Sopps, Inc.

National Labor Relations Board - Board Decisions

Apr 10, 1969

175 N.L.R.B. 296 (N.L.R.B. 1969)

296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sopps, Inc. and Industrial Workers of Allied Trade,
Local 199, N.F .I.U. Cases 29-CA-1230 and
29-CA-1230-2
April 10, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On September 11, 1968, Trial Examiner Henry S.
Sahm issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended that such
allegations be dismissed. Thereafter, the Respondent
and the General Counsel filed exceptions to the
Trial Examiner's Decision, and supporting briefs,
and the General Counsel filed a brief in support of
the Trial Examiner's Decision
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent
herewith
1. The Trial Examiner found, and we agree, that
the Respondent violated Section 8(a)(1) of the Act
by unlawfully interrogating employees with respect
to their union activities, and by promising, and
subsequently granting wage increases in order to
induce its employees not to engage in Union
activities.'
2. The Trial Examiner found, and we agree, for
reasons stated in his Decision, that the Respondent
discriminatorily laid off, and subsequently
discharged, employee Marie Fontana in violation of
Section 8(a)(3) of the Act. We do not agree,
however, for reasons stated below, with the Trial
Examiner's conclusion that the discharges of
Elizabeth Sullivan and Adolph Sjogren were
similarly violative of Section 8(a)(3).
Elizabeth Sullivan- Sullivan commenced
employment with the Respondent Company in
We also adopt, for reasons stated in his Decision , the Trial Examiner's
recommended dismissal of allegations that the Respondent violated Section
8(a)(I) of the Act by engaging in surveillance of union meetings, and by
warning employees to refrain from union activity
August 1958. She was discharged on February 6,
1968, allegedly because of incompetency In this
connection, the Respondent argues that since
Sullivan was a supervisor within the meaning of the
Act,,her discharge, for whatever reason, was not in
violation of the Act. We agree.
The record reflects that there are about 14
employees in the Respondent's plant, divided almost
evenly between the production department and the
shipping department. The top echelon of the
Company is composed of Julius Jacobs,
Respondent's president, who is in the plant 3 days a
week, and Roslyn Rudin Jarmel, whose duties are
essentially those of a bookkeeper, but who is in
charge of the plant in the absence of Mr. Jacobs,
although as, the record shows, she visits the shop
areas only infrequently.
Sullivan oversaw the production of from 2 to 6
female employees, whose work consisted of folding
and packaging paper napkins, a job which pays the
minimum wage. Sullivan did some production work,
but, in addition, she distributed the pay envelopes,
assembled sample books for the salesmen's use, and
ordered labels, bags, and cellophane. Unlike the
other employees, who were hourly paid at the
prevailing minimum wage, Sullivan was paid on a
straight salary basis of $90 per week, and she was
accorded vacation benefits not enjoyed by other
employees. Whenever extra help was required,
President Jacobs would instruct Sullivan to call the
New York State Unemployment Office. Sullivan
would then interview the applicants sent over by that
agency, and hire them on the spot, without prior
clearance or subsequent approval from Jacobs.
Under these circumstances, and in view of the fact
that Sullivan had the authority to interview and hire
prospective employees, without clearance from
higher supervision, we find that she is a supervisor
within the meaning of Section 2(11) of the Act, and
hence, not an employee entitled to the protection of
the Act.' Accordingly, we find, contrary to the Trial
Examiner, that her discharge was not violative of
Section 8(a)(3) of the Act, and we shall dismiss all
allegations of the complaint with respect thereto.
Adolph Sjogren: Sjogren was hired by the
Respondent Company in August 1962. He was
discharged on February 6, 1968, allegedly for an
unsatisfactory work performance. Sjogren, a
shipping clerk, oversaw the work of from two to six
shipping department employees, who picked,
packed, and shipped merchandise. Siogren taught
new employees the work in the shipping department.
Like Sullivan, Sjogren was paid on a straight salary
basis, receiving considerably more than the other
employees, who were hourly paid at the minimum
wage, and, like Sullivan, was accorded vacation
benefits. Whenever extra help was required for the
shipping department, Sjogren would notify
Respondent's President Jacobs. Sjogren like Sullivan
'Cf National Freight, Inc , 154 NLRB 621, 622
175 NLRB No. 49
SOPPS, INC.
would then interview the applicants sent over from
the New York Unemployment Office, ascertaining
whether they could "read or write," and, according
to uncontradicted testimony of record, hired them
without clearance or approval from Jacobs
Under these circumstances, it is apparent that
Sjogren, like Sullivan, had authority to interview
and hire prospective employees We conclude,
therefore, that Sjogren, like Sullivan, is a supervisor
within the meaning of Section 2(11) of the Act, and
hence, not an employee entitled to the protection of
the Act. We find, accordingly, that Sjogren's
discharge was not violative of Section 8(a)(3) of the
Act,' and we shall dismiss all allegations of the
complaint with respect thereto.
4. The Trial Examiner found that the Union
represented an uncoerced majority of the employees
in the appropriate unit when it demanded
recognition of the Respondent. The Trial Examiner
then proceeded to find a violation of Section 8(a)(5),
concluding that the Respondent's unlawful conduct,
in connection with the unfair labor practices found
by him, evidenced not only a complete rejection of
the collective-bargaining principle, but also a desire
to gain time in which to dissipate the Union's
majority.' The Respondent excepted, inter alia, on
the basis that even assuming, arguendo, that the
Union possessed a majority of signed authorization
cards, such majority status was "tainted" by
supervisory participation in the Union's
organizational drive. We find merit in the
Respondent's exceptions in this regard.
The record reflects that, excluding Sullivan and
Sjogren, whom we have found to be supervisors,
there were 12 employees in the unit found
appropriate by the Trial Examiner. At about 11
a.m. on February 6, 1968, when the Union
demanded recognition as bargaining representative,
the Union had four authorization cards in its
possession However, shortly before demand was
made, three other employees had signed
authorization cards, but these were not turned over
to the Union until around noon, shortly after the
Union's demand. One additional authorization card
was signed shortly after the Union's demand. In
connection with the Respondent's contention that
the Union's "majority status" was "tainted," the
record shows that it was Supervisor Sullivan who
urged employee Marie Fontana to contact the
Union in order to organize the Respondent's plant
On the afternoon of February 5, 1968, Supervisor
'The Trial Examiner also commented , parenthetically , that even
assuming, arguendo , that Sullivan and Sjogren were found to be
supervisors , he would still find their discharges to be violative of Section
8(a)(i) of the Act We disagree We have found Sullivan and Sjogren to be
supervisors, but in the absence of contentions or evidence that they were
discharged for failure to engage in antiunion or other unfair labor practices
at the Respondent's request, we find no basis for concluding that their
discharges violated Section 8(a)(1) We shall , therefore , dismiss all
allegations of the complaint in this respect Cf Eider-Beerman Stores
Corp, 173 NLRB No 68
'Joy Silk Mills , Inc, 85 NLRB 1263, enfd 185 F 2d 732 (C A D C
297
Sullivan, together with Sjogren, met with union
organizers in front of a nearby restaurant, along
with four other employees, and signed union cards.
It was at this meeting that Sullivan urged employee
Mary Lancaster to sign a union card. Sullivan was
discharged on the morning of February 6, and the
Union organizers that same morning, protested
Sullivan's discharge and requested her
reinstatement. At about noon that same day,
Sullivan, and other employees, again met with the
Union organizers in front of the restaurant, and
Sullivan was present when employee Leticia
Blackburn signed an authorization card. As for
Supervisor Sjogren, the record shows that he signed
a union card on February 5, 1968, and attended
union organizational meetings, at which
authorization cards were signed, and, on occasion,
contacted the Union directly.
