S. L. Industries, Inc., 1-CA-14224

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1058 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. L. Industries, Inc., and Extruded Products, Corp.
and United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO
S. L. Industries, Inc. and United Rubber, Cork, Li-
noleum and Plastic Workers of America, AFL-
CIO, Petitioner. Cases 1-CA-14224, I-CA-
14475, -CA-14700, I-CA-14788, and I-RC-
15668
September 30, 1980
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On February 29, 1980, Administrative Law
Judge David S. Davidson issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed exceptions and a brief in sup-
port of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs' and has decided to affirm the rulings, find-
ings, and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
AMENDED) REMEDY
We agree with the Administrative Law Judge
that issuance of a bargaining order is warranted in
this case. 3 Contrary to the Administrative law
l Respondent's request for oral argument is hereby denlied because the
record, exceptions, and briefs adequately set forth the issues and the par-
ties' positions.
2 Member Penello agrees with the Administrative Law Judge's conclu-
sion that Respondent's employees Were engaged in protected concerted
activity when they walked ut of the plant on February 23. 1978, in pro-
test over anticipated changes in their scheduled work hours and lver the
discharge of a supervisor h ho had attempted to convince management
officials inot to change the employees' scheduled hours. In so concluding,
however, Member Penello does not rely on Puerto Rico Food Producrt
Corp., 242 NLRB 899 (1979), enforcement denied in pertinent part 104
LRRM 2304, 88 LC 12.060 (Ist Cir. 1980). cited by the Administrative
Law Judge. Rather. Member Penello relies n the test set forth in Plasti-
lie Corporation, 153 NlRBH 180 (1965). enfd i perlinent part 375 F.2d
343 (8th Cir. 1967). See Ola-lnn d/b/a Ilohday Inn of Helnryeltu, 198
NL.RI 410 (1972). enfd 488 F 2d 498 (10th Cir 1973)
In adopting the Administrative Ltaw Judge's conclusion that the Union
did not offer al] improper inducement to employees to sign union aulhori-
zation cards. Member Penello does not rely on .. D. Mcarland Conpau-
ny, 219 NI.RB 575 (1975). enfd. 572 F 2d 256 (th Cir. 1978), cited h) the
Administrative I.aw Judge Although Member Penello dissented in
Mcfarlund, he notes that the statement made by the uion representative
in his case did niot conditlilo the waiver of initiation fees upoi member-
ship in the Union as did the statement involsed in MclFarland
a Members Jenkins and Penello agree with the Admilistrative Law
Judge that the bargaining order should issue as of March 15 1978. the
date on which the nion attained its majority H1oe\cer, i accordance
with his separate opinion in Beasly Eneirgy. Inc.. d/b/ua Peker Run Coal
252 NLRB No. 151
Judge, we conclude that even if the Union should
win the election after a revised tally of ballots is
issued, that it is entitled to both a certification and
a bargaining order. If the Union prevails in the
election, the bargaining order will issue only to
correct any unilateral changes Respondent may
have made during the time it had an obligation to
bargain with the Union. 4
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, S. L. Indus-
tries, Inc. and Extruded Products, Corp., Madison,
Connecticut, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, except that the attached notice
is substituted for that of the Administrative Law
Judge.
IT IS FURTHER ORDERED that the proceeding in
Case 1-RC-15668 is hereby remanded to the Re-
gional Director for Region I to take the necessary
action pursuant to the following Direction.
DIRECTION
The Regional Director for Region I is hereby di-
rected to open and count the ballots of Kathleen
Blake, Doreen Bowser Cook, William Cook, Ruth
Davis, Mark Faiella, Carol Gaul, Janice King,
Jessie Miller, Gloria Niemi, Dana Pitts, Gregory
Spaulding, Melissa Spaulding, Chris Stahlheber,
and Oren Thompson and that an amended tally of
ballots be served on the parties. Thereafter, the Re-
gional Director shall proceed in the manner set
forth by the Administrative Law Judge in his Deci-
sion, except as modified by the amended remedy
herein.
Company. Ohio Division #1, 228 NLRB 93 (977), Chairman Fanning
would issue a prospective bargaining order
4 See, e.g., The Great Arlanic & Pacific Tea Company, Inc., 230 NLRB
766., 767--768 (1977); Pope Maintenance Corporation, 228 NLRB 326, 344,
348 (1977).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE Wll.L NOT threaten our employees with
plant closure because of their union activities.
WE WI.L NOT promise our employees bene-
fits if they reject union representation.
1058
S. L. INDUSTRIES, INC
WE WIll. NOT require our employees to be
interviewed as a condition of reinstatement fol-
lowing any protected concerted work stop-
page.
WE WILL NOT interrogate employees about
their protected concerted activities.
WE WILL NOT grant additional paid holidays
in order to discourage employees from engag-
ing in union activities.
WE WILL NOT announce or establish an em-
ployee committee to handle employees' griev-
ances.
WE WIL.L NOT convey to our employees that
they cannot be reinstated because charges in
their behalf are pending.
WE WIL.L NOT restrict our employees from
communicating with one another in the plant
because of their protected concerted or union
activities.
WE WILL NOT discharge, refuse to reinstate,
layoff, or otherwise discriminate against our
employees in regard to their hire or tenure, or
any term or condition of employment, because
they engage in protected concerted activities
or activities on behalf of United Rubber, Cork,
Linoleum, and Plastic Workers of America,
AFL-CIO, or any other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to engage in or to re-
frain from engaging in any or all the activities
specified in Section 7 of the Act. These activi-
ties include the right to self-organization, the
right to form, join, or assist labor organiza-
tions, to bargain collectively through represen-
tatives of their own choosing, and to engage in
other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection.
WE WIL L offer the following employees im-
mediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to sub-
stantially equivalent jobs, without prejudice to
their seniority or other rights and privileges
previously enjoyed, and WE WILL make them
whole for any loss of earnings they may have
suffered as a result of the discrimination
against them, plus interest.
Alma Beecher
Kathleen Blake
Carol Lee Clark
Doreen Bowser
Cook
William Cook
Ruth Davis
Pedro Diaz
Merea Jones
Janice King
Christine Leibowitz
Cheryl Martin
Jessie Miller
Goria Niemi
Dana Pitts
Daniel Dineen
Craig Estelle
Mark Faiella
Mary Garigliano
George Garland
Carol Gaul
Willaim Hawley
Nelson Platts, Jr.
Gregory Spaulding
Melissa Spaulding
Brett Stahlheber
Christopher Stahlheber
Francis Thompson
Orin Thompson
WE WILL, upon request, recognize and bar-
gain collectively in good faith with United
Rubber, Cork, Linoleum, and Plastic Workers
of America, AFL-CIO, for the unit described
herein with respect to rates of pay, wages,
hours of work, and other terms and conditions
of employment, and WE WILL. upon request
embody in a signed agreement any understand-
ing reached. The bargaining unit is:
All production and maintenance employees
at our Madison, Connecticut, plant, but ex-
cluding truckdrivers, office clerical employ-
ees, professional employees, guards, and su-
pervisors as defined in the Act.
S. L. INDUSTRIES, INC. AND EXTRUD-
ID PRODUCTS, CORP.
DECISION
SIATLEMENT OF1 THE CASEI
DAVI) S. DAVIDSON, Administrative Law Judge: The
charges in these consolidated cases were filed by United
Rubber, Cork, Linoleum and Plastic Workers of Amer-
ica, AFL-CIO, referred to herein as the Union, on
March 13, May 12, July 11, and August 4, 1978. An
original complaint issued on April 19, 1978, and was fol-
lowed by several amended consolidated complaints, the
last dated January 23, 1979, which was further amended
at the hearing. In its answer Respondent denies commis-
sion of any unfair labor practices and asserts various af-
firmative defenses.
In Case -RC-15668 a petition was filed on March 28,
1978, by the Union seeking to represent the production
and maintenance employees of S. L. Industries, Inc. A
hearing was held on April 20, 1978, and on June 7, 1978,
the Regional Director issued his Decision and Direction
of Election. The election was conducted on July 7, 1978,
resulting in a vote of 24 against the participating labor
organizations, 6 in favor of the Union, and 25 challenged
ballots. The Union thereafter filed timely objections to
conduct affecting the results of the election. On August
22, 1978, the Regional Director issued a Supplemental
Decision in which he found that the Union's first and
third objections should be consolidated with the com-
plaint for purposes of hearing and decision. ' The Re-
gional Director also overruled the challenges to five bal-
lots and sustained the challenges as to five ballots. With
respect to the remaining 15 challenged ballots the Re-
'The Ulnion had pre\iously withdrawn is other objeclions
1059
DECISI()NS ()F NATIONAL IA()OR RL.AIlI()NS ()ARI)
gional Director found that the issues raised by the chal-
lenges were related to those raised by the complaint and
therefore consolidated those challenges with the unfair
labor practices for purposes of hearing and decision.
A hearing in the consolidated cases was held before
me in New Haven, and Old Saybrook, Connecticut, be-
tween February 26 and March 8, 1979. At the conclusion
of the hearing the parties waived oral argument arind
were given leave to file briefs which have been received
from the General Counsel and Respondent.2 The issues
raised by the pleadings and the evidence are:
1. Whether S. L. Industries, Inc. (S.L.), and Extruded
Products, Corp. (E.P.), referred to herein collectively as
Respondent, constitute a single employer and/or alter
egos within the meaning of the National Labor Relations
Act, as amended, herein the Act.
2. Whether employees of S.L. were engaged in pro-
tected concerted activity when they walked off their
jobs on February 23, 1978," following the discharge of a
supervisor.
3. Whether Respondent unlawfully required all em-
ployees who walked off their jobs to meet individually
with management to negotiate their reemployment and
unlawfully interrogated them during such meetings.
4. Whether Respondent unlawfully discharged Janice
King, Christine Leibowitz, and Jessie Miller on March 3
because of their participation in the walkout and union
activities and thereafter refused to reinstate them because
charges were pending in their behalf.
5. Whether Respondent gave unlawful assistance to a
labor organization on March 7 by entering into an agree-
ment with it covering S.L.'s employees at a time when it
did not represent a majority of S.L.'s employees.
6. Whether Respondent unlawfully granted S.L. em-
ployees a paid holiday on Good Friday, March 24.
7. Whether Respondent rendered unlawful aid to an
hourly employee committee by posting a notice that it
was being established to handle grievances and other
problems.
8. Whether Respondent unlawfully threatened at var-
ious times after March 10 that S.L. would close its busi-
ness if employees chose to be represented by a union.
9. Whether Respondent discriminated against
Leibowitz after reinstating her on May I by assigning
her to a job more onerous than the job she previously
held and denying her the normal hours and lunch period
of other employees in her department.
10. Whether Respondent on May 3 unlawfully ordered
employees not to speak to Leibowitz during working
hours after her reinstatement.
2 In its brief Respondent reraises its oral motion a the hearing to
amend its answer to add as its eighth affirmative defense the issue of
racial and sex discrimination by the Union. Although Respondent now
argues that it was denied the opportunity to present evidence showing
discriminati on by the UJnion, Respondent's motion sought to place on the
General Counsel the burden of showing an absence of discrimination, and
at the hearing it never offered to prove. or represented that it had, evi-
dence Io show such discrimination N'atter Manufacluring Corporalom v.
N.L.R.B., 50K F.2d 948 (9th Cir 1978), cert. denied 439 U.S 1128, which
Respondent cites in support or its posiion, to the contrary supports the
denial (of the motion as it was made at the hearing
:' All dates referred to herein occurred in 1978, unless otherwise stated.
11. Whether Respondent discriminatorily laid off ap-
proximately 24 employees on May 5 and an additional
employee on May 19 and thereafter discriminatorily re-
fused to reinstate them.
12. Whether Respondent by letter dated July 3 im-
pliedly promised benefits to employees if they voted
against a union, threatened plant closure if they voted for
one, and conveyed that selection of a union would be
futile.
13. Whether Respondent discriminatorily refused to
grant Leibowitz a vacation or vacation pay on and after
May 22 and discriminatorily discharged her on July 17.
14. Whether any or all of the challenged ballots cast in
the July 7 election should be counted.
15. Whether the Petitioner's objections to conduct af-
fecting the results of the representation election held on
July 7 should be sustained.
16. Whether Respondent engaged in unlawful conduct
which destroyed the Union's majority status and made a
fair election impossible so as to warrant entry of an
order requiring Respondent to bargain with the Union.
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDIINGS AND CONCLUSIONS
1. THE BUSINtESS OF RESPONDENTS
S.L. is a Connecticut corporation with its principal
office and place of business in Madison, Connecticut,
where it engaged until August 3, 1978, in the manufac-
ture, sale, and distribution of extruded polyethylene
products such as garbage liners, drum liners, and packag-
ing items. Since 1977 Seamless Pipeline Coatings, Inc.
(Seamless), a wholly owned subsidiary of S.L., has
shared the Madison premises, occupying approximately
one-third of the space, and has manufactured pipeline
coatings for oil and gas transmission lines utilizing a
sheet product made for it by S.L. on S.L.'s equipment. 4
At all times material E.P. has been a New Jersey cor-
poration with its principal place of business in Clifton,
New Jersey, where it also manufactures extruded poly-
ethylene products but of a different gauge than those
manufactured by S.L. and with different equipment.
At all times material Donald Atkinson has been presi-
dent of S.L. and Seamless. Until June 30, 1978, Atkinson
was chairman of the board and chief executive officer of
E.P., and Robert Hayes was its president. Atkinson par-
ticipated in major decisions for E.P., and Hayes handled
its day-to-day operations. On June 30 because of Hayes'
illness, Atkinson replaced him as president of E.P. while
retaining his other positions. At all times material Doro-
thy Wright has been a vice president, secretary, and trea-
surer of all three corporations. At all times material S.L.
and E.P. also each had three or four additional vice
presidents who did not hold office in the other corpora-
tion. Each of the corporations had three directors of
whom two were Atkinson and Wright. In the case of
4 Until 1977 Seamless was a division of S L. In 1977 it was separately
incoirporated to facilitate doing business in Oklahoma where the name
S. had been registered by an unrelated entity as its business name
I Oh(
S. L. INDUSTRIES, INC.
S.L. the third director was Walter Reuman, a representa-
tive of S.L.'s bank. In the case of E.P. the third director
was its president, Hayes.5
Ownership of S.L. and E.P. was also interlocking. At-
kinson owned 76 percent of the stock of S.L. and Wright
owned 2 percent. Atkinson also owned 98 percent of the
stock of a fourth corporation, Ark, Inc., which in turn
owned two-thirds of the stock of E.P. The remaining
third of the stock of hI.P. was owned by Hayes.6 Ark,
Inc., also owned the building in Madison in which S.L.
was located until August 3, 1978; in which E.P. was lo-
cated after that date, and in which Seamless was located
at all times material. Ark also handled the sales of laun-
dry bags made by S.L.'s Ark department until August 3.
Records for S.L., Seamless, and E.P. have been main-
tained at all times material at Madison under the direc-
tion of Wright. The three Corporations have shared the
use of the common computer and utilized the same ac-
countant who prepared their statements and tax returns.
When E.P. negotiated a new collective-bargaining
agreement for its Clifton employees which became effec-
tive January 3, 1978, Atkinson was consulted and shown
a copy of the document. He participated in the discus-
sion of guidelines for the wage increases before the nego-
tiations and participated in negotiation of an earlier col-
lective-bargaining agreement covering these employees.
