We turn now to a legal analysis of the above facts.
We use as our touchstone the standard enunicated by
the Supreme Court in Gissel:'4 Did Respondent's
conduct have "the tendency to undermine [the
Union's] majority strength" and to "impede the elec-
tion processes"? Applying that standard, we shall an-
alyze in detail the impact which Respondent's con-
duct had upon the laboratory conditions essential to
the consummation of a free and fair election.
Record evidence in this case establishes that Re-
spondent attempted to defeat the Union's organiza-
tional campaign from its very inception to its conclu-
sion. Two days after Union Organizers Medina and
Thompson appeared outside Respondent's plant,
Edith Ficeto interrogated employees Bruno and San-
tiago concerning their union activities. Immediately
thereafter, Ficeto told the two women that Respon-
dent's owners either would close the plant or would
move it elsewhere if the Union's organizational ef-
forts were successful. In our judgment, the fact that
four additional employees were present when Ficeto
uttered her remarks greatly magnified the possibility
of their repetition to other members of the bargain-
ing unit.
Ficeto engaged in further acts of interrogation in
late October 1976, several weeks before the election
on November 12. During her dicussion with Maridel
Roman concerning the Union's organizational ef-
forts, described above, Ficeto threatened employees
with more onerous working conditions if the Union
came into the plant. Further, she told Roman that
her brother would not stand idly by in the face of the
Union's organizational campaign. While making her
1 395 US. 575, 614 (1%9).
467
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remarks, Ficeto pointedly conveyed to several on-
looking employees the impression that she had their
union activities under surveillance. In our judgment,
Ficeto's antiunion comments undoubtedly under-
mined the Union's strength and destroyed the labo-
ratory conditions necessary for a free and fair elec-
tion.
Through its agent William Cruz, Respondent com-
mitted further serious acts of interrogation and coer-
cion on November 9. After discussing the Company's
insurance benefits with employees Roman and Viera,
Cruz questioned them about their union activities
and sympathies. These acts of interrogation, which
took place in the office of Respondent's president on
the last working day prior to the election, were calcu-
lated to and did in fact interfere with the Section 7
rights of Respondent's employees. In addition, the
signing up of 12 employees (including Roman and
Viera) for benefits immediately before the election
constituted a grant of benefits timed to influence the
results of the election. Accordingly, we hold that the
unfair labor practices committed by Cruz, like those
of Edith Ficeto, interfered with the free and uninhi-
bited choice of Respondent's employees in the elec-
tion in question.
Having considered all relevant facts concerning
Respondent's unfair labor practices, we have con-
cluded that Respondent's violations were both severe
in impact and pervasive in timing. Further, we are
convinced that Respondent's violations undermined
the majority strength of the Union, eroded the labo-
ratory conditions necessary for the effectuation of a
fair and meaningful election, and effectively thwart-
ed the proper functioning of the Board's election pro-
cesses. Accordingly, we hereby hold that Respon-
dent's conduct had "the tendency to undermine [the
Union's] majority strength and impede the election
processes" within the meaning of Gissel.'
5
However, in fashioning a remedy for Respondent's
violations, we must also determine whether "the pos-
sibility of erasing the effects of past practices and of
ensuring . . . a fair rerun . . by the use of tradi-
tional remedies, though present, is slight and [wheth-
er] employee sentiment once expressed through cards
would, on balance, be better protected by a bargain-
ing order." 16 Gissel states emphatically that if the
' 395 U.S. at 614.
5o 395 U.S. at 614-615. We note that in this portion of its (;issel opinion
the Court specifically commanded the Board to balance several factors in
deciding whether or not a bargaining order should issue By instructing
the
Board to balance all competing considerations and interests. the Court
im-
pliedly vested significant discretion in the Board in all bargaining
order
cases. Cf. L. Tribe. American Constitutional Law, §§12 2. 12-30 (1978).
Moreover, immediately after authorizing the Board in Gissel to balance
all
relevant factors in fashioning an appropriate remedy in bargaining order
cases, the Supreme Court expressly conferred such authority on the Board
by referring back to fn. 32 and to its earlier rejection of the fourth circuit's
Board's answer is in the affirmative a bargaining or-
der "should issue." 17
Applying this portion of the Gissel test, we shall
analyze whether traditional Board remedies, applied
in a creative and intelligent manner, could ade-
quately dissipate the harmful effects of Respondent's
misconduct and restore the conditions essential to
the conduct of a fair rerun election.t
At the outset, we note that the Board itself has
often emphasized that it prefers to rely upon its own
election machinery rather than on authorization
cards in testing the majority status of a particular
union." In addition, we acknowledge freely that the
Supreme Court emphasized in Gissel that reliance on
the Board's election and certification process "is
from the Boare's point of view the preferred
choice," 20 and that the Court then cited the Board's
own decision in Aaron Brothers, supra. Keeping firm-
ly in mind the Board's belief that in some cases a
representation election is a more reliable method of
assessing the wishes of employees than a reliance on
cards, we shall analyze whether in this case tradi-
tional Board remedies could effectively remedy the
unfair labor practices in question. We focus once
again on the facts herein, analyzed previously in de-
tail.
The unfair labor practices committed by Respon-
dent's agents prior to the Board election on Novem-
ber 12, 1976, included interrogating employees on
several occasions; threatening to impose more oner-
ous working conditions on employees if the Union
won the representation election; purposefully creat-
preference for the Board's "more traditional" remedies. Furthermore. in fn.
