Staco, Inc.

National Labor Relations Board - Board Decisions

Aug 21, 1979

244 N.L.R.B. 461 (N.L.R.B. 1979)

conclusions2 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
I. In connection with the election held in Case I-
RC- 15176' the Administrative Law Judge has recom-
mended that we sustain the Petitioner's challenges to
the ballots of leadmen Michael Hampl, Alfred Pem-
berton, Frederick Rhode, David Rudolph, and Mar-
garet Williams and Mechanic James Hamblin, Sr., on
the basis of his respective conclusions that each of
them is a supervisor within the meaning of Section
2(11) of the Act. The Administrative Law Judge has
also recommended that we sustain the Employer's
challenge to the ballot of Leadman Phyllis Jones, on
the basis of his conclusion that she too is a supervisor
within the meaning of the Act.4
We agree with the Administrative Law Judge that
the Petitioner's challenges to the ballots of Michael
Hampl, Alfred Pemberton, Frederick Rhode, David
Rudolph, Margaret Williams, and James Hamblin,
Sr., be sustained. Accordingly, we adopt his conclu-
sions and recommendations concerning those chal-
lenges.
We disagree, however, with the Administrative
Law Judge that the Employer's challenge to the bal-
lot of Phyllis Jones should also be sustained. Unlike
the Administrative Law Judge's findings and conclu-
sions as to the supervisory status of the aforemen-
tioned six employees whose ballots have been chal-
lenged by the Petitioner, the Administrative Law
Judge's finding and conclusion as to the supervisory
status of Phyllis Jones stands virtually unsupported
by the record evidence. Indeed, the Administrative
Law Judge himself notes that "the direct evidence on
the duties of Jones is scant, other than the fact that
she is a leadperson." 5 Nevertheless, he goes on to in-
fer that, since Jones is a leadman, and since leadmen
are in charge of departments. and since there is no
2Although the Administrative Law Judge found in sec. IV.B.I. that Re-
spondent violated Sec 8(aX3) and (1) of the Act by barring Caruso from
entry into the back building. he inadvertently failed to include this violation
in his Conclusions of Law. Accordingly, the Administrative Law Judge's
Conclusion of Law 10 is hereby amended to delete "8aX I)" and substitute
in its place "8(aX3) and ()."
IThe election therein was conducted on June 29, 1977. pursuant to a
Stipulation for Certification Upon Consent Election. The tally was 68 for the
Petitioner, 67 against, with 8 challenged ballots, a sufficient number to affect
the results of the election. One other ballot was declared void. Staco,. Inc.,
234 NLRB 593 (1978) (Member Murphy dissenting in part).
' Additionally. the ballot of Charles Ward was challenged by the Board
agent at the election because his name was not on the voter eligibiliht list. At
the hearing in the instant proceeding, the parties stipulated that Ward was
ineligible to vote because he was not an employee on the election eligibility
cutoff date. Accordingly, the challenge to the ballot of Charles Ward is
hereby sustained.
I In fact, the record fails affirmatively to show that Jones performs any one
of the functions, or possesses any one of the powers and responsibilities
enumerated in Sec. 2(11) of the Act as indicia of supervisory status. See
Qualitv Transport Inc.. 211 NLRB 198. 202 11974). There is, on the other
hand. ample record evidence in support of the Administrative Law Judge's
findings that the other six challenged voters possessed and exercised supervi-
sory responsibilities
Staco Inc. and United Furniture Workers of America,
AFL-CIO. Cases 1-CA-13442, 1-CA-13876, 1-
CA-13887. and I-RC 15176
August 21, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDAI.E
On January 25, 1979, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding. Thereafter, Respondent Employer filed
exceptions and a supporting brief, the Charging Party
Petitioner filed a cross-exception and a brief in sup-
port thereof and in opposition to Respondent Em-
ployer's exceptions, and the General Counsel filed a
brief in opposition to Respondent Employer's excep-
tions and in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative 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 Dry Wall Products, Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 19511. We have carefully examined the
record and find no basis for reversing his findings.
The Administrative Law Judge's Decision contains several inadvertent
errors which are noted herein as follows: (I) the references to James Ham-
blin, "Jr." in the "Statement of the Case" and in sec. III should be to James
Hamblin, Sr.; (2) in sec. IV,B,I, the indication at one point that Rhode
passed out union literature is inaccurate; Caruso passed out the union litera-
ture in question there: (3) in sec. IV,B.I 1. the reference to an 8-day absence
of employee Quinn is inaccurate, the record reveals that Quinn had two 2-
day absences in October 1977-on October 10 and I I and again on October
17 and 18; and (4) the word "union" in par. 3 of the Administrative Law
Judge's Conclusions of Law is changed to read "unit."
Also in sec. IV,B,I, the Administrative Law Judge found that Caruso was
suspended by Production Manager Sirkus for a 2-day period (Friday and
Monday), in violation of Sec. 8(aXI) of the Act. However, Sirkus subse-
quently told Caruso that he could return to work on Monday Caruso de-
clined to do so. In this regard, Caruso testified that he declined Sirkus' offer
to let him return to work on Monday because, having been told previously
by Sirkus that he could not return to work until Tuesday, he had scheduled
an appointment for Monday coincident to his part-time job as a real estate
salesman, and was therefore unable to return to work on Monday as offered.
In any event, we find that resolution of any question, if there be one, about
whether Caruso was, in the final analysis, still on suspension on Monday.
notwithstanding Sirkus' offer to let him return, is best left to the compliance
stage of this proceeding.
In agreeing with the Administrative Law Judge that Respondent's work
rule 17 is unlawfully broad, Member Jenkins relies on then-Member Fan-
ning's and his dissenting opinion in Essex International. Inc.. 211 NLRB 749,
752 (1974).
244 NLRB No. 49
STACO, INC. 461
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
evidence of any other first-line supervision in Jones'
department, then Jones must have been performing
the same type of supervisory duties in her department
shown to have been performed by the other chal-
lenged leadmen in their departments with substan-
tially the same supervisory authority shown to have
been exercised by those other challenged leadmen.6
From this inference, the Administrative Law Judge
reaches his conclusion that Jones too was a supervi-
sor. While the Administrative Law Judge's logic has
some surface appeal, we believe that it has a fatal
flaw-there is a total lack of evidence in the record
before us to show that Jones herself exercised or pos-
sessed any of the indicia of supervisory authority set
out in Section 2(11) of the Act. In these circum-
stances, we are unable to affirm the Administrative
Law Judge's ultimately unsupported finding that
Jones was a supervisor within the meaning of the Act.
Accordingly, we hereby overrule the Employer's chal-
lenge to Phyllis Jones' ballot, and we shall direct the
Regional Director to open and count that ballot, pre-
pare and issue a revised tally of ballots, and issue an
appropriate certification based thereon.7
2. The Administrative Law Judge found that Re-
spondent violated Section 8(a)(l) of the Act when it
granted a $20 loan to employee Bibeau, thereby im-
pliedly promising and directly granting a benefit to
Bibeau with the purpose of enticing her to abandon
her union activities. We disagree with the Adminis-
trative Law Judge's finding on this issue.
Bibeau originally requested a $50 loan from Re-
spondent. The Administrative Law Judge found, and
we agree, that Respondent, through its production
manager, Sirkus, unlawfully denied Bibeau this $50
loan in violation of Section 8(a)(l) and (3) of the Act.
Contrary to Respondent's unsupported asserted rea-
sons for denying the loan, Respondent was found to
have denied the loan to Bibeau in retaliation against
I We note, in this context, the inherent inconsistency between (I) the Em-
ployer's contention that the five leadpersons challenged by the Petitioner are
not supervisors; (2) its contention that Leadperson Jones is a supervisor; (3)
its assertion that all leadpersons perform basically the same duties; and (4)
its complete failure to introduce any evidence to show in what way or to
what extent only Jones, among all other leadpersons who voted without
challenge from the Employer, performs supervisory duties or exercises super-
visory authority.
I In a partial dissent, our colleague argues that there is no indication that
Jones, one of the Employer's 12 leadmen, is any less a supervisor than the 5
leadmen whom we find to be supervisors. That reasoning ignores the fact
that the Petitioner carried its burden of showing that the five leadmen were
supervisors, and that the Employer presented no evidence showing that
Jones exercised any supervisory duties. Moreover, our colleague's argument
fails to consider that the unit description expressly includes leadmen and that
five other leadmen voted in the election without challenge by either party.
Obviously, then, the parties themselves recognized that the duties of all lead-
men were not identical. Accordingly, in the absence of any affirmative evi-
dence to the contrary, we find that Jones is not a supervisor as defined in Sec.
2(11) of the Act.
her union activities and in an attempt to discourage
such activities in the future. This unlawful motivation
was evidenced by the later comments of Vice Pres-
ident for Production James Lawless to Bibeau in re-
gard to the denial of the $50 loan, in which Lawless
expressed his disappointment with Bibeau because of
her support of the Union, and asked her, in effect,
why she expected Respondent to loan her money in
view of her known support of the Union. In a subse-
quent conversation, however, Lawless asked Bibeau
how badly she needed money and, after Bibeau ex-
pressed an urgent need, Lawless gave her $20 and
told her that she could take her time in repaying it.
In these circumstances, the Administrative Law
Judge found that the denial of the $50 loan served as
a warning to Bibeau to discontinue her union activi-
ties, and that the granting of the $20 loan served as an
enticement to Bibeau to discontinue such activities.
The Administrative Law Judge thus characterized
Respondent's conduct in regard to the loans as a
"stick and carrot approach."
We do not believe that the evidence supports the
Administrative Law Judge's connecting the denial of
the $50 loan to the giving of the $20 loan. Indeed, the
evidence is to the contrary since the giving of the lat-
ter did not arise in the context of the denial of the
former, and even may have been made as a personal
loan by Lawless. Thus, contrary to the implication
contained in the Administrative Law Judge's discus-
sion and analysis of Respondent's denial of a $50 loan
to Bibeau and the subsequent granting to her of the
$20 loan in question, the record does not establish
that Lawless granted his loan to Bibeau in the same
conversation as, or otherwise in connection with, the
conversation between Lawless and Bibeau in which
Lawless evidenced, by his statements to Bibeau, Re-
spondent's unlawful motivation in previously denying
her the $50 loan. In fact, the granting of the $20 loan
to Bibeau has not been shown by the evidence to
have been circumstantially tainted by the unlawful-
ness of Respondent's denial of the $50 loan to Bibeau.
According to Lawless' testimony about the $20 loan,
which the Administrative Law Judge found to be
more credible than that of Bibeau in this regard, there
was no mention at all made of the Union or of
Bibeau's union activities during the conversation in
which he loaned Bibeau the $20. This assertion is left
uncontroverted by Bibeau's own less credible testi-
mony, and indeed the Administrative Law Judge
himself makes no contrary finding.8 Rather the evi-
dence shows that Lawless, in response to Bibeau's
I Thus, the circumstances in the instant case are different from those exist-
ing in Huttig Sash d& Door Company, 239 NLRB 571 (1978,). and F Strauss &
Son, Inc., 200 NLRB 812, 819-820 (1972), where the granting of loans to
employees was orally conditioned on the employees' rejection of the union in
forthcoming elections, and thus violative of Sec. 8(a) I) of the Act.
462
served on the parties. and issuing an appropriate cer-
tification.
MFsII3iR MIURPiHY. dissenting in part:
Unlike my colleagues, I would sustain the chal-
lenge to the ballot of silk screening department lead-
man Phyllis Jones on the basis of her status as a su-
pervisor within the meaning of the Act. While indeed
there is scant direct record evidence of Jones' particu-
lar supervisory responsibilities or of specific instances
of her exercise of her supervisor) authority I never-
theless would find,. on the strength of the entire record
in this proceeding as it pertains to the challenged bal-
lots, that the Administrative Lakv Judge's inferential
finding that Jones was a supervisor within the mean-
ing of the Act was not only entirely reasonable, it was
virtually compelled. Thus, the credited and uncontro-
verted testimony of Production Manager Sirkus is
that 12 leadmen are in charge o various departments
and areas of production in Respondent's 2-building,
2-shift. 175-employee manufacturing plant. Further,
there is no evidence in the record of any other direct
supervision in the silk screening department atnd no
indication that Jones s a departmenltal leadman is
any less a supervisor than the other five departmental
leadmen whom we have fotund to he super sors
within the meaning of the Act.
In spite of all this. however. my colleagues find that
Jones. alone among the six leadmen whose ballots
were challenged, is not a supervisor, and, in effect,
that Jones' silk screening department alone aImong
Respondent's other departments is either not super-
vised at all, or is the only one of Respondent's depart-
ments directly supervised by either Respondent's vice
president f(or production. its production manager. its
plant manager, or all three. Such a highly improbable
result necessarily undermines the reasoning from
which it stems. To suggest, as my colleagues seem to
do, that the inclusion of leadmen in the unit descrip-
tion somehow implies that leadman Jones herself is
not a supervisor is to ignore the very conclusion that
my colleagues and I oin in reaching here, that almost
half of those putatively nonsupervisorv leadmen in-
cluded in the unit are indeed supervisors. Nor does
the fact that several leadmen voted without challenge
suggest to me, as it apparently does to my colleagues.
that the challenge to Jones' ballot is unmeritorious.