In March 1978, as set forth below in more detail, Atkin-
son and Hayes signed an agreement on behalf of S.L.
and E.P. recognizing the Machinists Union as the repre-
sentative of the production and maintenance employees
at S.L.'s Madison plant, in which they acknowledged
that S.L. and E.P. "function as a single employer within
the meaning of the NATIONAL LABOR RELATIONS
ACT," that "products are produced and customers
served by the interproduction of the two plants," and
"that ownership and control is direct and substantial
with respect to the operation as a whole."
Whatever operational separation may have existed be-
tween S.L. and E.P. before the spring of 1978, the execu-
tion of this agreement heralded a period of merging iden-
tity between the two corporations. During the spring
and summer when S.L. had difficulty obtaining additive
resin from its suppliers to meet its production needs, it
purchased E.P.'s scrap to use as raw material. From the
time that Atkinson replaced Hayes as president of E.P.,
Atkinson and Wright made critical decisions on behalf of
both corporations resulting in termination of all manufac-
turing operations by S.L. and the replacement of S.L. by
E.P. as the operator of S.L.'s machinery in the Madison
plant, with the same employees who had been working
for S.L. when operations terminated continuing to work
for E.P. With the exception of a new production man-
ager, supervision remained the same, and Atkinson in a
single letter notified employees of both the bad news that
there was no more work for them as employees of S.L.
s The name of the third director of Seamless does riot appear in he
record However, there is no question that Seamless a kholly oned
subsidiary of S L, and S.. have at all times material constituted a single
employer, and I so Find
. While testimony as to the ow nership of S. . and E P is inconclusi:c.
tax returns for S L. and EP. placed in evidence h the General Counsel
and Respondent, and particularly the Ne%. Jerse? tax returns for E '. es-
tablish the common iornership
and the good news that they were all invited to work for
E.P. at Madison under comparable terms of employment.
While Atkinson and Wright described the transaction as
a termination of business by S.L. and a leasing of its
premises and equipment to E.P. on a month-to-month
basis, it was Atkinson and Wright who made the deci-
sions and negotiated the leases for S.L. and the same At-
kinson and Wright who made the decisions and entered
into the leases for E.P., without any written memorial in
the form of director's minutes or lease agreements. 7
I find that in the spring and summer of 1978, Atkinson
and Wright exercised the power of control over S.L. and
E.P. which flowed from Atkinson's ownership of the
controlling interest in both corporations and their control
of both boards of directors to assert control over operat-
ing and labor relations policies of both corporations to
the end of having E.P. replace S.L. as the operator of
the business formerly conducted by S.L. at its Madison
plant. I find that S.L. and E.P. at times material herein
were a single employer and that in August 1978 E.P.
became the alter ego of S.L.8 As S.L. and E.P. have
direct inflow and outflow of goods and materials in in-
terstate commerce exceeding $50,000 a year, I find fur-
ther that it will effectuate the policies of the Act to
assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION INVOI VED
The Union is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR ABOR PRACTICES
A. The February 23 W'alkout
1. The facts
Until the spring of 1977 the S.L. Madison plant had
operated with three 8-hour shifts on a schedule of 12
consecutive workdays followed by 2 days off every
other weekend. In the spring of 1977 because of high ab-
senteeism S.L. shifted to a 5-day workweek with every
weekend off. S.L. remained on that schedule thereafter.
In February 1978, S.L. lost production time on its ex-
trusion machines due to bad weather. This loss of pro-
duction came at a time when S.L. had for some time
been experiencing increasing operational losses. S.L. also
was finding it increasingly difficult to obtain additive
resin, the raw material used in making S.L.'s products,
from its principal supplier, Arco Polymers, because of
Arco's unwillingness to ship resin to S.L. without a re-
duction in the outstanding balance on S.L.'s account due
Arco. Atkinson, Wright, and Plant Manager Lambert
Harrison felt themselves under pressure to make up for
lost production, ship products to customers as quickly as
possible, and generate cash flow to alleviate its problems
obtaining additive resin. In order to make up for the lost
7 Wright testified that she beliesed notes were aken of the director's
meeting a;d were given to Respondent's laA er, Atkinson testified that
onl rnoltes ere ritten on restaurant napkins andi destroyed at the con-
clusilln of the meetings Although he General C(ounsel sbpenaed the
nlllutes of these meetings, none "ere produce(d
: LruZle ', nint. I, L. 224 NLRH i 5. h4 (19761
1061
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production time Atkinson, Wright, and Harrison dis-
cussed the possibility of reverting to the 12-day work
schedule, and on the weekend of February 18 and 19
most of the employees at the plant were asked to work
overtime to make up production. During the following
week there were rumors throughout the plant that a
return to the 12-day workweek was being considered.
On February 23, day-shift employee Jessie Miller re-
ported early to work overtime before her shift started at
8 a.m. In the early morning hours several employees on
the midnight to 8 a.m. shift told Miller that their foreman
had told them that they would be going on the 12-day
schedule. Miller spoke to Day Foreman George Nadeau
about it, and he showed her an outline of suggestions
written by him which he felt would increase production
without changing the work schedule. In his outline
Nadeau listed a number of problems including material
shortages, maintenance problems, mistakes in the pro-
cessing of orders, employee turnover, lack of planned
wage increases, poor morale, crowded working condi-
tions, and lack of communication, and Nadeau asserted
that if these problems were resolved weekend work
would not be necessary to make up for production lost
during the week.
That morning Nadeau put copies of his outline on the
desks of Atkinson and Wright. In midmorning Atkinson
called Nadeau to his office and discharged him for dis-
loyalty.
Word of Nadeau's discharge spread quickly through
the extrusion department, and a copy of Nadeau's out-
line, which Nadeau gave one of the employees, was cir-
culated among them. The employees became upset, and
one of them told the operator of the machine on which
she worked to shut the machine off because they were
going to walk out. Operators shut off several machines
but left others running, and the employees in the extru-
sion department left the plant. As Jessie Miller left, she
saw Atkinson, called him an "asshole," and told him she
did not see how he could have fired Nadeau. Atkinson
told her that Nadeau had resigned, asked her if she was
through, and told her to get out before he had her arrest-
ed for trespassing. As Miller left she told Atkinson that
he had better go out and look to see who was running
the machines. 9
Several employees testified as to their reasons for
walking out, largely to the same effect. Sylvia Spaulding
testified that she walked out because when she heard
Nadeau was fired she felt the employees were stuck with
the 12-day work schedule and they had lost the only
person who would go into the office and talk to manage-
ment on the employees' behalf. Janice King testified that
she walked out because she was disturbed at the thought
of working weekends when the working time during the
week was not well used and because of Nadeau's dis-
" Sceeral employees teslified that either shhortly htbefre or as they left
the planl the 5 says a notice posted annoiuncing insltition of the 12-da
work .chedile Wright and Atkinson testified that no decisiol to revert
to that schedule had been made and that hey kn es of no such nolice
Respoidenlt contends that the only notice posted was a notice of week-
end work for the previous weekend Assuming that sWas tihe only itice
posted rel;lating to weekend work, it is nonletheless clear thai the 12-day
sihcdule i lss undeitr discussion aild that the hellef sa;s 'idespread among
ellphloces that it .as about o hbe reinstituted
charge. She testified that Nadeau's discharge upset her
because he made employees feel like they were doing a
good job, helped them with work problems, and cared
about their work. Christine Leibowitz testified that she
was concerned that it would be hot in the plant when
warm weather came, they had not had raises in a long
time, she feared changes in the work schedules, and she
did not want to be there without Nadeau. With respect
to Nadeau she testified that he stuck up for the employ-
ees and tried to help them if they had a complaint. Jessie
Miller testified that she walked out because she felt that
if S.L. would fire Nadeau after 10 years for handing in
his list of suggestions they would not treat other employ-
ees much better and also because she did not want to
work weekends. With respect to Nadeau she testified
further that "he was the only real person there who
seemed to have an ideal concern for the employees. We
knew that if you asked for a raise or anything like that
that he would go check on it which other foremen
would not. And, he was also the only one who seemed
to really try and communicate our interests to the front
office."
After the extrusion department employees walked out,
management personnel went into the plant to shut down
the machines that were still operating. Because of the
nature of the machines, the process required about 2 or 3
hours. ' 0
During the next several days groups of employees met
together on several occasions and discussed getting
Nadeau reinstated and getting assurances from Atkinson
that they would not be required to work more than a 40-
hour week. On several occasions they attempted to send
representatives to talk to Atkinson on their behalf, but
Atkinson refused to deal with any of the employees,
except as individuals, and made his position clear that
Nadeau would not be rehired under any circumstances.
At the various meetings Janice King, Christine
Leibowitz, and Jessie Miller assumed responsibility for
making telephone calls to keep employees informed and
to give them notice of meetings.
On Friday, February 24, a few of the employees who
had walked out returned to work, but that afternoon the
second shift did not report, and Atkinson and Wright de-
cided to close the plant for the weekend.
On the same afternoon Gene Thompson came to the
plant and told Atkinson and Wright that he, his family,
and his car had been threatened and that he no longer
wanted to work at the plant. Atkinson told him that he
did not want anyone working at the plant who was
afraid and that if he had been threatened that he should
protect his family. Atkinson told Thompson to go to the
' Respondent states in it, brief that the employees walked out leaving
all the machines running and causing thousands of dollars worth of
dalnage to S. However, I have credited William Cook and Dana Pitts
that some of the mlachines were shut down by the operators before they
left I also find that the record references cited by Respondent in its brief
do noilt estlblish that there ias any damage to the machines, and there is
il CeidenceI ill the record to establish that any actual damage occurred.
other than testimony of Wright that, when management representatives
senl i to the produclion area there was plastic falling all over the place
anid bags were popping out of the machines The statemeit in Respon-
dcil's brief is not suppored hby the record
1062
S. L INDUSTRIES, INC
police and be kind enough to make a statement to the
police officers if he wanted to, but said that he and
Wright did not care to know the names of whoever
made the threats to him. Later that afternoon, Atkinson
and Wright spoke to police officers about their concern
over possible interference with employees who wanted
to work and threats which they had heard had been
made. Wright and Atkinson named Nadeau, King,
Leibowitz, and Miller as persons who either made threat-
ening telephone calls or knew who made them. At their
request, two police officers were concealed in the plant
over the weekend at S.L.'s expense.
Police officers remained at the plant over the weekend
and no unusual incidents occurred.
On Monday morning, February 27, the employees met
at a Howard Johnson's restaurant. They tried once again
to send an employee, Glenn Woodworth, as a representa-
tive to speak with Atkinson on their behalf, but Wood-
worth returned to tell them that Atkinson would not ne-
gotiate with him as a representative but that they would
have to go back as individuals to negotiate for their jobs
and talk to Atkinson and Wright about their problems.
Woodworth also reported under no circumstances would
S.L. take Nadeau back. At that point Nadeau asked
which of the employees were going to stick with him,
and several, including King, Leibowitz, and Miller,
wrote their names on a piece of paper affirming their in-
tention to stay out of work in support of Nadeau.
As the meeting was about to break up, Union Repre-
sentative Morbidelli arrived. He had come to talk to the
employees as a result of reading about the work stoppage
in a newspaper. Morbidelli told the employees that they
needed a union and handed out authorization cards
which a number of employees signed and returned to
him. Morbidelli asked them to appoint a committee and
King, Miller, and Leibowitz volunteered to serve as the
committee to maintain contact with the Union, pass out
cards, make telephone calls, and help with organizing the
plant. Morbidelli also told the employees that the most
important thing for them to do at that point was to
return to work to make certain that the cards they had
signed would count. At the end of the meeting, the em-
ployees went to the plant to return to work.
2. Concluding findings
The General Counsel contends that there were dual
reasons for the February 23 walkout, Nadeau's dis-
charge, and the fear of mandatory weekend work, hut
that the walkout was in any event protected concerted
activity. Respondent contends that the only reason for
the walkout was the discharge of Nadeau and that it was
not protected.
Assuming arguendo that Nadeau's discharge was the
only cause of the walkout, I would nonetheless find that
concerted action of the employees to protest the dis-
charge was protected. In its recent decision in Puerto
Rico Food Products Corp.. ec., the Board stated:
~ I have credited Madlslon 'Police .leutenant Darling and Delective
Sargeanlt Dana. ho ,o tesltifid I do not credit Wright and Alkinion
that the plice reported lalk of iollence to hem or suggestcd the plant
,takeout
Whether concerted actions by employees to pro-
test an employer's selection or termination of a su-
pervisor fall within the purview of Section 7 of the
Act depends on the facts of each case. In this
regard the Board has consistently held that where
facts established that the identity and capability of
the supervisor involved has a direct impact on the
employees' own job interests they are legitimately
concerned with his identity and thereby have a pro-
tected right to protest his termination. 2
Despite Respondent's contrary contention, I find that
the facts here establish that the identity and capability of
Nadeau had a direct impact on S.L.'s employees' job in-
terests, giving them a legitimate concern with his identi-
ty and thereby a protected right to protest his termina-
tion. Nadeau was a line foreman who directly supervised
the extrusion department employees. While there is no
question that Nadeau was a supervisor, Respondent itself
has taken shifting positions with respect to the status of
Curry who held a comparable position. The testimony
set forth above shows that employees viewed Nadeau as
one who was concerned with them as individuals and
that they looked to him not only for help in their work
but for protection of their interests in dealing with man-
agement. Lacking any other representative, they saw him
as the one who brought their views to management and
pursued their interests. That perception was necessarily
heightened by the outline which Nadeau gave Atkinson
and Wright on the morning of his discharge. The outline,
seen by a least one employee before Nadeau's discharge
and circulated among the employees immediately after it,
showed that Nadeau had sought to persuade manage-
ment to take other measures to increase production and
to avoid mandatory weekend overtime work which the
employees opposed. Thus, in a matter of immediate con-
cern to employees, Nadeau had again taken their side,
and his termination for having attempted to advance that
position could only be viewed by employees as diminish-
ing their future ability to communicate their needs and
desires to management. I find that Nadeau's identity and
capability as the immediate supervisor of the extrusion
department employees had a direct impact on their job
interests which gave them legitimate concern with his
identity and a protected right to protest his termination.
In addition, the evidence in this case supports a finding
that the employees' concerted action was not simply
caused by Nadeau's discharge but was also due to the
employees' own concern over the rumored change in
work schedules with which Nadeau had attempted to
deal with in his outline. There were rumors in the plant
that the employees would be required to work a 12-day
schedule, fed by the fact that the employees worked the
previous weekend and reports from night-shift employees
that their foreman had told them weekend work would
be required. Management not only was considering such
a change, but it had also sounded out its foremen about it
and had asked them to sound out employees about their
feelings about working on a 12-day schedule. Thus,
whether or not any notice had been posted, the rumors
- 242 NIRB 88q 1i 97q)
1063
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were more than idle speculation and employees had
cause to be concerned. That Nadeau was discharged for
suggesting ways to achieve Respondent's production ob-
jectives without reversion to a 12-day schedule gave em-
ployees cause to believe that their own negative feelings
about working such a schedule were not likely to be
heeded. Thus, Nadeau's discharge was the spark which
ignited an existing atmosphere of dissatisfaction created
by rumors of reversion to a 12-day work schedule. That
both concern for Nadeau and concern over the work-
week were intertwined causes for the walkout is evi-
denced not only by the employees' testimony as to their
reasons for walking out but by their discussions in their
meetings after the walkout and their instructions to those
they asked to represent them in approaching Atkinson.