32 of Gissel the Supreme Court noted that the Act itself confers such author-
ity upon the Board, and concluded: "It is for the Board and not the Courts
.. . to make [a] determination [concerning the adequacy of traditional
Board remedies], based on its expert estimate as to the effects on the elec-
tion process of unfair labor practices of varying intensity. In fashioning its
remedies under the broad provisions of § 10(c) of the Act . .. the Board
draws on a fund of knowledge and expertise all its own, and its choice of
remedy must therefore be given special respect by reviewing courts." Ac-
cord: Kenworth Trucks of Philadelphia. Inc. v. N.L.R.B., 580 F.2d 55, 62 (3d
Cir. 1978); N.L.R.B. v. Eagle Malerial Handling. Inc. 558 F.2d 160. 163-164
(3d Cir. 1977). N LR.B v. Empire Corporation. 518 F.2d 860. 862 863 (6th
Cir. 1975) See also N.L.R.B v. J H. Rutter-Rex Manufacturing Company.
Inc., 396 U.S. 258. 262-263 (1969): Fibreboard Paper Products Corp. v.
N.L.R.B.. 379 U.S. 203, 215 217 (1964).
Mindful of the awesome power entrusted us both byh the Act and by
Gissel, we make every effort, in this and every case, to exercise that power in
a just and evenhanded manner.
17395 UlS. at 615.
ts As an alternative to issuing a bargaining order in this case,
we have
considered the possibility of relying instead upon other remedial devices
available to the Board, including the issuance of a comprehensive cease-
and-desist order: ordering Respondent to post notices in conspicuous places
at its plant for 60 consecutive dav s: ordering Respondent to read the notice
to all enlployees during working hours: ordering Respondent to give the
Inion access to employees at the plant during working hours; seeking an
injunction against Respondent in Federal district court under Sec. 10j) of
the Act for any violations eof the Board's Order: and ordering the Regional
Director for Region 22 to conduct a rerun election at Respondent's plant.
i Aarion Brothers Company of ( alifornia 158 NI RB 1077, 1078 (1966).
2( 395 l.S at 596
468
RAPID MFG. COMPANY
ing the impression of surveillance of the prounion
activities of employees; threatening to close the plant
and move it elsewhere if the Union's organizational
efforts were successful; and coercing employees by
signing them up for benefits immediately before the
election. Briefly, as we concluded earlier in a sepa-
rate section of our legal analysis, we are convinced
that Respondent's acts of interference, restraint, and
coercion, which occurred during the entire election
campaign, seriously impaired the Board's election
processes. In addition to the factors analyzed previ-
ously, we note that, in making her remarks, Edith
Ficeto expressly told employees she was communi-
cating the antiunion sentiments of Respondent's co-
owners. We are also convinced that, as a practical
matter, the presence of either Ficeto or co-owners
Cannella and Gualtier during the period immediately
preceding any rerun election would inevitably serve
as a constant reminder to employees of the antiunion
sentiments expressed by Respondent's agents
throughout the prior election campaign. Finally, in
analyzing the alternative remedial devices which we
could employ in this case, we note that Respondent
failed to repudiate the coercive and threatening state-
ments of Ficeto and Cruz at any point during the
lengthy proceedings herein, including during the tes-
timony of Respondent's president, Quentin Gualtier.
In our judgment, the above factors in all likelihood
markedly diminished the possibility that the Board's
traditional remedies, including a rerun election,
could either remedy Respondent's unfair labor prac-
tices or determine in a meaningful way whether Re-
spondent's employees wish to be represented by the
union in question. We so conclude in part because
we believe that even a vigorous and resourceful ap-
plication of the Board's traditional remedies in this
case could not convince Respondent's employees
that the Board could successfully prevent their em-
ployer from implementing its various threats to de-
prive them of their job security if the Union won an
election at its plant.
After balancing all of the competing considera-
tions outlined above (including the Board's stated
preference for relying on the results of its own elec-
tions rather than on cards), we are convinced that the
record herein establishes that the possibility of con-
ducting a fair and meaningful rerun election is, in
this case, slight at best." Furthermore, after applying
the last portion of the Gissel test,' we firmly believe
that employee sentiment, once expressed through au-
thorization cards, would, on balance, be far better
protected by a bargaining order than by any possible
combination of the Board's traditional remedies,
however creatively framed or applied.2
On the basis of the above findings and conclu-
sions, we hereby approve and adopt the Administra-
tive Law Judge's recommended Order requiring Re-
sondent to recognize and bargain collectively with
Plastic, Moulders, and Novelty Workers' Union Lo-
cal 132, International Ladies' Garment Workers'
Union, AFL CIO.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Rapid Manufacturing
Company, Newark, New Jersey, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
1 395 U.S. at 614.
2: Id at 614-615, and supra.
21 In so ruling, we do not apply a mechanical per Te rule which treats the
commission of any 8(a( I) violation as a sufficient basis for issuing a bar-
gaining order See Aaron Brothers Compansv of California. 158 NLRB 1077,
1079 (1966). cited with approval in Gissel, 395 U.S. at 593 594 and 615.
Inasmuch as Local 132 obtained authorization cards from a majority of
Respondent's employees before demanding recognition, we need not decide
whether Respondent's violations fall within the first category described in
Gissel (which consists of "outrageous and pervasive unfair labor practices"),
or whether they fall within the second Gissel classification (which includes
"less extraordinary cases marked by less pervasive practices"). 395 ULS at
614.
DECISION
STATEMENT OF THE CASE
BENJAMIN K BLACKBURN, Administrative Law Judge: The
petition in Case 22-RC-6902 was filed on September 27.
1976.' A Stipulation for Certification Upon Consent Elec-
tion was executed on October 15 and approved on October
16. An election was held in a unit of Respondent's produc-
tion and maintenance employees on November 12. It re-
sulted in 16 votes for the Union, 20 against, and 4 chal-
lenged ballots. The Union filed timely objections to
conduct affecting the results of the election.
The charge in Case 22-CA-7342 was filed on December
2 and amended on December 27. A complaint was issued
on January 14, 1977, and amended on February 2, 1977.
Between the latter two dates, the Regional Director issued
his Report on Objections in Case 22-RC-6902 on January
21, 1977, and charges were filed in Case 22-CA-7438 on
January 28, 1977, and in Case 22-CA-7450 on February I,
1977. The three unfair labor practice cases were consoli-
dated for hearing and a second amended complaint was
issued on March 4, 1977. It was amended at the hearing.
