Soundesign Corp.

National Labor Relations Board - Board Decisions

Oct 7, 1977

232 N.L.R.B. 993 (N.L.R.B. 1977)

SOUNDESIGN CORPORATION
Soundesign Corporation and Marie Schall
local 210, Warehouse and Production Employees
Union, a/w O.P.E.I.U. and Marie Schall. Cases
22-CA-6985 and 22-CB-3280
October 7. 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On May 31, 1977, Administrative Iaw Judge Julius
Cohn issued the attached Decision in this proceed-
ing. Thereafter, Respondent Company, Soundesign
Corporation, filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge, and to
adopt his recommended Order, except that the
remedy is modified so that interest is to be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977).2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Soundesign
Corporation, Jersey City, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Drv Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 See, generally, Isis Plumbing & Heating Co. 138 NL.RB 716(1962)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to
give evidence, the National Labor Relations Board
has found that we violated the National Labor
232 NLRB No. 157
Relations Act and we have been ordered to post this
notice.
WE WILL NOT discharge any employee for
engaging in union activities and supporting Local
210, Warehouse and Production Employees
Union, a/w O.P.E.I.U., or any other union.
WE WILL NOT harass or place any restrictions
on you because of your union activity or support.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights under Section 7 of the Act.
WE WILL offer Marie Schall immediate and full
reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent job,
without prejudice to her seniority or other rights,
and WE WILL make her whole for any loss of pay
or any benefits, plus interest, which she may have
suffered by reason of our discrimination against
her.
SOUNDESIGN
CORPORATION
DECISION
STATEMENT OF THE CASE
JULIUS CoHN, Administrative Law Judge: This case was
heard at Newark, New Jersey, on October 26, 27. and 28,
1976. Marie Schall, the Charging Party herein, filed a
charge in Case 22-CA-6985 on May 20, 1976, which was
served the same date. She then filed an amended charge in
that case and an additional charge in Case 22-CB-3280,
both filed and served on July 15, 1976. Upon both charges,
the Regional Director for Region 22 issued, on July 30, an
order consolidating cases and a complaint alleging that
Soundesign Corporation, herein called the Company or
Respondent Company, violated Section 8(a)(I), (2), and (3)
of the Act and further that Local 210, Warehouse and
Production Employees Union, a/w O.P.E.I.U., herein
called the Union or Respondent Union, violated Section
8(b)(IXA) of the Act. Thereafter, on September 23, 1976,
the Regional Director issued an amended complaint which
alleged that Respondent Company violated Section 8(aX)(I)
and (3) of the Act by issuing disciplinary warnings, and
otherwise harassing Schall, and by discharging her on May
18. The complaint further alleged that Respondent Compa-
ny violated Section 8(aX2) and the Union violated Section
8(b)(1)(A) by permitting a supervisor to occupy the
position of union shop steward. The Respondents filed
answers denying the commission of unfair labor practices.
Issues
Whether Gloria Peterson is a supervisor within the
meaning of the Act.
If so, did the Respondents violate Sections 8(a)(2) and
8(b)(1)(A), respectively, by permitting her to occupy the
position of shop steward.
993
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Whether Respondent Company violated Section 8(a)(1)
of the Act by harassing Schall and keeping her under
undue surveillance during her working hours.
Whether Respondent Company violated Section 8(a)(3)
by warning and then discharging Schall because of her
union activities.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. The General
Counsel and Respondent Company submitted briefs which
have been carefully considered.
On the entire record in the case and from my observation
of the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Respondent Company is a New Jersey corporation
having a principal place of business and plant in Jersey
City, New Jersey, and various other plants including a
plant at Bayonne, New Jersey. The Company is engaged in
the purchase, assembly, sale, and distribution of electronic
equipment and related products, and during the preceding
12 months it caused to be assembled, sold, and distributed
at said plants products valued in excess of $50,000 of which
products valued in excess of $50,000 were shipped from
said Jersey City plant in interstate commerce directly to
States other than the State of New Jersey. The complaint
alleges, Respondent Company admits, and I find that the
Company is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The 8(a)(1) and (3) Allegations
I. Facts
Respondent Company manufactures, assembles, and
distributes audio equipment including stereos, phono-
graphs, radios, and related products. The Union has
represented the production and maintenance employees at
the Company's Jersey City and Bayonne, New Jersey,
plants in a single unit for the past 9 years. The current
collective-bargaining agreement provides for a probation-
ary period of 60 days of employment, after which the
employee is obliged to become a member of the Union.