Thus, the employees' protest over the discharge of
Nadeau, a low-level supervisor, was also "in fact a pro-
test over the actual conditions of [their] employment."'3
The question remains whether, as Respondent con-
tends, the manner and means employed by the employees
in their protest nonetheless were unreasonable and de-
prive it of protection.
In Puerto Rico Food Products Corp., supra, the Board
rejected a similar contention, and reaffirmed its long-
standing position stating:
In our view . . . the application of Section 7 does
not depend on the manner or method by which em-
ployees choose to press their dispute, but rather on
the matter they are protesting.8 We must, therefore,
respectfully disagree with any rule or holding in
which the protected nature of the concerted activ-
ity would depend on the reasonableness of the
method of protest in relation to the subject matter
in dispute. 9 Thus, in the instant case, whether the
cessation of work was a wise, necessary, justifiable,
or reasonable reaction to Respondent's discharge of
Perez is not germane to our inquiry. What is rel-
evant is that the alleged discriminatees, legitimately
concerned about the impact of Perez' termination
on their own working conditions, decided that a
work stoppage was appropriate for their mutual aid
and protection. The employees were thus engaged
in a brief economic strike for which they could not
lawfully be discharged.
s See NL. RB. v. Washington Aluminum Company. 370 U.S. 9,
16 (1962): N.L.R.B. v. Mackay Radio & elephone Co., 304 U.S
333 (1938); Henning and Cheadle. Inc., 212 NLRB 776, 777 (1974).
9 See, e.g. Plastilite Corporation, 153 NLRB 180 (1965).
Apart from any other consideration, in the light of this
recent clear holding by the Board, Respondent's conten-
tion must be rejected that the work stoppage lost its pro-
tection because it was unreasonable. Furthermore, even
if a test of reasonableness of method of protest were ap-
plied, I would reach the same conclusion in this case.
Respondent contends that the walkout was unreasonable
because it occurred in midday, without prior notice to
management, without any prior attempt by the employ-
'.4 Abilities and GoCodwill. Inc. v. NI..R.B., 612 F 2d 6 (Ist Cir. 1979)
See also N. L R.B. v Okla-lnn d/h/a lohldav Inn of ienry'rrta, 488 F 2d
498 (101h Cir. 1973)
ees to discuss their concerns with management, and
without shutting down their machines. However, offset-
ting these considerations is the fact that the employees'
concerns, as set forth above, were not confined to Na-
deau's termination and its general impact on their work-
ing conditions. They were already upset because of their
fear of reversion to mandatory weekend overtime work,
and in walking out they were protesting the threatened
change in their own conditions of employment as well as
Nadeau's discharge. The fact that Nadeau's precipitous
discharge arose from his attempt to persuade manage-
ment that mandatory weekend overtime was not needed
both served to intensify their fears and to discourage any
thought that discussion of their concerns with manage-
ment would lead to a different result than Nadeau had
gained. Indeed, as Miller testified, she felt that, if man-
agement discharged Nadeau after 10 years for presenting
his suggestions, it would not treat nonsupervisory em-
ployees any better. With respect to the machines, some
were turned off. Those which were not turned off could
not be turned off quickly, but management was advised
that the employees were leaving, and there were man-
agement personnel in the plant who were able to and did
shut down the machines without any demonstrated
damage to them.
To be sure, the employees could have handled their
protest differently, but they were not previously orga-
nized as a group. Insofar as it appears, they had never
engaged in any protest action before, and they were
clearly reacting in a charged emotional atmosphere.
Moreover, management also might have acted differently
so as to defuse the situation. Having just read Nadeau's
outline, stating among other things, that management
failed to communicate adequately and was unaware of
problems on the production floor, management removed
Nadeau from the floor in midshift without making any
effort to tell employees what had happened and why or
apparently giving any thought to how this news should
be given to the employees or its possible impact on them.
Thus, the walkout did not occur in a vacuum and I find
that in the light of all the surrounding circumstances the
method of protest used by the employees was reasonable
and was protected concerted activity.' 4
B. The Interviews of the Strikers
1. The facts
When the employees went to the plant on February
27, they were required to meet individually with Atkin-
son, Wright, and Harrison before they were allowed to
return to work. Atkinson did most of the talking for
management and asked employees a number of questions,
including what had happened, why they walked out,
who told them to walk out, how the whole thing started,
whether they had any grievances against the Company,
4 N.L.R.B. v. Okla-Inn, supra. Respondent's further contention that
the alkout evidenced total disloyally to the Employer and therefore
was illdefensible is without merit. N.L.R.B. v. Local No. 1229. Interna-
rional Brotherhood of Electrical Workers, 346 U S. 464 (1953), on which
Respondent relies, is inapposite. N.L.R.B. v Washington Aluminum Com-
pany. Inc., 37(0 U.S 9, 17 (1962).
1064
S. I. IND)JSRIFI S INC
what their feelings were, and whether the Company had
treated them fairly. Atkinson also asked at least one em-
ployee whether there were one or two employees who
seemed to be leading the meeting at Howard Johnson's
that morning or who were doing most of the talking. At-
kinson also asked employees if they had any information
about threats of violence made during the walkout but
told them if they had such information to please commu-
nicate it to the police. Atkinson did not ask any questions
about a union. Some employees asked him what hap-
pened to Nadeau, and he explained. He also told them
that the 12-day work schedule would not be manda-
tory.'
Most of the employees told Atkinson that they were
sorry about the walkout, that someone had started it, and
that they all had followed but were not really sure why
because they did not feel they could jeopardize their
own livelihoods because of Nadeau and his problems
with the Company.' 6
After the interviews, Atkinson, Wright, and Harrison
conferred and decided who should return to work. Ac-
cording to Atkinson, the decisions were based on the in-
terviews, the information the employees gave them, their
feelings toward the Company, and whether or not there
were any demands or conditions connected with their
return that would have to be met to make them happy.
Atkinson testified that in deciding whether a person was
to be allowed to return to work it was "Very simple. If a
person felt that they wanted to return and work for me
and accept my paycheck and expressed it so, and were
not going to have a continual labor disturbance, I felt,
then, that they were a good worker."
2. Concluding findings
The General Counsel contends, contrary to Respon-
dent, that Respondent violated Section 8(a)(l) by requir-
ing the employees to be interviewed before they were al-
lowed to return to work because they were entitled to
unconditional reinstatement upon request.
There is no doubt that management had a legitimate
need for information about the walkout so as to deal in-
telligently with its problems. It had been faced with a
sudden work stoppage, there had been no communica-
tion between the employees and management before the
work stoppage occurred, and there clearly was employee
dissatisfaction which management needed to know about.
In addition, management had received some reports of
threats which it was entitled to investigate. However,
Respondent did not merely seek to interview employees
to answer its legitimate questions but made the inter-
views a condition of reinstatement so that it could deter-
mine whether or not employees should be reinstated de-
pending on what the interviews disclosed as to the likeli-
hood that their discontent would continue after reinstate-
ment. As the requirement of the interviews for that pur-
pose had no legitimate business justification, Respondent
thereby violated Section 8(a)(1) of the Act.' 7 Moreover,
is These findings are based on a composite of he testimony of Atkin-
son, Wright, and employee SyNIia Spaulding
mi Atkinson so testified
'7 Sealera Bus Service. Inc., 210 NLRB 63 (1974); Dunn Brothcrs. Incor-
porated. t/a Fisher Stove Works,. 235 NLRB 1032, 1037 (1978)
were of legitimate interest to Respondent and included
questions about the leadership of the walkout, the leader-
ship at the Howard Johnson meeting, and what hap-
pened at it. To that extent I find that Atkinson engaged
in coercive interrogation in violation of Section 8(a)(1) of
the Act. " '
C. The Refusal 7b Reinstate King, Leihowitz, and
Miller
1. The facts
King, Leibowitz, and Miller were among those who
went to the plant and were interviewed by Atkinson,
Wright, and Harrison. Although each was interviewed
separately, the interviews followed essentially the same
pattern. Each of them asked what her job status was, and
Atkinson replied that he could not give them an answer
until he cleared up the matter of the threats that were
alleged to have been made during the walkout. Atkinson
asked them if they knew anything about the threats, and
each denied any knowledge of them. Atkinson said that
the police were investigating the threats and that until
the matter was cleared up there was not much that he
could do. Atkinson offered to keep in confidence any-
thing they told him about threats and also urged them to
go to the police if they had any knowledge of threats.
Atkinson also asked each of the employees why she had
walked out. As each employee left her interview, Harri-
son or Wright told her to call back later in the week to
see if the matter was straightened out.
In addition, during King's interview, she told Atkinson
that the walkout would not have occurred if manage-
ment had some kind of communication with the employ-
ees which let them know what was going on. At the end
of Leibowitz' interview she mentioned that she really
wanted to know about her job because she had a babysit-
ter until the end of the week for her children. Atkinson
replied that he could not give her an answer until they
had cleared up the alleged threats. At the outset of Mill-
er's interview she apologized to Atkinson for calling him
an "asshole" at the time of the walkout, and Atkinson
said that he accepted her apology, that he understood it
had been a very emotional situation, and that if she had
not apologized there would not have been a job for them
to discuss. Miller told Anderson that she walked out be-
cause she was upset with the change in the work sched-
ule and with the fact they had fired Nadeau. She told
him that she felt that if they treated Nadeau that way
they would not treat ordinary employees any better.'9
" Salant Corporatrion, d/b/a Carrizo Manufacturing Co., Inc, 214
NLRB 171, 180 (1974); Northern Telecom. Inc., 233 NL.RB 1374 (1977)
B' These findings are based on a composite of the testimony of King.
Leibowitz, Miller, and Wright. The major connict in the testimony goes
to whether each of the employees conditioned her request for reinstate-
ment on reemployment of Nadeau, as Atkinson testified. Atkinson also
testified that they were denied reinstatement for this reason. He was not
corroborated in this regard by Wright, who testified only that Leiboswitz
and Miller said they thought Nadeau should get his job back and asked
about it Wright did not testify that they were denied reinstatement be-
cause their requests were conditional I have not credited Atkinson in this
regard Apart from the fact that his testimony was not corroborated by
Wright, these interviews occurred after Morbidelli had advised all the
Continued
()h65
I)ECISIONS ()0 NATI()NAL IABOR R.ATIONS BOARI)
A day or two after the interviews, King, Leibowitz,
and Miller called Harrison and asked whether a decision
had been made and Harrison told them to call back
again. On Friday, when they received their paychecks
for the previous week, each received a termination slip
indicating that she had quit.
2. Concluding findings
The General Counsel contends that the refusal to rein-
state King, Leibowitz, and Miller violated Section 8(a)(l)
of the Act because they had a right to reinstatement
upon their unconditional offer to return to work. Re-
spondent contends that King, Leibowitz, and Miller did
not offer to return to work unconditionally, and that Re-
spondent was entitled to deny them reinstatement be-
cause it entertained a reasonable belief that they were re-
sponsible for threats of violence to employees in the
plant.
With respect to the contention that their offers to
return to work were conditional, I have found above
that the credible evidence does not support this conten-
tion and therefore reject it. With respect to Respondent's
alternative contention, I find that Respondent had no
reasonable basis to believe that King, Leibowitz, and
Miller were responsible for threats of violence, and that
in any event the evidence shows that they were denied
reinstatement because of their concerted activities and
not because of such a belief.
Whatever information Atkinson and Wright may have
had concerning threats, the evidence establishes little or
no basis for Atkinson and Wright to have attributed such
threats to King, Leibowitz, and Miller. Miller's epithet
applied to Atkinson as she left the plant on the day the
walkout was made in the heat of the moment and clearly
did not render her activities unprotected, particularly as
Atkinson accepted her apology at the time of the inter-
view. Testimony as to police reports of alleged bar talk,
even if credited, and the statements by Thompson on
February 24 did not form a basis for belief that any spe-
cific employees had engaged in misconduct. The only
specific incident tied to King, Leibowitz, and Miller
came from Atkinson's testimony that on Tuesday or
Wednesday after the walkout employees Guilloty and
possibly Scales reported to him that they had been
threatened at the entrance to the driveway, at a time
when according to Atkinson, King, Leibowitz, and
Miller were present outside the plant. However, Guilloty
testified that no such threats were made to him, and,
with respect to Scales, Atkinson's own testimony is con-
fused. Although he named Scales initially when asked
who made the report, he then testified that it was Guil-
loty. In any event, by his own account, Atkinson did not
ask Scales or Guilloty who had made the threats but
employees to seek reinstatement, and they were clearly impelled to go
back to seek their jobs by that advice Moreover if the requests had been
conditional, there would have been no occasion for management to defer
its decision about reinstating the three women or to discuss at length
whether they should be reinstaied, as Atkinson also testified In discredit-
ing Atkinson I note that his version of these interviews is in conflict with
those of the other witnesses in additional respects. including ~omission of
any mention of the threats. which according to all the others, were ad-
vanced as the reason why no answers could be given to heir inquiries
about their job status at that time
simply told them to report them to the police who
would handle them. Although Wright was present at all
the interviews and asked to state everything she knew
about threats, she did not mention any report by Guil-
loty or Scales. In the light of the testimony of Guilloty
and Wright, I do not credit Atkinson as to the alleged
reports of threats by Guilloty and possibly Scales. Apart
from the above, there is no evidence of any other infor-
mation possessed by Atkinson or Wright which might
have formed a basis for their claimed belief. I find that
Respondent had no reasonable basis for a belief that
King, Leibowitz, or Miller was responsible for any
threats of violence made in connection with the walkout.
As for the reasons for denying them reinstatement, al-
though Wright testified that the three employees were
denied reinstatement because of the threats of violence,
in his testimony Atkinson did not mention this reason,
and the conflict in their testimony renders each of their
versions suspect. In addition, although the three employ-
ees were told that a decision on their reinstatement
would not be made until the matter was cleared up, the
matter was never cleared up, Respondent took no initia-
tive after the interviews to clear it up, and Respondent
separated the three employees without any further infor-
mation to establish their responsibility for threats of vio-
lence. Despite Atkinson's claim that he wanted to get to
the bottom of the threats, he made little or no effort to
find out who had made them. When Thompson told At-
kinson that he was quitting because of alleged threats,
Atkinson did not ask who made the threats but advised
him to go to the police. Similarly when Atkinson inter-
viewed other employees after the walkout he urged them
to go to the police if they had any information, and testi-
fied in apparent explanation that "We did not care who
made the threat. It was out of our hands." Moreover, al-
though Atkinson told King, Leibowitz, and Miller that
the police were investigating the threats, the police offi-
cers directly involved denied that any such investigation
was made or requested, and concededly Respondent
never received or sought any report from the police as
to the results of such an investigation after the employee
interviews. In sum, although Atkinson told the three em-
ployees that their reinstatement depended upon clearing
the matter up, the matter never was cleared up, and Re-
spondent made no effort after their interviews to pursue
it. I find that the stated reason was a pretext and that Re-
spondent did not deny reinstatement to King, Leibowitz,
and Miller because of their participation in alleged
threats of violence.