The Board issued an Order directing a hearing in Case
22-RC-6902 on March 22, 1977. All four cases were con-
solidated for hearing on April 15, 1977. The hearing was
I Dates are 1976 unless otherwise indicated.
469
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
held in Newark, New Jersey, on May 12 and 13, July 5 and
6, and September 7, 1977. The principal issue litigated was
whether Respondent should be required to recognize and
bargain with the Union as the collective-bargaining repre-
sentative of its employees, pursuant to the provisions of the
National Labor Relations Act, as amended, despite its loss
of the election held on November 12, under the principles
enunciated by the Supreme Court in N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575 (1969). For the reasons set
forth below, I find that it should.
Upon the entire record in this proceeding, including my
observation of the demeanor of the witnesses, and after
due consideration of briefs, I make the following:
FINDINGS or FACT
I JURISDICTION
Respondent, a New Jersey corporation, is engaged at
Newark, New Jersey, in the business of manufacturing in-
jection moldings. During the 12 months just prior to is-
suance of the second amended complaint, it shipped prod-
ucts valued in excess of $50,000 directly to customers
located outside the State of New Jersey.
II. THE UNFAIR LABOR PRACTICES
A. Section 8(a)(l) 2
I. Edith Ficeto
a. Facts
Edith Ficeto is a sister of Armando and Dante Cannella.
Armando Cannella is, along with Respondent's president,
Quentin Gualtier, an owner of the business. He and Gualti-
er are both active in its day-to-day management. Dante
Cannella is a supervisor within the meaning of the Act. He
is also Gualtier's son-in-law. Dennis Cannella, Armando
Cannella's son, is, like Ms. Ficeto, a nonsupervisory em-
ployee.
Ms. Ficeto is group leader in the assembly department,
located on the second floor of the plant. She gives out the
work to other employees. When one of them is absent, she
fills in for the absentee on the line. She has criticized the
work of other employees. Other employees have come to
her to complain about such things as the temperature in
the work area, and she has attempted, sometimes success-
fully, to do something about their problems. She earns
$3.50 an hour. Other employees in the assembly depart-
ment earn between $2.50 and $3. The General Counsel
does not contend she is a supervisor within the meaning of
the Act.
Respondent's employees are, in the main, Hispanic
women. Many of them do not speak English. Ms. Ficeto
does not speak Spanish. She communicates with employees
2 Two allegations of independent 8(a)( I) violations by Dante Cannella. an
admitted supervisor, were dismissed at the conclusion of the General Coun-
sel's case-in-chief on counsel's concession he had produced no evidence in
support of them.
who do not speak English by having a few who are bilingu-
al act as her interpreters. She is known to the other employ-
ees as a member of the family which owns the business.
The following findings as to Ms. Ficeto's conduct during
the Union's campaign to organize Respondent's employees
are based on the credited testimony of Maridel Roman,
Rosa Santiago, Milagros Bruno, and Elena Ocampos. I do
not credit Ms. Ficeto's denials that she did or said anything
violative of the Act. She did admit to one or two (the sec-
ond is not clear) conversations with Ms. Bruno, but her
version is totally different. (She also admitted having heard
her brothers discuss the fact that the Newark plant had too
little space.) The testimony of General Counsel's witnesses
is, I think, more inherently credible given the situation
which existed in the plant at the time.
The Union's organizers first appeared outside Respon-
dent's plant around September 20. A day or two later, Ms.
Ficeto had a convers:ation with Milagros Bruno in the pres-
ence of Rosa Santiago, Elena Ocampos, Carmen Garcia,
and Carmen Lopez.3 Ms. Ficeto told Ms. Bruno that Gual-
tier had instructed her to find out if Ms. Bruno had any-
thing to do with the organizers being in front of the plant
because Ms. Bruno had been seen speaking to them. Ms.
Bruno said no. Ms. Ficeto then asked Ms. Bruno to ask
Ms. Santiago the same question. Ms. Santiago said no. Ms.
Ficeto asked Ms. Bruno what she was going to do about
the Union. Ms. Bruno said she would not talk to anyone in
the street. Ms. Ficeto asked what Ms. Bruno had to gain if
a union came into the plant, since it only meant that the
union would get some money out of her paycheck every
month. Besides, Ms. Ficeto said, the owners would just
close the plant or move it someplace else.
Sometime between that conversation and the November
12 election, Ms. Ocampos overheard Ms. Ficeto tell Ms.
Santiago she was working too slowly, she had to speed up
because the Union was not in the plant yet.
Sometime in late October, Maridel Roman, an inspector
who normally works in the injection molding department
on the first floor, was in the assembly department. Ms.
Ficeto said she had an idea which employees would vote
for the Union. Ms. Roman asked who. Ms. Ficeto looked
back over her shoulder at Ms. Bruno, Ms. Santiago, and
one of the Carmens, who were working about 10 feet away.
Ms. Ficeto said they ought to know better than to try to
bring a union into the plant: she helped them out now, but
it was only going to be worse with a union because then
Respondent would have to go by the rules such as being on
time. She knew her brother was not going to stand idly by,
Ms. Ficeto went on, because he knew a lot of the employ-
ees did not want a union and he was going to defend him-
self. Milagros, Rosa, and Carmen should think over what
they were doing, Ms. Ficeto concluded, so that they would
not have to regret it later. The other employees asked Ms.
Roman what Ms. Ficeto had said about them. Ms. Roman
I Ms. Santiago and Ms. Ocampos corroborated Ms. Bruno as to some of
the things Ms. Ficeto said. Ms. Bruno testified that she had two conversa-
tions with Ms. Ficeto several days apart. I am persuaded from the logical
progression of what Ms. Bruno testified Ms. Ficeto said to her that it all
occurred on one occasion. I attach no significance to the fact that Ms.