The question of whether those unchallenged leadmen
are supervisors or nonsupervisors is simply not before
us in this proceeding. Thus, I am unwilling to over-
rule the Employer's challenge to the ballot of lead-
man Jones on the grounds, even in part, that the Em-
ployer, for whatever reason, did not see fit to
challenge the ballots of other leadmen.
Accordingly, unlike my colleagues I would sustain
the challenge to the ballot of leadman Jones.
professed urgent need for money, loaned the $20 to
Bibeau directly from his own pocket and not from
company funds with the assurance to Bibeau that she
could take her time in repaying him. Thus, under
these circumstances, this loan appears to have been
nothing more than a spontaneous act of personal gen-
erosity on the part of Lawless himself, and not, as
found by the Administrative Law Judge. a calculated
attempt on the part of Respondent to entice Bibeau
to abandon her union activities.9
We conclude, therefore, that the Administrative
Law Judge's finding that Respondent directly granted
Bibeau a benefit and impliedly promised her other
unspecified benefits with a purpose of enticing her to
abandon her union activities, by granting her the $20
loan, is at most based on speculation and conjecture.
Accordingly, we find that Respondent has not been
shown by a preponderance of' the evidence to have
acted unlawfully in granting Bibeau the $20 loan.''
ORI)ER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge. as modified be-
low, and hereby orders that the Respondent, Staco,
Inc., Poultney. Vermont, its officers. agents. succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, as so modified:
1. Delete paragraph I(e) and reletter the subse-
quent paragraphs accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the challenge to the
ballot cast by Phyllis Jones in the election held on
June 29, 1977. in Case l-RC 15176 be overruled, and
that Case I-RC-15176 be, and it hereby is, severed
from this consolidated proceeding and referred to the
Regional Director for Region I for the purpose of
opening and counting the ballot of Phyllis Jones. pre-
paring and issuing a revised tally of ballots to be
9 In any event, even if the 20 loan to Bibeau is considered to he a com-
pany loan from Respondent rather than a personal loan from Lawless, we
also note that unlike the unlawful denial by Respondent of the $20 loan to
Bibeau, which was shown, inter aia, to be an unsatisfactorily explained
departure from Respondent's general practice of granting such loans to em-
ployees, the granting of the $20 loan to Biheau was of course entirely consis-
tent with Respondent's general practice of granting such loans to employees
See Quemetrco. Inc., a rubsidiarv of RSR Corporation, 223 NLRB 470. 483
(1976).
In These evidentiar) shortcomings with regard to the Administrative Law
Judge's finding as to the unlawfulness of the $20 loan to Biheau do not in
any way undermine our agreement with and affirmation of the Adminisira-
tive Law Judge's well-reasoned and fulls supported independent finding that
Respondent did unlawfully deny Bibeau the $50 loan, in violation of Sec
8(aX I) and (3) of the Act.
STACO, INC(. 463
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
Futhermore, and for the reasons set out in my dis-
senting opinion therein, I would count the "No" bal-
lot which my colleagues found to have been properly
voided in Staco, Inc., 234 NLRB 593 (1978). If that
"No" ballot were counted, the tally would stand at 68
votes for and 68 votes against the Union. On that
basis, and inasmuch as I would sustain the challenges
to all the challenged ballots in the instant case, in-
cluding that of leadman Jones, I would issue a Certi-
fication of Results of Election in this proceeding.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WlL. NOT discourage membership in
United Furniture Workers of America, AFL
CIO, or any other labor organization, by dis-
charging any of our employees or in any other
manner discriminating against them in regard to
their tenure of employment or any term or con-
dition of employment.
WE WILLI. Nor interrogate our employees con-
cerning their or other employees' union activi-
ties, membership, or desires, or their vote in any
election conducted by the National Labor Rela-
tions Board.
WE WI.I. NOI threaten our employees with
closure of our facility, layoffs, forfeiture of pen-
sion benefits, or other reprisals because they en-
gage in union activities.
Wt WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of rights guaranteed them by Section 7 of
the Act.
We hereby notify you that we have withdrawn
and abolished work rule 17 and the rules on so-
licitation and distribution of materials that we
announced on or about March 9, 1977.
We further notify you that the paragraph in
our Defined Benefit Pension Plan previously dis-
tributed to you and reading:
However, the Plan provides for forfeiture of
your vested interest if you do anything detri-
mental to the Company.
is hereby expunged from the plan and is no
longer in effect.
WE WILL offer to Kyri Bibeau, Lorraine Perry,
Josephine Quinn, Francetta Baker, and Darlene
Williams immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges previously enjoyed, and wE Wll. make
them whole for any loss of earnings, they may
have suffered as a result of the discrimination
against them, with interest thereon.
WF wIL.L make Frank Caruso whole for wages
lost by reason of his unlawful suspension and
transfer, with interest thereon.
All our employees are free to join United Furniture
Workers of America, AFL-CIO, or any other labor
organization.
STACO, INC.
DECISION
SIIATEMENI OF I IF CASIL
C(' AtI) R. Woi+.l., Administrative Law Judge: This con-
solidated proceeding in the above-numbered cases was
heard by me in Rutland. Vermont, on January 30 and 31.
February I and 2, and April II, 12, 13. and 14. 1978. The
complaint in Case I-CA 13442 issued September 15, 1977.
On January 4, 1978, an order consolidating cases. amended
complaint and further notice of hearing issued in Cases I
CA- 131442. 1 -CA- 13876. and I CA 13887. The amended
complaint was further amended at the hearing, and certain
allegations of the amended complaint were withdrawn.
The complaint, as amended both prior to and during the
hearing, alleges that Staco, Inc.. herein sometimes referred
to as the mployer. the C(ompany, or Respondent. unlaw-
fully discharged Kyri Bibeau, Lorraine Perry. Josephine
Quinn, and Francetta Baker. The complaint further alleges
that Respondent denied Darleen Williams reemployment.
transferred Frank Caruso to a lower paying position and
later suspended him, and engaged in numerous indepen-
dent violations of Section (a)( I ) of the Act.
On January 31, 1978. the Board issued its decision in
Slaco, Inc., 234 NLRB 593, ordering a hearing to be held
on the issues raised by the challenges to the ballots of James
Hamblin. Jr.. Michael Hampl. Alfred Pemberton. Freder-
ick John Rhode VI. David Rudolph. Margaret Williams.
Phyllis Jones. and Charles Ward. Subsequent to the Board's
order, I granted the General Counsel's motion to consoli-
date Case I RC 15176 with the three unfair labor practice
cases before me for hearing and resolution of the challenged
ballots.
Respondent has duly denied the commission of any un-
fair labor practices.
From the entire record.' including my observation of the
demeanor of the witnesses as they testified, and after due
consideration of the post-trial brietfs, I make the following:
I In its post-trial brief, the General Counsel moved to withdraw the unfair
labor practice allegation in par. 8(m) of the amended complaint. The motion
is hereby granted.
I Errors in the transcript have been noted and corrected
464
points (out that "leadmen" are included in the unit descrip-
tion agreed upon between the parties. The Board's position
with regard to questions of' eligibility in stipulated unit
cases is succinctly set forth in iunli/l Sec'uri ln. rancc
('orporation o .4lncfric., 228 NLRB 1121. 1122 (1977). as
follows:
In stipulated unit cases the Board applies a t old
test. It is the Board's function initially to ascertain the
parties' intent i tth respect to the disputed employee
and then to determine hether such intent is inconsis-
tent with any statutory provision or established Board
policy. [Citing 711The lri'hnc ('Conipany, . 190 NLRB 398
(1971).]
I conclude from the express inclusion of "leadmen" b,
the parties in the stipulated unit that theN intended to in-
clude "leadmen" or "leadpersons." Turning to the second
part of the Board's test. I am persuaded that it would be
inconsistent with the statute to arbitrarily blanket in under
the unit description any individual or individuals who may
be designated "leadmen." but enjoy the status of supervisor
as defined in Section 2( I1 ) of the Act and therefore are not
"employees" within the statutorN definition of that term. I
shall, therefore. turn to the determination of the status of
the remaining seven challenged voters during the eligibility
period.4
It is the Employer's position that James l.awless. Robert
Sirkus. and Steven awless are the supervisors of the manu-
filcturing area and that in overseeing the routine operation
on a day-to-day basis the Employer uses the services (t'
leadpersons. According to Robert Sirkus. vice president ot'
the parent corporation of' the mployer and production
manager and personnel manager of the Poultnes. Vermont
facilitv. he. Plant Manager Steven Lawless. and Vice Pres-
ident in Charge of Production James L.awless are the three
people directly above the approximately 12 leadpersons at
the facilit. Sirkus asserts that the Employer has "sarious
leadpeople in charge otf departments. areas of the produc-
tion, the manufacluring chain." and that there are about
175 employees. '1here are two shifts at the facility. and the
12 leadpersons are split between the two plant buildings.
Sirkus enumerates Ph llis Jones. Alfred Pemberton. Marga-
ret Williams. Michael Hampl. and Frederick Rhode as
among the leadpersons.
The Employer's position that the services of leadpersons
are used to oversee routine day-to-day operations. and Sir-
kus' testimony that they are in charge of "departments.
areas of production. the manufacturing chain" convinces
me that leadperson are something more than rank-and-file
employees. The Employer's assertion that only Sirkus.
James Lawless, and Steven Lawless are supervisors in a unit
of some 175 employees. or even 156 as the election tall'
approximates. posits a rather unbelievable ratio of more
than 50 employees to each supervisor at an installation
composed of two buildings operating two shifts. It is even
more unbelievable when evidence that the three claimed
supervisors are rarely present during the night shifts is con-
sidered. Further. Sirkus has the entire responsibility of
FINI)IN (s ( 1 \( '
I. Jt RlSI( ()N
Respondent is a Virgin Islands corporation , ith a facilit\
at Poultne. Vermont. where it is engaged in the manlulic-
lure. sale. and distribution of clinical thermometers and re-
lated products. Respondent annually purchases materials
valued in excess of $50.000 at its Poultne. Vermont. loca-
tion from points located outside the State of' Vermont, and
annually ships products valued in excess of $50,000 directlx
from its Poultne., Vermont, location to points located out-
side the State of Vermont. Respondent is, and has been at
all times material to this case, an employer engaged in con-
merce within the meaning of Section 2(6) and (7) of' the Act.
I. I Il.AB(OR OR( iNIZA IION
United Furniture Workers of America. AFI. C('10. herein
variously called the Union or the Petitioner. is a labor or-
ganization within the meaning of Section 2(5) of' the Act.
II. IHE C('HAII.ENGED BALLOTS CAS I-R(C-15176
In June 29. 1977. an election was conducted by the Na-
tional Labor Relations Board pursuant to a Stipulation fior
Certification Upon Consent Election executed by the par-
ties on May 23. 1977. and approved by the Regional Direc-
tor for Region I on May 25. 1977. The election was con-
ducted in an appropriate collective-bargaining unit
consisting of "All production and maintenance personnel.
including leadmen and local truckdrivers employed by
Staco. Inc.. at its Poultney. Vermont location. excluding
office clerical employees, over-the-road truckdrivers.
guards. and supervisors as defined in the Act." The tally
was 68 for the Union. 67 against. with 8 determinative chal-
lenged ballots.
The Petitioner and the Employer stipulated that Charles
Ward is an ineligible employee because he was not an em-
ployee on the election eligibility date. Accordingly. the
challenge to his ballot should be sustained.
The Union challenged James Hamblin. Jr.. Michael
Hampl. Alfred Pemberton. Frederick John Rhode VI. Da-
vid Rudolph. and Margaret Williams on the ground that
they are supervisors. The Employer denies that they are
supervisors. The Employer challenged Phyllis Jones on the
ground that she is a supervisor. The Union denies that
Jones is a supervisor. Charles Ward. who has been stipu-
lated to be ineligible. was challenged by the Board agent
because his name was not on the eligibility list.
The Employer takes the position that the six individuals
challenged by the Union are leadpersons or mechanics. and
I The facts set forth herein are based on a synthesis of the credited aspects
of the testimony of all witnesses. the exhibits. sipulations. and careful con-
sideration of the logical consistency and inherent probahilit of the facts
found. Although I may not. in the course of this decision. discuss esers hit of
record estimony oir documentary evidence. it has been carelfull: weighed
and considered. To the extent that eidence not mentioned herein might
appear to contradict my fact findings. that e idence has not been disregarded
but has been rejected as incredible. lacking in probative worth. surplusage.
or irrelevant.
' The pavroll date for eligibility s.as Ma I. 1977. and the election was
held on June 29. 1977
ST A( )O, I N(C 465
I)I('ISI()NS O() NAII()NAL. ABOR REI.ATIONS BOARD)
maintainingl tile personnel departimient, and it is ohious
from the titles of the three that they have duties other than
direct superision t occupy some portion of their time.