In seeking the true reason for the denial of reinstate-
ment to King, Leibowitz, and Miller, one need not look
further than Atkinson's testimony. Atkinson testified, as
set forth above, that in deciding who should be returned
to work, he, Wright, and Harrison considered the em-
ployees' feelings toward the Company, whether there
were demands that might have to be met to make them
happy, and whether the employees were likely to cause
continued labor disturbances. Atkinson also testified that
he knew the three employees before the walkout "be-
cause their conditions were so great of what they wanted
to come back that they stood out." It is apparent that
1066
S. L. INDUSTRIES, INC
King, Leibowitz, and Miller stood out as the three em-
ployees least likely to be content and most likely to
cause continued labor disturbances if reinstated. I find
that King, Leibowitz, and Miller were denied reinstate-
ment for that reason and that Respondent thereby violat-
ed Section 8(a)(1) of the Act. 0
D. Union Activities and Signing of the Contract
Between S.L. and the AM
1. The facts
After the employees returned to work on Monday,
February 27, the union organizing campaign continued.
Over the next few weeks a majority of the employees
signed union authorization cards. Employees discussed
the Union among themselves both in and away from the
plant, and Union Representative Morbidelli held frequent
meetings with employees on and after Friday, March 3.
On a number of occasions starting on February 28, Mor-
bidelli went to the entrance to the plant driveway and
distributed union authorization cards and leaflets to em-
ployees as shifts were changing.
On March 7 Atkinson met with a representative of In-
ternational Association of Machinists, District Lodge 15,
AFL-CIO, referred to herein as IAM, with whom E.P.
had entered into a series of agreements covering the pro-
duction and maintenance employees at E.P.'s Clifton
plant. The most recent of those agreements became ef-
fective January 3, 1978. On March 7 Atkinson and
Hayes, president of E.P., executed a two-page agreement
with IAM containing the following preamble:
This AGREEMENT has been made and entered
this 3rd day of January 1978 by and between SL In-
dustries Inc. and Extruded Products Inc. herein
called the Employer and the INTERNATIONAL
ASSOCIATION OF MACHINISTS, DISTRICT
LODGE 15, AFL-CIO, herein referred to as the
UNION.
WHEREAS the parties acknowledge that SL In-
dustries and Extruded Products function as a single
employer within the meaning of the NATIONAL
LABOR RELATIONS ACT.
WHEREAS products are produced and custom-
ers served by the interproduction of the two plants.
WHEREAS ownership and control is direct and
substantial with respect to the operation as a whole.
WHEREAS the union had demonstrated that it
currently represents a majority of the employees
employed by the employer at the two plants in-
volved herein.
WHEREAS prior agreements of the parties pro-
vided for recognition of the accretion principle of
NLRB law governing labor relations and recogni-
tion for all plants of the employer.
20 As the walkout was protected concerted activity and Respondent
had no legitimate and substantial business justification to deny them rein-
statement, the denial of reinstatement to the three women ould iolate
Sec 8(a)(1) of the Act hether or not the General Counsel established
affirmatively. as it has, that Respondent's moltise as unlavful .L.R.B
v tFleetowd Troader Co(.. 389 U S 375 1967) Scalra Bus Service. Inc
supro.
The agreement granted recognition to IAM as the col-
lective-bargaining representative of all employees of E.P.
and S.L. at Clifton and Madison, and it provided for the
negotiation of further agreement to cover the Madison
employees. The agreement contained a no-strike, no-
lockout clause and provided a duration of 3 years until
January 2, 1981. Its final paragraph was:
In witness whereof, the parties hereto have here-
unto set their hands and seals this 3rd day of Janu-
ary, 1978.
Following each of the signatures was also handwritten
the date "1/3/78." Before this agreement was signed,
IAM had engaged in no union activity at the Madison
plant, and no employees had signed IAM authorization
cards.
2. Concluding findings
The General Counsel contends that Atkinson knew
that IAM did not represent the majority of the employ-
ees at the Madison plant at the time that he signed the
contract on March 17 and that execution of the contract
violated Section 8(a)(2) and (1) of the Act. S.L. contends
that the allegation based on the IAM contract is barred
by Section 10(b) of the Act and that in any event signing
of the contract did not violate the Act.
The allegations based on execution of the IAM con-
tract were added to the complaint by amendment at the
hearing after Atkinson testified as to the time and cir-
cumstances of its execution. The initial charge in Case 1-
CA-14700 filed on July 11, 1978, alleged, among other
things, that S.L. had violated Section 8(a)(2) and (1) of
the Act, that it had entered into and fraudulently con-
cealed an exclusive bargaining agreement with IAM, a
minority union, and that it had granted preferential treat-
ment to that organization. These portions of the charge,
however, were withdrawn on the recommendation of the
Regional Office because of their apparent untimeliness
based on the dates which appeared on the contract.
The General Counsel contends that Respondent
cannot complain now that the amendment to the com-
plaint was untimely because withdrawal of the charge
was due to S.L.'s misrepresentation and the amendment
was made promptly after Atkinson's testimony. Respon-
dent contends that the employees were put on notice as
to the existence of the contract in April 1978 that the
10(b) period began to run when the employees were put
on notice of the violation, and that there is nothing in
the record to show that Atkinson had misrepresented
when the contract was signed.
I find that withdrawal of the original charge is attrib-
utable to S.L.'s misrepresentation and that the amend-
ment is timely. The charge was filed within 6 months of
the time that the employees were put on notice of the
existence of the contract, since that notice occurred at
the April presentation hearing and the charge was filed
on July 11, less than 3 months later. The charge was
deemed untimeiy at that point, however, only because
the contract on its face indicated that it was executed on
January 3. Although Respondent contends that Atkinson
did not misrepresent the execution date of the contract
1067
DECISIONS ()F NATI()NAL LABO()R REIATIONS H()ARD
because at the representation hearing no one was asked
when the contract was signed, the document itself con-
tains the misrepresentation in its preamble, its execution
clause, and the gratuitous addition of the handwritten
dates following each of the signatures.2' As withdrawal
of the charge was induced by Respondent's misrepresen-
tation, S.L. cannot now be heard to complain that the
amendment to the complaint is untimely. 22
Notwithstanding the above, I conclude that no order
may be based on these allegations because IAM was not
given notice and an opportunity to be heard in this pro-
ceeding. Accordingly, I shall recommend that these alle-
gations be dismissed.23
However, the evidence adduced as to the execution of
the IAM contract, which was received before the com-
plaint was amended, may be considered as evidence
showing S.L.'s animus against the Union and as bearing
on the credibility of Atkinson.2 4
Atkinson denied any knowledge of union activity
among the Madison employees at the time the IAM con-
tract was signed.2 5 He testified that the purpose of the
contract was "To satisfy many years of negotiating, of
which the Machinists requested that they be recognized
at the Madison plant. In negotiations for the last three
contracts they have asked for that recognition; and also
because on February 23rd we had a walkout. And I said
I felt the time had come that I gather we need some type
of additional help in order to operate the plant."
Except to the extent that Atkinson admitted that the
contract was signed in reaction to the walkout, his re-
maining testimony as to the contract is patently incredi-
ble. As set forth above, the union organizing campaign
had started more than a week before the contract was
signed. There was a great deal of talk in the plant about
the Union, and Union Representative Morbidelli had ap-
peared outside the plant to distribute cards and leaflets.
Atkinson had rejected all prior claims by IAM to repre-
sent the Madison employees. The history of exclusion of
these employees from the unit covered by the contract
between E.P. and IAM made the claim of accretion
baseless, and the entire preamble of the agreement has
every appearance of an attempt to rationalize actions
taken for different reasons than those stated. The con-
tract was executed without any indication that the Madi-
son employees had any interest in representation by IAM
and indeed, until the April 20 representation hearing on
the Union's petition, when the agreement was urged as a
21 Atkinson's testimony that the agreement was predated so that its
date would coincide with the date of the agreement between IAM and
E.P. cannot be credited That result could have been achieved by provid-
ing appropriate and effective termination dates without misrepresenting
the date of execution. The repetition of the false execution date, and par-
ticularly the handwritten dates appearing after each signature, makes it
clear that the intention here was to deceive.
22 Local 825. International Union of Operating Engineers. AL -CIO, 228
NLRB 276 (1977).
21 Consolidated Edison Co. of New York v NL.R.R, 305 U.S. 197,
231-234 (1938); WJ. Graham. John Graham. II. and Marlin Gracey, a
parinerihip d/b/a Grahamn Engineering. 164 NLRB 679, 697 (1967): Sec
102.8 of the Board's Rules and Regulations
24 Becket Aviation Corporation. 218 NLRB 238 (1975)
21 Atkinson testified that he first learned of the union activities when
the charge based on S.L 's refusal to reinstate King, Leibowhite, and
Miller was filed approximately a week later
contract bar by IAM, the Madison employees were
never told of the existence of the agreement.
These circumstances make it abundantly clear that the
reasons for the predated recognition agreement with
IAM were not those stated by Atkinson and that agree-
ment was entered into in an abortive effort to frustrate
the union organizing campaign by establishing a possible
basis for forestalling an election in the event that the
Union filed a representation petition. I find that the ex-
ecution of the agreement with IAM is evidence of Re-
spondent's animus toward the Union.
E. The Grant of Good Friday as a Holiday
I. The facts
On or about March 22, 1978, Wright posted a notice
to all employees stating that S.L. had decided to make
Good Friday an official paid holiday and that all em-
ployees who had been employed for 30 days or more
would receive 8 hours base pay provided they worked
the day before and after the holiday as scheduled. In
1977, the plant had been closed for Good Friday but the
employees were not paid for the holiday. They were,
however, given a paid holiday on the Friday before
Christmas 1977 when the plant closed at noon.26 Wright
testified initially that from time to time S.L. had given
employees Good Friday off in the past, that on occasion
it had been a paid holiday, and that management made a
judgment at the particular time whether or not to pay
employees for it. According to Wright the decision was
"Based on, perhaps, what the cash position was at that
time, or how things were going. I can't say any specific
reason." When Wright was asked why S.L. decided to
make Good Friday a paid holiday in 1978 in the face of
what she described as a very poor cash position, she re-
plied, "For this reason. We knew that we had employee
problems. And the absenteeism on that particular day is
usually very high. So we thought perhaps this would do
something to smooth employee relationships."
Wright later testified that company practice with re-
spect to granting holidays was to grant six holidays a
year with pay and then from time to time to grant an ad-
ditional holiday, sometimes with pay and sometimes
without.
2. Concluding findings
The General Counsel contends that the circumstances
surrounding the grant of the Good Friday holiday in
1978 as well as the testimony of Wright establish that the
granting of the holiday violated Section 8(a)(l) of the
Act. Respondent contends that the allegation of the com-
plaint based on the grant of the holiday is barred by Sec-
tion 10(b) of the Act and in any event did not violate the
Act because it was granted in accordance with past prac-
tice.
With respect to the contention based on Section 10(b),
I find that the allegation of the complaint is supported by
the portion of the charge in Case -CA-14700 filed on
26 First-shift emplosees were given a half day paid holiday, others
were given a full day off sith pay
h1068
S. L. INDUST'RIES, INC.
July 11, 1978, which alleged, among other things. that
Respondent violated Section 8(a)(1) of the Act, that
"The employer threatened, discriminated against, and
harassed its employees on account of their union mem-
bership and activity and laid off employees in the extrud-
ing department to interfere with the election," that "The
Employer, by interference, restraint and coercion, made
it impossible for a free and fair election to be held," and
that "By the above and other acts, the above-named em-
ployer has interfered with, restrained, and coerced em-
ployees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act." 27
With respect to the merits of the allegation I find that
the evidence establishes a prima facie case which has not
been rebutted by Respondent. It is conceded that em-
ployees were not always paid for Good Friday and were
not paid for it in 1977. It is further conceded that the
economic factors described by Wright as determinative
militated against granting pay for a Good Friday holiday
in 1978. The fact that absenteeism was usually very high
on Good Friday may have warranted closing the plant
for the day but was not a reason to make it a paid holi-
day. The remaining factor mentioned by Wright, the
desire to smooth employee relationships, supports the
General Counsel's position rather than Respondent's.
The decision was made less than a month after the wal-
kout and little over a week after the filing of the initial
charge by the Union. By then Wright and Atkinson con-
cededly knew of the employee union activities. Even in
the absence of Wright's mention of that desire, the
timing of the decision, Respondent's economic condition,
and the lack of a consistent past practice would warrant
the inference that the paid holiday was given to induce
employees to support Respondent rather than the Union.
Wright's testimony reenforces that inference. I find that
by granting employees a paid holiday on Good Friday,
March 24, 1978, Respondent violated Section 8(a)(1) of
the Act.2 8
F. The Announcement of the Formation of a
Grievance Committee
At some point after the February 23 walkout and
before the election Plant Manager Harrison posted the
following notice to all employees:
IN VIEW OF THE I.ABOR PROBI.EMS WE HAVE BEEN
HAVING AND NOW THE QUESTIONS OF A UNION, I
AM ESTABL.ISHING, AT LEAST ON A TEMPORARY
BASIS, AN HOURI.Y EMPLOYEE COMMITTEE TO
HANDI.E DAY TO DAY RIEVANCES AND OTHER
PROBLEMS. IN THE NEXT SEVERAI. I)AYS WE WIl.l.
HAVE YOU ELECT A PERSON FROM EACH SHIFT TO
SERVE AS A REPRESENTATIVE ON THIS COMMITTEE.
PI.EASE NOTE THE HOURI Y EMPI OYEE COMMIT-
TlEl IS FOR HANDILING JOB REI ATED PROBL EMS
ONLY.
27 NL.LRB. v. Foan Milling Company 360 US 301. 307-308 (1959):
National Licorice Co. N.L R.B., 309 IfS 350. 369 (1940); Benner Glav
Co., 209 NLRB 686. 687 (1974). and cases cited therein at fn. 3
2 .North .4darni Inn Corporurtion 223 NLRB 807. 813 (1976), I/arvey'v
Wagon Wheel Inc d/bau Ilarve'v Rort Hotel & larvlr, Inn 23
NL.RB 1670, 1682 (1978)
After at most a few days this notice was taken down and
nothing further was done to implement it.
The General Counsel contends that the posted notice
wvas part of Respondent's overall course of action de-
signed to convince employees that Respondent was will-
ing and able to meet their demands directly and that
union representation could not be advantageous them.
Respondent contends that notice was lawful because the
committee was announced for the handling of job-related
problems only and there was no expressed or implied
promise to remedy any grievances other than job-related
problems.
I am unable to find significance in the distinction
urged by Respondent. Most grievances are job related,
even if the term is very narrowly defined. A promise to
remedy such grievances is necessarily a promise to im-
prove working conditions. From the content of the
notice itself, it is clear that the proposed committee was
to be established in direct response to the protected con-
certed activity and union activity of the employees. The
fact that the notice was posted for only a short time and
that the proposal was never implemented may have re-
duced, but did not eliminate, the coercive effect of the
notice which was obviously aimed at persuading employ-
ees that Respondent was ready and willing to deal with
their grievances through such a committee. No further
notice was ever posted to indicate rescission of the an-
nouncement, and Respondent did nothing to nullify the
impact of the notice. Since no committee was actually
formed, I find that the posting of the notice violated Sec-
tion 8(a)(1) of the Act but not Section 8(a)(2) of the
Act.2 9
G. The Alleged Threats To Close the Plant
I. Threats attributed to Robert Curry
The complaint, as amended at the hearing, alleges that
threats to close the plant were made to employees by
Robert Curry, whose supervisory status is at issue.3 0
Curry was a foreman over the extrusion, conversion,
and repelletizing departments. 3 ' Before Nadeau's dis-
charge there were salaried foremen over these depart-
ments, one for each shift. After Nadeau's discharge
Robert Curry was asked to work a 12-hour shift from 8
2s Liberty Markets, Inc., 236 NLRB 1486, 1493 (1978); Crockett-Brad-
Iey. Inc., 212 NLRB 435, 441 (1974), enfd. 523 F.2d 449 (5th Cir. 1975)
After the notice was posted AM filed a charge alleging that Respondent
unlawfully refused to bargain with it and unlawfully posted this notice
The Regional Director refused to issue a complaint finding that the refus-
al-to-bargain allegation Was without merit and that it would not effectu-
ate the policies of the Act to issue a complaint with respect to the post-
ing of the notice Respondent contends that no violation should now be
found because of the earlier dismissal of the AM charge However, the
Regional Director had discretion to conclude that it would effectuate the
policies of the Act to issue a complaint based on this conduct when it
again came before him as a result of charges filed by the Union which
placed it in the broader context raised by the Union's other allegations.