Under the circumstances of this case, which
reflect that Supervisor Sullivan touched off the
Union's organizational drive, that she and Sjogren
actively participated in the solicitation of union
authorization cards, and assumed key roles in the
Union's campaign, we find that Sullivan's and
Sjogren's actions, in this small plant, "tainted" the
Union's majority status. Thus, without deciding the
question of whether the Union had, in fact, a
numerical majority of authorization cards from the
Respondent's employees, we find, that the General
Counsel has not established that the Union
represented an uncoerced majority of employees in
the unit found appropriate by the Trial Examiner,
and that the Respondent's refusal to bargain with
the Union was not unlawful.` We shall, therefore,
dismiss the complaint allegation that the
Respondent violated Section 8(a)(5) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and take certain
affirmative action designed to effectuate the policies
of the Act.
Having found, inter alia , that the Respondent
discriminatorily laid off, and subsequently
discharged, employee Marie Fontana, we shall order
the Respondent to offer her immediate and full
reinstatement to her former or substantially
equivalent position, without prejudice to her
seniority and other rights and privileges, or working
conditions, and to make her whole for any loss of
earnings that she may have suffered by reason of the
discrimination against her. In making her whole, the
Respondent shall pay to her a sum of money equal
to that which she would have earned as wages from
the date of such discrimination to the date of
reinstatement or a proper offer of reinstatement, as
'Setco Well Service Company, 171 NLRB No 54, Puerto Rico Food
Products Corporation, 111 NLRB 293, 295
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the case may be, less her net earnings during such
period. The backpay is to be computed on a
quarterly basis in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, with interest
thereon at 6 percent per annum, as provided by the
formula adopted in Isis Plumbing & Heating Co.,
138 NLRB 716.
CONCLUSIONS OF LAW
1. Sopps, Inc., the Respondent herein, is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Industrial Workers of Allied Trade, Local 199,
N.F.I.U., is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interrogating employees with respect to
their union activities, and by promising, and
subsequently granting, wage increases in order to
induce employees not to engage in union activities,
the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By laying off, and subsequently discharging,
employee Marie Fontana, the Respondent
discriminated against her in regard to her tenure of
employment, and the terms and conditions thereof,
to discourage membership in the Union, and thereby
engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(3) and
(1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Sopps, Inc., Brooklyn, New York, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees with
respect to their union activities.
(b) Promising, and subsequently granting, wage
increases in order to induce its employees not to
engage in union activities.
(c) Discouraging membership of any employee in
Industrial Workers of Allied Trade, Local 199,
N.F.I.U., or any other labor organization of its
employees, by discriminatorily laying off, or
discharging, or in any other manner discriminating
against, any employee with regard to hire, tenure of
employment, or any other terms of conditions of
employment.
(d) In any like or related manner interfering with,
restraining, or coercing, its employees in the exercise
of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Offer to Marie Fontana immediate, full, and
unconditional reinstatement to her former or
substantially equivalent position, without prejudice
to her seniority or other rights, privileges, or
working conditions, and make her whole for any
loss of earnings she may have suffered by reason of
the discrimination in the manner set forth in the
section hereof entitled "The Remedy."
(b) Notify said discriminatee if presently serving
in the Armed Forces of the United States of her
right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary or useful to
determine or compute the amount of backpay due,
as herein provided.
(d) Post at its plant in Brooklyn, New York,
copies of the attached notice marked "Appendix."6
Copies of said notice, on forms to be provided by
the Regional Director for Region 29 of the Board,
shall, after being duly signed by Respondent's
representative, be posted by it immediately upon
receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 29, in
writing, within 10 days from the date of receipt of
this Decision, what steps it has taken to comply
therewith.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
other than those found herein.
`In the event this Order is enforced by a decree of the United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States of Appeals Enforcing an
Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection; and
SOPPS , INC. 299
To refrain from any or all of these things.
Accordingly , we give you these assurances
I As to your rights as employees:
WE WILL NOT do anything that interferes with the
rights listed above
WE WILL NOT ask you any questions about the union
attitudes or activities of any of our employees.
WE WILL NOT fire you or take away any current job
benefits - or threaten to do either - because you join
or support the Union or because you form, join, or help
any other union
WE WILL NOT give you any job benefits - or
promise them - because you refuse to join or help any
union
If. As to the employee we fired:
We fired Marie Fontana because she supported the
organizational campaign of the Industrial Workers of
Allied Trade , Local 199, N.F.I.U. Firing her for this
reason violated the National Labor Relations Act
WE WILL therefore offer to give her back her job
with full seniority , and all other rights and privileges.
WE WILL also make up any pay she lost, with 6
percent interest
WE WILL notify her if presently serving in the Armed
Forces of the United States of her right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge
from the Armed Forces
SOPPS, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced , or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 16 Court Street,
Fourth Floor , Brooklyn, New York 11201, Telephone
212-596-3535.
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
HENRY S. SAHM, Trial Examiner Upon charges filed
on February 6 and 7, 1968, the General Counsel of the
National Labor Relations Board, herein called
respectively, the General Counsel and the Board, through
the Regional Director for Region 29, issued a complaint
on April 30, 1968, against Sopps, Inc., herein called both
the Respondent and the Company. The Regional Director,
acting for the General Counsel, issued a consolidated
complaint, alleging violations of the National Labor
Relations Act, 61 Stat 136, as amended, herein called the
Act, averring that the Respondent Company had engaged
in, and was engaging in, unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of
the Act. Copies of the complaint, the charges and notice
of hearing were duly served upon the Respondent.
The complaint herein alleges in substance that the
Respondent, in violation of Section 8(a)(1) of the Act,
interrogated employees, promised them wage increases,
kept under surveillance union meetings and warned its
employees not to join the Union. In addition, the
complaint alleges violations of Section 8(a)(3) in that
three employees were discharged because they engaged in
union activities and that Respondent also violated Section
8(a)(5) by refusing to bargain with the Charging Union '
The Respondent filed an answer denying the
commission of any unfair labor practices.
A hearing was held in Brooklyn, New York,
commencing on June 25 and concluding on July 3, 1968,
before me Following the hearing, briefs were filed by the
General Counsel and Respondent
Upon the entire record in this case, including the briefs,
and from observation of the demeanor of the witnesses
while testifying, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a New York corporation, located in
Brooklyn, New York, and established in 1957, is engaged
in the manufacturing, sale and distribution of plastic
placemats, napkins, coasters and other paper goods and
related products. The average number of employees,
excluding officials, is approximately 12 to 15. In the
course and conduct of its business, Respondent annually
purchases and receives from points directly outside the
State of New York, goods and supplies valued in excess of
$50,000 and, in turn, it sells directly in interstate
commerce, products valued in excess of $50,000 to states
other than New York It is found, accordingly, that
Respondent is an employer engaged in commerce and in a
business affecting commerce within the meaning of
Section 2(6) and (7) of the Act
Il THE LABOR ORGANIZATION INVOLVED
Industrial Workers of Allied Trade, Local 199,
affiliated with National Federation of Independent
Unions, the Union herein , is a labor organization within
the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On the morning of February 5, 1968, Marie Fontana,
who was employed by Respondent, telephoned the Union
herein, at the request of some of her coworkers, and spoke
The relevant provisions of the National Labor Relations Act, as
amended (61 Stat 136, 73 Stat 519, 29 U S C Sec 151, et seq) are as
follows
RIGHTS OF EMPLOYEES
Sec 7 Employees shall have the right to self-organization , to form,
join, or assist labor organizations , to bargain collectively through
representatives of their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection , and shall also have the right to refrain from any or all of
such activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition
of employment as authorized in section 8(a)(3)
UNFAIR LABOR PRACTICES
Sec 8(a). It shall be an unfair labor practice for an employer -
(1) to interfere with, restrain , or coerce employees in the exercise of
the rights guaranteed in section 7
(3) by discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage
membership in any labor organization
(5) to refuse to bargain collectively with the representatives of his
employees, subject to the provisions of section 9(a)
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to a union representative with respect to the possibility of
organizing a union at Respondent's plant Fontana
arranged to meet with the union representatives that same
day, February 5, at a restaurant "right around the corner"
from the plant.' Six employees met after work at
approximately 5 p.m.' with two union representatives,
Vogel and Nieves, in front of the restaurant.' The six
employees signed membership application cards
designating the Union as their collective-bargaining
representative. Vogel gave Fontana union cards, which
authorized the Union to act as bargaining agent, and he
asked Fontana to solicit the other employees to sign these
cards for the eventual purpose of having the Union
represent them in collective-bargaining negotiations with
the Respondent Company It was arranged for the
employees to meet with the union organizers the following
day in front of the restaurant during their lunch hour
The following morning, February 6, at approximately
8.15 a.m., 15 minutes before work began, Fontana
obtained the signatures of three employees to union cards.