Benefits are then made retroactive to 30 days after the
original date of employment.
Marie Schall was employed by the Company at the
Jersey City plant on September 25, 1975, as a tester, having
been hired by Sami Iny, manager of the quality control
department. She was trained by and received work
assignments from Gloria Peterson, lead person and,
incidentally, shop steward for the employees in the testing
The complaint alleges Peterson to be a supervisor, and discussion of
that issue which is relevant to the allegations that the Company violated Sec.
department.' It was Schall's understanding that after 2
months of employment an employee would become a
member of the Union and receive a 10-cent increase. As
this did not occur in November, she asked Peterson the
reason for the inaction. Peterson replied that there had
been a lot of layoffs and that this matter was up to the
personnel manager but that she would inquire and let
Schall know. According to Peterson, Iny was not too sure
of Schall's work and had so informed the personnel
manager, who was thinking of discharging her. Iny himself
testified that he wanted to discharge Schall in November
but was convinced by Peterson to retain her. In December
Schall received a written warning which recited that she
was not paying attention to her job. Peterson stated that
she asked Iny to give Schall another chance because she
needed the job badly. In any case Schall became a union
member in January and received a 10-cent increase. Iny
said that in January he spoke to Schall several times about
both leaving her area and her work performance; and, in
February he warned her eight or nine times with regard to
her job performance. Despite this Schall received a 25-cent
increase in February which Iny testified is given to all
inspectors who perform their job properly.
As the collective-bargaining agreement between Respon-
dents was due to expire on July I, they commenced
negotiations in April for a new contract. Schall was elected
by the employees as one of 3 representatives of her
department to serve on an employee committee of 15. In
addition to the committee, the Union was represented by
two of its officials and the Company by Mr. Horowitz, its
attorney, Sonny Laniado, the director of labor relations,
and another executive. The negotiations began by the
Union submitting a list of demands and the Company
making counterproposals. For a period of time the parties
alternately caucused each proposal until a point was
reached when it was decided they would remain together
and try to hammer out an agreement. There came a time
when the Company submitted to the union negotiators
what may be termed as its "final offer." Some discussion
ensued and then Laniado himself polled the employees on
the union negotiating team as to how they would vote on
this offer. It developed that several people including Schall,
Juana Colon, who also represented the same department as
Schall, and the representatives from the Bayonne plant
were opposed to acceptance of the contract. It was decided
that these people should return to their departments and
obtain the opinion of the employees. Peterson, Colon, and
Schall returned to their department and the production line
was shut down while a meeting was called. During the
course of this meeting the three representatives as well as
Rivera, the head shop steward, spoke to the employees.
Schall stated that she explained her position and told the
employees that she did not believe the Company's offer
was a good one. Colon also spoke against acceptance of the
Company's offer, while Peterson recommended that it be
accepted. All of this led to a situation so confused that the
representatives were unable to obtain a vote or a proper
indication as to how the employees in that department felt
about the proposal. They returned to the conference room
8(a)
2
) and the Union Sec. 8(bXIKA) will be reserved to the section herein
dealing with those matters.
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SOUNDESIGN CORPORATION
and at that time the Bayonne representatives were able to
report that the employees in their plant had accepted the
offer of the Company.
A document was then passed around which read as
follows: "We the committee of Soundesign accept the
Company's final offer." This paper contained 15 lines of
signatures followed by a list of 7 items detailing the
highlights of the agreement. At this point all of the
employees on the negotiating team signed the document
except Schall. As she was the only one and it had been
previously agreed that there should be unanimity on the
15-member negotiating team, it was decided to present the
offer to the employees of the department the following day
for a vote. Before they left the meeting Loniado called
Schall into his office and told her to think carefully about
her vote because 400 people depended on the decision she
would make.
The following day, April 14, Loniado and Peterson were
waiting for her to ask what she had decided and she told
them that they would find out at the meeting. Just before
the meeting Loniado again came over and tried to convince
her to urge the people to accept the contract. Schall told
him that she did not think it was a good contract, and that
was what she was going to tell the people. The meeting was
then held in the cafeteria and the workers were called in by
sections. Loniado spoke to the groups and told them that
14 people on the committee had accepted a good contract,
the best the Company had ever offered. Schall told the
employees that she did not think it was a good contract and
it was not the best that they could get. She said that by the
time the third year came around the overall dollar increase
they were getting would seem like nothing. In order to get
this final offer, they had given up more than it was worth.