"' In its answer Respondent initially admitted that Curry was a super-
visor, but after the General Counsel amended the complaint to allege that
he had made threats Respondent amended its answer to deny his supervi-
sory status
:" Although Wright testified that he was a leadman. she conceded that
employes referred to him as their foreman, and Respondent In a notice
posted in September 1977 referred to his predecessor as a foreman
1069
DECISIONS OF: NATIONAL .ABOR RELATIONS BOARD
p.m. to 8 a.m. and Robert Lawson served in a similar ca-
pacity. Both had similar authority from 8 a.m. to 8 p.m.
Curry and Lawson were put on hourly rates, apparently
to give them the benefit of overtime pay.
As a rule, no one else with supervisory authority supe-
rior to Curry was present in the plant during his working
hours. Curry had authority to recommend employee
raises and terminations. He had authority to give em-
ployees permission to leave early and generally was re-
sponsible for the work assignments and performance of
the employees for the last half of the second shift and all
of the third shift.
In the representation proceeding, Respondent and the
Union stipulated that Curry and Lawson were supervi-
sors within the meaning of the Act, and in this proceed-
ing Respondent admits that Lawson is a supervisor. I
find that Curry was a supervisor with authority to re-
sponsibly direct employees in their work and to effec-
tively recommend changes in their status.
On one occasion before the election Curry asked Lam-
bert Harrison what the chances were that S.L. would
close down if the Union won the election. Harrison re-
plied that Atkinson had told him that he would close the
doors rather than let the Union come in the shop."'
2
Thereafter, on several occasions during the spring, em-
ployees asked Curry if he thought the Union had a
chance to get in and what management's reaction would
be if the Union won the election. Curry told them that in
his opinion Atkinson would close the plant if the Union
won the election. At the time of these conversations,
there were rumors in the shop that the plant would close
and the possibility of plant closure was a topic of con-
versation among the employees. On one or two occa-
sions Curry told employees that his opinion was based
on discussions with Harrison, but he also told them that
he was not speaking for management and had not been
instructed by management to make these statements.
3 3
In January 1979, when Curry quit his job, then Pro-
duction Manager Nichols asked him why he wanted to
leave. Curry told Nichols it was his impression that com-
pany policy was unchanged and that Atkinson would
close the doors if there were another election and the
as Curry so testified without contradiction. At the time ofr the tcestim,-
ny. Curry was no longer employed by Respondent but his wife was em-
ployed by EP at the Madison plant Respondent contends that Curry
must be discredited because allegations based on his testimony were in-
troduced only by amendment at the hearing, because there are conflicts
between his testimony and that of other employees as to what he told
them about plant closure, and because Curry came forward only at the
last moment after employee friends visited him to tell him that they had
made statements concerning what he told them. However, to the extent
that there are conflicts between Curry and other employees, Curry's ver-
sion is generally restrained and his testimony if anything appears to have
been carefully given in an attempt to avoid exaggeration. That Curry did
not come forward earlier to tell what he knew may he accounted for by
the fact that he continued to work for E.P. as a supervisor until several
weeks before the hearing in this case In the absence of contradiction by
Harrison as to this conversation or Nichols as to a later similar conversa-
lion, there is no cause for me to discredit him.
3 Curry so testified Where his testimony is in conflict with that of
George Dahlberg and Gloria lasparra, I have credited Curry I have nriot
credited David Dykes as to similar statements which he attributed to
Production Manager Kirby because of incolnsistencies im his testimony as
to the timing of the statements and his unconvincing explanation of his
failure to mention them in affidavits given by him.
Union won. Nichols commented that Curry's feelings
were correct.
The General Counsel contends that Curry's statements
to employees violated Section 8(a)(l) of the Act. Re-
spondent contends that Curry's statements do not violate
Section 8(a)(l) because they were made by a low level
supervisor in response to questions addressed to him by
close friends, because they were couched in terms of his
opinion, and because they were made without the knowl-
edge or encouragement of any higher official in manage-
ment. 4
I find that Curry's statements were effective threats of
plant closure which violated Section 8(a)(l). While
Curry stated that he was not speaking on behalf of man-
agement and that he was stating his opinion, what he
said necessarily carried with it more force than an em-
ployee's statement of opinion because his position made
it likely that employees would attribute his opinion to
inside information. Moreover, since he told at least one
employee that his opinion was based on what Harrison, a
responsible official of Respondent, had told him, the
threat conveyed became more than a matter of Curry's
opinion. The fact that Respondent did not encourage
Curry to make these statements to employees is immate-
rial, for the statements of Harrison formed the founda-
tion for what Curry later told employees, and it is the
tendency of his statements to interfere with employee
rights rather than Respondent's intent which is control-
ling. a3 I find that Curry's statements to employees vio-
lated Section 8(a)(l) of the Act because they threatened
plant closure in reprisal if the employees chose to be rep-
resented by the Union.:
6 Furthermore, I find that the
statements made to Curry by Atkinson and Nichols,
while not themselves violations of the Act, are further
evidence of Respondent's animus toward the Union.
2. Threats attributed to Hazel Mann
The General Counsel contends, contrary to Respon-
dent, that Hazel Mann was also a supervisor whose con-
duct is attributable to Respondent. At the times at issue,
Mann was an hourly paid leadlady in the ark department
where she worked with six to eight other employees.
Mann reported to Plant Manager Harrison. Mann spent
all her time in the ark department; Harrison came
through the department occasionally.
3 7
Mann spent a large portion of her time running ma-
chines and doing other work similar to that done by the
other employees in the department. Harrison told Mann
what needed to be done in the department, and Mann
a. I reject Respondent's further contention that the amendment to the
complaint based on Curry's statements is barred by Sec. IO(b), as these
allegations are closely related to the July I I, 1978, charge in Case I CA-
14700 See sec E2, above
: Fall River Savings Bank, 247 NLRB No 88, fn 3 (1980).
:' C T Manufacturing Co., 233 NLRB 1430, 1436 (1977); Coach and
Equipnen Sales Corp., 228 NLRB 440 (1977); Summirville Ties. Inc., 190
NLRB 640, 642-643, 644 (1971).
a' Wright testified that Harrison, who was plant manager, spent all his
lime on the production areas of the plant after February 23 Doreen
Bossser Cook testified that Harrison came through the ark department
occasionally Harrison did not testify and Mann was not asked about
Harrison's presence in her department I have credited Cook rather than
Wright who normally was not in the production area of the plant.
1070
S 1. INI)IDUSTRIES, INC
saw to it that the employees did what was necessary to
get orders ready for shipment, assigning employees to
specific jobs within the department in accordance with
production needs. When overtime work was needed, she
asked the others in the department if they wanted to
work in the order of their seniority, but Harrison decid-
ed whether overtime work was needed. When new em-
ployees completed a 30-day probationary period, she ad-
vised Wright whether or not she thought they were ca-
pable of doing the work. and Wright decided whether
they should be retained. Her recommendations were gen-
erally followed. Mann sometimes initialed employee ti-
mecards to verify them and was the only employee in
the department who did that. When she observed an em-
ployee not doing her job, she reported that fact to Harri-
son.
In September 1977, in connection with an internal
change, Atkinson posted a notice to employees which
stated:
Mr. Lambert Harrison will be responsible for all
phases of the Film Division, which will include ad-
ministrative, Sales and Production. Reporting to
him will be the foreman, George Nadeau, Gene
Thompson, Robert Lawson. Also Ralph Briggs,
Eileen Hagan and Hazel Mann. Assuming the posi-
tion of Sales Administrator will be Mr. Richard
Watson.3
On one occasion in the summer of 1978 Mann told
Harrison that she wanted to discharge a probationary
employee because he was smoking around flammable liq-
uids and was not learning his job. The employee was
later discharged. a
When Leibowitz was assigned to the ark department
after being reinstated in May 1978, Harrison told her to
report to Mann who would be in charge of her. On her
first day of work Mann told Leibowitz what her hours
would be and later told her that they were changed.
The evidence shows that it was Mann who had first-
hand knowledge of the capacities and potential of the
employees in the department. Thus, Mann reported di-
rectly to Wright her recommendations for retention of
employees at the end of their probationary periods, and
Mann was responsible for the assignment of employees
within the department. In addition, although Mann did
not apparently recommend discipline to Harrison, if em-
ployees were not doing their jobs properly, Mann report-
ed that fact to Harrison and employees were aware that
she did so. From the September 1977 notice and Harri-
son's statements to Leibowitz it appears that employees
were led to believe that Mann was in charge of the ark
department and on a par with the foremen. I cot.clude
that Mann effectively recommended the retention of pro-
bationary employees and responsibly directed the work
of the employees in the ark department. I find that she
was a supervisor within the meaning of the Act.40
Jo This ntlice appears to colntradictl testimnony of righl that before
February 23, 1978, Mann reported o Nadeau
au Curry so testified Mann testified that she did not recall the incident
but was not otherwise questioned about it
o Suburban lonrtte Corporatton, 173 NLRH 497, fn 1,50, , fi 8 ( 1968)
During the week following the walkout in conversa-
tion among ark department employees. Mann said that
Atkinson would not stand for it. that he had other plants.
and that he would close the doors before the Union got
In.
Around June I when employees in the ark department
were talking about the lack of ork in the plant, Mann
told them that Atkinson was going to close the plant and
that he always said he would rather do that than let a
union come in. At the time. there ,was little work for the
employees to do in the plant and employees were talking
generally about the business closing down. 4
For the reasons set forth above with respect to Curry.
I find that Mann's statements to the employees threat-
ened that the plant would close if the Union came into
the plant and these threats violated Section 8(a)(l) of the
Act.
H. The Further Denial of Reinstartemenlt to King.
Leibowitz, and Miller
On or about April 6 King, Leibowitz. and Miller sent
a joint letter to Wright inquiring about returning to work
and at or about the same time each of them spoke with
Wright about reinstatement. Wright told them that there
were charges pending before the Board and that they
would have to wait until there was a ruling by the Board
before she could give them an answer. In Miller's case
she asked Wright what would have happened if the
charge had not been filed, and Wright replied that per-
haps something could have been worked out.4 2
The General Counsel contends that Respondent re-
fused to consider the three employees for' reinstatement
in April because they had filed charges, thereby violating
Section 8(a)(4) and (1) of the Act. I have found above
that on March 3 Respondent gave each of the employees
a termination slip indicating that she had quit, and it is
clear that, after March 3, Respondent regarded these em-
ployees as terminated. There is no evidence that Respon-
dent engaged in any further investigation of the alleged
threats of violence, and, as found above, the alleged
threats were not the cause of its refusal to reinstate the
three women. Wright's answer to Miller in my view is
not sufficient to establish that the charges were an opera-
tive element in the denial of reinstatement to them. I find
that reinstatement had been denied the three employees
before the charge was filed and that the filing of the
charge did not cause denial of reinstatement to them.
However, as Wright's statement to Miller conveyed that
I)Doreen Bowser Cook testified to Mann's statements immediately
after the walkout. and l.elho itz testified to her tatements in June.
Manil testified that he did not recall telling employees that Respondent
,sould close the plant if the Union came in, but did recall telling them
that he did not want to he out on the street or have the Union in there
Fruom Mann's own testimon, it appears that she associated the union rep-
reentation with being out on the street and conveyed that association to
other emplrrees I credit Cook and Leibossitz that Mann made the state-
ments they a ttribtUled to her
a4 King, leiboi.sit. Miller, and Wright each testified to these conver-
atlion Wh5' l there are soime ariations in their ersionr of the words
used by wright. there is o essential difference in import I have accept
ed Wright's sersion of the words she used in answering each of them I
hav e redted Miller's unconltradicted testimollny i,. to her hypothetical
questl] i arld W r /ight" resplonse
1071
DECISIONS OF NATIONAL LABOR RELATIONS HOARD
the filing of the charge had cut off further consideration
of the possibility of reinstatement, I find that her state-
ment violated Section 8(a)(1) of the Act.43
1. The Reinstatc'ment of Christine Leibowitz
1. The facts
On April 19 the initial complaint in this case issued al-
leging that King, Leibowitz, and Miller had been unlaw-
fully discharged. On April 20 the representation hearing
was held, and, on April 21, Wright sent Leibowitz a
letter informing her that there was a job opening for her
and asking her to report for work on April 26 at 8 a.m.
According to Wright, Respondent decided that they
should not wait for a Board ruling but should reinstate
her at that time because they had been led to believe that
she was suffering from economic hardship and had small
children.
When Leibowitz received the letter she called Wright
to ask what the job was and what the hours were.
Wright told her she would be operating a bag machine
in the ark department and that the hours would be the
same as those she had previously worked in the conver-
sion department before the walkout. Leibowitz observed
that the normal starting time in the ark department was
7:30 a.m. and said that if Wright wanted she could report
for work at that time rather than at 8 a.m., her starting
time in the conversion department before the walkout.
Wright replied that she should report at 8 a.m. and work
the same hours as before. Leibowitz told Wright she had
lost the sitter for her children but would try to get an-
other and would get back to her. Ultimately Leibowitz
found a sitter and arranged to return to work on May 1.
Before the walkout Leibowitz had worked as a bag
operator on an extruder in the conversion department.
Upon her return she was assigned as an operator on
what was referred to as the blue bag machine in the ark
department. Although the two jobs were similar in de-
scription, in practice the jobs were different. In the con-
version department she had been able to leave her ma-
chine, to move around during the course of a workday,
and to perform a variety of tasks. After her reinstatement
she was required to sit at the machine in the same posi-
tion and to fold bags which came off it for the entire
day. Although all the others in the ark department start-
ed their workday at 7:30 a.m. and had a half hour lunch
period as well as two 10 minute breaks, Leibowitz start-
ed a half hour later, had no lunch period, and had three
10-minute breaks.4 4 Leibowitz' assignment and hours
kept her separated from the others in the department
who worked together and were able to talk while they
worked.
Before Leibowitz was reinstated, no single employee
was assigned to run the blue bag machine constantly, but
operators were rotated every hour or two. On one occa-
sion before the walkout Mann told several employees
that at one time employees had been required to work on
4 : Sinclair & Rush. Inc.. 185 NLRB 25 (1970).
44 That schedule was necessary in he conlversionl department because
some of the machines could not he shut down for a lunch break. The
machines in the ark department could be hut down so that a lunch
period could be taken
the blue bag machine for 8 hours at a stretch but that it
was too much and that she would not ask them to work
on that machine for more than an hour at a time.