Santiago and Ms. Ocampos did not remember as much as Ms. Bruno about
what happened on this occasion.
470
relayed Ms. Ficeto's advice about thinking over what they
were doing.
b. Analysis and conclusions
Respondent is only liable for Ms. Ficeto's remarks if she
can be held to have acted as its agent. The General Coun-
sel relies principally on the fact that she is known to the
other employees as a relative of Respondent's owners. Un-
der all the circumstances, especially Ms. Ficeto's statement
to Ms. Bruno that she was following Gualtier's instructions
in asking whether Ms. Bruno and Ms. Santiago were re-
sponsible for the Union's campaign, it is clear the employ-
ees could and did reasonably believe that her statements
reflected company policy and that she was speaking for
management. I find, therefore, that she acted at all times as
Respondent's agent. Schwab Foods, Inc. d/b/a Scotts IGA
Foodliner, 223 NLRB 394 (1976), and cases cited therein.
Cases cited by Respondent in which the Board has found
no agency relationship despite a close family relation-
ship-F. M. Broadcasting Corp., 211 NLRB 560 (1974),
and Kurt A. Perschke, a sole proprietorship d/b/a Perschke
Hay & Grain, 222 NLRB 60 (1976)-are distinguishable on
their facts.
Ms. Ficeto committed no unfair labor practices when
she told Ms. Santiago to work faster. However, when she
spoke to Ms. Bruno she interrogated employees and threat-
ened them with plant closure. When she spoke to Ms. Ro-
man, she threatened employees with more onerous working
conditions and created the impression she had their union
activities under surveillance. I find, therefore, that Respon-
dent, in the person of Edith Ficeto, violated Section 8(a)(1)
of the Act by interrogating employees about their union
activities, sympathies, and desires; by threatening them
with plant closure and more onerous working conditions in
the event they voted a union into the plant; and by creat-
ing the impression it had their union activities under sur-
veillance.
2. Respondent's campaign literature
Respondent distributed leaflets to its employees by at-
taching them to paychecks. They were reproduced in both
English and Spanish. The one distributed on October 28
read, in its English version:
To: All Employees
From: Quentin Gualtier
Subject: Union Election
On November 12, 1976 an election by secret ballot
will be held in our plant. Voting will be between 6:30
AM and 9:00 AM and 5:00 PM to 6:00 PM.
We again want to remind you that before you vote
to have Local 132 represent you.
THINK CAREFULLY
If you elect the Union, remember that we will bar-
gain from scratch and some of your current benefits
may not continue under a union contract.
The Union cannot create jobs for you.
RAPID MFG. COMPANY
The Union may ask you to go on strike to enforce
their demands.
REMEMBER
If you have no Union there can be no strike.
If you have no Union you won't lose income be-
cause of a strike.
If you have no Union you won't have to pay dues.
We have always been interested in our employees.
We urge you to make sure you VOTE.
VOTE NO
The General Counsel contends that use of the phrase
"bargain from scratch" in the paragraph beginning "[i]f
you elect the Union" violates the Act. The Board has sum-
marized the law with respect to this issue in Coach and
Equipment Sales Corp., 228 NLRB 440 (1977). thus:
"Bargaining from scratch" is a dangerous phrase
which carries within it the seed of a threat that the
employer will become punitively intransigent in the
event the union wins the election. The Board has held
that such "hard bargaining" statements may or may
not be coercive, depending on the context in which
they are uttered. Thus, where a bargaining-from-
scratch statement can reasonably be read in context as
a threat by the employer either to unilaterally discon-
tinue existing benefits prior to negotiations, or to
adopt a regressive bargaining posture designed to
force a reduction of existing benefits for the purpose
of penalizing the employees for choosing collective
representation, the Board will find a violation. Where,
on the other hand, the clearly articulated thrust of the
bargaining-from-scratch statement is that the mere de-
signation of a union will not automatically secure in-
creases in wages and benefits, and that all such items
are subject to bargaining, no violation will be found.
A close question sometimes exists whether bargaining-
from-scratch statements constitute a threat of eco-
nomic reprisal or instead constitute an attempt to por-
tray the possible pitfalls for employees of the collec-
tive-bargaining process. The presence of
contemporaneous threats or unfair labor practices is
often a critical factor in determining whether there is a
threatening color to the employer's remarks. [Foot-
notes omitted.]
The General Counsel relies on the idea expressed in the
last sentence in arguing that:
In the instant case, it is submitted that Respondent
committed the unfair labor practice [sic] discussed in
Points 1-6 [of his brief; this issue is point 5]; the sur-
rounding circumstances therefore added coloration to
this "bargain from scratch" statement and rendered it
coercive.
Here, I think, the surrounding circumstances are out-
weighed by the context of the document in which the
words actually appear. The fact that Respondent, immedi-
ately after using the dangerous phrase, stated explicitly that
a union contract might-not would-cost employees some
471
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of their current benefits puts this case in the category of
those "where . . . the clearly articulated thrust of the bar-
gaining-from-scratch statement is that the mere designa-
tion of a union will not automatically secure increases in
wages and benefits, and that all such items are subject to
bargaining...." I find, therefore, that Respondent has
not violated Section 8(a)(1) of the Act "by literature dis-
tributed to its employees [which] threatened its employees
with loss of benefits if they joined or gave assistance or
support to the Union."
3. William Cruz
a. Facts
Respondent provides its employees with group health
and life insurance. The health coverage is provided by Blue
Cross/Blue Shield. The life insurance is provided by an
insurance company not otherwise identified in the record.
The broker who placed the life insurance policy for Re-
spondent is a company known as Economic Growth
Group. Leonard Mezei is an associate. He handles Respon-
dent's account for Economic Growth Group. He speaks
only English. William Cruz is an employee of Economic
Growth Group. He is bilingual.