She then told them that they had to decide and she would
sign the agreement if a majority voted to accept. This was
repeated four times for four groups. The employees finally
voted to accept the contract after which Schall went
upstairs and signed the agreement. As they were walking
away, Loniado came over to Schall and asked her name
and she told him. He then said that he was not going to
forget her.2
Schall testified that she noticed a change after April 14 in
the way she was treated by Peterson and Iny. They
continually watched while she was working and came over
and doublechecked her work. While this formerly occurred
occasionally, it was done more often from that point on.
This is confirmed by Juana Colon, also a member of the
negotiating committee, who stated that she observed Iny
and Peterson watching Schall very closely. Colon said that
they would stand behind her and tell her what to do and
they had not done it exactly that way before the vote on the
contract. Hans Voss, a technician, also recalled noticing
that after the voting Peterson and Iny were often behind
Schall watching what she was doing. He frequently worked
in close proximity to Schall and could observe this. He
stated that he had not seen this amount of watching by Iny
and Peterson prior to the vote.
On April 27, the testers were having problems with the
sets on which they were working. Schall said that the sets
2 This statement attributed to Loniado by Schall remains uncontradicted
on the record as Loniado did not appear or testify at the hearing.
she was testing would stop when she pressed the 78 button.
That day at lunchtime Schall and Colon went to talk to the
steward in an attempt to obtain answers to questions from
workers about the contract. Particularly they wanted to
find out when certain provisions were going into effect,
such as 15 minutes' paid time to cash checks and the $2.50
rate for new hires. According to both Schall and Colon,
Rivera told them there were troublemakers downstairs and
as a result a lot of people from there were going to be fired.
After lunch, Peterson and Iny were looking at the rejected
sets and Peterson asked who had been writing on the slips,
"Dead on 78." When Schall said she had, Peterson retested
a set, found it did not stop on 78, and asked Schall why she
had rejected it. Peterson explained to the testers that the
mechanism was sticky on a lot of these sets and if they
jiggled it a little bit it would work. After that the testers
were able to correct the mistake before rejecting the set. At
the end of the day Iny gave Schall a warning which referred
to her being "negligente" (sic) on her job.
The next morning Schall asked Iny why she had been
warned, and he said it was because she was rejecting good
sets. He also said a number of people had complained that
she was the one who had made all the mistakes the day
before. Schall replied that there really was no proof that the
set Peterson retested was hers. She asked to see the sheets
on the rejects in order to determine whether most of the
mistakes made the day before were hers. She also said she
wanted to contest this warning, but Iny said he would not
take it back. He told her that the people who were
complaining about her work were the technicians, Voss
and Ramos, and a BSR technician. Iny denied naming
these people, but Voss testified he was walking by during
this conversation and heard his name mentioned. Schall
spoke to both Voss and Ramos who assured her they had
not complained about her work and signed a paper to that
effect. BSR, a manufacturer which supplies the Company
with the equipment on which Schall and the others were
working on April 27, maintains a technician at the
Company in order to repair defects in the sets it furnishes.
Iny stated that the BSR technician complained to him on
April 27 about the rejects. Although no BSR technician
testified, Respondent Company produced a letter from
BSR dated June 23, 1976, apparently written after a
conversation with Production Manager Kahn. The letter
states that during the period between March 22, and April
30, there were many rejects which caused BSR to supply
two repairmen rather than one. It also noted that some of
the rejects were not in fact rejects but had been improperly
tested. This letter is of little or no probative value since no
witness testified with respect to it, nor is there any
indication from it that Schall was responsible for the rejects
referred to in the letter.
Iny further testified that there were three inspectors
working on April 27, and of the approximately 75 false
rejects he said half belonged to Schall and the other half to
the other two testers. The latter were not otherwise
identified despite the fact that Iny testified that quality
control records are kept by the Company, as well as daily
records by the technicians showing the numbers of rejects
995
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the reasons for them. None of these records were
introduced at the hearing.