Although the lfreu)ing indicates to me that leadpersonis are
indeed supervisors, it is not necessar t speculate or rel?
solel on this cs idence because the evidence in each indi-
vidual case supports the sanie conclusion.
Alfred I'emberton is the leadlllan in the mercury room
and fixing department. Iie was salaried at $275 a week dur-
ing the eligibility period and does not receive pay fr oer-
time work. Although Sirkus testified that Pemberton h;ad
been salaried before Sirkus took over the personnel unc-
tion. I do not believe that this explains why Pemberton's
earnings are more than twice that of' rank-and-file employ-
ees who are not leadpersons. Pemberton credibly testified
that the maintenance of' production in the mercury room
and fixing department is his responsibility, and that it is he
to whom James l awless comes to inquire about the produc-
tion in that department. Pemberton also testifies, and is cor-
roborated by employees Hicks and Rochon, that he trans-
f'ers employees within his department from machine to
machine if' they are running short of work or if he needs
work done on a different machine or of a different type. lie
moves the women around to balance the work and may
take someone oft' one machine and put them on another so
that production is speeded up. is decision as to which
employee to move is made by him on the basis of' the em-
ployee's relative experience and ability.
Pemberton has directed employees to watch other em-
ployees work for instructional purposes. Ie collects the per-
sonal production record from employees after work and
then reports the production to the office by telephone. Ac-
cording to Pemberton, there are about 10 employees work-
ing under him in the mercury room. These employees have
a half' hour break. Pemberton normally takes from 40 to 45
minutes for lunch.
Considering the foregoing facts with regard to Pember-
ton's duties and compensation together with Sirkus' conces-
sion that "we have various leadpeople in charge of depart-
ments, areas of the production, the manufacturing chain,"
and the obvious fact that if Respondent's position on the
number of supervisors were to be accepted, there would
only be three supervisors in the plant, none of' whom has
been shown to he present on any regular basis in Pember-
ton's department I am convinced that the evidence com-
pels a conclusion that Pemberton, who responsibly directs
and assigns people in the performance of their work on the
basis of his independent judgment, is a supervisor within
the meaning of Section 2(11) of the Act and the challenge
to his ballot should be sustained.
During the eligibility period Margaret Williams was the
leadperson in the pipette department. She was salaried at
$245 per week. Like Pemberton I do not believe that she
was paid twice as much as rank-and-file employees solely
because she had previously been salaried.
Williams' testimony that her duties included training em-
ployees and making sure they did the job right, keeping
employees' production records, and disciplining people, and
that she never asked higher supervision to do anything in
the pipette department because she knew what to do in that
department, is consistent with Sirkus' testimony that the
EImployer has "arious leadpeople in charge of depart-
ments." According to Williams, she would move employees
to diferent machines when their machine broke down, and
*`hen she had more than one machine available she would
pul the employee on whichever machine most needed an
operator. I do not credit her testimony that that decision
wras made h James l awless because I do not believe that
the evidence supports a finding that he was that intimately
connected with the details of running the plant, and she
testified that she never asked the lIawlesses how to do anv-
thing in the department. Ftirthermore, I credit the testi-
mony of employee Roberta Brown, who impressed me as
an honest and straightforward witness, that when James
I awless introduced Williams to the employees he said that
anytirne the employees had any problems and needed any-
thing they should go to Williams because she had the au-
thority to do what she felt was best. ['mploees had to tell
Williams when they left work earl, hut it appears that em-
ployees lit work pretty much on their own and did not
have to receive direct permission to leave. lThe only require-
ment seems to be that they must tell their leadperson who
noted it on the department record. I find the testimony of
Jean Bea,ion and Griffith Morris that Williams would as-
sign emplosees to their machines in the morning when they
came into work to be candid and believable. I further find
that Williams reprimanded Kyri Bibeau on June 27.
The evidence with regard to Williams' duties as a lead-
person. viewed in conjunction with the paucity of supervi-
sion in her department were she not a supervisor and the
unrealistic supervisory ratio asserted by Respondent in the
face of' Sirkus' statement that leadperson are in charge of
departments, leads me to conclude that Williams has the
authority, in the interest of the Employer, to assign, disci-
pline, and responsibly direct employees in their work
through the use of her independent judgment. Accordingly,
I find that Williams is a supervisor within the meaning of
Section 2(1 ) of the Act. and recommend that the challenge
to her ballot be sustained.
James Hamblin Sr.. was earning $5.72 per hour during
the eligibility period. he Employer maintains, as Robert
Sirkus testified. that Hamblin is a mechanic repairing heavy
equipment with no supervisory authority. Hamblin was
working on the night shift in the back building. Sirkus
states that there was no leadperson present and Hamblin
took care of' problems that came up during the shift unless
they were unusual problems. In the latter case he would
contact Steven or James Lawless or Sirkus, presumably by
telephone. If anyone wanted to leave early they would tell
Hamblin and then leave. Hamblin would then report it the
next day. Hamblin made the necessary assignment of indi-
viduals to different machines during the course of an eve-
ning. There was no other supervisory person present in the
back building during the night shift, and the evidence indi-
cates that neither Sirkus nor James or Steven Lawless were
present at the facility after about 6 in the evening. If Ham-
blin were not a supervisor, the employees in the back build-
ing would have been totally without supervision for the ma-
jor part of their shift, and it appears that in most instances
thei would have been without supervision throughout the
entire shift. I note that mechanic Arnold Kasuba referred to
Htamblin as his boss while he wais testifying. Further, it was
4(6
stitute for the I week in Mas. As leadperson in the con-
tracting department. Rhode assigned employees to ditterent
machines if they ran out of work or i the machine broke
down. and exercised his independent judgment as to their
individual abilities in deciding what work the! would get
and assigned them to it. He based his decision as to ho he
would select for assignment to a certain task on their senior-
ity and their skills within the contracting department. Al-
though he consulted with Hampl during his training period
regarding assigning people to jobs outside the contracting
department. he assigned work to people within the con-
tracting department on his own authority without checking
with Hampl, or, so far as the record shows. anyone else.
Accordingly. I find that during the eligibility period Rhode
had and exercised the independent authority to assign work
to employees and responsibly direct them in the perform-
ance of their duties. These factors establish that he was a
supervisor within the meaning of Section 2(11I ) of the Act.
which is supported by the absence of any other direct su-
pervisor for employees in the contracting department. 1-
therefore recommend that the challenge to his ballot be
sustained.
Phyllis Jones was the leadperson in the silk screening de-
partment during the eligibility period. The Employer prot-
fered no evidence, other than the conclusory statement ot
Robert Sirkus to the effect that all leadpersons had the
same duties, to support its contention that Jones was a
statutory supervisor during the eligibility period and at the
time of the election. The Employer, in its brief. states that
no testimony was presented relative to Jones because it is
the Employer's position that all the leadpersons do the
same job and that the testimony relative to one is indicative
of the supervisory status of all. Although the direct ei-
dence on the duties of Jones is scant. other than the fact
that she is a leadperson. I am persuaded that leadpeople are
in charge of the departments and that Phyllis Jones is one
of those leadpeople. From this. combined with the absence
of any evidence of any other direct supervision in the de-
partment if she is not a supervisor, and the highly improb-
able supervisory ratio advanced by the Employer, it can
reasonably be inferred that Phyllis Jones. as leadperson in
the silk screening department. was performing substantially
the same duties as the other challenged leadpersons dis-
cussed herein, and had substantially the same authority.
Accordingly, I find that she was a supervisor during the
eligibility period and on the election date and that the chal-
lenge to her ballot should be sustained.
Having found that all of the challenges should be sus-
tained, I will recommend that the Board issue a Certifica-
tion of Representatives to the Petitioner because it has ob-
tained a majority of the valid ballots cast in the June 29.
1977. election.
IV. APPI.tCATION OF SECTION 10B TO GENERAL COUNSEL'S
AMENDMENT OF THE COMPLAINT
At the beginning of the hearing the General Counsel
moved to amend the complaint by including therein 14 alle-
gations of Section 8(a)( I) violations (including threats, in-
terrogation. institution, and enforcement of rules governing
employee's union talk, discriminatory enforcement of a no-
Hamblin who reported to Michael Hampl. on May 5. 1977.
that employee Frank Caruso was passing out union litera-
ture to an employee in the back building. Hampl was the
leadperson in the thermometer department in the front
plant at the time and Caruso worked in that department.
I find that James Hamblin was a supervisor during the
eligibility period and that the challenge to his ballot should
be sustained because he was the sole person in the hack
building with any authority to act on behalf of the Em-
ployer. he took care of problems that arose during the shift.
assigned employees to various machines without checking
with any other supervisor, and is referred to as the "boss"
by at least one employee.
At the time of the election Michael Hampl was the lead-
man foir the thermometer department on the night shift.
The Petitioner adduced unrebutted evidence that Hampl
was in charge of the entire front building during the night
shift and no other supervisors were present. Further, em-
ployees Caruso and Hayes testified without contradiction
that Hampl regularly reassigned employees from machine
to machine. Hayes was sent home by Hampl one evening
because she arrived late to work, and it was Hampl who
sent Caruso home, without checking with higher supervi-
sion, for distributing union literature. Employees were told
upon hire that Hampl was to be their supervisor and it is
clear that Hampl possessed and exercised the authority of
Section 2(1 ) supervisor in reassigning employees, granting
them permission to leave early, and disciplining them. I
conclude. in the words of witness Caruso, that "Mike's
main function was the general supervision of all the em-
ployees in that building on that shift." Accordingly, I rec-
ommend that the challenge to his ballot be sustained.
I agree with the Petitioner that David Rudolph was a
supervisor during the eligibility period. His receipt of a pro-
duction leadperson wage rate retroactive to June I. 1977.
indicates to me that he must have been doing leadperson's
duties during that time, and this is supported by the testi-
mony of employees Caruso and Bruno to the effect that
they were told by Rudolph considerably prior to the elec-
tion that he was taking the new job as a promotion. Fur-
thermore, the evidence proffered by employees Morris and
Beayon that Rudolph did assign employees to various tasks
is credible. This evidence, together with the unrealistic su-
pervisory ratio proffered by the Employer is sufficient to
establish a prima facie case that Rudolph was a supervisor
during the eligibility period. That prima fuacie case has not
been rebutted and I conclude that the challenge to his bal-
lot should be sustained.
In the spring of 1977. Frederick John Rhode VI was the
leadman in the contracting department and in training to
become the leadman to take Hampl's place. He became the
thermometer department leadman on August 29. 1977. re-
placing Hampl. Rhode took Hampl's place for I week in
May while Hampl was assigned to the day shift, and per-
formed Hampl's duties during his absence. Inasmuch as the
duties of Hampl were such as to make him a supervisor, it is
obvious that during that week that he replaced Hampl.
Rhode was acting as supervisor. Rhode continued to per-
form his duties as leadperson in the contracting department
while he was training under Hampl and serving as his sub-
4h7STACO. INC.
I)I.(ISIONS ()1 NAHO()NAI. IABOR REI.ATIONS BOARD
distribution rule with respect to uion literature. institution
ofl a pension plan prosision to discourage union activities.
andi the plrnilisc of a raise to one emplosee to he effective
after the Board cot:.lucted electionl and three allegations of
violations of Section 8(a (3) consisting of a refusal to pro-
cess Ksri Bibeau's workmen's compensation claim,' suspen-
sion of Frank C(aruso, ad a denial of reemployment to Dar-
lene Williams. I permittedl the amendment over
Respondent's objection.
Responident contends that the various charges and
amended charges are not broad enough to cover the above
allegations, and that the General Counsel had the evidence
on Caruso's suspension on August 24. 1977. prior to the
issuance of the September 15 complaint and the January 4.
1978, amended complaint. T'hat General Counsel may have
had such evidence is not a controlling factor.
It is true that the charge filed on August 2. 1977, in ('ase
I CA 13442, the amended charge of September 24. 1977.
in the same case, the charge filed on November 21, 1977, in
Case I (CA 13876, and the charge filed on November 22,
1977, in ('ase I ('A 13887 do not allege the specific acts
contained in the General ('ounsel's amendment at hearing.
The violations alleged in the contested amendment cover a
period from March 9, 1977, to January 10, 1978.
Each charge or amended charge contains the conclusory
printed language, below specifically alleged incidents, read-
ing, "By the above and other acts, the above named em-
ployer has interfered with, restrained, and coerced employ-
ees in the exercise of' the rights guaranteed in Section 7 of'
the Act." The alleged violations of Section 8(a)(1) in the
opposed amendment are independent acts. The Board has
found the above-quoted printed language in the charge
form to be adequate to support specific allegations of inter-
ference, restraint, and coercion in the complaint. Accord-
ingly, I reaffirm my ruling at hearing permitting the amend-
ment of the complaint to allege 14 additional violations of
Section 8(a)( ) of the Act. None of these alleged incidents
occurred more than 6 months prior to the original charge
containing the quoted printed language.