New employees become eligible for health insurance af-
ter 30 days on the job (or 60; the record is unclear), and for
life insurance after 90 days. The paperwork is supposed to
be done by Respondent's bookkeeper. However, in the pe-
riod relevant to this issue, a bookkeeper familiar with how
to enroll employees in the plans had been replaced by one
who was unfamiliar with the procedures. Consequently, a
substantial number of employees hired as a result of an
expansion in Respondent's work force which began around
April had not been signed up for the insurance programs as
of October.
Although he has no direct connection with Respondent's
Blue Cross/Blue Shield coverage in his role as Respon-
dent's broker, Mezei services Respondent in that area also
as a courtesty to his customer. Mezei telephoned Gualtier
in October to arrange one of his periodic visits. Gualtier
expressed concern about Mezei's timing, pointing out that
a Board election was scheduled for November 12. Mezei
said he would check with his legal department. He did so
and reported back to Gualtier that there was no legal
impediment to Respondent's signing up its uninsured em-
ployees prior to the election. Mezei and Gualtier arranged
an appointment for that purpose. November 9 was selected
for Mezei's convenience. On that day Mezei brought Cruz
to the plant with him because of the language problem.
Cruz did the signing up, interviewing employees individ-
ually in Gualtier's office. He completed the paperwork nec-
essary to enroll 12 of them for both health and life insur-
ance coverage. The open enrollment period for
Respondent's employees under its Blue Cross/Blue Shield
coverage had expired on November 2.
The following findings as to what Cruz said on Novem-
ber 9 in the course of signing up employees for insurance
coverage are based on the credited testimony of Maridel
Roman and Maria Viera. I do not credit Cruz' denial that
he mentioned the Union or his assertion that he was un-
aware an election was coming up. Having credited General
Counsel's witnesses in their head-to-head credibility con-
flicts with Edith Ficeto, I see no reason to conclude that
they fabricated their testimony about their interviews with
Cruz. Once again, their version is more inherently credible
than Cruz'.
When Cruz interviewed Maridel Roman, he explained
his purpose in being there and asked if she wanted to sign
up for health and life insurance. Ms. Roman said she did.
Cruz explained the coverages and other details and filled
out the necessary forms. Ms. Roman signed them. At a
point in the interview when the insurance business was out
of the way, Cruz asked Ms. Roman what she thought about
the Union. She said she really did not know because she
had no real experience with unions. She explained that this
was only her second job and the first one lasted only a
month. Cruz pressed her about her opinion. She repeated
she had none. Cruz dropped the subject.
Cruz also brought up the Union when he interviewed
Maria Viera. He started by asking her if she knew what the
Union was. She said she did. He said that if it got into the
plant it would be a barrier like a closed door between the
Company and the employees. Always before, he said,
whenever there was a problem, it could be worked out be-
tween the employee and the owner by the employee going
to the owner's office and talking to him about it. He asked
Ms. Viera if she was going to vote for the Union. She said
she was undecided but might vote for it because, whether it
came into the plant or not, she would get the same. Later,
as Cruz was explaining that she would have $2,000 in life
insurance under Respondent's plan, he told her that the
Union's insurance plan only provided for a $1,000 policy.
b. Analysis and conclusions
As with the 8(a)(1) allegations which name Edith Ficeto,
the threshold issue with respect to those which name Wil-
liam Cruz is whether the rules of agency make Respondent
liable for what he said. That he was an agent and acting
within the scope of his authority when he talked about
insurance and signed up the employees is obvious. That
was the purpose for which Respondent invited him into the
plant and permitted him to use Gualtier's office. Since
there is no evidence Respondent expressly authorized or
instructed him to talk about the Union, the issue is whether
he engaged in a frolic of his own or acted within the scope
of his apparent authority when he went beyond his insur-
ance role. The controlling principle is the same as in Ms.
Ficeto's case. Cruz summoned employees to the locus of
managerial authority. He talked to them about fringe bene-
fits which Respondent makes available to them. In that
context he brought up the Union. There is nothing in the
situation which would put an expert in the law of agency
on notice that his union comments were not part and par-
cel of his insurance pitch, much less employees whose
knowledge of English is as limited as their knowledge of
the law. I find, therefore, that Cruz' statements about the
Union are attributable to Respondent, because he acted
within the scope of his apparent authority as Respondent's
agent.
Cruz interrogated both Ms. Roman and Ms. Viera. In
472
RAPID MFG. COMPANY
addition, when he pointed out to Ms. Viera that the
Union's life insurance coverage was only half what she was
getting under Respondent's plan, he sought to pressure her
into voting against the Union. I find, therefore, that Re-
spondent, in the person of William Cruz, violated Section
8(aXl) of the Act by interrogating employees about their
union activities, sympathies, and desires, and by offering
and granting its employees benefits to influence them to
refrain from supporting the Union.
B. Section 8(a)(3)
I. Facts
Respondent received a contract from the Clairol compa-
ny in May to manufacture parts for a grooming device. It
began expanding its work force in April in anticipation of
the contract and continued to hire in May and thereafter.
Employees hired for the Clairol project were not told they
would be terminated when the Clairol work came to an
end. Elena Ocampos was hired in May for the Clairol proj-
ect. She worked initially in the assembly department on the
second floor. However, she was eventually transferred to
the injection molding department on the first floor, where
the Clairol work was performed. Her last day of work was
November 16. She was off sick through November 19,
when she was terminated. The doctor's slip she furnished
to Respondent indicated she would be incapacitated by
severe depression and anxiety psychosis for 30 to 45 days.
Maria Viera was hired in August for the Clairol project.
She worked only in the injection molding department. She
was terminated on November 19. The record does not re-
veal precisely how many employees were hired for the
Clairol project or how many were terminated on Novem-
ber 19 because the work came to an end. Employees in-
volved in this reduction in force were not told they would
be recalled. The General Counsel does not contend that
the termination of the Clairol project employees on No-
vember 19 was discriminatorily motivated. Elena Ocampos
and Maria Viera are the only terminated Clairol project
employees against whom the General Counsel contends
Respondent discriminated by failing to recall them on re-
ceiving a new Clairol contract in January 1977.