The Company instituted a new assembly line on May 17,
which changed the operation to that of a moving conveyor
belt. Schall and another employee were assigned as testers
on this line that morning. As this was a new operation,
Kahn himself, along with Iny and Peterson, observed the
functioning of the line from the outset. It was the job of the
tester to take a set off the moving belt as it approached, test
it at her table, and then move it back onto the belt.
Obviously, if the tester did not perform her function
quickly enough, another set coming down the line would
not be tested if she was not ready for it. The three company
witnesses, Kahn, Peterson, and Iny, all testified that they
noticed the sets backing up on the line. In order to alleviate
this condition Kahn began placing orange and yellow tags
on the sets alternately and Schall was told to inspect all sets
with the orange tags. Schall testified that at one point she
noticed three sets in a row coming down all with orange
tickets on them, and as she could not do all three of them
she called Peterson. After lunch that day Peterson told her
Iny wanted her off the line and she was then given some
other work. That afternoon she received a written warning
from Kahn who told her she deliberately slowed down the
line that morning. He said he would give her one more
chance and if she did not keep up with the line the next day
she would be fired.
There were some variations in the testimony of the
Company's witnesses concerning the events of the morning
of May 17. None of them professed to know the reason for
the backups prior to Kahn's using the color tags. Kahn
stated he went to the tag system to help the testers identify
the set each should be working on and it helped a little bit
but did not resolve the problem. Peterson stated that after
the tag system was used Iny had told her to take Schall out
of the line. However, Peterson volunteered to substitute for
a tester and in that manner perhaps she would be in a
position to see what was wrong. Accordingly, she replaced
a woman named Anna. In his testimony Iny did not
mention telling Peterson to take Schall out of the line but
rather stated that he himself was not aware of the cause of
the trouble until Peterson replaced Anna on the line. After
that he could tell that Schall was the one causing the
backup. Kahn testified that before the time Peterson
replaced Anna, he already suspected that it was Schall who
was causing the line to back up.
The following day, May 18, Schall reported to work, was
placed in a position on the line by Peterson, and proceeded
to test sets that morning and for about half the afternoon.
She testified that she had no trouble keeping up with the
pace of the assembly line. However, she did notice Iny
standing at a position behind her and taking some of her
sets off the line along with those of other testers. During the
day she was told by two of the technicians, Voss and
Manuel Sierra, that Iny was taking her sets and "messing"
3 With regard to the conflicting testimony of Voss and Iny as to the
events of May 18. I credit the version of Voss rather than that of Iny. Iny
was evasive throughout the major portion of his testimony as it was almost
impossible to get him to answer a crucial question in any sequence. On the
other hand Voss testified in a forthright manner and corroborated the
testimony of Schall. despite the fact that he was under considerable
pressure. In this connection it is noted that Voss. since the discharge of
with them. Sierra suggested that she watch Iny, but she was
unable to do it. However, at one point Sierra tapped her on
the shoulder and she was able to see Iny doing something
to a set different than the testing procedure. A little while
later Iny brought over a set and said that there was a reject
in it. About 3 p.m., Kahn called her to his office and said
he was firing her because Iny had found rejects in work she
had passed. Schall replied that she was passing good work
and she could not tell what Iny was doing or what
happened to the sets after she passed them.
Hans Voss, the technician, testified at some length with
respect to these events of May 18. Voss had been assigned
to work at a table enclosed by sides which rose about a foot
or two above the surface of the table. Iny came to him and
insisted that he had to use that table despite the protests of
Voss. Voss then started to work at a nearby table from
which he was able to see what Iny was doing. He observed
Iny taking finished sets from the line which had been tested
by Schall and Anna, the other tester that day. These were
sets that had been passed as good by the testers. Voss
stated that he was receiving hand signals from Sierra who
advised him whether Iny was working on a set passed by
Schall or Anna. In addition to his visual observation, Voss
was in a position to hear the sets as they were played by
Iny. At one point he saw Iny take a screwdriver from his
pocket, take off the turntable, do something inside, and
replace it. He then tested it again and this time the record
changer was going too fast and consequently was a reject.