Turning to the two amended allegations of Section
8(a)(3) still before me, neither is alleged in any charge and
no charge or amended charge contains any specific allega-
tion with regard to Darlene Williams. However, the original
and amended charge in Case I CA 13442 alleges a transfer
of Frank Caruso on May 25, 1977. to be violative of Section
8(a)(4) of the Act, and the amended charge further alleges
Caruso's transfer to be violative of Section 8(a)(3) of the
Act. I find that the alleged refusal to reemploy Williams on
or about November 21. 1977, and the alleged suspension of
Frank Caruso on or about May 5. 1977, arose from the
same factual situation, were of the same class as and were
clearly related to discharges and other adverse actions
against employees alleged in the various charges. and each
occurred within 6 months of a charge filed alleging related
violations of Section 8(a)(3).7 In sum, all of the charges and
'This allegation was subsequently withdrawn and therefore need not be
considered.
6 Benner Glass Co., 209 NLRB 686, 687 (1974).
'Jack LaLanne Management Corp., 218 NLt.RB 900. 912 913 (1975): and
authorities cited therein.
the allegations of the complaint, as amended, refer to events
that were part and parcel of Respondent's alleged pattern
of conduct toward employees designed to inhibit their
union activities. I am convinced that my ruling permitting
amendment at the hearing was correct.
A. Backlground
The Union's campaign at Staco commenced when em-
ployee Roberta Brown made a telephone call to the Union
in early Februarv 1977.7 According to union representative
Moyer. the first meeting with employees in the course of the
Union's campaign was March 5. Employees Roberta
Brown, Josephine Quinn, Frank Caruso. David Rudolph.
Lorraine Perry. and C'hristine Murray were among those
present. By letter of March 7. received March 8, Moyer
advised the Company of the formation of' a union organiz-
ing committee composed of Roberta Brown--chairman,
Lorraine Perry. Frank Caruso, David Rudolph, Sheryl Do-
ran. Mary Murray, and Josephine Quinn. Moyer sent Re-
spondent letters on March 15 and 24, and June 13. naming
other employees to the organizing committee. The March
15 letter named Sandra Smith. The March 24 letter named
Debbie Wade, Jean Beayon, and Cheryl Burke. The June
13 letter added Phyllis Jones. Emily Martell, Martha Evans,
and Rita Thomas.
By letter of May 2, received by Respondent on May 3.
Moyer requested recognition and offered to submit to a
card check to demonstrate the Union's majority. Respon-
dent's President I. Walter Munzer. on May 3, refused Moy-
er's request and suggested that the question of representa-
tion should be resolved through Board procedures.
Thereafter, the Union filed the petition for election in Case
I RC 15176. The Company and the Union met at the
Board's offices on May 23 and executed a Stipulation for
Certification Upon Consent Election. Present at this meet-
ing were employees Frank Caruso. Lorraine Perry, and Ro-
berta Brown. The employees did none of the talking at the
meeting. The election was conducted on June 29 and the
various charges were filed at the times noted above.
B. Violations Alleged
1. No-solicitation and no-distribution rules and
suspension of Frank Caruso
Respondent has maintained plant rules since January I,
1976, which notify employees that they can be discharged
for various infractions including the following:
17. Soliciting, or collecting funds for any purpose on
Company time unless cleared with the Manager.
22. While at lunch, rest or smoke break, employees are
to refrain from socializing with those who are at work.
Although I find no fault with rule 22 as written, rule 17 is
unlawfully broad. The Board has found that the term
"Company time" is "unduly ambiguous and tends to con-
note all paid time from the beginning to the end of the work
shift, and can easily be interpreted as a restriction on solici-
I All dates herein are 1977 unless otherwise indicated.
468
STACO INC.
tation during hreaktime or other periods when employees
are compensated although not actively at work" Florila
Steel Corporation 215 NLRB 97, 98 99 (1974).' Respon-
dent proffered no eidence tending to show that the ban on
solicitation was necessary for any legitimate purpose. The
mere existence of an overly broad rule tends to restrain and
interfere with employees rights under the Act even if not
enforced. Inasmuch as rule 17 is invalid on its face it is not
necessary to show that it was ever enforced.' I find rule 17
violates Section 8(a)(1) of the Act.
According to Roberta Brown, whom I observed to be a
careful and credible witness, on or about March 9 James
Lawless. vice president in charge of production, called her
into the office and told her that she was not to talk about
unions during working hours, on pain of discharge. hut
could talk about it before work, during breaks. at lunch.
and after work.
James Lawless agrees that he told Brown to curtail her
talking about the Union to periods before work, and during
breaks and lunchtime. He states that this conversation
arose from complaints of other employees about union talk
in their area while they were working. This is unsupported
by employee witnesses. According to James .awless. he let
employees know that they would be discharged if the)
talked about the Union during worktime.
Brown testifies that, after James Lawless spoke to her.
she returned to her machine, and then heard an announce-
ment over the loudspeaker that there was to be no talking
about unions during working hours. or passing out of mate-
rials concerning the Union during working hours. and that
anyone found doing so would he discharged. I credit Brown
on this subject because she appeared to be testilving hon-
estly, and Respondent proffered no evidence as to who an-
nounced this rule or any credible evidence that the rule was
announced over the loudspeaker in any words other than
those stated by Brown. The closest thing to it is James I.aw-
less' testimony that he had let it be known to employees
that if they talked about the Union during worktime they
would be discharged, which I am convinced reters to his
conversation with Brown.' It is by now well established
that a rule prohibiting employees from soliciting or distrih-
uting during "working hours" is prima fachie too broad. 2
Lorraine Perry testified that she was told by James Lasw-
less that he understood she had talked to employee Betty
Butler on company time about the Union and he would like
her to stop it. Perry concedes that neither she nor Butler
were on break on this occasion when they were talking
about the Union, and it would appear that James Lawless'
concern on this occasion was directed toward conduct dur-
ing "work time" for both women. I conclude that even
though the injunction to Perry on this occasion did not on
its face transgress employees rights, because it clearly re-
ferred to conversation while both employees were working,
neither did it retract or modify the announcement of March
9 or advise the employees that it was not to be enforced.
9 See also Florida Steel Corporation. 223 NLRB 174 (1976)
'0 Blue Cro.ss-Bue Shield of Alabama. 225 NLRB 1217. 1220 (19761.
t Sirkus' testimlony that employees were told that worktime was not to he
used for distribution of union matenal or union discussion comports with the
testimony of James Lawless, but does not appear to be a reference to he
loudspeaker announcement.
12 Esser International. Inc., 211 NLRB 749 (1974).
It is plain that there is a selling and deliver of' Ason
products, toys, and similar merchandise, and the distribu-
tion of raffle tickets together with loitters drawvigs at the
plant on a regular basis. orraine Perr asserts that some of
this activity was done on breaktime and some was done on
company time. She sold pillows at the shop. solicited the
sale of toys. and participated in the plant lotterN that was
held on ThursdaN or Frida5 afternoon. I heliee her testi-
mony that she never receised any clearance }frolil the ('om-
pany to do this soliciting, and that she took orders and
collected moneN therefor on companly time.'
I do not credit the testimon, of Leadpersons ('harlton.
Booth, and Barker that the> knew of no A\on or similar
sales during working hours. Apart front the fact that I find
it unbelievable that the widespread Avon products. to,
sales, lotteries. raffles. and similar activit\ did not at times
take place among emplos ees at work, mi observatioln otf the
witnesses testilying on the matter convinces me that the
testimony of Perry and other employees, to the eect that
these various endeavors were carried o during working
hours, is more reliable.'
There is no showing that Respondent entorced anll no-
distribution rule prior to its March 9 aMnnoncernent ti other
then the testimon' of Stes en Lasi less that he told office
clerical KathN Bargmann not to deal in Ason products dur-
ing worktime. and the claim of 1. Waller Muizer. Sta;co
president, that he told Bargmann t quit selling Alon. I his
testimon> of Lawless and Mnlunzer is eroded hb the failure of
Respondent to adduce eidence on the topic trom Barrg-
mann who was clearly aailable anld testilied on other malt-
ters.
Respondent's March 9 loudspeaker annoulnccmtnll of no-
solicitation and no-distributiOt rules. which I finld to be too
broad and violatise oft' Sectioi 8(a)( I ) t' the Act ol Its face.
came hard oin the heels of its receipt, oin March 8, of' the
Union's letter idcnilitinig seven employee inemlbers tof' its
organizing coimtllnttee. Ilhis tining ot' the .tantulltncenlent.
together ith the singlinlg out of Robe-rta Br) ,n. ssho w;as
designated orgaiing coilliitee cllailxrtollan ill the
Union's letter, on the same lda' as the employee to whomn
Respondent's rule on union talk was apparenltl irst im-
parted persuades me that Respondent was stimulated bh
the Union's letter to move against union actisitx at its facil-
ity. I found James Lawless' testimon\ that lie talked to
Brown because of employees' complaints to be unconvinc-
ing and bereft of supporting e vidence. The loudspeaker an-
nouncement. as well as the other statemients of the rules bs
Respondent, were directed at union activitN and made no
mention of the employees' long-standing merchandising
and gambling practices. There is no evidence that the rules
announced March 9 were needed to obviate litter or any
other production or discipline problems. and I am con-
vinced that Respondent's purpose was to throttle union ac-
I3 Eniployees Caruso, Quinn. and Jones agree with t'errt that he seling
and raffles are conducted on conmpainy itie. concluded fron lislening to
these employees and Perry that the thrusl ot their testimon- was that hee
activities are carried on in work areas during ,orkilng tile the parlitl-
pants.
i4 Sirkus' tesllmony that he ohsersed nlonc ot the as itY , o1n orkinle
does not estabhllsh that it did tol happect
469
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tivity at its inception and that the matter of Avon products
and so forth were of no great concern to Respondent. So far
as the record shows, no one was reprimanded or otherwise
disciplined for there nonunion activities, except for the as-
serted instruction to Bargmann not to sell Avon products.
I am convinced and find that the rules announced on
March 9 were violative of Section 8(a)(l) of the Act because
the prohibition of talking or distributing during "working
hours" is too broad and it was not explained to employees.
other than Brown and Perry, that soliciting or distributing
was permitted during breaktime or other periods when em-
ployees were not actually working." I also find the an-
nouncement of the rules was not to further a legitimate
business interest, but was done solely to impede successful
union organization by its employees.
Frank Caruso asserts that he was told, by "one of the
bosses" at a meeting of employees held in early March, that
employees were not allowed to talk about the Union on
company time. I credit him because this is consistent with
rule 17. and Respondent seems to agree by citing this in its
post-trial brief as evidence of Caruso's knowledge of an ex-
isting rule applicable to Caruso's actions of May 5.
On May 5, Caruso was passing out announcements of an
upcoming union meeting prior to starting work and during
his breaks. During one of his breaks he took copies of the
announcement from the building in which he worked into
the other plant building, and there gave them to employee
Donna Cook to distribute.? Cook was working, not on
break, at the time. I conclude, from a synthesis of the credi-
ble portions of the testimony of Caruso, Cook, Arnold
Kasuba. Frederick Rhode, and Michael Hampl, that the
following logically probable sequence then ensued. Me-
chanic Kasuba mentioned to Caruso that he should not be
passing the announcements out on worktime. Kasuba told
second shift supervisor James Hamblin what Caruso had
done. Hamblin called Caruso's supervisor Hampl and told
him Caruso had passed union literature to Cook while she
was working. Either Hampl or Rhode" unsuccessfully tried
to call James Lawless. Hampl then told Caruso that he had
made a mistake and Caruso asked what it was.' Hampl
replied that Rhode had passed out union literature to a
woman in the other building at a time she was not on break.
A discussion then ensued between Hampl and Caruso as to
what was to be done about it. According to Caruso, he told
Hampl to do whatever he was supposed to do. Hampl and
Rhode aver that Caruso asked if he should leave. I credit
Hampl and Rhode. In any event, Hampl and Caruso
agreed that Caruso should go home. I do not believe that
Caruso would have left on his own absent direction from
his supervisor Hampl that he should, and I am convinced
that Hampl made the decision that caused Caruso to leave.
I credit Caruso's uncontroverted testimony that Hampl told
him to go home and see James Lawless or Robert Sirkus the
next day. Caruso then left.
'5 Essex International, Inc., 211 NLRB 749 (1974).
I6 I do not credit Caruso that this was by prearrangement.
i' Which made the call is of no consequence.
18 I credit Rhode and Hampl over Caruso because Caruso impressed me as
a witness given on occasion to shading the facts for purposes of self-justifica-
tion.
The following day Sirkus called Caruso and told him to
stay home that night (a Friday) and next work night (a
Monday) and then return to see Sirkus the Tuesday after
the second work night off. Caruso stayed home Friday
night, but went to the plant on Monday and met with Sir-
kus. According to Caruso, Sirkus told him that his acts of
Thursday night were serious, he would be discharged if he
did it again, and Sirkus did not want him to go into the
back building again. Sirkus says that he gave Caruso a
warning about interfering with people at work, and told
him he would be discharged for repetition of his actions.