All six employees. including Edith Ficeto, in the assem-
bly department were laid off the same day, They were told
that the reason for shutting the department down was a
shortage of the stainless steel used in the product they were
assembling. (Their work had nothing to do with the Clairol
project.) They were told they would be recalled when the
steel came in, a matter of an estimated 8 weeks. This was,
apparently, the only time in Respondent's history it laid off
employees due to a lack of work rather than transferring
them elsewhere in the plant. The only incident about which
there is any detail in the record involved a situation where
the interruption caused by a shortage of material lasted less
than 2 days.
Assembly department employees were eventually re-
called. Edith Ficeto was the first. She returned to work
after 2 weeks. Milagrcs Bruno was recalled on January 6,
1977, and Rosa Santiago on January 13, 1977. Ms. Bruno
and Ms. Santiago are the only assembly department em-
ployees against whom the General Counsel contends Re-
spondent discriminated by laying them off on November
19.
Clairol reordered on January 27, 1977. Respondent did
not recall any of the Clairol project employees it had termi-
nated on November 19. Ms. Bruno and Ms. Santiago
worked in the injection molding department when they re-
turned. In addition, Respondent hired new employees. At
least one of the terminated Clairol employees heard that
Respondent was hiring, applied, and was rehired. This was
Maria Laracuente, known to Respondent as antiunion
prior to the November 12 election. (Respondent has sev-
eral employees named Laracuente. Presumably, Ms. Lara-
cuente learned that Respondent was hiring from members
of her family.) She apparently returned to work on January
6, 1977. Ms. Ocampos and Ms. Viera did not apply for
rehire. Each attempted to reach Gualtier by telephone just
before she filed an unfair labor practice charge against Re-
spondent. Neither acted on the message Gualtier relayed
through his secretary that she should come to the plant.
Ms. Bruno and Ms. Ocampos solicited other employees
to sign authorization cards. All four alleged discriminatees
signed authorization cards themselves and attended union
meetings. One or more of Respondent's supervisors saw
each of the four talking to organizers outside the plant in
late September. (I do not credit Gualtier's denial of an
incident related by Ms. Viera and Ms. Ocampos in which
he stood in the door of the plant and looked at them as
they, seated in an automobile, talked to an organizer.)
2. Analysis and conclusions
Each of the two 8(a)(3) allegations in the complaint turns
on whether the General Counsel has proved Respondent
discriminated against its employees because of their union
activities. In the case of the layoffs of Milagros Bruno and
Rosa Santiago, the only fact, other than Respondent's
union animus, which might justify a finding Respondent
was discriminatorily motivated is that no one had ever
been laid off before. In and of itself it has almost no signifi-
cance. No fair analogy can be drawn between a situation
where Respondent anticipated an 8-week wait for material
and a situation in which employees were transferred to
other jobs for a day or a day and a half. When weighed
against the facts, not controverted by the General Coun-
sel,4 that the steel situation gave Respondent a sound busi-
ness reason for closing the assembly department, that it
laid off the entire department, that it told Ms. Bruno and
Ms. Santiago that they could anticipate recall in about 8
weeks, and that they were, in fact, recalled as promised, its
significance disappears entirely. I find, therefore, that the
General Counsel has failed to prove by a preponderance of
the evidence on the record as a whole that Respondent was
discriminatorily motivated within the meaning of Section
8(aX3) and (1) of the Act when it laid off Milagros Bruno
and Rosa Santiago on November 19.
Respondent's failure to recall Elena Ocampos and Maria
41 attach no significance to the fact, stressed by the General (Councel In
his brief, that Respondent produced no documentary corroboration for
Gualtier's testimony that a lack of stainless steel forced a shutdown of the
assembly department.
473
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Viera presents a somewhat closer issue. The General Coun-
sel has alleged January 6, 1977, as the day on or about
which this violation occurred on the theory that the rehire
of Maria Laracuente, another Clairol project employee,
and the recall of Ms. Bruno establish the date on which
restaffing for the Clairol reorder began. Recalling already
trained employees does make better business sense than
hiring persons who have never worked in the plant before.
However, operating the machines used in the Clairol proj-
ect is not highly skilled work. A new employee can be
trained in a relatively short period of time. Moreover, to
find for the General Counsel, I would have to discredit
Gualtier's testimony that Respondent drew a distinction
between the Clairol termination and the assembly depart-
ment layoff. As a matter of policy, he said, Respondent did
not attempt to recall any of the persons in the former
group. All of the evidence elicited by the General Counsel
on this point corroborates Gualtier. Ms. Bruno and Ms.
Santiago were told they would be recalled. Nothing was
said to Ms. Ocampos and Ms. Viera when they were termi-
nated.5 The former pair were, in fact, recalled. There is
nothing in the record to indicate that any Clairol project
employees, Ms. Laracuente included, who did return to
work did not initiate that action herself by applying for
rehire. Ms. Ocampos and Ms. Viera do not contend that
they applied. They only tried to contact Gualtier after
Ocampos told someone at the unemployment office that
Respondent was hiring new employees. She was advised
that that was illegal and was sent to the Board. While I
have discredited Gualtier in some important areas of this
proceeding, I am unwilling to discredit him in this to find
that Respondent had no such policy or deviated from it
with respect to Ms. Ocampos and Ms. Viera because of
their union activities when there is nothing either positive
or negative in the record to support such a conclusion.
Since Ms. Ocampos and Ms. Viera were not treated differ-
ently from other Clairol project employees, and since their
not returning to work grew out of their failure to apply,
there is no basis for finding Respondent discriminated
against them. I find, therefore, that the General Counsel
has failed to prove by a preponderance of the evidence on
the record as a whole that Respondent violated Section
8(a)(3) and (1) of the Act by failing to recall Elena Ocam-
pos and Maria Viera on and after January 6, 1977.