Before May 1, when Leibowitz returned to work, em-
ployees from other departments visited the ark depart-
ment on their breaks and talked with ark department em-
ployees while the latter were working. Shortly after
Leibowitz returned to work, Foreman Lawson told em-
ployees William Cook and Spaulding they were no
longer allowed in the ark department for any reason. 4 5
They asked the reason, and Lawson replied that Harri-
son did not want anyone in the ark department. Just
before Lawson spoke to Spaulding he had been in the
ark department talking to Leibowitz while she was
working. Lawson told Cook not to talk to Leibowitz and
not to go into the ark department because Harrison was
on Lawson's back.46
During the same period, Mann approached Doreen
Cook and three other employees who were talking to
Leibowitz at her machine and told them that they had
been there long enough, that they had to leave, and that
no one from other departments was allowed in the ark
department. 47
On May 8, the Union sent a letter to Atkinson charg-
ing that Respondent was continuing to harass Leibowitz
by denying her a normal lunch period, forbidding other
employees to talk with her, and otherwise isolating her
from the rest of the employees.
At or about the same time, a week after Leibowitz' re-
instatement, Mann asked Plant Manager Harrison if
Leibowitz' hours could be changed to those observed by
the others in the ark department because Mann had to
work through her lunch hour as long as Leibowitz did.
Thereafter Leibowitz' hours were changed to conform
with the rest of the ark department.
2. Concluding findings
The General Counsel contends that Respondent violat-
ed Section 8(a)(3) by discriminating against Leibowitz by
isolating her and giving her an arduous and confining as-
signment after her reinstatement. Respondent contends
4s Where there is some variation in the testimony as to the timing of
the instruction to other employees to stay out of the ark department,
those involved were laid off on May 5, and it is clear that these instruc-
tions were given during the first few days after Leibowitz' reinstatement.
4'" Spaulding and Cook so testified. Lawson conceded that he told em-
ployees to stay out of the ark department but testified that it had nothing
to do with Leibowitz and that employees simply were not supposed to
go there from other departments. However, he equivocated as to wheth-
er he told one employee not to talk to Leibowitz and was vague as to
what instructions Harrison gave him in this regard. I have credited
Spaulding and Cook and not Lawson.
4 Doreenl Cook so testified. According to Mann, she did not tell em-
ployees they were not allowed in the ark department but only asked
them to leave after 10 minutes when their breaks were over. She testified
that employees from other departments were staying from 15 to 45 min-
utes and that the department was so small that movement was impeded.
She testified that she asked Harrison to do something about it after the
problem had continued on at least 5 consecutive days and that, after she
spoke to Harrison, employees stopped coming over I have credited
Cook. It is clear that Mann exaggerated both the degree and duration of
the alleged problem and that employees were stopped from visiting the
ark department ery shortly after Leiboitz' return I credit Cook that
Mann told her, as .awson told others that she was not allowed to visit
the ark department
1072
S. I. INDUS1TRIES, INC.
that Leibowitz' assignment after reinstatement was not
difficult, that she was given the same hours she formerly
worked until changed for her convenience, and that em-
ployees from other departments were asked to stay out
of the ark department after her reinstatement only be-
cause their presence interfered with work.
I find merit in the General Counsel's contentions. Until
Leibowitz was assigned full time to the blue bag ma-
chine, other employees rotated in this job every hour or
two, and Mann had told others that working full time on
this machine was too much. Yet after Leihowitz was re-
instated she was not only assigned to the machine full
time, but she was put on a different schedule which
denied her the half-hour lunch break given others in the
department. Leibowitz did not ask to work these hours
but, to the contrary, Wright insisted on them without
stating any reason even after Leibowitz offered to work
the same hours as the other employees in the ark depart-
ment. Leibowitz' hours were not changed until Mann
complained about their adverse effect on her. Although
Mann testified that Harrison told her she could change
Leibowitz' schedule if Leibowitz approved, it is clear
that Leibowitz' wishes had not been considered up to
that point and clearly were not determinative. The effect
of Leibowitz' assignment and schedule was not only to
make her work more arduous and tiring4 8 but also to
maximize her isolation from the other employees in the
ark department. When Leibowitz' isolation was inter-
rupted by visiting employees from other departments, the
practice of permitting such visits was ended.
I find that the inference is warranted that the combina-
tion of circumstances resulting in Leibowitz' hours, work
assignment, and isolation was not mere coincidence but
the result of a design to restrict her contacts with other
employees and to demonstrate that, despite her reinstate-
ment, Leibowitz was still being made to suffer for her
concerted and union activities. That the message was not
lost on other employees is shown by the fact that, as
Doreen Cook testified, other employees discussed
Leibowitz' treatment and voiced differing views as to its
fairness, depending on their own feelings about the
Union. I find that Respondent discriminated against
Leibowitz in the terms and conditions of her reinstate-
ment in violation of Section 8(a)(3) and (1) of the Act.4 9
I find further that the instructions to employees not to
speak with Leibowitz and to stay out of the ark depart-
ment violated Section 8(a)(1) of the Act.50
,8 In reaching this conclusion I do not credit Mann's testimony hat
Leibowitz' job was not very difficult. Mann did not contradict teslimion
as to her previous statements hat full-time assignmenl ti the blue hag
machine was excessive or that the practice prior to Leihowitz' reinstate-
ment was to rotate assignments to this machine While an assignment to
the machine for an hour or two may not have been difficult, he evidence
supports the conclusion that steady work at this machine as% arduous
Dana Pitls' conrary assessment of the job was based on working oni the
machine only briefly and not under condilions comparable o those im-
posed on Leibowitz.
4. S, Joseph lpirual Eao, Inc.. 23h NLRIB 1450 (1978)
so I/hc Dalf Corporauiron d/ha u lloJJiun Rrotthe'r, 18X NI.RH 31', 322
(1971); I'l C (Cl/U (C' tttlpaflt. INtdt I)iOl 1
9
1 NRlB 92, ot
(1972).
J. lhe May 5 Layoff and the Takeover of the S. L.
Operations by E. P
1. The facts
In its operations, S.L. used two kinds of resin. For the
sheets produced for Seamless it used hare resin. For the
rest of its production, S.L. used additive resin. Over the
years S.L. had obtained additive resin from a number of
sources, but the supplier of 90 percent of its needs was
Arco Polymers Inc. (Arco). S.L.'s supplier of bare resin
was Exxon.
For more than a year S.L. had been operating at a
loss, and during that period the balance due on its ac-
count with Arco had steadily risen to exceed the credit
limits which Arco had extended to S.L. Respondent also
had substantial bank overdrafts during this period. In
January, Respondent's accountant urged Atkinson and
Wright to close and liquidate S.L.'s operations. From
late 1977 on, S.L. management and Arco communicated
frequently in an attempt to work out a plan for the re-
duction of S.L.'s outstanding balance, but no agreement
was reached, S.L. did not comply with Arco's demands
for reduction of the outstanding balance on its account,
and after the end of March 1978 S.L. received no further
shipments of additive resin from Arco. Because of its
credit problems S.L. had difficulty finding any other
source for additive resin, and during the spring of 1978
there was a shortage of additive resin in the plant. 's
Nonetheless, S.L. hired replacements for employees who
had quit and maintained a full complement of employees,
even though there was not always enough work to keep
them busy.
On May 2, following a demand by Arco for payment
of its account, Atkinson and Wright met with representa-
tives of Arco. At the conclusion of the meeting, the
Arco representatives told Wright and Atkinson that they
would be unable to furnish any additional raw materials
to S.L. and suggested that as a last resort S.L. attempt to
work something out with its banker. Over the next 2
days Wright and Atkinson spoke and met with Walter
Reuman, the third director of S.L., who also represented
S.L.'s bank and discussed possible ways of continuing
operations. According to Wright and Atkinson, Reuman
wanted them to lay off all employees and liquidate the
business, but after their meeting Atkinson and Wright
persuaded the bank to accept a plan for laying off ap-
proximately half of the work force and operating with a
reduced number of machines. According to Wright and
Atkinson they did so in the hope that they could "re-
group a little bit" and accumulate some cash which
could be used to purchase raw materials.
On May 5, S.L. laid off 24 of the 54 production and
maintenance employees then on the S.L. payroll.52 From
then until July 31, S.L. operated with the reduced em-
I Respondent continued to receive hare resin from Exxon used on
S I s sheet line to make shect malerial for Seamlcss
' here cre anll additional 13 employees on the Seamlcss payroll
none of ,or hinl sscr laid iff al that lime On May 19 an additional cm-
ployec. who had been ransferred from S.t to Seamles on May 5. u as
also laid off Of he S . employees laid off on May 5, 17 had signed
union aulhorization cards Among S 1 emploccs who remained after
Nla\ 5. there ere aliso 17 card signers
1073
D)ECISIONS ()F NATIONAL L.ABOR RELATIONS BOARD
ployee complement leaving some of its production lines
and equipment unmanned. Although Atkinson testified
that in April the bank asked him to liquidate some of
S.L's equipment, from then until July 31, S.L. sold only
two pieces of idle equipment which had been in storage
for 2 or 3 years and netted about $2,500.5 3
During the period between May 5 and July 31 S.L.
lost some customer orders, hut canceled and rejected
others, telling customers that their orders could not be
filled because S.L. was having labor problems. 54
In June or July, both before and after the July 7 repre-
sentation election, Foreman Robert Curry told Produc-
tion Manager Lambert Harrison that he needed more
help to keep the machines running because he could not
get employees to work overtime to fill in vacant spots.
Harrison told him that Wright said that they could not
hire anyone at the time because of the problem they
were having with the labor dispute and the Union. 55
On Friday, July 31, S.L. ceased all manufacturing op-
erations. On Monday, August 3, Seamless took over the
operation of S.L.'s sheet line, utilizing S.L.'s equipment
which remained in the Madison plant but was now oper-
ated by Seamless employees. After July 31 the business
of the ark department, including its machines, was sold
as an entity to a New Jersey company. On August 3 E.P.
took over the rest of the the S.L. payroll as of the close
of business on July 31, including the six employees in the
ark department, and all accepted. After August 3, E.P.
began to obtain additive resin from Northern Petrochem-
ical (Norchem), which supplied its New Jersey plant,
and gradually E.P. resumed full production at the Madi-
son plant, putting all the equipment idled by the May 5
election back into production. 56 E.P. hired 5 of the em-
ployees who had been laid off by S.L. on May 5 and
gradually hired 19 additional employees who had not
previously worked for S.L. Seamless also hired eight
new employees to work at the Madison plant. E.P. did
not offer employment to most of the laid-off S.L. em-
ployees, according to Wright, either because it deemed
them undesirable for a variety of reasons or because it
51 In so finding, I have relied (on the testimony of the representatidce of
the agent who handled the sales rather than the less precise general testi-
mony of Atkinson that S I.. sold various pieces of equipment from Febru-
ary on
54 right testified that S.L.. could not tell customers it was having dif-
ficulty getting raw materials because it would then lose those customers
permanently
b Curry so testified Harrison did not testify and Wright was not
asked about the statement attributed to her by Harrison. Respondent con-
tends that Curry should be discredited because his testimony is in conflict
with his affidavit and that of other witnsses. Whether or not Curry's tes-
timony conflicts with his affidavit and the testimony of others depends on
his and their accuracy with respect to dates. All of the witnesses con-
cerned appear to have been more or less inaccurate in their recollectionl
of specific dates ad time intervals as is often the case with testimony
given long after the events at issue Although Curry was inaccurate a to
the months of occurrences he also testified as to seasons of the year of
these occurrences and their relation i time to the layoff and the election
His testimony in these respects is consistent with other witnesses I find
no inherent defects in his testimony that would warrant discrediting his
testimony that these conversations with Harrison occurred and that they
occurred before and after the election
., After July 31. apart rom the sale of the ark department as a going
business, Respondent sold no other equipment except for oe machine
which it replaced in January 1979 with a larger more sersatile machine at
a net cost of 22,(X) above the value of the replaced machine.
had information that they had taken other jobs. Accord-
itg to Wright, S.L.'s decision to lease its equipment to
E.P. was based on a tentative oral commitment from
Norchem to furnish additive resin to E.P. at the Madison
plant if it was located there.
2. Concluding findings
The General Counsel does not dispute that Respon-
dent was experiencing severe financial problems at the
time of the May 5 layoff. The General Counsel contends,
however, that the decision to lay off almost half of the
S.L. work force on May 5 was not primarily motivated
by S.L.'s ongoing financial problems but by a desire to
eliminate as many employees as possible who may have
been involved in the organizing effort and to intimidate
the remaining employees by giving substance to the
rumors and threats of plant closure. In support of this
contention the General Counsel argues that both before
and after May 5 Respondent took actions which were
not consistent with its portrayal of itself as a troubled
company on the verge of going out of business and that
the actions taken after the union election to obtain addi-
tive resin from Norchem were available to S.L. in May
and would have been taken at that time but for the pen-
dency of the representation election.
Respondent contends that the May 5 layoff was neces-
sitated by the rapidly deterioriating financial condition of
S.L. culminating in a virtual ultimatum by its bank to
cease its operations to which it responded with the plans
for the May 5 layoff, that the July 31 shutdown of S.L.
operations was a permanent termination of S.L.'s busi-
ness activities, and that after August 3 E.P. was at most
a successor to S.L.
I have already found above that E.P. was an alter ego
of S.L. after July 31, and it is clear that the July 31 shut-
down cannot be considered as a permanent shutdown of
S.L.'s business. While a minor portion of the business
was sold, the remainder with the same employees and su-
pervisors was simply divided between Seamless and E.P.,
under so-called oral leases which resided in the heads of
Atkinson and Wright who continued to operate the plant
as before, bringing in only a new production manager.
The question remains whether the May 5 layoff was
caused by Respondent's economic problems or whether
Respondent deferred taking steps available to it at the
time to solve those problems and utilized them as a pre-
text to justify the layoff of a substantial portion of its
work force until after the election and undermine sup-
port for the Union. I find that the evidence supports the
inference that the latter was the case.
Thus, despite Respondent's severe problems, no action
to reduce the work force and overhead was taken until
after the representation case hearing, and, for the first 3
months of 1978, Atkinson and Wright gave every indica-
tion that they rejected their accountants' advice and had
plans and expectations to resolve their economic prob-
lems and stay in business. They replaced employees who
had quit, granted employees a paid holiday not previous-
ly promised them, gave consideration to mandatory
weekend work, and put foremen on 12-hour shifts,
paying them 4 hours of daily overtime. The willingness
10)74
S INI)USTRIES. INC
to spend money to preserve the work force and to keep
its employees from bringing in the Union and its unsuc-
cessful effort to create a basis for barring a representa-
tion election indicate that Atkinson and Wright had in
mind long-term operations and did not contemplate an
early demise of S.L.'s operations.
Even after the layoff, Respondent's actions are indica-
tive of a continuing long-range plan and inconsistent
with Wright's and Atkinson's testimony that the objec-
tive of the layoff was to regroup and accumulate some
cash to buy raw materials. Despite continuing material
shortages and idleness within the plant, the only further
layoff was of a single employee who had been trans-
ferred to Seamless and complained about the job to
which he was assigned. Respondent otherwise preserved
the remaining work force despite the fact that it could
not be fully productive. Although the bank had allegedly
asked Atkinson to liquidate equipment, none of the
equipment idled by the layoff was sold or put on sale be-
tween May 5 and July 31. When Atkinson wrote to em-
ployees on July 3 to urge them to vote against represen-
tation, he asked employees to look to the future to
decide whether they wanted to pay union dues for years
to come. While suggesting that negotiations could lead
to troubles including plant shutdown, Harrison asked em-
ployees to give him a year to prove himself with out a
union. Atkinson not only remained silent about the possi-
bility that the plant might close even without a union,
but affirmatively conveyed to employees that there was a
better future in store for them if they rejected the Union
in the election.