Iny called Peterson, who listened and confirmed that the
set was no good. At another point he saw Iny adjust the
record changer with a screwdriver and again called
Peterson to come over. This time she came with Kahn and
he heard them say, "[O]h this set is no good." At lunchtime
Voss spoke to Schall and told her that something wrong
was happening to her sets because he noticed Iny write on
a paper how many bad sets she had and saw Iny fooling
around with the record changer. After lunch he saw the
same thing repeated and on this occasion he called Sierra,
who alerted Schall in time to turn around and see Iny do
something to the record changer.
Iny himself denied making any adjustments to the sets of
Schall or Anna which he inspected that day. He contended
that he found four rejects on Schall's sets and two rejects
among sets inspected by Anna. Iny said that two of Schall's
faulty sets were running too fast and that the size selector
of the other two were jammed in such a manner that it
could not be moved by hand. He further stated that the
rejects in Anna's sets were of such minor variety that the
adjustment could be made by the consumer himself merely
by following the operating instructions delivered with the
set. However, Iny also stated that a turntable could be
made to run faster by taking off the platter and making an
adjustment with a small screwdriver such as he himself
carried. 3
Schall, received a written warning for having forgotten to punch out at
lunchtime one day; he was also assigned to work on an assembly line by
Cardello, a job he had never performed before, and was thereafter
transferred from the second to the fourth floor. Finally his testimony is
bolstered by a further incident which occurred during the hearing.
Respondent Company contended that on May 18. Iny was testing the
machines of Schall and Anna in a booth that was almost completely
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SOUNDESIGN CORPORATION
Production Manager Kahn testified categorically that
the reason for Schall's discharge was she deliberately
allowed defective sets to pass through the line. However,
Respondent Company does not completely rely on this
asserted reason. In its brief, the Company contends, as it
did at the hearing, that Schall was discharged for a variety
of additional reasons. Iny and Cardello as well as three of
Schall's former fellow employees testified at length to the
fact that she was slow and frequently held up the assembly
line. As previously noted Iny stated that he wished earlier
to discharge Schall. Besides the written warnings in
December, April, and May, Iny said that he warned her
many times in December, January, and February concern-
ing her inattention to work duties, her frequent departures
from the work areas, and her habit of stopping to talk to
fellow employees on the way back from the ladies room.
Interspersed with all of these verbal warnings Schall
received a 10-cent-an-hour increase in January and the 25-
cent-an-hour increase in February.
Respondent Company called three witnesses, Burgos,
Dickey, and Hernandez, all of whom had been employed
and worked in close proximity to Schall. They testified that
Schall was very slow and despite their attempts to assist her
she was not able to speed up her work sufficiently to keep
the work moving. All testified in a vague, indefinite manner
and were unable to refer to any specific incidents or times
when Schall was allegedly guilty of the slow performances
and carelessness to which their testimony alludes. In any
case I do not believe that their testimony is worthy of
credit. Burgos had been fired for excessive absences and
then proceeded to collect unemployment benefits. While
doing this she would return to the plant to advise the
supervisors that she would like to get her job back. On one
of these occasions she was informed by Peterson of the
charges Schall had filed and Burgos states that she
"volunteered" to testify on behalf of the Company because
what Schall was saying was not true. Shortly thereafter she
was reemployed by the Company. Dickey, who left in May
to get married, testified that she was called by Iny, who
asked if she would like to return to work. Dickey came
back I week before the hearing, was approached by and
talked with counsel a few days later, and was told she was
going to testify. Hernandez was also fired by the Company
for her poor attendance record and at the time of the
hearing was still unemployed. Her testimony leaves me
with the distinct impression that she is waiting until her
unemployment benefits run out before seeking further
employment. Under the circumstances, I cannot call them
disinterested, to say the least, and I do not credit any of
these three employees' testimony.