C. Section 8(a)(5)
dated October 6, in a unit of 40 employees. Nine were
received into evidence on the testimony of either the card
signer or a fellow employee who had observed the card
being signed by the employee whose name the card bears.
The only testimony relating to the other 19 was that of the
two organizers who conducted the campaign. They testi-
fied that all 28 cards were those received by the Union in
the course of its campaign, that an unspecified number had
reached them through the mail, and that the balance had
been handed to them outside the plant. They could not
specify which of the 19 cards not already in evidence they
had personally received or that any particular cards had
been signed in their presence. I rejected all 19 on the
grounds they had not been properly authenticated under
current Board law for the purpose of determining whether
the Union represented a majority of Respondent's employ-
ees under the Gissel doctrine. On special appeal by the
General Counsel, the Board reversed me. I understand the
Board's action to constitute a holding that cards identified
in this manner, i.e., by testimony which establishes that
cards in issue were received by a union in the course of an
organizing campaign, without more, are properly authenti-
cated. I find, therefore, the Union represented a majority
of Respondent's production and maintenance employees
on September 24, the day it demanded recognition.6 Re-
spondent admitted the appropriateness of such a unit for
purposes of collective bargaining.
2. The applicability of Gissel
Gissel, supra, stands for the proposition that an 8(a)(5)
remedy is appropriate if an employer has committed unfair
labor practices which have the tendency to undermine a
union's majority strength and impede the Board's election
process in situations where "the possibility of erasing the
effects of past practices and of ensuring a fair election ...
by the use of traditional remedies, though present, is slight
and ... employee sentiment once expressed through cards
would, on balance, be better protected by a bargaining or-
der." The Board has recently held that a threat to close the
plant, even though voiced only by the lowest level supervis-
or, is the sort of unfair labor practice which traditional
remedies are unlikely to erase. C & T Manufacturing Com-
pany, 233 NLRB 1430 (1977). Here, Edith Ficeto voiced
such a threat to a group of employees. Also this is a small
1. Prerequisites to bargaining
As proof of majority, the General Counsel offered 27
authorization cards dated September 22, 23, and 24 and 1
The General Counsel contends that the following questions and answers
establish that Ms. Viera was told she would be recalled when she was termi-
nated. I disagree.
Q. Why didn't you call to see if there was work available from No-
vember 19th to February 2nd?
A. Because I was waiting that they would call me.
Q. Who told you when you were laid off that somebody would call
you?
A. I don't recall exactly with whom I spoke, who told me that the
work was low at that time, and that I may be recalled in two weeks. I
don't know who the person was. Maybe it was Mr. Quinnie (phonetic).
The day before they laid us off-
JuiGE BLtcuvuiN Didn't she say "1 remember," in English?
THE INTErPIIETE She did say that in English.
JuaIE BLA(c.UU I want to make sure it got into the record.
THE WITEsss I remember the day before the layoffs were given out,
the day before I was laid off, I had to go to the office to offer a paper,
and then I went into Mr. Quinnie's office. And I asked him, although I
understand little English, when they were going to give layoffs. He
answered me that he understood in two or three weeks. That if they
gave layoffs, the people would be recalled in two or three weeks.
See Appendix B, attached hereto.
474
RAPID MFG. COMPANY
plant. Ficeto's relationship to the other employees is a spe-
cial one, growing out of her close family relationship with
management as well as the fact that there are few supervis-
ors in the plant. Thus, no meaningful distinction can be
drawn between C & T and this proceeding on the grounds
that there a supervisor spoke while here the person who
threatened to close the plant was Respondent's agent. I
find, therefore, that Respondent violated Section 8(a)(5)
and (1) of the Act by refusing on and after September 24 to
recognize and bargain with the Union, which represented a
majority of Respondent's employees in a unit appropriate
for purposes of collective bargaining and had requested
recognition on behalf of those employees.
111. THE OBJECTIONS TO THE ELECTION
The Board's Order directing a hearing in Case 22-RC-
6902 refers all or part of four of the Union's eight objec-
tions to me. I dismissed Objection 6 at the close of the
General Counsel's case-in-chief on counsel's admission
that no evidence had been adduced in support of it. While
the language of the other three objections does not match
that of the issues spelled out in the complaint, it is clear
from the Board's Order and the Regional Director's Report
on Objections that the other objections referred to me (1,
part of 4, and 2) are, respectively, the same as the 8(aX1)
issues disposed of above in the sections entitled "Edith Fi-
ceto," "Respondent's campaign literature," and "William
Cruz." Having found Respondent committed serious un-
fair labor practices through the activities of its agents Fice-
to and Cruz, I recommend that the election held in Case
22-RC-6902 on November 12 be set aside and the petition
dismissed. In the event my recommendation that Respon-
dent be ordered to recognize and bargain with the Union is
not sustained, I recommend that the petition not be dis-
missed but that a second election be held at such time as
the Regional Director may deem appropriate.
Upon the foregoing findings of fact, and upon the entire
record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Rapid Manufacturing Company is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Plastic, Moulders, and Novelty Workers' Union Lo-
cal 132, International Ladies' Garment Workers' Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By interrogating employees about their union activi-
ties, sympathies, and desires; by threatening to close its
plant in the event they voted a union into it; by threatening
them with more onerous working conditions in the event
they voted a union into the plant; by creating the impres-
sion it had their union activities under surveillance; and by
offering and granting them benefits to refrain from sup-
porting the Union, Respondent has violated Section 8(aXl)
of the Act.
4. By refusing on and after September 24 to recognize
and bargain with the Union as the collective-bargaining
representative of its production and maintenance employ-
ees, Respondent has violated Section 8(a)(5) and (1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. The allegation of the complaint that Respondent vio-
lated Section 8(aXl) of the Act by distributing literature to
its employees which threatened them with loss of benefits if
they supported the Union has not been sustained.
7. The allegations of the complaint that Respondent vio-
lated Section 8(aX3) of the Act have not been sustained.