That the election had more to do with the layoff than
S.L.'s economic problems is also indicated by what
Wright told customers and Harrison told Curry during
the period after the layoff. Wright told customers that
S.L. could not handle their orders because of labor prob-
lems. While Wright sought to explain her statements
away as deception engaged to conceal the true problem
and to avoid discouraging customers from buying from
S.L. in the future, that very motive expresses a long-
range plan to continue in business. Moreover, I reject
Wright's explanation for her statement to customers for
it parallels other statements by Atkinson, Wright, and
Harrison even as late as the hearing which attribute the
IAM contract, the additional holiday, and threat of plant
closure to labor problems. Wright's statement indicated
to customers that, if the labor problem were resolved,
S.L. would again be in position to meet their needs.
Harrison's statements to Curry before and after the elec-
tion that no additional help could be hired because of
labor disputes and the Union is as significant for its fail-
ure to mention economic reasons as for its additional in-
dication that the labor problem was motivating S.L.'s ac-
tions.
The inference of unlawful motivation is also supported
by the timing of the layoff and the resumption of oper-
ations. Thus, the layoff occurred 2 weeks after the repre-
sentation election when a decision and possible direction
of election were imminent. The cutback continued until 3
weeks after the election when the alleged supply prob-
lem was resolved and the rebuilding started. Added to
the clear evidence of animus in this case and the factors
summarized above, the coincidence of the timing of the
layoff and then the takeover by E.P. in relation to the
hearing and the election in the representation case sup-
port the inference that Respondent had a long-range plan
available to it which it was prepared to use in order to
continue S.L.'s operations but that it deferred implemen-
tation of the plan and laid off a substantial portion of its
work force in order to discourage employee support for
the Union in the election.
Against this inference must be weighed the testimony
of Wright and Atkinson as to when they decided that
E.P. would take over the Madison operations and when
they became aware that Norchem would supply the
Madison plant.
Wright testified that discussion of the takeover of S.L.
by E.P. did not begin until the last 2 weeks of July, after
the election, and that all arrangements were made within
the next 2 weeks. Atkinson, however, testified that the
takeover was first considered in June but that there were
many problems and that approximately a month or a few
days more elapsed between the time the takeover was
first discussed and when it occurred. As for Norchem,
according to Wright, throughout the period between De-
cember 1977 and March 1978 she and Harrison asked
Norchem to supply the Madison plant, and Norchem in-
dicated that, if E.P. were responsible for the payment,
Norchem would consider extending credit. However,
Atkinson testified that Norchem had "turned down flat"
E.P.'s request for credit for resin to be shipped to the
Madison plant in early 1978, and that it made no com-
mitment until after June or July 1978.
While the inconsistency in the testimony of Wright
and Atkinson as to the time of the initial discussion of
the takeover, standing alone, might be discounted, the in-
consistency in their testimony as to when they became
aware that Norchem was a possible supplier of the plant
is irreconcilable. These inconsistencies along with the
complete absence of minutes of the critical directors
meetings, the varying explanations for their absence, the
absence of testimony by the third director of S.L., the
absence of any other evidence as to the understanding
with Norchem, and the deficiencies in the testimony of
Atkinson and Wright discussed elsewhere persuade me
that neither of their claims as to when the E.P. takeover
was first discussed can be credited and that Wright's tes-
timony as to when they became aware that additive resin
was available from Norchem is closer to the mark than
Atkinson's.
To be sure during the entire period between May 5
and July 31, S.L. was under severe pressure from its
creditors, and correspondence from that period shows
persistent efforts by S.L. to stave off demands by credi-
tors and proposals by S.L. for arrangements with suppli-
ers which might have opened up alternative avenues of
supply. But the evidence does not overcome the basis for
concluding, supplied in part even by Wright's testimony
as to Norchem, that during this period Atkinson and
Wright had in reserve the plan to be unveiled at the ap-
propriate time for the takeover of the Madison operation
by E.P'. and the use of its credit to obtain the needed
raw materials.
1)75
I)E CISI()NS ()I NA lI()NA. I.AB()R RIl A lI()NS ()ARI)
I conclude that on May 5 Respondent refrained from
taking the steps to obtain raw materials then available to
it, and instead laid off almost half the S.L. work force in
order to destroy the employees' support for the Union in
violation of Section 8(a)(3) of the Act. ' I find further
that the layoff of Dana Pitts on May 19 also violated the
Act, as his transfer to a job on Seamless payroll from
which he was later laid off was a consequence of the
May 5 layoff." 8
Since the May 5 layoff violated Section 8(a)(3) of the
Act, all the laid-off employees were entitled to immedi-
ate reinstatement by Respondent, and none of the reasons
advanced by Respondent for not offering jobs to the
laid-off employees after August 3 would justify a refusal
to reinstate them. Accordingly, it is unnecessary to con-
sider further the allegations that the failure to reinstate
the laid-off employees after August 3 additionally violat-
ed the Act.
K. Respondent's July 3 Letter
On July 3 Atkinson sent the following letter to all the
employees in the bargaining unit:
This message is so important to our future S.L.'s
and YOURS-that I am taking the liberty of send-
ing it to you and your family so that you will read
and consider it in the privacy of your own home.
On Friday, when you vote, you will decide
whether you want to pay a union a portion of your
salary every month for years to come, or whether
you have enough faith in me to be fair with you. It
is a hard decision because before an election, the
Law is very clear about what I can say to you and
what the unions can say to you. They can promise
you the moon and the sun and the stars; I cannot
promise anything.
Nevertheless, you know where your salary comes
from. After all, you work hard for it, and so do I.
You know that the unions do not invest in S L, do
not go out and get business for the Company, and
do not fight the competition, do not take the finan-
cial risks and failures when there are no orders to
fill, do not come day after day to New Road and
pay you a salary for your work. Please, do not be
fooled by impossible promises. Even if there were a
union, everything-wages, vacations, holidays,
working conditions-everything, would have to be
negotiated. Nothing is guaranteed. And negotiations
could lead to all kinds of hassles, including no work
and strikes. No one needs trouble like what hap-
pened to U S Rubber, Seamless Rubber and Hilde-
brand, Inc. to name a few companies in the area.
No one needs to speak for you to me. I already
know you. And you will always do better with me
without a union which can't and won't do anything
for you except jeopardize your jobs. If you want
job security and a good place to work, reject the
unions.
s: Ramos Iron WorkA, Inc., 234 NL.RB 896 (1978) Pyro Milinlg Conpo-
ny, Inc., 230 NlRB 782 (1977).
,s Buanks Engineering (Conpony. Inc,. 231 NlRB 1281, 1285 (1977).
I cannot appeal to you and your family in any
way today except to give you my word. And when
a man breaks his word, he has nothing. I give you
my word now: vote NO (NEITHER) on Friday
and give me the year to prove myself to you. You
will never be sorry.
The General Counsel contends that Respondent's July
3 letter contains threats of plant closure and promises of
benefit in violation of Section 8(a)( ). Respondent con-
tends that the letter was protected by Section 8(c) and
was legitimate campaign propaganda.
With respect to the alleged threat, at issue are the last
six sentences in the third paragraph, including the refer-
ence to three specific companies. These companies had
been represented by the Union and had closed or moved.
These statements must be read in the context of the
rumors throughout the plant that it might close, the
statements by Curry and Mann about plant closure
which gave substance to them, and the May layoff. In
this setting, I find that the references to hassles and trou-
bles including no work and strikes, tied to the three
named companies, went beyond a statement of possible
economic consequences that may flow from collective
bargaining. Rather that statement, along with the state-
ment that the Union could jeopardize jobs reenforced the
rumors and supervisor statements and conveyed to the
employees that if the Union came in they would be faced
with the same troubles as other employees who lost their
jobs when their plants closed or moved. I find therefore
that the letter was a further threat of plant closure which
violated Section 8(a)(1) of the Act.5 9
With respect to the contention that the letter contains
a promise of benefit, the General Counsel relies on At-
kinson's plea for employees to vote no and to give him a
year to prove himself. This statement must be read in
conjunction with the statement in the preceding para-
graph that the employees would always do better with
him without a union. While no specific action or im-
provement was promised, there is no plausible explana-
tion for Atkinson's offer to prove himself other than that
Atkinson would use the year without a union to prove
himself by showing responsiveness to employees' dissatis-
factions which led them to seek representation. I find
that this statement conveyed a promise to be responsive
to employee needs and violated Section 8(a)(1) of the
Act.60
L. The Discharge of Leibowitz
1. The facts
On May 24 Leibowitz again had a problem finding a
sitter for her children. She asked Wright if she could
take her 2 weeks vacation and a I-week leave of absence
because she hoped that she would be able to make ar-
rangements for the care of her children after their school
,U While there is some common language in the etter written by At-
kinson and that at issue in Airporter nn Hotel, 215 NLRB 824 (1974).
there are also material differences, and he letter in that case was consid-
ered without reference Io the context of other circumstances
"" Mtonroe ,uto Equipmen't Comnpany, 230 NLRB 742. 748 (1977); Hel-
firch Vlnding. Inc., 20)9 NLRB 596. 602 (1974).
107
S. L. INDUSTRIES, INC.
year ended about 3 weeks later.6 I Wright told her that
she could not have her vacation but could have a 3-week
leave of absence. 62
At the end of Leibowitz' 3-week leave she had still not
been able to make arrangements for child care, and she
again asked Wright if she could take her 2 weeks vaca-
tion to start then. Wright again refused, telling Leibowitz
that she would have to wait until the Board ruled before
her right to a vacation could be decided. Wright, howev-
er, gave Leibowitz 2 additional weeks of leave.
On July 7, Leibowitz appeared at the plant to serve as
an observer for the Union in the representation election.
On the following Monday, July 10, she was scheduled to
return to work. However, she called in to report that she
would be absent. Later that day she spoke to Wright and
asked again if she could have her 2 weeks vacation.
Wright told her that she did not think so, and Leibowitz
told Wright that she had been trying to find a sitter but
found it difficult to pay for one, and that she needed
more time to secure a sitter. Wright told her she was
sorry about her problems, but that she had been out 5
weeks, that Wright believed it was long enough, and that
Leibowitz should try to find a sitter and return to work.
Leibowitz later called Wright to tell her she had found a
sitter who required payment in advance before she
would start work, and asked again for her 2 weeks vaca-
tion pay so that she could pay the sitter and return to
work the following Monday. Wright rejected her request
and told her she would receive a letter explaining Re-
spondent's position, that Leibowitz had enough time off,
and that if she could not come back to work her job
would be terminated.
On July 11 Wright sent Leibowitz the following letter:
As you know your extended leave of absence
ended on Friday, July 7, 1978. On Friday you were
here at the Plant on another matter and did not in-
dicate to me that you would not be back to work
on Monday as expected.
On Monday Morning you called in to say you
would not be in. On Tuesday Morning you also
called in to say you would not be at work. These
absences are unauthorized. Later in the morning, I
spoke to you on the telephone and you explained to
me that you had personal problems and did not
have a babysitter available to take care of your chil-
dren. Later in the day you advised me that you
were able to find a sitter if you could pay her in ad-
vance, but would not be able to return to work
until July 17, 1978.
Unless you are able to solve your sitter problems
no later then Monday, July 17th and return to work
61 On two previous occasions, once before her reinstatement.
Leibowitz had asked Wright whether she could get her vacation pay
Wright replied that she did not know
62 Leibowitz so testified According to Wright. Leibowitz asked in the
alternative for her vacation and a I-week leave of absence or a 3-wseek
leave of absence, and that Wright made the choice to give her a 3 weeks
leave of absence Wright's testimony in this respect is clearly distorted It
is not likely that Leibowit7. who had money problems. told Wright that
either of the two alternatives was satisfactory to her and left Wright the
option to choose I find that Wright look the position that I.eibohwit, vwas
not entitled to a vacation at that ime, and credit I.eihbor itl as to the
nature of Leibowitz' request
on that date I shall have no alternative but to con-
sider you terminated based on your unauthorized
absences.
Leibowitz did not return to work the following Monday
and was terminated.
Under Respondent's vacation policy an employee was
required to be at work on April I of each year in order
to be eligible for vacation pay. If Leibowitz had returned
to work immediately after the walkout, she would have
been entitled to 2 weeks vacation in June.
Respondent's leave of absence policy was unwritten
and flexible.63 Leaves were granted depending upon the
circumstances of the individual seeking them, production
schedules, and the need for employees at the plant.
On the same day that Leibowitz asked for her leave,
Helen Ricciotti asked for and received her 2-week vaca-
tion and approximately 2-1/2 week leave of absence. Her
leave was granted because she had personal problems
and it was not too busy in her department. On June 9
Gale Curry went on 2 weeks vacation and then was
granted an extended leave of absence until August 14,
after E.P. took over the Madison operations when she
returned to work. Her leave was also for personal prob-
lems. Another employee Perreault did not return to
work after the walkout because he did not want to be
involved with the plant problems, but in April, after an
absence of approximately 6 weeks, he was allowed to
return to work because he was a good repelletizer opera-
tor.
2. Concluding findings
The General Counsel contends that S.L. discriminated
against Leibowitz in denying her vacation pay and termi-
nating her rather than granting an extension of her leave
of absence. Respondent contends that Leibowitz was not
entitled to vacation pay under its vacation policy and
that she was terminated only because of her refusal to
return to work at the end of a leave of absence which
had already been liberally extended.
With respect to the vacation pay, I have found above
that Leibowitz was entitled to have been reinstated fol-
lowing the walkout when she sought reinstatement. But
for Respondent's unlawful refusal to reinstate her, she
would have been employed on April I and would have
been eligible to receive her vacation pay on June 1.
Therefore, the denial of her vacation pay on and after
June I was further discrimination against her in violation
of Section 8(a)(3) and (1) of the Act.
With respect to the leave of absence, Respondent was
not obligated to grant Leibowitz whatever leaves of ab-
sence she sought, but it was obligated not to discriminate
against her in the application of its leave policies. Those
policies, according to Wright, were based on the needs
of Respondent and of the employees of Respondent.
The evidence adduced by Respondent otherwise estab-
lishes that for much of the period in question the plant
was not busy and there was not always enough produc-
tive work available for those still on the payroll. A mea-
;:' After going off the record apparently to obtain a written policy. Re-
spnderi did not producte one I find that the polic as sl, nurlitten
1077
DECISIONS ()F NATIONAL LABOR RELATIONS BOARD
sure of Respondent's need is found in its treatment of
Gale Curry who left work approximately a week after
Leibowitz went on leave and did not return until a
month after Leibowitz was discharged. The treatment of
Perreault and Ricciotti also indicates that throughout this
period Respondent's needs permitted a flexible and toler-
ant approach to leaves.
As for individual needs, Leibowitz' need for leave was
personal and genuine. Insofar as appears, her sitter prob-
lem was exacerbated by Respondent's unlawful denial of
her vacation pay. Wright's inability to recall more than
that Ricciotti and Curry cited personal needs as the
reason for their leaves indicates that Wright was not
greatly concerned about the nature of their personal
needs in granting extended leaves to them. The differ-
ence in the treatment of Leibowitz and Curry and the
absence of any rational explanation for that difference, in
the face of the history of past discrimination against
Leibowitz, support the inference that the refusal to
extend her leave of absence was discriminatory and that
her termination violated Section 8(a)(3) and (1) of the
Act
IV. TIHE CHA.I.ENGES AND OBJECTIONS
The challenges remaining to be resolved in this pro-
ceeding are to ballots cast by Kathleen Blake, Doreen
Bowser, William Cook, Ruth Davis, Mark Faiella, Carol
Gaul, Janice King, Hazel Mann, Jessie Miller, Gloria
Niemi, Dana Pitts, Gregory Spaulding, Melissa Spauld-
ing, Chris Stahlheber, and Oren Thompson.