During her lunch hour, Fontana met, as prearranged the
day before, with Vogel, the union organizer, at which time
she turned over to him the three signed cards. Leticia
Blackburn, an employee, accompanied Fontana to the
meeting in front of the restaurant during the lunch hour
and also signed a union card at that time.
Around 9 o'clock on the morning of February 6,
Jacobs, owner of Respondent Company, told Sullivan she
was being discharged because of incompetency. He gave
her a check and she left the plant and immediately
notified Vogel, the union organizer, of her discharge
Vogel told Sullivan that he would go to the plant
immediately and speak to Jacobs and that she should
meet him in front of the restaurant at lunchtime that day
Vogel and another union organizer, Nieves, went to the
plant around 11 a.m. and spoke to Jacobs. Vogel stated
the Union represented a majority of the Company's
"factory" employees and requested that it be recognized
as the collective-bargaining agent for the employees Vogel
also demanded that Jacobs reinstate Sullivan Jacobs
asked that he be shown the employees' signed cards but
Vogel refused. Jacobs declined to reinstate Sullivan On
this note, the confrontation between Jacobs and Vogel
ended and he left the plant and proceeded to the
restaurant where he had an appointment to meet with the
employees.' When the union organizers had departed,
Adolph Sjogren was discharged around noon by Jacobs
for alleged incompetency
When this initiation of organizational activities among
and by the employees came to Jacobs' notice, it brought
about a responsive movement by him to oppose the Union
by embarking upon a campaign of discharging three union
adherents, Sullivan, Sjogren, and Fontana, interrogating
employees, promising them wage increases and calling a
meeting about 3 p.m. on February 6, during working
hours, at which the employees were assembled and
addressed by Jacobs.
'The quoted material is the testimony of Sullivan, an alleged
discnmmatee
'The names of the six employees who met with the union representatives
are Fontana, Sjogren, Sullivan , Lancaster, Bradshaw , and Beckett
'Vogel, the union representative who signed the charges in this
proceeding and who did the actual organizing of the plant, did not testify
The Respondent attempted to subpena Vogel, but was unable to locate him
although she requested the cooperation of the General Counsel's
representative and the attorney for the Union in supplying Vogel 's address
'Nieves, also a union organizer who accompanied Vogel, took no active
role in these various incidents.
About an hour later, after he finished speaking to the
employees, Jacobs informed Fontana that the machine
which she operated was not working properly and that she
should contact him the beginning of the following week
and he would let her know when the machine would be
repaired. She phoned on Monday, February 12, and was
told to report the next day. She worked on February 13
and 14, notified Respondent on the 15th that she was ill
and would not be at work on that day and on February
16, she was fired.
The Respondent in its answer, states as follows:
The Unions demand [for recognition] was confused
and misleading. It claimed to represent all the
employees in the plant and specifically mentioned Miss
Sullivan and Mr. Sjogren as part of such a group, tho
[sic] both of them were supervisory employees. The
Union refused to present any cards and it also refused
to state how many, if any, cards it had. There was no
evidence whatsoever, that the union did represent the
employees, nor has any such evidence ever been shown
since To sum up, the union was unclear as to the group
it did purport to represent and was specifically
demanding recognition of an inappropriate unit.
As to the discharges: 1. Miss Sullivan was in charge
of Production with three to twelve girls under her
supervision and Mr Sjogren was in charge of shipping
with two to four men under his control. Their duties
required them to hire and fire, (See Exhibit A showing
that when girls were hired they reported directly to
Miss Sullivan), supervise production, report grievances,
direct the work and to reward and discipline the
employees under their control
Both these employees had had several prior warnings
of inexcusable errors and had been told they were to
look for other employment Miss Sullivan had been
caught holding payroll payments belonging to another
employee and Mr. Sjogren had been absent while Mr
Jacobs was on vaction tho [sic] his card had been
punched in and he had been sleeping during his working
hours when reporting for work The week prior to the
sixth of Feb both had had a final warning that they
were insubordinate and when they repeated the
insubordination on Feb 5th, they were discharged on
the sixth, Miss Sullivan at 8 30 a.m. (Mr Sjogren was
late) and Mr Sjogren at 10:00 a m. No mention of any
union was heard at any time until a representative of
the union showed up at 11 30 a m. and told
[Respondent] he represented the employees. That was
the first time there had been any mention of any union
activity at Sopps, Inc
Miss Fontana was laid off on the 7th because the
machine she was working on had broken down She
was recalled but warned that her absenteeism would no
longer be tolerated and that any absence for sickness
would require proof When she was absent the following
week she was given two days to produce a Dr's
certificate (her mother had called to say that she had
104' fever) and told she could return when she produced
it. On Friday the 16th she returned to get her pay at 12
noon and when Miss Jarmel asked her to return at 2
P.M. (regular payroll time) she attacked Miss Jarmel
and severely bruised her, necessitating a call to the
police
As to the charge of coercion by the employer: There
was no coercion whatsoever. The only meeting called by
respondent was to discuss with the employees the
possibility of a future NLRB election and to ask that
they consider voting for " no union" in such an event.
SOPPS, INC.
After the meeting two employees reported that when
outlining our policy of merit increases after three
months in our employ, they had been overlooked by
Miss Sullivan. No general increase of any kind was
given, or promised. (Someone mentioned that we had
forgotten to pay the minimum wage increase the prior
Friday and that we did rectify of course.)
As to the charge that respondent kept union
meetings under surveillance, it is totally untrue and
respondent cannot even imagine the basis for such a
charge.
Employer has never known and still does not know if
Miss Fontana signed a union card. The only actual
coercion that did occur were the actions perpetrated by
Miss Sullivan and Mr. Sjogren on the day prior to their
discharge and subsequent investigation has suggested
there was a considerable amount of intimidation
involved on their part.
Respondent claims that above facts show there is no
basis whatsoever for charges made against it.
The Alleged Violations of Section 8(a)(1)
At approximately noon on February 6, Jacobs, owner
of Respondent Company, according to Sjogren,
questioned him as to whether he knew anything about the
employees' signing union authorization cards. When
Sjogren answered in the affirmative, Jacobs, continues
Sjogren's testimony, asked him if he was for the Union or
Jacobs, and when Sjogren told Jacobs he owed him no
loyalty because of the poor treatment he had received,
Jacobs then asked Sjogren if he too had signed a union
card. Sjogren testified that when he told him that he had,
Jacobs fired him.