According to Sirkus, he also told Caruso to "stop all this
other foolishness." and admonished Caruso to talk to peo-
ple or hand things out only in accordance with the solicita-
tion and distribution rules. Sirkus also told Caruso there
was no need for him to go to the other building, and
stressed the need for keeping mercury contamination from
that building.'9 I do not credit Caruso that Sirkus told him
Respondent was going to keep an eye on Caruso and he
ought to be careful because of Caruso's tendency to occa-
sionally expand and because I believe this to be Caruso's
not unwarranted perception of the message Sirkus was con-
veying, as distinguished from its actual wording. It is impli-
cit in Sirkus' admitted comments that he was letting Caruso
know his conduct would be monitored for repetitions of his
previous actions.
Sirkus told Caruso that he could return to work that very
night, but Caruso elected not to. I therefore conclude that
Caruso was suspended by Hampl for the remaining portion
of his Thursday night shift, and by Sirkus for the entire
Monday shift. Although Sirkus attempts to cast Caruso's
actions in a mold of interfering with other employees, I am
persuaded that this is more decoration on the real reason.
which was violating Respondent's no-solicitation or no-dis-
tribution rules. This is illustrated by Sirkus' insistence that
Caruso adhere to these rules as promulgated by Respon-
dent. Furthermore, I believe it is fairly inferrable, in the
context of the conversation and the acts of Caruso for
which he was suspended. that Sirkus admonition to "stop
all this other foolishness" was a reference to Caruso's union
activity. I regard Sirkus' reference to possible mercury con-
tamination as an afterthought relied upon by no one as a
basis of Caruso's suspension.
Inasmuch as Caruso was suspended for violation of Re-
spondent's unlawful rules on solicitation and distribution.
his suspension also was violative of Section 8(a)( ) of the
Act.'0 Respondent had knowledge of Caruso's union activi-
ties from the May 5 events, as well as prior notice from the
Union that he was on the organizing committee, and Sir-
kus' injunction to "stop all this other foolishness." in itself a
violation of Section 8(a)(1) of the Act because it is an in-
struction to abandon union activity, betrays a motive to
coercively restrict Caruso's union activity. Accordingly, I
further find that Caruso's suspension was effected in order
to discourage his union activity, and Respondent thereby
violated Section 8(a)(3) and (I) of the Act. Similarly, I find
1' Respondent's written "Special Mercury Rules" make no reference to
any need for curbing inter-building movement
"2A.T & S.F Memorial Hospitals, Inc., 234 NLRB 436 (1978).
470
3. Promise of a raise to Griffith Morris
Griffith Morris was promoted from janitor to warehouse-
man, effective June 15, b Staco's president, I. Walter Mun-
zer. Nothing was said to Morris about a pay increase at the
time. A week so later, prior to the election of June 29. Wal-
ter Munzer and Robert Munzer. vice president of Staco.
were walking in the plant and crossed paths with lorris.2:
Walter Munzer told Morris that he would be getting a
higher wage for his new duties. I credit Morris that Mlunzer
said that the raise would not appear in his paycheck until
after the election. The comports with Robert Munzer's
vague recollection that his father said the raise would prob-
ably be in a couple of weeks, and I do not believe it likely
that Morris would have only been told he would get a raise
"in time" as Walter Munzer testified. According to Morris
he received the raise from $2.40 to $2.55 after the election.
David Rudolph, to whose job Morris sass he succeeded.
had earned $2.55.
I find nothing unlawful in Walter Munzer's statement.
Morris' job change was a promotion for which the increase
in pay was warranted in order to match that of the previous
incumbent. This is not an instance where an emploher an-
nounces wage increases prior to an election for no apparent
lawful reason. In my opinion Walter Munzer's mention of
the election was nothing more than a convenient time refer-
ence and connotes no unlawful purpose. Contrar, to the
General Counsel's contention that the announcement oft' the
raise can only be seen as a promise of benefit designed to
influence Morris' position on the Union, it can equall as
well be seen as a recognition of satisfactory performance in
the new job entitling Morris to the wage commensurate
with his duties. I view the comments of Walter Munzer as
off-the-cuff remarks, in the course of a chance meeting de-
signed solely to advise Morris of the Compan's approval
of his performance which would be more tangibly expressed
in his paycheck in the near future. The raise was not condi-
tioned on the outcome of the election, and the evidence
does not support a finding that Respondent singled out
Morris from approximately 150 employees to be the fa-
vored recipient of a wage increase in order to affect the
election.
4. Interrogation of Griffith Morris b Steven Lawless
Griffith Morris credibly recounts that on election da, or
the following day. Supervisor Steven Lawless asked him it'
he could tell Lawless how he had voted in the election.:'
This is obvious interrogation of an employee with regard to
his union sympathies and violates Section 8(a)(I) of the
Act.
5. Conversation of I. Walter Munzer and Diane Van
Guilder
Contrary to the General counsel, it does not appear from
the testimony of Van Guilder that Munzer asked her.
21 I credit the Munzers that Robert Munzer was present. and conclude that
Morris' memory on that score was faulty
2 I do not credit Steven Ltawless' hare denial in response to a leading
question, nor do I believe that Dasvid Rudolph's bare denial. also in response
to a leading question. that he heard Lawless make such a statement estab-
lishes that Lawless did not.
that Respondent violated Section 8(a)(3) and (I) ot the Act
by barring Caruso from entry into the back building. I do
not believe that Respondent must grant employees the right
to run hack and forh between buildings at their sole discre-
tion, nor do I believe that Respondent must permit a mer-
cury contanmination hazard to develop. I do however be-
lieve that when Respondent barred Caruso from the back
building it was acting on antiunion considerations rather
than the other concerns voiced by Sirkus, 2' and should be
restrained from further interfering with employees Section 7
rights for unlawful reasons.
2. Alleged threat by Sirkus to Ridolfo
At the hearing the General Counsel amended the com-
plaint to allege that Robert Sirkus threatened employee
Joan Ridolfo on or about April I. 1977, with plant closure.
Ridolfo was working at Staco, while on layoff from Gen-
eral Electric. in March or April when she was approached
by Sirkus. Ridolfo first testified that Sirkus asked her if she
was laid off from General Electric and, receiving an affir-
mative answer, commented that Ridolfo knew that the
Union would never get in and Ridolfo had a lot to lose and
nothing to gain because she was on layoff from General
Electric. and Respondent had other plants that closed when
the union came in. On cross-examination, by way of affir-
mative answers to leading questions, she stated that she told
Sirkus that she was going back to General Electric in 1977,
and Sirkus then asked her what she would have to gain by
voting for the Union if she was returning to General Elec-
tric.
Sirkus testified that he asked Ridolfo if she expected to be
recalled to General Electric soon, received a "yes" answer.
asked what difference the Union made to her, and stated he
did not understand what advantage it was to her. He fur-
ther avers that Ridolfo then said she thought the people
needed a union, and he repeated that he did not understand
and left.
Sirkus does not specifically deny telling Ridolfo that he
knew the Union would never get in, she had a lot to lose,
and nothing to gain, and the Company had other plants
that closed when the union came. I therefore credit her
testimony to that effect. The inconsistencies between
Ridolfo's testimony on direct and cross-examination are im-
material in view of her uncontroverted testimony noted
above and Sirkus' admission that he inquired into her union
sympathies.
I conclude and find that Sirkus coercively interrogated
Ridolfo regarding her union sympathies. I further find that,
by telling her the union would never get in, Sirkus im-
pressed on Ridolfo Respondent's adamant antiunion deter-
mination and set the context for his threatening statements
implying that her support for the Union would work to her
detriment and the plant would close if the Union got in.
Sirkus' interrogation and implied threats violated Section
8(a)(I) of the Act.
21 Sirkus agrees there is no written rule about going back and forth e-
tween buildings, and his claim that this rule was enunciated to lead people is
otherwise unsupported.
STACO. INC. 471
I)[ ('ISI()NS ()1: NA I()NAI. ABOR RELATIONS BOARD
shortl helore the election. how people were going to ,ote.
Van (uildlter rcpcatedl\ denied being asked about cmplo -
es' union s mpathies or how they would vote. Inasmuch as
the (;eneral ( ounwrl adduced no evidence on the point.
other than her own iphe dliv. there is nothing for Respon-
dent to rebut and the allegation fils for want of prooF.
6. (onversation of I Walter Munzer and Charlotte
I .a :ountain
l'l ountain credibly testified that, about a week before
the election. Munzer asked her how an employee was going
to vote. Munier does not deny this, but states he has no
recollection of such a conversation. Respondent contends
such a statement is noncoercive and de miinims. I disagree.
The question is not isolated in view of the other unfair labor
practices found herein, and I have considerable difficulty
imagining such an inquiry by the company president of a
rank-and-file employee whose economic livelihood is sub-
stantially under his control to be harmless or other than
inherently coercive. Accordingly. I find Munzer's question
to be unlawful interrogation within the meaning of' Section
8(a)( ) of the Act,
7. Conversation of I. Walter Munzer with employees Joan
Ridolfo and Catherine Hayes
The evening before the election. Munzer came to the ma-
chine where Ridolfo and Hayes worked and spoke to them.
Ridolfo remembers him saying that as long as there were no
unions there would be no layoff, he would never have a
union take over, and for the employees best interests they
should make sure they voted no on the morrow. He men-
tioned that the Company had trouble with unions and
closed plants in the Virgin Islands and New Jersey.
Hayes' only recalls a portion of Munzer's remarks to the
effect that as long as there was no union in the shop there
would be no layoff. On cross-examination. Hayes testified
that Munzer said: "we don't have a union here: we've never
had a layoff."
Munzer's responses, which I do not credit, consist solely
of simple denials in response to leading questions pro-
pounded by Respondent's counsel restating the testimony
of Ridolfo and Hayes. Little weight can be given to such
testimony in the face of the more detailed account by two
witnesses who appeared to be forthrightly testifying to the
best of their recollection. I do not believe that such a con-
versation never occurred or was fabricated by Hayes and
Ridolfo. Hayes was still employed by Staco at the time of
her testimony and not likely to falsely testify against her
employer.
I regard the testimony of Ridollfo and Hayes as compli-
mentary rather than contradictory. That Munzer may have
said the Company had no union and had never had a layoff
does not defeat the testimony that he said that there would
be no layoff as long as there was no union. Both imply that
no layoffs were contingent on not having a union and that
having a union would result in layoffs. His further discus-
sion of past trouble with unions, coupled with plant closings
and his declaration of implacable resistance to a union
which was a prelude to his admonition that employees
should vote against the union for their own good, were
clearly calculated to instill fear of' retaliation by Respon-
dent. I conclude that Respondent, by its agent 1. Walter
Munzer. threatened employees with layoffs and plant clo-
sure if they supported the Union, and thereby violated Sec-
tion (a)( 1) of the Act.
8. The pension plan notification
Respondent's retirement plan became effective January
1, 1976, and employees saw and examined it prior to the
beginning of the union activity in 1977. In addition to this
document. Respondent issued another document to its em-
ployees outlining the "Company's Defined Benefit Pension
Plan." This outline bears an effective date of January I,
1976. but no issuance date. The only direct evidence on the
issuance date was provided by the uncontroverted testi-
mony of Phyllis Jones that the outline was distributed to
her and other employees in October or November 1977. She
denies ever seeing it before. I detected no indication of dis-
sembling, therefore I credit her. This document distributed
in 1977 contains a summary of the defined benefit pension
plan provisions. In the midst of this repetition appears a
paragraph stating:
However, the Plan provides for forfeiture of your
vested interest ift' you do anything detrimental to the
(Company.
The summary nowhere defines what "anything detrimen-
tal to the Company" might be, nor does the document dis-
tributed in 1976 contain any like reference or an: provision
with respect to forfeiture of benefits. Respondent proffered
no evidence in explanation of the meaning of the quoted
paragraph or the reason for its insertion into the summary.
The evidence before me, which Respondent has elected not
to rebut, prima fiWci establishes that the document with this
paragraph in it was issued after charges were filed and com-
plaint issued in Case I CA 13442. Considering Respon-
dent's overt expressions of fixed opposition to the Union in
speeches and conversations with employees, and its other
violations of the Act prior to the issuance of the paragraph
in question I am persuaded that employees reading the
document, knowing that Respondent considered union rep-
resentation detrimental to its business, could not help but
construe the quoted statement as a threat of loss of pension
benefits if they supported the union. In arriving at this con-
clusion I have taken note that although the election had
been held before the statement issued the question concern-
ing representation was not resolved, and is still not resolved
in view of the determinative challenged ballots. I also find,
in the context of Respondent's antiunion conduct, the out-
standing complaint, and a complete absence of any evi-
dence ofjustification for issuing such a statement, that Re-
spondent's intent in so issuing was to coerce employees into
abandoning the Union. Accordingly, I find that Respon-
dent, by issuing the quoted paragraph to its employees, in-
terfered with, restrained, and coerced them in the exercise
of their Section 7 rights, including giving testimony to the
Board, and thereby violated Section 8a)( ) of the Act.