2. Analysis
The complaint alleges that Respondent Company violat-
ed Section 8(a)( ) by its close observation and surveillance
of Schall's work between the time of her activities on April
enclosed so that it would be impossible for Voss or anyone else to have
observed what Iny was doing. To this end a motion was made for a recess
with a request that the Administrative Law Judge visit the plant and see for
himself that the booth in question was so enclosed that Voss could not have
seen Iny and consequently it would he apparent that Voss was "a liar." The
motion was denied. On redirect examination Voss was able to testify that
13 and 14 until her discharge on May 18. The testimony of
Schall, Colon, and Voss is uncontradicted to the effect that,
immediately after Schall's activities with regard to the
proposed contract, both Peterson and Iny commenced
close observation of Schall's work. This increased observa-
tion on the part of the Company led to the written warning
issued on April 27, one of the progressive warnings which
ultimately led to Schall's discharge on May 18. This
warning was given to Schall because allegedly she had been
falsely rejecting sets on that day and had admitted that she
was the employee who was writing "Dead on 78" on the
inspection slips. However, the evidence as described above
indicates there indeed was some problem with a control
which was sticking on the sets coming through that day
and that Peterson eventually showed the testers what
should be done to unfreeze the control rather than rejecting
the set. It appeared that there was an unusually large
number of rejects on that date and Schall was not
responsible for all of them. Despite this, there is no
indication Respondent Company took action against other
testers who had similarly rejected sets that day. In this
connection it is noted that, while Respondent Company's
witnesses testified that quality control and inspection
records were kept as to these matters, no records were
offered or introduced to show how many rejects were made
by each inspector, and the reasons for the rejects. The
Company attempted to introduce a summary of the records
in order to fix principal responsibility on Schall, but this
offer was rejected as the alleged summary was patently
incomplete. The close observation continued after April 27
until Schall's discharge and I find this type of surveillance
is coercive and tends to interfere with an employee's
support of a union and thereby violative of Section 8(a) I).
In view of the lack of substantiation for the written
warning of April 27, and noting that it came only a few
hours after Schall and Colon questioned the chief steward
about the provisions of the contract, I find that the
Company issued this warning as part of the progressive
discipline procedure to provide a basis for her eventual
discharge. Therefore, I further find that the April 27
warning was discriminatorily motivated and by issuing it
the Company violated Section 8 (aX3 ) and (1) of the Act.
I also find that Respondent Company violated Section
8(a)(X) and (3) of the Act by discharging Schall on May 18
for discriminatory reasons. There is no question that Schall
had engaged in highly visible, serious activity when she
almost singlehandedly voiced vigorous opposition to the
final offer of the Company on April 13 and 14. Moreover,
in light of what eventually occurred, the remark of Loniado
that he would not forget Schall carries additional signifi-
cance and reveals the extent of the Company's animus
toward her. As noted above, this statement of Laniado, to
which Schall testified, is uncontradicted in this record.
The Company has set forth two reasons for Schall's
discharge. Production Manager Kahn, who actually dis-
the booth was not enclosed as contended by Respondent Company on May
18, but that on the following day it was so constructed. Respondent
Company did not reply to this testimony and the matter was dropped. For
all of the reasons discussed, I credit Voss to the fullest extent, and discredit
Iny.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged her, stated he did so solely because she deliberate-
ly passed sets on May 18 which were defective. The
Company also contends that Schall was discharged
because of her poor work performance over a long period
of time. It may be argued, as does the General Counsel,
that when an employer advances more than one reason, or
provides shifting reasons, for a discharge the real reason is
concealed. While this may often be the case and is
probably true here, neither of the reasons set forth by the
Company is persuasive in any event.
The poor performance argument extends from the
beginning of Schall's employment through May 17, the day
before her discharge when she was issued a final warning.
Iny testified that from the beginning Schall was not a good
employee and he wanted to fire her before the completion
of her probation period but was deterred by the request of
Peterson to give Schall another chance. Iny's complaints
included a variety of reasons, such as, she was too slow, she
went away from her work area, she was inattentive, she
talked too much and too long to other employees. These
complaints endured over many months and Iny testified
that he orally warned her and reprimanded her many times
in all of the months that she was employed. Despite this she
received two increases in wages along the route. Most of
the criticism of her performance stems from the allegation
that she was too slow and thereby held up the work by
causing other employees to wait for her. I have discredited
the testimony of the three fellow employees, Burgos,
Dickey, and Hernandez, as I also discredit the testimony of
both Iny and Peterson in this connection. The Company's
operation, or at least that portion with which Schall was
concerned, was primarily an assembly line system, even
prior to the institution of the moving conveyor belt on May
17. This being the case, it is inconceivable to me that the
Company would suffer the slowdown of its operations for a
period of many months because of the inability of one
employee to keep up with the pace of the work. The events
of May 17, when the new conveyor belt was introduced,
further make this whole theory of Schall's slow perfor-
mance suspect. If Schall's propensity for slowness was so
firmly established by her prior performance for many
months, the nagging question remains as to why Peterson
did not substitute for her on May 18, rather than for the
other employee working on the line with Schall. The new
operation was being closely watched by the established
experts, Kahn, Iny, and Peterson. Bearing Schall's reputa-
tion in mind, it would appear that they could have easily
pinpointed the problems of that day by pointing the finger
at Schall. In an attempt to solve the problem, or at least
find its cause, Peterson replaced the presumably competent
employees rather than Schall, the poor performer. This
leads me to believe that they were more interested in
providing a basis for discharging Schall rather than testing
the operation of the new belt.