As I have found above that Hazel Mann was a super-
visor within the meaning of the Act, I find that she was
not eligible to vote and recommend that the challenge to
her ballot be sustained. With respect to the 14 remaining
employees, I have found that King and Miller were un-
lawfully denied reinstatement after the walkout, Pitts
was discriminatorily laid off on May 19, and the remain-
der were discriminatorily laid off on May 5. According-
ly, I find that all were eligible to vote and recommend
that the challenges to their ballots should be overruled.
In the event that the revised tally of ballots shows that
a majority voted for the Union, 64 a certification of rep-
resentatives should issue, and it will become unnecessary
to act further on the Petitioner's objections to the elec-
tion or the General Counsel's contention that a bargain-
ing order should issue, as the results of the election will
govern.
In the event that the revised tally of ballots shows that
a majority did not vote for the Union, the objections
must be considered. The first objection is that the May 5
layoff was intended to influence the outcome of the elec-
tion. As I have found above that the layoff was discrimi-
natory, I find merit in this objection.
The remaining objection is based on the Regional Di-
rector's failure to provide Spanish language ballots for
Spanish-speaking employees despite Petitioner's request
for them. The evidence as to that objection is not contra-
' I addition to the 14 hallots found above to hae heeli cast by eligi
hie oters, here are 5 other challenrged hallots which ;rt lo be coutled
puruant to the Regional Dilrector's August 22, 178, Supplecllntial )eci-
st ott
dicted, but, in view of the findings above, I find it unnec-
essary to consider this objection further.
In the event that the Union did not receive a majority
of the votes as shown by the revised tally of ballots, I
would recommend that first objection be sustained and
the election be set aside.
V. HEI REMIEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
As I have found that Respondent unlawfully dis-
charged or laid off employees whose names are listed
below, I shall recommend that Respondent be ordered to
offer them immediate and full reinstatement to their
former jobs, without prejudice to their seniority or other
rights and privileges. 6 5 I shall further recommend that
Respondent be ordered to make them whole for any loss
of earnings they may have suffered as a result of the dis-
crimination against them by payment to them of the
amount they normally would have earned from the dates
of their discharges or layoff until the dates of Respon-
dent's offers of reinstatement, less net earnings, to which
shall be added interest to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977). 6 The employees entitled to reinstatement and
backpay are:
Alma Beecher
Kathleen Blake
Carol Lee Clark
Doreen Bowser Cook
William Cook
Ruth Davis
Pedro Diaz
Daniel Dineen
Craig Estelle
Mark Faiella
Mary Garigliano
George Garland
Carol Gaul
William Hawley
Merea Jones
Janice King
Christine Leibowitz
Cheryl Martin
Jessie Miller
Gloria Neimi
Dana Pitts
Nelson Platts, Jr.
Gregory Spaulding
Melissa Spaulding
Brett Stahlheber
Christopher Stahlheber
Francis Thompson
Orin Thompson
The General Counsel contends in addition that before
the May 15 layoff the Union represented a majority of
the employees in an appropriate unit consisting of Re-
spondent's production and maintenance employees, that
Respondent's unfair labor practices were designed to de-
stroy the Union's majority and made a fair election im-
possible, and that a bargaining order is therefore required
to remedy Respondent's unfair labor practices. Respon-
dent contends that the Union never represented a major-
ity of Respondent's employees because at the February
27 Howard Johnson's meeting the Union offered to
waive initiation fees for employees who signed cards,
"' Ihe record indicated hat several of the amed employees were cm-
ployed by E '. at some lime after August 3. Whether or not that employ-
meilt satisfied Responldelit's reinstatement obligatiotn is a matter left for
detertirlatilon l the compliance stage of this priceeding.
' See. gentrall,. iu lufolmbing & llring Co.. 18 NLRI 716 (19h2)
1078
S. L. INDUSTRIES. INC.
rendering all cards signed there void. Respondent also
contends that any unfair labor practices which may be
found herein are not sufficiently serious to warrant entry
of a bargaining order.
These issues need not be reached if the revised tally of
ballots shows that a majority of the employees voted for
the Union. However, they must be considered as an al-
ternative in the event that they did not. With respect to
the Union's majority, the only issue raised is whether the
cards signed on February 27 are void. If valid, the Union
had a clear majority by March 15.67 In support of its
contention Respondent relies on the following testimony
of Sylvia Spaulding that Union Representative Morbi-
delli told employees, "that if we signed for the union,
that there would be monthly dues. There would be no-
what do you call it-there would be no payment due to
join it." However, that testimony was given after a series
of leading questions premised on the assumption that em-
ployees were told that they would not have to pay dues
if they signed cards by a certain date. When Spaulding
was asked simply to repeat in her own words everything
that Morbidelli said relating to initiation fees, she replied,
"That there would be no initiation fees for the people
that were working, that there would be a monthly dues.
Any new employees coming in would be paying the ini-
tiation fee."
The Union has no initiation fee as such, although it
may charge double dues to an employee for the first
month of membership in an established local. Employees
who join newly chartered local unions are charged only
I month's dues, and it is union policy to charter new
local unions only after an election and certification. Lit-
erature distributed to employees during the preelection
campaign reflected that policy, and Morbidelli testified
that in his statements to employees about initiation fees
he told employees nothing other than what the Union's
policy was. No other witness testified that Morbidelli of-
fered to waive initiation fees only for employees who
signed cards before the election.
In the context of the evidence of union policy, I find
Spaulding's initial testimony at best ambiguous and clari-
fied by her later testimony that Morbidelli distinguished
between employees then at work and new employees
rather than between those who signed cards and those
who did not." 8 I find that Morbidelli told employees
what the union policy was and did not tell them that
waiver of initiation fees for them would be conditioned
on their signing cards. I find further that Morbidelli's de-
s6 By March 15, there were 71 production and maintenance employees
on the combined S.L. and Seamless payrolls, including King, Leibolwit,
and Miller found above to have been discriminatoril) discharged l hirly
seven of these employees had signed union authoriation cards o oe r
before that date On May I there ere 67 production and maintenance
employees on the payroll, including Lcihbowitz. ,lho had been reinstated.
and King and Miller. Forty of these employees had signed union authori-
zatiion cards on or before that date. I find it unnecessary to decide wheth-
er the card signed by Donald Holmes on behalf of George Dahlberg w.as
valid, as in any event the Union's majority is clear
e" Spaulding denied that Morbidelli conditioned waiver of initiallion
fees on signing cards by a certain date tiHer tesinllnoll that enmployee
were told "if we signed for the union." there would be monthly dues but
no intiation fees may simply reflec the factl halt nles a nma;ljoritl igned
fir the Union and the Union 'las certified or recogllled there ,ssould he
no occasion for paymentl of due r nitiallton fs
scription of the union's initiation fee policy to employees
at the February 27 meeting did not constitute an improp-
er inducement of employees to sign union authorization
cards. 69
Accordingly, I find that at all times on and after
March 15, the Union represented a majority of the em-
ployees in the following unit which the parties agreed is
an appropriate unit for purposes of collective bargaining:
All production and maintenance employees at Re-
spondent's Madison, Connecticut, plant, but exclud-
ing truckdrivers, office clerical employees, profes-
sional employees, guards, and supervisors as defined
in the Act.
I further find that issuance of a bargaining order is
warranted in this case. The plant closure threats and the
May 5 layoff are of themselves violations which invari-
ably leave "a deep and lasting impression on employees"
and have a "long-term coercive influence." 7 0 Here the
threats and the layoff are intertwined as the layoff neces-
sarily fed the fears of closure. The coercive impact was
magnified when the layoff was followed by the purport-
ed closure of S.L., the takeover by E.P., and the failure
to offer employment to most of the laid-off S.L. employ-
ees. Respondent's hostility to union representation was
pervasive, and its unfair labor practices affected every
employee in the bargaining unit, almost half of whom
lost their jobs and the rest of whom witnessed the dem-
onstration of the adverse consequences that support for
the Union could bring them. Thus, Respondent by its
conduct conveyed to its employees a deep commitment
to its antiunion position and its willingness to resort to
utilize unfair labor practices to maintain that position
As has been said elsewhere: 7
The mischief in Respondent's conduct is more than
its tendency to have an immediate impact upon the
employees seeking representation; the harm lies in
the tendency of such conduct to imprint upon the
fabric of the employment relationship Respondent's
determination-so strongly expressed-that the em-
ployees shall not have an opportunity to freely
choose whether to be represented and its intention
to punish employees if the choice is not to Respon-
dent's liking. Once the fabric is contaminated, it
does not so easily wash clean. The employees do
not forget their past experience. New employees are
reminded of what happened to their predecessors.
Respondent may not here contend that having pre-
vented a free election when one could have been
here, it is entitled to an election now, after it has
disorganized the electorate.
I find that Respondent's unfair labor practices had a
tendency to undermine majority strength and impede the
election processes and that there is only a slight possibil-
' 1. I) lc tiurrlnd ('oinpanv, 219 NI R It 75 ( 1
9 7
5). fd 572 F 2d
2Sh (lth Cir 1 971
r right PlatiW Product. Inc . 247 NLRB No 1(01 1980)
S . & .If (rotrs. In, S ('Cook Ererprs. Ltd. and (cN,A s Supernuar-
kci. 2 NI RIt 1s)4. tIh (1l78)
1079
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ity that traditional remedies could erase their impact and
insure a fair election.7 2
Accordingly, in the event that the revised tally of bal-
lots shows that a majority of the employees did not vote
for the Union, I shall recommend that Case -RC-15668
be dismissed, that all proceedings in connection there-
with be vacated, and that Respondent be ordered to bar-
gain collectively with the Union as representative of the
Madison, Connecticut, production and maintenance em-
ployees from March 15, 1978, the date by which the
Union had secured authorizations from a majority of the
employees and Respondent had commenced its unfair
labor practices. 3
Finally, the same considerations which warrant entry
of the bargaining order also support the conclusion that
the unfair labor practices in this case were of sufficient
seriousness, scope, and impact to warrant entry of a
broad cease-and-desist order.74
Upon the basis of the above findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. S.L. Industries, Inc., and Extruded Products, Corp.,
constitute an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. United Rubber, Cork, Linoleum and Plastic Work-
ers of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All production and maintenance employees at Re-
spondent's Madison, Connecticut, plant but excluding
truckdrivers, office clerical employees, professional em-
ployees, guards, and supervisors as defined in the Act
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
4. At all times since March 15, 1978, the Union has
been and now is the exclusive representative of the em-
ployees in said unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By threatening employees with closure of Respon-
dent's Madison plant, by promising employees unspeci-
fied improvements if they rejected union representation,
by requiring employees to be interviewed before return-
ing them to their jobs after a protected concerted wal-
kout, by interrogating employees about their protected
concerted activities, by granting employees an additional
paid holiday because of their union activities, by an-
nouncing the establishment of an employee committee to
handle grievances, by telling employees that their rein-
statement could not be considered because charges were
pending, and by restricting employees' in-plant communi-
cation because of their union and concerted activities Re-
spondent has engaged in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(1) and
2(6) and (7) of the Act.
6. By refusing to reinstate and discharging Janice
King, Christine Leibowitz, and Jessie Miller on February
27, 1978, because of their union and concerted activities,
72 NL.RB. v. Gl Pucking Co. 395 US 575, 614 (1969')); Wrigh
Plactic Products, Inc.. upro
'' Trading Prr. Inc., 219 NLRB 298 (1975)
?4 Wrighr Plastic Produrci, Inc.. upra.
by laying off 25 employees on May 5 and 19, 1978, be-
cause of the employees' union activities, by denying
Leibowitz vacation pay, by discriminating against
Leibowitz in her working conditions after her May I re-
instatement, and by discriminatorily discharging
Leibowitz on July 17, 1978, Respondent has engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and
(7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 75
The Respondent, S. L. Industries, Inc., and Extruded
Products, Corp., Madison, Connecticut, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with plant closure because
of their union activities.
(b) Promising employees benefits if they reject union
representation.
(c) Requiring employees to be interviewed as a condi-
tion of reinstatement following a protected concerted
work stoppage.
(d) Interrogating employees about their protected con-
certed activities.
(e) Granting additional paid holidays in order to dis-
courage union activities.
(f) Announcing the establishment of an employee com-
mittee to handle grievances.
(g) Conveying to employees that they cannot be rein-
stated because charges in their behalf are pending.
(h) Restricting employees' in-plant communications
with one another because of their protected concerted or
union activities.
(i) Discharging, refusing to reinstate, laying off, or oth-
erwise discriminating against employees in regard to
their hire or tenure of employment, or any term or con-
dition of employment, because they engage in protected
concerted activities or activities on behalf of United
Rubber, Cork, Linoleum and Plastic Workers of Amer-
ica, AFL-CIO, or any other labor organization.
(j) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to
engage in or refrain from engaging in any or all of the
activities specified in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively
with the above-named Union as the exclusive representa-
tive of the employees in the appropriate unit described in
75 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
by Sec 102.48 of the Rules and Regulations, be adopted by the Board
and become its findings, conclusions, and Order, and all objections there-
ti shall be deemed waived for all purposes. In the event that the revised
tally of ballots in Case I-RC-15668 shows that a majority voted for the
Unicon, par. 2(a) shall be deleted from the order, the other paragraphs
shall be renumbered appropriately. ad the next to the last paragraph
shall he deleted from the Appendix
1080
S. I. INI)LISISRIIS, INC
paragraph 3 in the section of this Decision entitled "Co1n-
clusions of Law" and upon request embody in a signed
agreement any understanding reached.
(b) Offer the following employees immediate and full
reinstatement to their former jobs, or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings they may
have suffered as a result of discrimination against them in
the manner set forth in the section of the Decision enti-
tled "The Remedy." The employees are:
Alma Beecher
Kathleen Blake
Carol Lee Clark
Doreen Bowser Cook
William Cook
Ruth Davis
Pedro Diaz
Daniel Dineen
Craig Estelle
Mark Fiella
Mary Garigliano
George Garland
Carol Gaul
William Hawley
Merea Jones
Janice King
Christine Leibowitz
Cheryl Martin
Jessie Miller
Gloria Neimi
Dana Pitts
Nelson Platts, Jr.
Gregory Spaulding
Mellissa Spaulding
Brett Stahlheber
Christopher Stahlheber
Francis Thompson
Orin Thompson
(c) Preserve and. upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records. time-
cards, personnel records and reports, and all other re-
cords relevalnt and necessary to a determination of com-
pliance with paragraph (b) above.
(d) Post at its Madison, Connecticut, place of business,
copies of the attached notice marked "Appendix. " 7
Copies of said notice on forms provided by the Regional
Director for Region I, after being duly signed by Re-
spondents representative, shall be posted by it immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
71' In the event that this Order is enforced by a Judgment of a United
Stales Court of Appeals, the words in the notice reading "tosted by
Order of the National L.ahor Relations Board" shall read "Posted PIursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relationls Board "
I(1s I