Jacobs' denial that this ever occurred is not credited.
Sjogren impressed the trier of these facts as a forthright
and honest witness. Given the context in which these
questions were put, they are clearly proscribed as illegal
interference under Section 8(a)(l). Accordingly, it is found
Respondent, through its president, Jacobs, committed an
unfair labor practice when he interrogated Sjogren and
thereby violated Section 8(a)(l) of the Act.
Fontana's testimony is credited that on February 6,
around noon, shortly after the union organizers had left
the plant (infra), Jacobs asked her if she had signed a
union card. Fontana is also credited that on the same day,
after the lunch hour when she returned to the plant after
meeting with the union officials, Jarmel asked her if she
had signed a union card, and whether she knew if any
other employees had signed union cards. See infra.
Jarmel's denial that she questioned Fontana is not
credited. See infra. Accordingly, it is found Jarmel's
coercive interrogation of Fontana violated Section 8(a)(1).
The complaint alleges Jacobs promised and granted
wage increases when he made a speech to the assembled
employees about 3 p.m. on February 6, in order to induce
them to refrain from supporting the Union.` Doris Joseph,
an employee, testified as follows: Jacobs told them that
Sullivan and Sjogren "was [sic] stealing from the place
and she [Sullivan] wasn 't doing no work. And he doesn't
care if we have a union or not . . . I don't usually give out
raises until every six months, but, he said, `for you old
girls, I would make it a point that I would give you a
raise every three months."' After that she testified she
received a wage increase.
301
Leticia Blackburn, Respondent's witness, corroborated
Joseph's testimony, testifying that Jacobs in his speech to
the employees told them that "every three months he
would give us a raise." On redirect examination, the
following appears:
(By Mrs. Estes) When Mr. Jacobs spoke to the girls
as you have just described, did he say specifically .. .
he would give each person a raise after every three
months, or did he say that if it was merited by their
work, that after three months an employee would be
considered for a raise?
A. No.
Q. Did he indicate it was automatic every three
months?
A. Yes, every three months. Yes.
Jacobs denied he told the employees he would give
them a wage increase every three months. What he told
them, he claims, was that the quality of their work would
be evaluated at 3-month intervals and if they merited an
increase, it would be granted.
When Joseph and Blackburn testified, they impressed
the trier of these facts as not being intelligently capable of
successfully practicing guile or deceit. This impression that
they were testifying truthfully became a conviction when
Joseph's testimony was not shaken by Respondent's
representative who cross-examined her. Moreover,
Blackburn's and Joseph's versions were consistent with the
attendant circumstances in this case. Their versions are
credited.
These promises of pay raises were made the same day
the Union requested recognition and Sullivan and Sjogren
were discharged. This is more than a temporal
coincidence. A review of the past increases given
employees (many of which were required by the minimum
wage law), reflects the absence of any pattern of such pay
raises. Furthermore, there appears to be no independent
economic reason to account for this magnanimous policy
after a decade of personnel practices which leave much to
be desired. In these circumstances, it is clear that the
advent of the Union's organizational campaign the
previous day; and Respondent's knowledge of and
opposition to such organization, not only motivated but
goaded Respondent into promising the employees such a
generous wage policy in the future. The ability to grant
wage increases or other economic benefits at crucial
junctures in an organizing campaign is an effective
weapon in the hands of employers who wish to block
unionization of their plants. Recognizing the impact of
this technique upon employees, the Board and the courts
have long held that the granting or announcement of
economic benefits during a union organizational
campaign, or during the crucial period preceding a
representation election, constitutes unlawful interference
with employees' rights, in violation of Section 8(a)(I) of
the Act, where such action is taken for the purpose of
inducing the employees to reject the union.' As the
Supreme Court emphasized in N.L.R.B. v. Exchange
Parts Co., 375 U.S. 405, 409-410 (footnote omitted):
The danger inherent in well-timed increases 'in benefits
is the suggestion of a fist inside the velvet glove.
Employees are not likely to miss the inference that the
source of benefits now conferred is also the source from
which future benefits must flow and which -may dry up
if it is not obliged. The danger may be diminished if, as
in this case, the benefits are conferred permanently and
unconditionally. But the absence of conditions or
`Jacobs testified he spoke to 12 or 13 employees . 'Cf. C & G Electric Inc.. 172 NLRB No. 91.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threats pertaining to the particular benefits conferred
would be of controlling significance only if it could be
presumed that no question of additional benefits or
renegotiation of existing benefits would arise in the
future, and, of course, no such presumption is tenable.
The complaint alleges Juan Gorritz, a foreman,
engaged in surveillance on February 5 and Julius Jacobs,
the plant owner, on February 6 The facts reveal that after
the plant closed at 5 p.m on February 5, and while six of
the employees were meeting with the union organizers on
the sidewalk in front of the restaurant, Gorritz was seen
walking on the opposite side of the street by the
employees and that he continued on down the street until
he was out of sight
The evidence not only fails to substantiate this
allegation of an 8(a)(1) violation, but no affirmative
evidence was introduced by the General Counsel to show
that this incident had any relationship to surveillance in its
legal connotation Moreover, the oddly self-contradictory
and negating dichotomous rational she advanced at both
the hearing and in her brief fails to shed any light with
respect to her legal theory of this incident Although the
burden of proof is on the General Counsel to establish and
sustain the allegations of the complaint by a
preponderance of the probative and credible evidence, and
where it is charged both Gorritz and Jacobs were where
they were, i.e., the restaurant, in order to spy on the
employees, this alleged surveillance must be established by
a preponderance of the evidence In her brief, the General
Counsel's representative argues that the burden of proof
was on Gorritz to explain his presence there on that
occasion. This is not the law. Then follows a fallacious
premise and a classic non sequtter in the brief: "Thus
since it must be inferred that Gorritz followed the
employees there, . . it must also be found that he
engaged in surveillance on Monday evening [February 5]."
However, since it was past quitting time when Gorritz
walked past the restaurant, it is not too unreasonable to
assume he was on his way home and his walking past the
restaurant on the opposite side of the street was his
normal route as he was homeward bound each evening at
the close of the working day. This "inference," it is
submitted, is as reasonable a one to account for his
"presence there on that occasion" as the General
Counsel's that he was there to spy on the employees. The
mere fact that he walked past the sidewalk meeting site in
front of the restaurant, cannot alone or in conjunction
with the other facts involved herein, add up to a violation
of surveillance Suspicion is not proof The General
Counsel has failed to meet her requisite burden of proof.
This allegation of the complaint will be dismissed
Also, the General Counsel's representative states in her
brief the following.
Jacobs' presence at the restaurant Tuesday, February
6, is not disputed, nor is the threat he made in the
presence of already discharged and current employees.
To be considered in this regard is that Jacobs did not
limit himself to the already discharged employees. Also
to be considered in this regard is that Jacobs'
anti-union animus [sic] was clear not only from his
conduct around October 1967, when he had Mrs
Sullivan try to dissuade employees from signing cards
for a then-organizing union, but also from the
discharges he had made that morning of Sullivan and
of Sjogren, and from his interrogation of Fontana,
Sjogren and Lancaster. Too, Jacobs' conduct
constituted surveillance.