Furthermore, assuming arguendo that the statement was
published to employees prior to the onset of union organi-
472
really care what he produced. Both Rowe and I rud' Booth
complained to supervision2> that (artuso wxas turilllg out
bad blisters. Although the witness are not precise on the
date the complaints started. I conclude from (aruso's reftr-
ence to March or April with respect to his talk with Rowe:
the implication in Rowe's testilronL that it occurred in
April or May: Booth's statement that employees started
complaining to her in April and Ma,. which caused her to
complain to Steven l awless. Sirkus. and I.eadilnan Reed:
and Steven Lawless' testimon that Booth cmplainled in
May: that it is most likely that employees compla.ints
reached supervision in late April or e;arly Ma.
Upon receiving these compl.aints. James and Steven l.aw-
less, in early May, checked work that (Caruso hd produced
and found bad work. The went to Caruso atnd told hil
they were finding a lot of hbad work fromn him. Complaiints
continued to come in and Steven .as less went to (Caruso a
few days later and told him that his work continued to be
bad. Caruso explained that hlie was having difficulty sleeping
at night, was taking a sleep prevention prepar;tion. and
was almost failing asleep oil the job. awless old ( lrtuso
that Lawless could not have employees going to sleep on
machinery and that he might be able to find Caruso aI joh
on the day shift if it would help. Caruso did not A, mi to
work on days and did not accept this proffer.
Steven and James l.awless again isited Caruso in nid-
Ma) and told him that his work cointinued Io he poor.
Caruso's machine was completely automated b I, Ma 23,
and he was transferred to the other opening out machine.
beginning May 24.
Steven and James Lawless again spoke to (Caruso about
his work on May 25,. pointing out that his work on his
newly assigned machine was unacceptable. They showed
Caruso a number of badly blown thermometers. He asked it
they were from his machine. Steven Lawless assured him
they were, and Caruso said he needed a little more time to
get used to his new machine. After this meeting Steven
Lawless checked with other operators with regard to their
machine preference and received conflicting opinions.
On May 27. Caruso was called into the otlice. Prior to
this, James L.awless had met with Steven l awless and Rob-
ert Sirkus and decided to take Caruso off the machine.
James Lawless told ('aruso that he was being taken off the
machine because his work was still below par. (aruso pro-
tested and was shown samples of his bad work. Caruso
agrees that the work he was shown was bad, and says that
although he told them that he did not believe it was his
work, that he did not know otherwise. James Lawless told
Caruso he was free to examine his work out in the storage
boxes, but Caruso did not express any desire to so Ido. (a-
ruso was given the option of working either the da) shift or
the night shift on a heading machine which he had previ-
ously operated. Caruso selected the night shift and was so
transferred. I do not credit Caruso's claim that he told the
participants in the May 27 meeting that he was trying to
help the Union organize the night shift, and therefore se-
lected the night shift. I believe that Caruso invented this
statement as a self-serving device to support his case. I am
zation, I find the paragraph analagous to a preexisting in-
valid no-solicitation or no-distribution rule that is unlawful
by virtue of the fact that its mere existence tends to restrain
and interfere with employee Section 7 rights. Not only does
the existence of the paragraph restrain and interfere with
employee rights, it flat out threatens them with loss of one
of the most important benefits an employee can gain from
employment. "Anything detrimental to the Company" is
plainly ambiguous and susceptible of the most ominous in-
terpretations by employees. The burden is on Respondent
who propounded the phrase to explain its meaning and as-
sure employees that the statement does not apply to their
statutory rights under the Act. Respondent has done nei-
ther, and I find the statement violative of Section 8(a)( I
whether or not it issued before union organizing com-
menced.
9. The transfer of Frank Caruso ' 4
Caruso was quite active in the union organizing cm-
paign, and Respondent knew this by March 8 from the
Union's letter listing Caruso on the organizing committee.
Caruso also attended the meeting with the Board on May
23. The hostility of Respondent toward union activities bh
its employees is abundantly clear. Given this state of affairs
and Respondent's other antiunion actions, the circum-
stances of Caruso's transfer require careful examination.
Caruso was an operator on an opening out machine
which, by the injection of air into glass tubes, made blisters
in thermometers. Caruso concedes that he received com-
plaints about the size of the blisters he was producing from
Alberta Lincoln Rowe. operator of a takeoff machine in the
contracting department, in March or early April. He con-
tends that an examination of the work proffered by Rowe
revealed that, although it was indeed bad, it was not his
work because she showed him oral thermometers whereas
he only worked on "stubbies." Rowe contradicts Caruso.
testifying that the bad work she showed him was on "stub-
bies." I credit Rowe. who was a more impressive witness
than Caruso and seemed to be stating exactly what she
knew to be true, that she did show Caruso's poor work to
him, she personally observed him blowing overly large blis-
ters, and that he told her in the lunchroom that he did not
24 In arriving at a distillation of the facts surrounding Caruso's transfer. I
have taken note that Steven Lawless was a very direct, brisk. and positive
witness whose testimonial demeanor was superior to that of Caruso, who
demonstrated a lack of certainty and selective losses of recollection on criti-
cal matters on cross-examination and appeared to be consciously trying to
protect his direct testimony by avoiding admissions that might detract from
a version of the facts favorable to him. Additionally. Respondent's evidence
with respect to pretransfer consultation with Caruso is in large part uncon-
troverted. Employee witnesses testified to various statements of Roseanna
Reed to the effect that her pretrial statement to the Board was inaccurate.
that she would avoid testifying at the hearing, and other comments reflecting
on her credibility. There was also some evidence indicating a plan on her
part to engage in rather unusual conduct as a means of avoiding testimony.
Reed denies such statements and conduct. I find it unnecessary to dwell
thereon, other than to say that there was sufficient evidence to cast some
doubt on her testimony before me. Inasmuch as her testimony is not crucial
to this decision, I have not relied on it in making fact findings. The General
Counsel's contention that there is an unrebutted implication that Reed had
been requested by Respondent to give false testimony and that this taints the
testimony of all Respondent's witnesses is rejected.
2 I credit Rowe that she complained a couple times a eek, but I find it
difficult to believe that Booth complained evers da a she claims.
S'JA('O, IN'. 473
)L('CISIONS OF NATIONAL. LABOR RELATIONS BOARD
persuaded that the likely effect of such a statement would
have been to assure Caruso a job on the day shift in view of
my findings below that Respondent's action was motivated
by his union activities.
After the transfer meeting Steven Lawless and Caruso
went to the storage shelves where Lawless showed Caruso
some of his work and some day-shift work for comparison.
Thereafter Caruso worked on other jobs without incident
until he quit in September.
The contracting employees continued to receive a sub-
stantial quantity of bad blisters until sometime in August
when they improved. There was conflicting testimony about
the time lapse between the production of blisters in the
opening out operation and the receipt of this product by the
contracting operators. Estimates vary from a couple of days
to a couple of months.
Joan Ridolfo, who replaced Caruso on his transfer, had
previously been admonished on several occasions that her
blisters were poorly blown, and credibly testified that she
was still receiving criticism of her work when she left the
opening out machine to make way for Caruso when his first
machine was automated. She further credibly testified that
she again received criticism for poor work after she re-
placed Caruso on his transfer from the department. Consid-
ering that the automated machine and the machine Ridolfo
worked on, replacing Caruso, continued to run from May
27 through August, I believe it most unlikely that the work
produced by Caruso prior to May 27 continued to be a
significant proportion of that reaching the contractors until
August. He only worked May 24 27 at most on the open-
ing out machine after automation of his previous machine.
It is highly unlikely that he had sufficient production prior
to the automation still remaining in stock or had produced
enough on the new machine to account fbr the continuing
high percentage of bad blisters into August. I am of the
opinion that it is far more probable that the continuing
spate of bad blisters was attributable to the automated ma-
chine and Ridolfo, and that Respondent's efforts to portray
this continuation of bad work as evidence of Caruso's previ-
ous poor performance strains credulity.'
Even though I am persuaded that Caruso was something
less than an outstanding employee, and had been cautioned
by Steven Lawless about his work prior to May 24. the
rapidity of the events leading to his transfer, commencing
immediately after his attendance on behalf of the Union at
a conference with Respondent at the Board's offices, is
striking. Although Caruso had been personally cautioned
previously, the meetings of May 25 and 27 were attended
by all his supervisors. There is no showing by Respondent
of compelling reasons for calling Caruso in with regard to
his first night's production on the new machine, or the im-
mediate followup on his third night's production with a
transfer. Ridolfo was not so treated and was put on replac-
ing Caruso even though her work on opening out had previ-
ously been unsatisfactory. Leadman Hampl testified that he
criticized Ridolfo's work with the same frequency that he
2 If, as Steven Lawless implies, Caruso's remaining product had got mixed
up with the work of others, the percentage of errors should have gone down
promptly unless the others' work was also bad, which does not help Respon-
dent's argument.
did Caruso's about once a week. Leadman Rhode testified
that although Caruso produced a "few more" large blisters
than the norm, "for the most part I believe he ran fairly
good."
I am persuaded that Caruso did turn out some bad work,
probably more than Respondent considered acceptable, but
that it did not become a matter of extreme immediacy until
after he made his appearance at the Board's offices. I note
that Steven l.awless did not treat the news of Caruso's
drowsiness on the machine as an emergency matter, but
only admonished Caruso that employees could not go to
sleep on a machine. When Steven Lawless offered Caruso a
job on days and Caruso refused there was no follow-up to
assure that Caruso was not creating a hazardous situation
by operating a machine while sleepy. It is quite remarkable
to me that possible dozing at work combined with poor
production elicited no warnings of transfer or other correc-
tive action.
On the whole, I am of the opinion that Caruso's known
union activities, Respondent's hostility to union activity
evidenced by its other unfair labor practices and preelection
statements, the timing of the transfer vis-a-vis Caruso's ap-
pearance with the Union when it met with the Company on
May 23, and the questionable reasons advanced by Respon-
dent for its seemingly precipitous action on transferring Ca-
ruso from a machine on the basis of only 3 days work when
it had previously tolerated unacceptable work from Caruso
and Ridolfo for several weeks at least, are sufficient to war-
rant a conclusion that the real catalyst was Caruso's ap-
pearance at the Board's offices on May 23, and that Re-
spondent reacted by accelerating and intensifying its
inspection of his work in order to build a pretextual reason
for retaliating against him. I so find and further find that
Respondent's action in transferring Caruso because he
overtly made his strong union sympathies known by accom-
panying the Union to the May 23 conference violated Sec-
tion 8(a)(3) and (1) of the Act by thereby discouraging
union membership and activities.
I find that Respondent also violated Section 8(a)(4) of the
Act by transferring Caruso for the following reasons. On
May 18, the Regional Director issued a notice of represen-
tation hearing in Case I -RC-- 15176, with a hearing date of
May 23. The hearing did not come about because the par-
ties entered into an election agreement at the Board's offices
on May 23. The preparation, signing by the parties, and
recommendation by the Board's agent of the agreement on
May 23 is plainly an integral part of the Board's processes.
Caruso, by his presence on behalf of the Union, partici-
pated in those processes. It is established that:
Not only does the Board have the authority to protect
employees who participate in the Board's processes,
but . . . the Board has an affirmative duty to exercise
that authority to its outermost limits to protect such
employees. [Underscoring supplied.] Local 138, Inter-
national Union of Operating Engineers. A FL CIO
(Charles S. Skura), 148 NLRB 679, 681 (1964).
The use by Respondent of Caruso's attendance at the
aborted hearing and subsequent election agreement meet-
ing on May 23 as part of its reason, for transferring Caruso
474
amounts to punishment for participating in the Board's
process and therefore violates Section 8(ai)(41 of' the Act.
10. Kyri Bibeau
Bibeau attended union meetings, wore union buttons and
T-shirts, and spoke favorably to other employees about the
Union. She signed a union authorization card in Februar
1977 while hospitalized. Inasmuch as Bibeau was hospital-
ized from February 10 to April 8 and did not return to
work until the early part of June, I conclude that her other
union activities commenced soon after her June return be-
cause the union activity began during her hospitalization.
She credibly testified that she started wearing the buttons
and T-shirts beflore she requested a loan in June.
According to Bibeau, on the first day she returned in
June she discussed her workmen's compensation with
James Lawless. Lawless assured her there was no problem
with it, and cautioned her not to get involved in the union
activity in the shop.
James Lawless acknowledges the discussion regarding
workmen's compensation, hut denies telling Bibeau not to
get involved with the Union.
I observed nothing to choose between the respective testi-
monial demeanor of Bibeau and James l.awless on this
topic, but I consider the unequivocal recitation of events by
Bibeau to be more convincing than James lawless' bare
denial of her testimony on the noninvolvement caution.