With regard to the reason advanced by Kahn for Schall's
discharge on May 18, that she deliberately passed ma-
chines which were defective, I am convinced that this is
also part of the fabric of the plan to terminate Schall. In
reaching this conclusion I have credited the testimony of
Voss, and discredit Iny, for the reasons previously noted, to
the end that Voss observed Iny tampering with the sets
passed by Schall. It may be pointed out I was assisted to
this conclusion by the attempt to have me erroneously
believe that Iny was at that time working in a completely
enclosed booth so that it would have been impossible for
Voss or anyone to have observed him, rather than on the
table with sides about I to 2 feet high, but otherwise open
to view.
If the Company's contentions concerning Schall's work
habits are credited, it is clear that they did not become
disqualifying until after April 14.
Upon the basis of all the evidence and consideration of
the circumstances I find that the reasons advanced by the
Company for the discharge of Schall are pretextual and I
therefore find that the Respondent Company discriminato-
rily discharged her because of her activities in opposition to
the "final offer" during negotiations and thereby violated
Section 8(a)(3) and (1) of the Act.
B. The Alleged Violations of Sections 8(a)(2) and
8(b)(1)(A) of the Act
The complaint alleges that Respondent Company and
Respondent Union violated Sections 8(a)(2) and 8(b)(l)(A)
of the Act, respectively, by permitting Gloria Peterson,
contended by General Counsel to be a supervisor, to act as
a shop steward. Peterson has had many years experience in
the radio and phonograph industry and has been employed
by Respondent Company for the past 4 years. She was
originally hired as a repair girl and worked for a year and a
half repairing record changers. She later became a tester
and did that work in addition to work on repairs until the
latter part of 1974 when she was designated as the lead girl
for phonographs. As lead girl, part of her job is to check all
the finished products coming from the inspectors (testers)
on the line. In addition, Iny brings her new people to be
trained as inspectors and she teaches them the fundamen-
tals of testing a record changer or stereo. She also helps
employees in their testing work and fills in for employees
on breaks. Peterson, unlike a foreman, punches a timecard,
has the same hours as unit employees, and is paid on an
hourly basis in accordance with rates set forth in the
contract with the Union. The record is clear that Peterson
does not hire or fire employees, nor has she on her own
authority transferred employees from one department or
job to another. Although people come to her to ask for time
off, she asks Iny and relays his response. In addition to her
duties as lead girl, she helps the inspectors in the speaker
department, checks sets and speakers, and works in the
miscellaneous area if no one else is doing it at the time. In
any case, it is Iny who decides whether she will work in the
miscellaneous area or stay with the line. Iny also instructs
her as to which employees he wants working on the line
inspecting, and she herself will sometimes move them
around from one position to another.
The record fails to establish that Peterson, who admitted-
ly has no authority to hire, fire, grant wage increases, and
the like, nevertheless possesses the authority to effectively
recommend such actions. The General Counsel has relied
upon the fact that during the course of Schall's probation-
ary period Iny was dissuaded by Peterson from firing her.
A single incident such as this is not sufficient to show that
Peterson actually had the power to effectively recommend
998
SOUNDESIGN CORPORATION
firing or retention of an employee. Nor does Peterson's role
in training new employees and even placing them in
position on the line clothe her with supervisory authority
within the meaning of the Act. This is an activity that
merely requires the ability of an experienced employee. 4
Peterson had been elected as shop steward in 1974. Some
of the factors relied upon by the General Counsel involved
situations of employees such as Schall going to Peterson
with inquiries concerning wage rates, raises, and requests
for time off. It is not uncommon for employees to approach
stewards with such questions, particularly since Peterson's
job as lead person placed her in the vicinity at all times. In
any case, the fact that she is approached on those matters,
and reports to a supervisor or management and then
returns with the response, is not again sufficient to confer
supervisory status upon her. As a lead person, she may be a
conduit to management. The General Counsel points to the
occasions when management delivered warnings to Schall
in the presence of Peterson, contending that Peterson was
involved not merely in observing the issuance of discipline
but also in the decision itself to discipline Schall. There is
no evidence that Peterson actually participated in the
decision to discipline Schall and, even if her presence as
shop steward may not have been always required, supervi-
sory authority cannot be inferred from mere presence at
such an occasion. While the credited evidence regarding
other aspects of this case may reflect a management bias by
Peterson, the issue of supervisory authority must be
determined by statutory criteria.