This recitation is a misstatement of the facts in that it
fails to note that Jacobs' uncontradicted testimony is that
he invariably had lunch at the restaurant in front of which
the employees were meeting on February 6 " Accordingly,
Jacobs' explanation of the coincidence that he just
happened to be in front of the restaurant, en route to
having lunch there, is not only a reasonable one but also
uncontradicted. At that point, the burden of going
forward with the evidence shifted to the General Counsel
to establish the falsity of his explanation and the truth of
her own allegation of surveillance within the meaning of
Section 8(a)(l) Some affirmative evidence would be
required to be produced on the General Counsel's part
before an inference could be drawn that any proscribed
activity was engaged in by both Jacobs and Gorritz This
she has failed to do.' Therefore, it is found that the
foregoing facts and circumstances fail to expose by a
preponderance of the probative and credible evidence that
either Gorritz or Jacobs were illegally present, as detailed
above, for the purpose of keeping the employees'
protected activities under surveillance The evidence
adduced by the representative of the General Counsel is
totally insufficient to establish surveillance by a clear
preponderance of the evidence within the meaning of the
Act.'" Accordingly, it is recommended that this allegation
of the complaint be dismissed
Not a scintilla of probative evidence was adduced by
the General Counsel to corroborate its allegation in the
complaint that Jacobs and Roslyn Jarmel, an admitted
supervisor, "warned and directed" employees to refrain
from becoming union members or assisting the Union.
Accordingly, paragraph 13 of the complaint will be
dismissed
The Alleged Violations of Section 8(a)(3)
Elizabeth Sullivan, who was discharged on February 6,
1968, had worked for Respondent since its establishment
in August 1958. Her duties consisted of overseeing the
production of the female employees whose work required
little skill, as all they did was package paper napkins.
Jacobs would determine when additional help was required
and instruct Sullivan to call the New York State
unemployment office. She would interview the applicants
and if acceptable, she would hire them. When the slack
season came, Jacobs decided who was to be laid off and
he would advise Sullivan and she, in turn, would notify
the employees. When production increased, it was Jacobs
who instructed Sullivan to contact the laid off girls to
report for work Sullivan distributed the pay envelopes,
assembled sample books for the salesmen's use and also
ordered labels, bags and cellophane Jacobs had instructed
the employees that when he was not in the plant, Roslyn
Rudin, whose married name is Jarmel, an admitted
supervisor, was to be in complete charge.
It will be recalled that Sullivan and the other five
employees had signed union cards after 5 p.m. in front of
the restaurant, where they had met the union organizers
on February 5 Shortly after Sullivan reported for work
the following morning, Jacobs told her he was firing her
because her work was unsatisfactory. To this, Sullivan
asked- "After all this time," referring to her being one of
the first employees hired when Jacobs opened the plant
'Lunchtime for the employees commences at 12 30 p m
'Martell Mills Corp v NLRB , 114 F 2d 624, 631 (C A 4), N L R B
v Entwistle Mfg Co, 120 F 2d 532, 535 (C A 4)
'°J C Penney Co, 172 NLRB No 134
SOPPS , INC. 303
about 9 years before. Sullivan asked him how he could do
such an unconscionable thing and Jacobs replied: "Well,
you are not working the way you used to work."
On cross-examination, Jacobs testified his reasons for
firing her were "my loss of confidence in her honesty and
integrity" and "total insubordination to any order given to
them [her] in my absence [by Jarmel] . . I did tell the
employees that my discharge of Liz Sullivan was caused
by her honesty and her integrity and her responsibility
in the handling of Sopps' money, time, etcetera. . . . Her
refusal to supervise the girls as often and as much as I
would have liked her to do so." He went on to explain
that unnamed employees complained to him because
Sullivan "glared" at them and finally, that in the summer
of 1967, he told her to look for another job. Sullivan
denied this occurred, testifying credibly that Jacobs, prior
to her termination, had never threatened her with
discharge or complained about the quality of her work.
On rebuttal, Sullivan categorically denied the veracity of
the reasons alleged by Jacobs for her discharge.
Adolph Sjogren, who was hired in August 1962, picked,
packed and shipped merchandise, performed minor repairs
on machines, painted floors, stored materials and cleaned
the premises. He taught the new employees working in the
shipping department how to pack This work is unskilled
and easily learned. When shipping department employees
were being considered for raises, Jacobs solicited Sjogren's
views as to whether the employees merited a raise but this
occurred, Sjogren testified, only twice in four years.
He, like Sullivan, signed a union card on February 5,
after work, on the sidewalk in front on the restaurant
located around the corner from the plant. The following
day when Sjogren reported for work, he learned Sullivan
had been terminated, and shortly thereafter, the union
organizers came to the plant and spoke to Jacobs After
they left, Jacobs questioned Sjogren, as detailed above,
with respect to his knowledge of union activities in the
plant and his role in bringing the Union into the plant.
When Sjogren told Jacobs that he had signed a union
card, Jacobs expressed amazement at Sjogren's
"disloyalty," whereupon Sjogren told Jacobs he owed him
no loyalty because of working conditions. He went on to
explain that Roslyn Jarmel (also referred to in the record
as Rudin), who was in charge when Jacobs was out of the
plant, which was often, "was always screaming and
cursing" at him and Jacobs had done nothing about it. He
was then discharged by Jacobs who said, according to
Sjogren. ". . . tell [Sullivan] before I hire her back both of
[you] will starve together "
Sjogren denied that Jacobs had ever complained about
his work prior to the time he was discharged. On
cross-examination, Jacobs testified that "the long range
reasons" for Sjogren's discharge, were "his sleeping on the
job, his refusal to do jobs that were asked of him and his
general lack of interest in performing as a shipping
supervisor." Jacobs also testified incoherently that in
April 1967, when Sjogren reported to Jarmel that he was
ill and unable to work that a friend of Sjogren's came to
the plant to return a pair of pants he had bought from
Sjogren the day Sjogren was supposed to be sick. Jacobs'
testimony continues as follows: "It was evident that that
transaction had taken place not in Adolph's house but in
some mutual meeting place outside. I felt that this was the
kind of irresponsible action that I did not like from a
supervisor, and I suggested to Jarmel that perhaps she
could settle the problem with him . . because if it were
brought to my attention directly, I would have had to take
some punitive action, and perhaps he might regret the fact
that he had tried to get away with a day or so So I
suggested to Jarmel that it was easier for her to talk to
Sjogren, and she talked to him that afternoon. Rudin
reported to me next morning right after she had spoken to
him that Adolph would take that week as the first week of
his vacation . Therefore I was now giving him a week's
vacation. I accepted this as being under the circumstances
a reasonable solution "
When Jacobs fired him, Sjogren left the plant and went
to the restaurant, as it was agreed the evening before,
when he and the other employees had met with the union
organizers, that they would meet again the following day
at the same place they had met the evening before when
six of them signed union cards. As he and the other
employees, including Sullivan and Fontana, were meeting
with the union organizers on the sidewalk, in front of the
restaurant, Jacobs came along and as he was entering the
restaurant, he turned and addressing the employees and
the union organizers, he said. "I hope the Union can find
you jobs."
After Sjogren's discharge, when he applied for
unemployment compensation and was interviewed by one
of the bureau personnel, he was informed that Jacobs had
stated Sjogren was discharged for misconduct, sulking
because he did not receive a raise and failure to ship
orders between January 3 and 10, 1968.