The caution attributed to James Lawless is consistent with
his earlier warnings to employees not to engage in union
talk on worktime. I credit Bibeau that he told her not to get
involved in union activity. I find this statement to be inher-
ently coercive and restraining, and interference with her
Section 7 rights. Further, such a statement out of the blue
from a top supervisory official carries with it an implied
threat of reprisal if the suggestion is not heeded. I therefore
find and conclude that James Lawless' statement to Bibeau.
with respect to union activity, violated Section 8(a)( I ) of the
Act.
A week or so later, Bibeau requested a $50 loan from
Respondent through Robert Sirkus. This was the first loan
she had requested from Sirkus.27 Sirkus refused the loan.
Sirkus and Bibeau agree that his given reason for the re-
fusal was outstanding loans to other employees that the
Company was having trouble collecting. Sirkus concedes
that the matter of an insurance premium advancement to
Bibeau2' was not discussed when she asked for the $50.
However. Sirkus later told James Lawless that he had re-
fused the loan because of outstanding employee loan (and
because Bibeau owed $57 for insurance.
Bibeau claims that, after she was refused by Sirkus.
James Lawless came to her and said that he was disap-
pointed in her and that after all Respondent had done for
27 Bibeau first testified to receiving pnor loans. On cross-examination she
agreed with Sirkus that this was the first time she had asked him for a loan
These two statements are not inconsistent
21 Respondent characterizes continuing insurance premium payments on
Bibeau's behalf. while she was hospitalized, as loans. The evidence indicates
to me that this was a voluntary unrequested advancement by Respondent.
Respondent may consider it a loan, and it does appear that employees pay
their own premiums, but Bibeau did not specifically request it.
her she was going to vote for the Union. ie continued that
he had been unsuccessful in getting her the loan andt that
she knew she was for the U:nion, and asked hait she haid
expected them to do. On cross-examination she amended
her testimony to reflect that. although she did not know
when, James awless gave her S20) and said not to) worr\
about paying it back.
James l.awless testified that after Biheau told him the
loan as denied he went to Sirkus who adisled that he had
turned the loan down because there vas a lot of loans out-
standing and Bibeau still owed the ('Comnpan $57 for insur-
ance. Ic then went to Bibeau an inquired how badly she
needed the money. She professed an urgent need. and he
adan;lced her $20 from his own pocket with the assuralce
that she could take her time repaing iit. Ile denies menlion-
ing the union to her in this conversation,
I am persuaded that Bibeau's version of eents is the
more credible, except for that portion relating to the $2S')
loan from Lawless. The statements attributed by her to
James I.awless are consistent with his arnings to olther
employees about union talk and his earlier c;autionl to
Bibeau to avoid union involvement, and I consider her de-
tailed statement more believable than his denial. he per-
sonal loan tendered by him illustrated to Bibeau that it v as
Responident who controlled the granting of benefits. and
served to generate a kindly feeling in Bihbeau lotward him
and Respondent. This is a stick and carrot approach. I linil
that Respondent had discovered that Bibeau had become a
union supporter, and James Lawless took the opportunity
to reemphasize his earlier message that union actiitv was
opposed by the Company and would be met with retali-
ation. He pointed out the loan refusal as a prime example.
and his expression of disappointment with her was reason-
ably calculated to jog her memory of his statement to her a
week or so earlier.
The conversation between Bibeau and l.awless ,ssas liti-
gated and is closely related to the refused loan. Accorid-
ingly. I conclude and find that Respondent. by the
above statements and acts of James L.awless. threatened
Bibeau with reprisals for union activities, and impliedly
promised benefits and directly granted a benefit, the $20
loan, with the purpose of enticing Bibeau to abandon her
union activities. Respondent violated Section 8(a)(l) of the
Act by these acts of James Lawless.
The statement of James Lawless to Bibeau about the loan
refusal are enough to require a finding that Sirkus refused
the $50 loan because of Bibeau's union activity. This find-
ing is buttressed by (I) } Respondent's failure to produce any
records to support Sirkus' testimony that there were too
many outstanding loans:2? (2) the stipulation that loans of
$100 each were given to C. Ellis on May 31 and Gail Law-
rence on June 30. bracketing the time when Bibeau was
refused a $50 loan; and (3) Sirkus amendation of the reason
for refusal given to Bibeau by adding thereto the disputed
$57 insurance premium. The failure to produce unpaid loan
I There was no showing that such records did not exist or were otherwise
unavailable, and the Company's production of records reflecting loans given
between May 31 and September 30. 1977. implies that a record of unpaid
loan transactions were kept. Sirkus' testimon) Ihat he received his info;rma-
tion from the conpan) treasurer confirms it
S CA(O. IN(. 475
DE('ISIONS OF NATIONAL LABOR RELATIONS BOARD
records gives rise to a fair inference, which I draw, that they
would not support Sirkus' testimony on outstanding loans.
The loans in greater amounts a week or two before and 2 or
3 weeks later under 'ut any contention that Respondent w'as
pursuing a policy of not granting loans because of unpaid
loans. This indicates Respondent's policy was only directed
at Bibeau. The fact that a $120 loan was advanced to Chris-
tine Murray, a known union leader, on September 30 has
little weight because a complaint alleging the denial of a
loan to Bibeau had already issued on September 15. The
loan to Murray is therefore suspect as a constructed de-
fense. Respondent's efforts to posit the contested insurance
premium as a reason for a loan refusal even though it did
not give this reason to Bibeau. the insurance recipient, im-
presses me as a pure makeweight to be disregarded. I find it
totally unbelievable that Sirkus would not give the alleged
debtor, Bibeau, this reason if it existed, and waited until
July to ask her for the money if it was a reason to deny her
the loan. For all these reasons. I find that Respondent de-
nied Bibeau the loan30 in order to discourage her union
activities and thereby violated Section 8(a)(3) and (I) of the
Act.
On June 27.1' Bibeau twisted her ankle at work. On the
following day she was driven to the medical center for treat-
ment by Robert Munzer, Respondent's vice president. En
route they conversed.
a. Bibeau's version
Bibeau asserts that Munzer asked what she thought
about the "stuff" going on around the shop about the
union. She replied that she really could not say anything.
Munzer then asked what she had thought of' his father's 2
speech that afternoon, and how she thought other girls had
reacted to it. She repeated her earlier reply, adding that she
felt the union was going to get in. Munzer then asked if she
had read an article about the Chesebrough-Pond's Com-
pany.33 She said she had not, and Munzer then referred to it
and said that if a union got in at Staco the same thing
would happen. Bibeau replied she did not think so. Then
Munzer asked her why she wanted a union. She gave var-
ious reasons, including better wages and working condi-
tions. Munzer's comment was that it would never happen
and his father would not bargain with the Union if it got in.
Bibeau then said that she had thought he was not supposed
to be talking about the Union to her. He assured her that he
could talk to her alone, but not in a group.
3'A loan program for employees is clearly an incident of employment.
n I conclude this was the actual date because Bibeau's trip to the medical
center took place the day before the election of June 29.
12 Robert Munzer's father is . Walter Munzer.
3 On June 2, I. Walter Munzer put out a memo to all employees calling
their attention to an April 2 newspaper article about Chessebrough Pond's.
and pointed out that the plant in the clipping was the largest thermometer
factory in the United States and that 3 out of 10 employees there had been
laid off. The memo also stated that Staco had never had a layoff because it
had been able to compete and had been willing to produce inventory rather
than layoff. The memo urged employees to vote "NO" for "NO LAY-
OFFS" and "CONTINUED JOB SECURITY." The memo and attachment
are not alleged in the complaint as unfair labor practices.
The clipping attached to the memo relates a layoff of 50 employees by
Chesebrough-Pond's due to Japanese competition.
b. Robert Munzer's version
According to Munzer. he told Bibeau that he did not
think he would change her mind about the Ulnion, but won-
dered if the employees did not believe what his father had
said to them during the ('ompany's campaign. Bibeau an-
swered that she thought employees believed some of it, but
it was too bad there could not be a debate. Munzer told her
it had been explained why there could be no debate, hut
Bibeau said "Oh, you always say things like that," and that
many people had worked very hard on the union campaign
and it would be a great victory. Bibeau also told him that
she had thought he was not supposed to talk to employees
about the union 24 hours before the election. lie agreed
that meetings could not be held, but Respondent could talk
to individuals off the company premises. lie also told
Bibeau that a department store representative had asked for
her at the plant with respect to a delinquent accouLnt. 3 4
Munzer does not deny speaking to Bibeau about the
Chesebrough-Pond's article and testified. "I can't sa that I
did. I can't say that I didn't. It's not something I remem-
ber." I consider this an evasive answer, and he appeared to
be hedging and fencing with counsel during cross-examina-
tion. Some of this may have been due to an excess of cau-
tion, but when one testifies so cautiously he gives the im-
pression that he fears revealing something damaging to his
cause. Munzer gave me this impression. I conclude he did
talk to her about the article.
After examination at the medical center Bibeau was
picked up by Robert Sirkus who drove her to a pharmacy
at her request. During the drive, the two talked about the
Union.
c. Bibeau's version
Sirkus asked her why she was voting for the Union and
how she thought the election would go. He stated that if the
Union got in there would be a strike because Staco would
refuse to bargain and Bibeau would lose her job.
d. Sirkus ' version
He initiated the conversation by asking if she had re-
ceived the questions and answers sent to employees by
Staco a few days prior." She said she had. Sirkus asked
what she thought of' them. Bibeau replied that she did not
think they were true, and that the union would be good for
the employees. Sirkus denies telling Bibeau there would be
a strike, the Company would refuse to bargain, and she
would lose her job.
The admitted inquiries by Sirkus and Robert Munzer
into employees' reactions to Respondent's campaign propa-
ganda are violative of Section 8(a)( 1) because they amount
to subtle interrogations into the employees' union sympa-
thies.
4 This appears to be an unrelated comment in the course of the conversa-
tion. Bibeau remembers such a remark, but cannot place it in time. I view
this as inconsequential.
"5 By letter of June 22, 1. Walter Munzer sent employees four pages of
questions and answers about voting in the upcoming election, union prom-
ises, negotiations, strike possibilities, and the effect on employees. I have
carefully examined the letter and the questions and answers, and there is
nothing improper or unlawful therein.
476
warrant discreditin g them on this incident. nor do I per-
cee, an logical reason to accept Bibeau otherw ise unsup-
ported statement at fa ce \alue. The General Counsel has
not shown by a preponderance of the evidence that the
incident happened as Bibea u claims. I therefore find Las -
less did not unlawfully threaten BibeaIu on this occasion as
alleged.
Kyri Bibeau was discharged on July 29 A letter oft ter-
mination was sent to her that da over the signature of
James Lawless and the follow ing penned in statement:
You left our machine unattended & without permis-
sion during working hours. The glass that was still in
the machine jammed up causing the chains on the ma-
chine to be thrown out of line and other damage to the
machine.
Then after ou were told to see Bob Sirkus about our
vacation question you left the factory without permis-
sion.
On July 29, Bibeau worked on a pipette machine without
incident for 4 or 5 hours and produced five cases of pipettes,
normal production for that number of hours." Shortly be-
l'ore noon Bibeau received her paycheck from Leadperson
Barker,.' and noted that it did not contain her vacation pay.
She then took the glass out of the magazine of her machine.
but did not remove the glass then running through the ma-
chine or wait until it ran through, and left her machine to
go to the office. She told fellow employee Arquette that she
was going to the office, but did not ask or tell Rudolph she
was leaving. The machine was left unattended.2 Operators
of running pipette machines are not supposed to leave the
machine without someone watching it, or without clearing
all glass from the machine. including that running through
it. 43
Bibeau told office secretary Decker that she was short
some vacation pay in her check. Decker explained that she
was not entitled to what she claimed, and advise her to see
Sirkus about it. Sirkus was bus so Bibeau returned to her
work area. Elapsed time between her leaving and returning
was approximatel 5 minutes or so.-
'3 The account of the circumstances surrounding her discharge is based on
a synthesis of the credited aspects of the testimony of Bibeau, Sirkus, James
Lawless. Decker, Rudolph. Arquette. and Barker. with due regard tor logical
consistency.
" This conclusion is based on the production records. Bibeau's timecard
showing she punched out at 12:02 p.m., and Rudolph's credible testimony. I
do not believe Bibeau's claim that her machine was for a time not working
and then not running properly and required continuing maintenance bh Ru-
dolph while she was working on it
4 I credit Barker and Arquette that Barker handed out the checks
* I credit Arquette and Rudolph on this point
4 Bibeau concedes that an operator could not leave a running machine
but briefly. and that during breaks she would either clear the glass ront the
machine or get a relief operator. She was reprimanded hby Williams on June
27 for leaving her machine. Witness Jean Beason. Cindy Arquette. and Ru-
dolph credibly confirm the rule against leaving a running machine unat-
tended Although it appears that all an employee need do It leave is inform
a leadperson. as opposed to asking express permission. Bibeau did not een
do that.