In conclusion, I am not convinced the General Counsel
has sustained the burden of showing that Gloria Peterson
possesses the statutory indicia of a supervisor and accord-
ingly find she is lead girl and not a supervisor within the
meaning of the Act.5 I therefore find that Respondent
Company has not violated Section 8(a)(2) and Respondent
Union has not violated Section 8(b)(1)(A) of the Act by
permitting a supervisor to serve as shop steward and shall
dismiss such allegations.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent Company has engaged in
certain unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
4 House of Mosaics. Inc., Suhsidiari of Thomas Indtusries. Inc., 215 N L RB
704 (1974).
5 Houe of Mosaics. Inc.. supra
c 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.
Having found that Respondent Company discriminatori-
ly discharged Marie Schall, I shall recommend that the
Company be ordered to offer Schall immediate and full
reinstatement to her former position or, if that is no longer
available, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges; and
make her whole for any loss of earnings or other monetary
loss she may have suffered as a result of the discrimination
against her, less interim earnings, if any, plus interest at 6
percent per annum. Any backpay due is to be determined
in accordance with the formula set forth in F. W.
Woolworth Company. 90 NLRB 289 (1950), and Isis
Plumbing & Healing Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
1. Respondent Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By keeping employees under surveillance during
working hours because of their support for the Union,
Respondent Company violated Section 8(a)(l) of the Act.
4. By discriminatorily warning and discharging Marie
Schall, Respondent Company engaged in unfair labor
practices in violation of Section 8(a)(3) and (I) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent Company did not violate Section 8(a)(2)
of the Act as alleged in the complaint.
7. The General Counsel has not established that
Respondent Union has violated Section 8(b)(1)(A) of the
Act, with respect to the allegations in Case 22-CB-3280.
Upon the foregoing findings of fact and conclusions of
law and upon the entire record and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 6
Respondent Soundesign Corporation, Jersey City, New
Jersey, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any,
employee for supporting Local 210, Warehouse and
Production Employees Union, a/w O.P.E.I.U.. or any
other union.
(b) Engaging in coercive surveillance of any employee
because of his or her union support.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the purposes and policies of the Act:
(a) Offer Marie Schall immediate and full reinstatement
to her former position or, if such job no longer exists, to a
conclusions, and recommended Order herein shall. as provided in Sec.
102.48 of the Rules and Regulations, be adopted b) the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived fisr all purposes
999
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantially equivalent position, without prejudice to her
seniority or other rights previously enjoyed, and make her
whole for any loss of pay due to the violation against her in
accordance with the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examining and copying, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of
this Order.
(c) Post at its Jersey City, New Jersey, plant, copies of the
attached notice marked "Appendix." 7 Copies of said
notice, on forms provided by the Regional Director for
Region 22, after being duly signed by the Company's
authorized representative, shall be posted by it immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Company to
ensure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case 22-
CA-6985 be dismissed insofar as it alleges a violation of
Section 8(a)(2) of the Act.
IT IS FURTHER ORDERED that the complaint in Case 22-
CB-3280 be, and it hereby is, dismissed in its entirety.
7 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and we
have been ordered to post this notice.
WE WILL NOT discharge any employee for engaging
in union activities and supporting Local 210, Ware-
house and Production Employees Union, a/w
O.P.E.I.U., or any other union.
WE WILL NOT harass or place any restrictions on you
because of your union activity or support.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
rights under Section 7 of the Act.
WE WILL offer Marie Schall immediate and full
reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent job, without
prejudice to her seniority or other rights, and WE WILL
make her make her whole for any loss of pay or any
benefits, plus 6-percent interest, which she may have
suffered by reason of our discrimination against her.
SOUNDESIGN CORPORATION
1000