Marie Fontana was employed on February 14, 1966, as
a packer at $1.25 an hour and later became a machine
operator in February 1967, earning $1.50 per hour In
October 1967, she earned $1.60 an hour. Both of these
increases were in accordance with and required by the
Federal Minimum Wage Law and not voluntary on
Jacobs' part. As detailed above at page 3, Fontana was
the employee who first contacted the Union on the
morning of February 5 and arranged to meet with the
union organizers after work the same day. It was she who
also obtained the signatures of four employees on union
authorization cards." Fontana testified that after Sullivan
had been discharged and the union organizers came to the
plant on February 6, to protest Sullivan's discharge and to
request recognition, that when they had departed about
noon, Jacobs then came over to where she was working at
the machine she operated, and asked her if she had signed
a union card. When she replied she had, Jacobs asked her
"why?" She told him because the employees had no job
security, any one could and was fired, she testified, at the
mere whim of Jarmel, his second in command, and that
they needed a union for protection. Jacobs then asked, her
testimony continues, if any other girls had signed union
cards and when she answered in the affirmative, he walked
away.
Shortly afterwards, she met with the union organizers
during her lunch hour in front of the restaurant and gave
them the three signed cards she had obtained from her
coworkers It was at this time that Jacobs entered the
restaurant.' 2 When she returned to the plant upon her
return from lunch, Jarmel asked her, Fontana testified,
whether she had signed a union card. When she replied
she had, Jarmel asked her if anybody else had signed but
Fontana did not answer. As Jarmel walked away, testified
Fontana, she overheard her say to Gorntz, a foreman: "I
knew that we should have got nd of her."
Just before quitting time, the same day, February 6,
Jacobs came over to her machine. Even though she had
operated the machine all that day, Jacobs told her that the
" Doris Joseph , Creo Bracey, Susie Ferns, and Leticia Blackburn.
"See, infra
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
machine needed repairs and when it was fixed, he would
call her to return to work. Fontana reminded Jacobs that
she could do other work stating: "There is some packing"
that has to be done which she volunteered to do but
Jacobs told her he could not use her. Fontana continued
to operate her machine until 5 p m., quitting time, and
testified "there was nothing wrong with the machine " She
telephoned on Monday, February 12, as instructed and
was told by Jarmel to report for work the next day
Shortly after beginning work, Jacobs called Fontana to his
desk and warned her not to smoke on the job and in the
event she was unable to work due to illness to bring a
note from her doctor She agreed. On Thursday, February
15, her mother called the plant to report Fontana was
sick. When she reported for work the next day, with a
note from her doctor, Gorritz, a foreman," told her
Jacobs did not want her to work until he returned from
California where he was on business. She then left the
plant and returned at 2 p.m and asked Jarmel for her
pay Jarmel told Fontana to return at 5 p.m. Fontana
insisted she be paid immediately and a fight ensued in
which both combatants suffered minor bruises and
lacerations and in which the police eventually became
involved Fontana then received her pay but not before
Jarmel told her she was fired."
Roslyn Rudin Jarmel was an unimpressive and
irrascible witness she was evasive, contradictory,
inconsistent, incoherent and frequently took refuge when
confronted on cross-examination with a distasteful
question by giving a laconic nonresponsive answer that she
did not remember or recall She testified that Sjogren and
Sullivan were uncooperative but when it came to details,
her recital was lacking in specificity.
Julius B. Jacobs, president of the Respondent
Company, who formerly practiced law and who at one
time, was employed in the personnel department of the
United States Metal Refining Company, was the principal
witness for Respondent. Jacobs testified that Sullivan,
who distributed the pay envelopes to the employees, did
not give one of the employees her money, the implication
being that Sullivan's alleged dishonesty entered into his
decision to discharge her This incident occurred about a
year prior to her discharge It appears that when an
employee was absent from work on payday, which was a
Friday, that Sullivan would hold the pay envelope in her
possession until the employee returned to work. This
particular incident involved a girl who telephoned Jarmel
at the plant and asked her to mail the money to her as she
had evidently quit her job. Jarmel then asked Sullivan for
the pay envelope and when she turned it over to her,
Jarmel accused Sullivan of trying to keep the money.
Incensed by the seriousness of this accusation, Sullivan
complained to Jacobs, who said nothing nor did he ever
mention the matter to Sullivan then or afterwards
Sullivan denied this incident, as testified to by Jacobs,
ever occurred in the way he described, attributing
dishonesty to her. If such an act of flagrant dishonesty
had occurred, it is reasonable to believe Jacobs would
have terminated Sullivan at the time Accordingly,
Sullivan's denial is credited.
Sjogren was fired, Jacobs testified, because he was
found sleeping on the job on various occasions, not
painting the floors of the plant, which he had been
ordered to do, not storing Christmas merchandise, and
refusing to cooperate with Jarmel. Jacobs' testimony
"Jacobs testified Gorntz became a supervisor "about " February 7, 1968
'The State Unemployment Office 's records state Respondent alleged
Fontana was discharged for "disorderly conduct "
continues as follows: "Rudin [Jarmel] said to me, 'You
must face the fact that Adolph [Sjogren] did not intend to
work while you were away, that he was absent on
occasion and on other occasions he simply went to sleep "'
Jacobs also testified incoherently that Jarmel told him
that Sjogren and Sullivan, who handled salesmen's
samples, were asked by Jarmel about these samples and
on three occasions she had been unable to get answers
from either Sjogren or Sullivan. Moreover, Jacobs
testified, Sjogren had not shipped any merchandise during
the first part of January 1968, but had foisted all this
work onto Gorritz Furthermore, testified Jacobs, Sjogren
intended to eventually go into business as an auto
upholsterer and "I warned him that I no longer would
wait beyond two months for him to either open that
business or get another job "
Because of these vaned and multiple reasons, Jacobs
testified, he was compelled to discharge Sullivan and
Sjogren, particularly when Jarmel threatened to resign if
he did not fire both of them. "And I said to her,"
continued Jacobs, "there is no choice. I have warned them
that they must work with you and I will have them
discharged immediately. I must ask you to remember that
although I will discharge Mrs. Sullivan the first thing
tomorrow morning, I cannot in good conscience,
considering that this is a business discharge Adolph
[Sjogren] before Friday, because he has not, I know
taught anyone in the place how to route the shipping.15 I
am therefore going to have to ask him to stay until the
end of the week or at least for another two days,"
concludes Jacobs' testimony.
Conclusions
Based upon the facts detailed above and the inherent
probabilities of this situation, to ask the question whether
Respondent discriminatorily discharged Sullivan, Sjogren
and Fontana, is to answer the question because the facts
belie Jacobs' pretexuous explanations and the inferences to
be derived from them reveal Respondent's guilt. Against
this simple fact pattern, Respondent's defenses fail to
withstand scrutiny Upon a study of the testimony, and
the frequently vague, self-contradictory, unconvincing, and
inherently improbable testimony of Jacobs and Jarmel, as
well as observation of the demeanor of these two witnesses
while they were testifying, their testimony is not credited.
Respondent's efforts to exonerate itself from a finding
of unfair labor practices are singularly unimpressive. The
variations in the Respondent's contentions and the
multiplicity of reasons ascribed for the employees'
dismissals, cast doubt upon the meritoriousness of the
Respondent's many defenses. Shifting reasons are often
indicative of a discriminatory intent. The giving of
contradictory reasons may, of course, be considered in
determining the real motive and inconsistent explanations
is a circumstance indicating its motivation, which in this
case, was the Respondent's knowledge of Sullivan's,
Siogren's and Fontana's union activities It is not too
unreasonable to infer and it is so found, that Jacobs and
Jarmel knew of the dischargees' interest in the Union
because of the smallness of the plant." Direct evidence of
such knowledge is not necessary. By Section 10(e) of the
"Elsewhere in his testimony , Jacobs inconsistently testified that Gorntz
had been doing all the shipping in January 1968 , because Sjogren had
foisted this work onto Gorntz
"Brezner Tanning Co, 50 NLRB 894, Sutton Handle Factory, 119
NLRB 951, affd 255 F 2d 697 (C A 8), cert denied 358 U S 865
SOPPS , INC. 305
Act, Congress gave to the trier of the facts, power to draw
inferences from the facts and to appraise conflicting and
circumstantial evidence and the weight and credibility of
testimony " However, there is direct evidence that Jacobs
knew of union activity in the plant Nieves, the union
organizer, testified that he unsuccessfully solicited "Juan"
to sign a union authorization card. This is an
unmistakable reference to Juan Gorritz, who performed
duties similar to Sullivan and Sjogren and who had a
close personal relationship with Jacobs It is not too
unreasonable to assume, therefore, that Gorritz apprised
Jacobs immediately of this incident.