8. All production and maintenance employees at Re-
spondent's Newark plant, excluding toolmakers, office
clerical employees, professional employees, guards, and
supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 7
The Respondent, Rapid Manufacturing Company, New-
ark, New Jersey, its officers, agents, successors, and as-
signs, shall:
i. Cease and desist from:
(a) Interrogating employees about their union activities,
sympathies, and desires.
(b) Threatening to close its plant in the event employees
vote a union into it.
(c) Threatening employees with more onerous working
conditions in the event they vote a union into its plant.
(d) Creating the impression it has the union activities of
employees under surveillance.
(e) Offering and granting employees benefits to refrain
from supporting a union.
(f) Refusing to recognize and bargain with Plastic,
Moulders, and Novelty Workers' Union Local 132, Inter-
national Ladies' Garment Workers' Union, AFL-CIO, as
the collective-bargaining representative of its employees in
the unit found appropriate herein.
(g) In any other manner interfering with or attempting
to restrain or coerce employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following actions necessary to effectuate the
purposes of the Act:
(a) Upon request, bargain collectively with Plastic,
Moulders, and Novelty Workers' Union Local 132, Inter-
national Ladies' Garment Workers' Union, AFL-CIO, in
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.
475
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the unit of employees found appropriate herein and, if an
understanding is reached, embody such understanding in a
signed contract.
(b) Post at its plant in Newark, New Jersey, copies of
the attached notice marked "Appendix A." 8 Copies of said
notice, on forms provided by the Regional Director for
Region 22, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 22, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges Respondent violated Section 8(a)(I) of
the Act by distributing literature to its employees which
threatened them with loss of benefits if they supported the
Union, and insofar as it alleges Respondent violated Sec-
tion 8(aX3) of the Act.
s In the event that this Order is enforced by a judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
hearing, that we violated Federal law in various ways, we
hereby notify you that:
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
aid or protection
To refrain from any or all of these things.
WE WILL NOT interrogate you about your union ac-
tivities, sympathies, and desires.
WE WILL NOT threaten to close our plant in the event
you vote a union into it.
WE WILL NOT threaten you with more onerous work-
ing conditions in the event you vote a union into our
plant.
WE WILL NOT create the impression we have your
union activities under surveillance.
WE WILL NOT offer or grant you benefits to refrain
from supporting a union.
WE WILL NOT refuse to recognize and bargain with
Plastic, Moulders, and Novelty Workers' Union Local
132, International Ladies' Garment Workers' Union,
AFL-CIO, as your collective-bargaining representa-
tive.
WE WILL. upon request, bargain collectively with
Plastic, Moulders, and Novelty Workers' Union Local
132, International Ladies' Garment Workers' Union,
AFL-CIO, as your exclusive representative in a unit
of all production and maintenance employees, exclud-
ing toolmakers, office clerical employees, professional
employees, guards, and supervisors as defined in the
Act, and if an understanding is reached, embody such
understanding in a signed contract.
RAPID MA JUFACTURING COMPANY
APPENDIX B
Two of the cards which were authenticated by the em-
ployees whose names they bear are, I think, invalid as elec-
tion-only cards under current Board law. Maridel Roman
was solicited by an employee named Carmen on Septem-
ber 24. She testified:
Q. Did you read the card before you signed it?
A. No, just the top part.
THE WITNESS: When I went in in the morning, the
girls told me that if anyone had given me a card to
sign and I said no because I was late and I didn't have
time to talk to anyone. Then she told me-
JUDGE BLACKBURN: Who is she?
THE WITNESS: Carmen.
THE WITNESS: She told me, "Did you sign these
cards before" and I said no. Then she told me that
they were trying to get the union in there and that the
guys that were outside, were the ones that were going
to help them and then she told me-all the girls were
all together around and they said we are signing these
cards so we can have an election to see if we can win
and have the union in there. Then she told me if you
want, you could sign it, but don't worry about the
card. The card is hardly anything. It won't do any
harm. And so I said, okay, I'll sign it. So I signed it
and she took it and she told me, don't say anything to
anyone else that we have the cards on us.
The General Counsel conceded Ms. Roman's card is inval-
id.
Maria Irizarry was solicited by Elena Ocampos on Sep-
tember 23. She testified:
Q. (By Mr. Craner) Now, when Mrs. Ocampos
asked you to sign this card, did she explain to you
what the card was for?
A. Yes.
476
RAPID MFG. COMPANY
Q. And what did she tell you was the purpose for
your signing the card?
A. To have some elections in order for the union to
get in.
Q. Aild that's why you signed the card, to have the
election?
A. I signed the card because all the other co-work-
ers signed the cards.
Q. But did you sign it also because you wanted to
have the election?
A. Oh, well, no, because when she brought the
card, she said that we could sign the card because we
did not compromise ourselves on anything.
Q. Well, she told you that the card was to have an
election; is that correct?
A. Yes. She told me that the card was because she
wanted to have an election.
Q. And that's one of the reasons why you signed it;
is that correct?
A. Oh, yes. I did sign it.
Q. Did you read the card completely before you
signed it, or did you just fill it out?
A. I signed it.
Q. Without reading it thoroughly?
A. Without reading it.
Q. (By Mr. Grant) Tell us exactly what Elena said
to you from the beginning to end in the conversation
you had when you signed the card?
A. Elena had some-several cards. She and Milag-
ros. Then at the entrance of the backroom there were
other co-workers, Zola, Miguel and myself. Then she
gave us cards to sign them.
Q. What was Milagros doing?
A. Nothing. With her.
Q. Now, can you remember what was said by Elena
at that time-everything?
A. No.
Q. Well, tell as what you can remember.
A. No. She only told us to sign the card and noth-
ing else. She said nothing else.
When the cards of Roman and Irizarry and the card
dated October 6 are eliminated, the Union still had 25 val-
id authorization cards in its possession on September 24 in
a unit of 40 employees.
477