Sullivan was employed by Respondent for 9 years and
Sjogren for over 5 years and Fontana almost 2 years, with
no complaints about their work. Moreover, they all
received periodic wage increases. Only after they became
interested in the Union, it appears, did the quality of their
work deteriorate and their conduct became intolerable
which eventuated in their precipate discharges immediately
after the Union's advent There is no substantial basis or
evidence in the record which discloses there was any basis
for Respondent's alleged dissatisfaction with the quality of
their work prior to the time they began to engage in union
activities!' Moreover, the record is devoid of any
suggestion as to why with a record of many years'
satisfactory service, Sullivan and Sjogren should suddenly
become inefficient and neglectful of their duties. Belying
these ficticious criticisms of their work is the cogent fact
that they both received Christmas bonuses in 1967, a
month before they were discharged. These insubstantial
and multiple explanations, subsequently advanced for their
discharge, after long service with a recent bonus and
successive increases in salary, compel the conclusion that
the decision to discharge them was not made until
Respondent learned of their union activities. This is a
situation, where it is believed that the Respondent has
characterized the union activity for which they were
discharged as inefficiency in an effort to justify the
discrimination against them.19
The inconsistent, contradictory and unconvincing
reasons given for Sullivan and Sjogren's discharge and the
ficticious reasons given for Fontana's purported "layoff"
on February 6, which is found to be a discharge, create a
suspicion that they were offered to conceal an unlawful
motive, which in this situation was an attempt to forestall
union activity and to abort the Union's organizational
activities by discharging the leaders of the union
movement and it is so found In view of the foregoing, it
is concluded, contrary to the Respondent's many reasons
detailed above, that the discharges of Sullivan, Sjogren
and Fontana were in whole or in substantial part, a
reflection of its desire to rid itself of union activists and
that the alleged reasons were spurious and a mere pretext
to cloak its illegal motivation
On the basis of the foregoing and the entire record,
including Respondent's interrogation and promises of
wage increases, the suggestive circumstances inhering in
Sullivan, Sjogren and Fontana's precipitate discharges,
almost contemporaneously with their union activities,
which was the motivating cause for their terminations is
found to be a violation of Section 8(a)(3) of the Act
"NLRB v Link Belt Co , 311 U S 584, 597, 602
"Jacobs also testified that Fontana was under suspicion as having
sabatoged or condoned the possible sabatoge of the machine she operated
"The conclusion that Sullivan was discharged for an improper reason is
buttressed by the fact that when Jacobs told Sullivan she was fired, he
offered to get her a job at a department store
The question of whether the Act has been violated,
however, requires an appraisal of the particular conduct,
which has been described above, as to whether the
Respondent is liable for the discharge of Sullivan and
Sjogren, who it is alleged by Respondent are supervisors
within the meaning of Section 2(11) of the Act,2U and
therefore not entitled to the protection of Section 8(a)(3)
which proscribes discriminatory discharges."
Sullivan's and Sjogren's duties are detailed at pages 9
and 10 above. The delineation of these duties show that
Respondent's contentions are without factual validity
because when what Sullivan and Sjogren did are examined
in the light of the language of Section 2(11), it is found
they were not supervisors for the reasons hereinafter
explicated.
They were merely overseers to a limited extent. They
assisted other employees but did not criticize their work
They were paid more than the other employees but this
was based on their having the greatest seniority and
experience of anyone in the factory, as well as additional
ministerial or routine duties requiring no more skill than
their unskilled coworkers. In addition, Sullivan had
sample book duties and Sjogren performed truck routing
duties. The directions they gave to employees was no
more than a leadwoman and leadman, respectively. As
such, their duties included giving new employees training
in their unskilled jobs and directions of a routine nature
but nothing in the record indicates that they had any
discretion or real disciplinary authority over the
employees in this small factory over which Jacobs and
Jarmel controlled practically every move of the employees
from the time the plant opened at 8.30 a m. until it closed
at 5 p m. Sullivan and Sjogren were a leadwoman and
leadman who merely carried out routine orders of Jacobs
and Jarmel.2S Nor did Sullivan and Sjogren have authority
effectively to recommend hiring, transfers, layoffs,
rewards, settle grievances, promotions or discharges, nor
could they exercise independent judgment or responsibly
direct employees in a manner or to a degree sufficient to
find them to be supervisors within the meaning of Section
2(11) of the Act. There is no evidence that Sullivan and
Sjogren were regarded as supervisors within the meaning
of the Act Even assuming that the employees considered
Sullivan and Sjogren, their boss or immediate superior,
the question whether they were "employees" or
"supervisors" turns on their duties, not on employees'
opinions.23
The evidence shows Sullivan and Sjogren performed
physical labor along with the other employees. They had
no initial responsibility to determine anything of
importance. All they did was to give directions of a
routine nature to a few employees and possibly change
their assignments. Their direction over those whose work
was routine and unskilled, was of a ministerial nature 24
Their duties were no more than routine in nature and any
followed recommendations of theirs were honored out of
deference for their judgment acquired by nine and six
"The term " supervisor" means any individual having authority in the
interest of the employer, to hire, transfer , suspend, lay off, recall, promote,
discharge , assign, reward, or discipline other employees, or responsibly to
direct them or to adjust their grievances , or effectively to recommend such
action, if in connection with the foregoing the exercise of such authority is
not of a merely routine or clerical nature, but requires the use of
independent judgment
"See N L R B v Fullerton Publishing Co , 283 F 2d 545 (C A 9)
"Brandenberg Telephone Co. 164 NLRB 825
"Cf DeKalb Telephone Cooperative, 156 NLRB 1381, 1383-84
"Quick Shop Markets, Inc, 168 NLRB No 30
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
years of seniority, respectively, rather than because of
delegated authority." They did not exercise any authority
requiring independent judgment, but rather they were a
conduit for the relaying of predetermined policy decisions
It is the existence of the power which determines whether
an employee is a supervisor The power must actually
exist. The authorization which Jacobs claimed they had
was a ficticious power, a paper authority for the purpose
of excluding Sullivan and Sjogren from the bargaining
unit with no intent that they should ever have or exercise
that purported authority. It is found, accordingly, that
Sullivan and Sjogren were not supervisors within the
meaning of Section 2(11) of the Act and, therefore, they
are both encompassed within and protected by the
provisions of Section 8(a)(3) of the Act.26
Assuming, arguendo, they were found to be supervisors,
their discharges would still be discriminatory, under the
circumstances herein, as their discharges would have
caused an adverse effect, that is, intimidation of the other
employees who witnessed and learned of their
terminations in this small plant. In such a situation, it is a
violation of Section 8(a)(1) for which an 8(a)(3) remedy is
afforded.27
The Alleged Refusal to Bargain in Violation of
Section 8(a)(5)
Union Organizer Rubin Nieves, who accompanied Sam
Vogel to the plant, was present on February 6 when Vogel
requested recognition.2S Between 11 a.m. and noon, they
went to the plant, testified Nieves, and Vogel told Jacobs,
the Union "represented a majority of the factory and that
he wanted to negotiate a contract."29 He (also) "told Mr.
Jacobs that he would like to have Miss Sullivan back on
the fob.... Mr. Jacobs said that under no circumstances
would he take Miss Sullivan back to work. . . he told
Mr. Vogel that he could go to the National Labor Board
[sic] anywhere that he wanted, and then we left.... Mr
Jacobs when we were [in the plant] said that he wanted
Mr. Vogel to show him the cards that people signed, and
Mr. Vogel refused, stating: "So that you could have them
fired too? and he refused to show him the cards."
Jacobs' version of this incident is as follows: About
fifteen minutes after Sjogren was fired, Vogel came into
the plant and said, "I have some cards, signed by some of
your hourly employees, including Mrs. Sullivan. I
understand that you have fired Mrs. Sullivan and you
cannot do that; therefore, I am asking you to rehire her
immediately. I said to Mr. Vogel, `Mrs. Sullivan is a
supervisory employee. I do not think that you can
"N L R B v McCormick Concrete Co, 371 F.2d 149 (C A 4), Virginia
Steel Corp v NLRB , 300 F.2d 168, 171 (C A 4)
"An Employer violated the Act by discharging an alleged supervisor,
admittedly because of his union activities , since supervisory status
purportedly conferred on discharged employee and five other union
adherents was subterfuge to prevent them from engaging in union activity
and did not alter discharged employee's status as straw boss or leadman
While alleged supervisors on various occasions interviewed job applicants,
recommended wage increase , or requested employee transfer , it was not
shown that their recommendations had any real significance - Benson
Wholesale Co , Inc , 164 NLRB 536
"Brookside Industries , Inc , 135 NLRB 16, N L R B v Vail Mfg Co.
158 F 2d 664 (C A 7), NL RB v Talladega Cotton Factory, 213 F 2d
209 (CA 5)
"Jacobs testified he told Nieves that he wanted to speak to Vogel alone,
whereupon Nieves waited outside the office Nieves' testimony that he was
present but took no part in the discussion is credited
"Nieves testified on cross-examination the Union represented a majority
of the "production workers," because there were l1 employees in the unit
represent her In any event, she has been discharged and
will not be rehired and I do not wish to discuss the
incident any further at this time. As to cards you may
have from some of the other employees, if you have a
sufficient number to be a representative, you may show
them to me?' He said `I will not show you any cards' and
he left."
Conclusions"
The aforementioned conduct of the Respondent which
is detailed above and found violative of Section 8(a)(1)
and (3) of the Act, evidences not only a complete rejection
of the principles of collective bargaining but a desire to
gain time in which to dissipate the Union's majority
status. The record is replete with evidence showing that
following the Respondent's becoming aware of union
activity, Jacobs and Jarmel engaged in a course of illegal
conduct calculated to intimidate the employees into
abandoning their support for the Union. Such action
clearly constitutes a violation of Section 8(a)(5) of the
Act " Where a majority of the employees select a union
and the employer engages in unlawful coercion,
interference and discriminatory discharges designed to
destroy that majority, a bargaining order, and not a mere
cease and desist order is appropriate.32
Respondent's defenses are a cynical canard. To give
credence to its many and incredible denials of the
commission of unfair labor practices would make a
mockery of the Act's purposes, pervert the aims of
Congress, legitimize a mere stratagem, and brand the trier
of these facts as being utterly naive. Jacobs would have us
believe that he was only interested in the efficiency of his
plant and not motivated by a desire to rid himself of a
union-minded nucleus of employees and thus abort their
organizational efforts. The record reveals the facts to be
otherwise.
In view of the Respondent's substantial violations of the
Act subsequent to the Union's initial request for
recognition, it is found that it violated Section 8(a)(5) and
(1) of the Act "
CONCLUSIONS OF LAW
1. By interfering with, restraining and coercing
employees in the exercise of rights guaranteed them in
Section 7 of the Act, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act
2. All production and maintenance employees,
employed by the Respondent at its Brooklyn, New York,
plant, excluding office clerical employees, salesmen,
"The Company 's challenge to the Union 's initial demand being
"unclear" and vague is a specious argument The Respondent 's actions
reflected no such incertitude nor did it express any doubt as to the unit
until it filed its answer to the unfair labor practice complaint Timken
Rolling Bearing Co v N L R.B , 325 F 2d 747, 754 (C A 6), cert. denied
376 U S 971 Publishers Assn v. N L R B, 864 F 2d 293, 296 (C A 2),
cert denied 385 U S 971 The variance, if any, was insubstantial
American Rubber Products Corp, 106 NLRB 73, United Butchers
Abattoir , Inc, 123 NLRB 946, Hamilton Plastic Molding Co, 135 NLRB
371, American Manufacturing Co of Texas, 139 NLRB 815, Steel City
Transport, 166 NLRB No 54
"Joy Silk Mills, Inc, 85 NLRB 1263, enfd 185 F 2d 732 (C A.D C ),
Bernel Foam Products Co, Inc , 146 NLRB 1277
"N L R B v Caldarera, 209 F 2d 265, 267-269 (C A 8), N L R B v
Arkansas Grain Co , 390 F .2d 824 , 831 (C A 8), Delight Bakery , Inc, 353
F 2d 344 , 347, and cases cited herein
"Garland Knitting Mills, 170 NLRB No 39.
SOPPS , INC. 307
guards and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
3 At all times since February 6, 1968, the Union has
been the exclusive representative of all the employees in
the aforesaid unit for purposes of collective bargaining
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment.
4 By refusing on and after February 6, 1968, to
bargain collectively with the Union, Respondent has
engaged, and is engaging in, an unfair labor practice
within the meaning of Section 8(a)(5) and (1) of the Act
5. By laying off, discharging, and/or terminating the
employment of Sullivan, Sjogren, and Fontana, as set
forth above, Respondent discriminated against them in
regard to their tenure of employment, and the terms and
conditions thereof, to discourage membership in the
Union and thereby engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act
6 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices as set forth above, it will be recommended that
it cease and desist therefrom and take affirmative action,
set forth below, found necessary and designed to
effectuate the policies of the Act
As it has been found that Respondent discriminatorily
discharged Elizabeth Sullivan, Adolph Sjogren, and Marie
Fontana, it shall be recommended that Respondent be
ordered to offer them immediate and full reinstatement to
their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges,
and to make them whole for any loss of earnings they
may have suffered by payment to them of sums of money
equal to the amount each normally would have earned as
wages from the dates of their respective discharges to the
dates of offers of reinstatement, less net earnings, in
accordance with the formula set forth in F. W Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating
Co, 138 NLRB 716
Having found that Respondent violated Section 8(a)(1)
when it interfered with, coerced, restrained, and frustrated
its employees in the exercise of rights guaranteed by
Section 7 of the Act, namely that it interrogated
coercively its employees and promised and granted them
wage increases, and
Inasmuch as the discharge of employees for reasons of
union affiliation or concerted activity has been regarded
by the Board as one of the most effective methods of
defeating the exercise by employees of their rights to
self-organization, the Trial Examiner is of the belief that
there is danger that the commission of unfair labor
practices generally is to be anticipated from Respondent's
unlawful conduct in the past. It will be recommended,
therefore, that Respondent be required to cease and desist
from in any manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
in Section 7 of the Act."
[Recommended Order omitted from publication.]
"NLRB Y Entwistle Mfg Co, 120 F 2d 532, 536 (C A 4)