" Arquette estimates minutes. Rudolph 20. and Barker estimates 5 be-
tween the time she gave Bibeau the check and she was called to grab
Bibeau's glass I believe Rudolph is incorrect because the transaction related
by Bibeau and Decker wuould not likels hse consumed that much time
No explanation was given ,,h% both Sirkus and Munzer
initiated these conversation s relating to the nion. I beliex e
that both did so in an effort to fin d out if Respondent's
campaig n against the union was proving fruitful on the eve
of' the election. Bibeau appeared to be testifing spontane-
ousl without invention, and the remarks she attributes to
Sirkus and Munzer are consistent with their admitted ques-
tions about the impact of Respondent's letters and
speeches, with 1I. Walter Munzer's statements to aFoun-
tain a week befre the election and to Ridolf and Haves
the day, with Steven Lawless' interrogation of Morris after
the election, and with Sirkus' interrogation of' Ridollo in
late March or early April.
I find that Robert Munzer and Sirkus seized the opportu-
nity or some last minute electioneering'
" while transporting
Bibeau. and made the statements which she ascribes to
them." In addition to the unlawful interrogation found on
the basis of admissions, I find that Robert Munzer threat-
ened Bibeau with layoff by referring to the Chesebrough-
Pond's layoff as that which would happen at Staco if the
union got in, unlawfully interrogated Bibeau by asking why
she wanted a union, and unlawfully impressed upon her
that selecting a union would be futile by stating his father
would not bargain. Each of these statements violates Sec-
tion 8(a)(}). Similarly, I find that Sirkus violated Section
8(a)(l) by interrogating Bibeau about her union sympa-
thies, and by threatening her with a refusal to bargain, a
strike caused thereby, and loss of her job. I do not agree
with Respondent that it is incredible that Robert Munzer or
Sirkus would make the comments to Bibeau that I find they
did. To the contrary, I can think of no more propitious
occasion than the transport of Bibeau or a more favorable
time to make their statements for maximum effect on an
employee than the day preceding the election.
I do not credit Bibeau's assertion that sometime in July
James Lawless, angered by her work and calling her a
"bitch,"' 8 added "You and your damn union," as he walked
away. The General Counsel presented no corroborating
witnesses although the incident allegedly happened on the
work floor and included Lawless throwing her work down
in front of her. Such an incident would hardly have gone
unnoticed by others. Lawless denies the incident, as do Su-
pervisors Rudolph and Williams whom Bibeau places at the
scene. Although Lawless, Rudolph. and Williams are
agents of Respondent, I saw nothing in their demeanor to
" Robert Munzer's admitted statement to Bibeau that Respondent could
talk to individuals off company premises about the Union within 24 hours of
the election strongly supports this conclusion
t? The remarks attributed to Sirkus and Munzer by Bibeau, whom I credit.
have a studied similarity suggesting prearrangement.
3 I do not credit union agent Moyer's testimony that James Lawless, on
the day of the election, referred to another employee as a "little hitch"
because she was wearing a union T-shirt Absent explanation from the Gen-
eral Counsel's brief.l: I conclude that this was adduced to show a propensity
of Lawless to use the word "bitch," and as evidence of union hostility Moyer
places this incident at about 2 p.m.. but the timecard of the employee Law-
less allegedly referred to shows that she punched in to work at 3: 18 p.m The
election commenced at 2:30 pm. Although it is possible that this employee
was present at 2 p.m., I cannot make findings on speculation or suspicion
Lawless denies making the statement. the time record militates in his favor,
the General Counsel called no other corroborating witness, another union
agent was present but not called, and I find the weight of the evidence on this
incident falls in Respondent's favor
477STA(O,() INC.
I)( ISIONS 1 NAI IONAI. I.Af()R RIlA [I )ONS BOARI)
DI)uring Bibeau's absence Iromn the machline the glass she
had left running through it jainmmed the m;achine and
caused it to he shut downl tifo the rest of' the da . 'Whenl
Rudolph saw it as ammned he called to Barker who
cleared the jammed glass. lie ascertained the machine was
damaged and shut it d0own4 so he could later work on it.
This was not the first time the machine had gotten janlinedl
and it had been previously and was subsequently shut dow n1
ftr various other reasons, as were other pipette machines.
When Biheaitu., who was upset over her vacation pay, re-
turned from the office she filled out her production report,
told Rudolph she was leaving to see the Board about her
vacation pay,' punched out, and left. The machine re-
mained out of' operation the rest of' the shift, and was oper-
ated 4-1/2 hours on the second shift. It was available for
operation one more hour of the second shift. but was not
used.
After lunch Rudolph reported to James Lawless what
had happened to Bibeau's machine. I.awless examined the
machine and asked Barker where Bibeau was. Barker told
him that she did not know, and that Bibeau had left the
machine and the area. James Lawless then told Robert Sir-
kus that Bibeau had left her machine with glass still in it.
causing the machine to jam and sustain damage. Lawless
also told Sirkus that he did not know if Bibeau had
punched out. Sirkus checked with Rudolph and Barker.
and later that day met with Lawless. They decided to dis-
charge Bibeau. According to Sirkus. the sole reason for the
discharge was Bibeau's leaving the machine with glass in it.
in violation of instructions to pipette machine operators,
and thereby causing the jam and resultant damage to the
machine. James awless wrote out the termination letter.
Bibeau called Barker the same day,. and told her she
would be in the next day to work. Barker said this was
satisfactory and reported it to James Lawless, who told her
to tell Bibeau, when she came in, not to work hut to see
Sirkus. Barker did not see Bibeau because she was off the
following day.
Bibeau came in on July 30 and found she had no time-
card. Sirkus came to her and told her that she had been
fired because she had left her machine without permission.
had not punched out when she left, and had left glass in the
machine causing it to jam and be inoperable the rest of the
day. Bibeau denied all three accusations, and asked to see
her timecard about the no-punch-out reason. They went
into Sirkus office where he claimed he could not find her
timecard, but insisted she had not punched out.46 Bibeau
then protested that she had not left without permission.
Sirkus responded that this was what Rudolph had told him.
After some brief discussion about her vacation pay. Sirkus
told her that she had been discharged and should leave the
premises."'
" I found Rudolph and Arquette more beliesable than Bibeau on this
point.
' Her timecard shows that she had.
' I credit Bibeau's version of this conversation because she impressed me
as the most forthright and candid reporter thereolr The reasons she testifies
were given her by Sirkus are consistent with the termination letter, and
Sirkus conceded on cross-examination. but not on direct. that he did tell her
one of the reasons was her failure to punch out and another was leaving the
plant without permission. He urther concedes, in agreement with l.awless,
Bibeau plainl left her machine unattended, and it did
jam and become damaged in her absence. hus leaving the
mach in e unattended xvas contrary to prior instructions and
established practice. Which I find she knew. This might on
its face appear to be good cause foir discharge, but Respon-
dent's records do not show that any other employee was
discharged in 1976, 1977. or the portion of' 1978 preceding
the hearing for similar offenses. Rudolph credibly testified
that this was not the first time the machine had janimmed
and the machine does not jam i the operator is in attend-
ance on it. I agree with the General Counsel that Rudolph's
testimony ftairly implies that at another time. or times, the
machine hiad jammed because the operator was not pre-
sent. s5 Accordingly, I find that Bibeau was the only em-
ployee discharged for leaving the machine and permitting it
to jam. even though another operator, or operators had
done the same. In view of Respondent's claim of a strictly
enforced procedure of securing relief' before leaving a run-
ning machine or completely clearing the glass out, I do not
think it unreasonable to inter that the other jam, or jams,
was caused by failure to abide by this practice.
The unexplained disparity in treatntent of employees
who commit the same basic offense indicates that the leav-
ing of the machine and the ensuing jami and machine dam-
age was not the real reason for the discharge. Other reasons
advanced to Bibeau by Sirkus and James l.awless for her
discharge are baseless. The initial conclusion of' Respondent
that she did not punch out is obviously false, and I view the
fact that Respondent did not check her timecard. a simple
task, until after Bibeau's discharge as evidence that Re-
spondent was not at all concerned whether or not the rea-
sons given her were true. Insofar as the claim b Sirkus to
her, and by James Lawless in the discharge letter, that
Bibeau left the factory without permission is concerned, the
record plainly shows that the employees' practice in leaving
work for the day was merely to advise their leadperson that
they were going. Express permission w\as not required.
Bibeau followed the practice by telling Rudolph she was
leaving. Sirkus knew this from Rudolph. Respondent's ea-
ger seizing on leaving the factory without permission, a
make-weight later abandoned by Sirkus when he stated the
sole reason for discharge was Bibeau's leaving the machine
unattended resulting in a jammed and damaged machine,
as one of the reasons for discharge is persuasive evidence
that it was manufacturing nonexistent reasons tojustify the
discharge. I conclude that the reason advanced before me
and the reasons given to Bibeau are false. False reasons
warrant an inference of unlawful motivation.
Bibeau's union adherence. Respondent's direct knowl-
edge of that adherence, Respondent's overt hostility to
union activity, Respondent's other unlawful acts flowing
from that hostility, and the pretextual reasons for the dis-
charge advanced by Respondent warrants a conclusion that
Respondent discharged Bibeau in order to discourage
that Lawless was the onre who told him she had not punched out. Although
Sirkus emphasizes that Biheau did not ask permission to leave. he agrees that
she did tell Rudolph she was leaving.
' I do not credit his claimed inabilit) to recall an)yone else who left the
machine unattended.
478
STACO,
union activities4" and thereb violated Section 8(a)(3) and
(I).
II. I)ischarge of orraine Perry, Josephine Quinn. and
F:rancetta Baker
Respondent discharged Lorraine Perry. Josephine Quinn.
and Francetta Baker on or about August 23. October 28
and 25 respectively, and gives as reason therefor the loss of
200 hours of work in a 12-month period. The only other
employee ever discharged bh Staco for this asserted reason
prior to the hearing was Ethel Jane Jones."'
Perry was the first employee discharged for this reason.
At the time of their respective discharges. Perry had lost
218 hours, Quinn 207-3/4, Baker 209-1/2, and Jones 256-
1/2.
The written work rules governing Respondent's policy on
absenteeism are, in pertinent part, as fllows:1'
WORK RULE 18
Each employee's record will be reviewed regarding
absenteeism or lateness. An employee who is fre-
quently absent or late, regardless of reason, should not
go to work at all. Absenteeism due to temporary hospi-
talization of an employee, their spouse or child, jury
duty, death in family, religious holiday of your faith.
service in the Armed Forces or occupational accident
or disability is not considered an absence for this pur-
pose.
WORK RULE 23a
If you are out of work on account of plant accident,
or on account of physical disability or physical sick-
ness, or are hospitalized for any reason, request a leave
of absence for up to three months, which you can re-
new, if you are still unable to work, for another three
months. You will be recalled within one week after you
notify us you are again available for work. A medical
discharge should be presented.
WORK RULE 47
I. An employee will receive a verbal attendance
warning if three absences are recorded in one month.
2. An employee will receive a ritten attendance
warning if:
a. Seven absences are recorded in two months.
b. An employee has had two previous verbal warnings
in a twelve month period.
'9 Although the union election campaign had ended and the election been
conducted. the issue of representation was still unsettled when Bibeau was
fired.
o Respondent claims that Alvin Monahan was discharged for the same
reason during the course of the hearing. I give little weight to this after the
fact action, and find no reason to alter my decision because of this claimed
discharge.
51 The pertinent work rules were promulgated and eRfective prior to the
onset of union activity at Staco.
479
3. An employee will dtisxsced it'f:
a. ten absences are recorded in three months.
b. A second written warning would have been given in
a twelve month period.
c. A total of 200 acttual hours are lost in a twelve
month period.
As always. extraordinary circumstances, as well as
past attendance history, will be discussed and consid-
ered.
Work rule 47-3-c is the rule purportedly requiring the
discharges of Perry. Quinn. and Baker. Leaves of absence
are not counted in the 200 hours computation.
According to Robert Sirkus. Respondent has additional
unwritten policies on leaves of absence. Among them are
the granting of a -week personal leave of absence per
year.'" Another is the change of an absence to a leave of
absence on a showing that the affected employee had been
hospitalized. I do not believe Sirkus' testimony that the
minimum for a physical sickness leave is -month. and that
a sickness of shorter duration does not qualif: for leave.
Neither work rule 18 nor 23a makes that distinction. Sirkus
concedes that any' period of hospitalization qualifies for
leave. even if only I -da, and leaves of absence (t' less than
I-month were granted to Shirley Thomas for a flu-like ill-
ness, Eleanor Reed for a back injury. and Joan l)ale fIor a
back injury. None of these three employees were hospital-
ized. I am convinced that the -month minimum sickness
leave policy is a fiction. Furthermore, I do not credit Sirkus'
assertion that Respondent strictly applies work rule 47-3-c.
His efforts to explain why Jones' record shows 199-1/2
hours missed on October 27 and 256-1/2 on October 28. hb
citing a failure to carry missing hours from the front of her
attendance to the back. struck me as invention when he
testified and indicates to me. even if it be believed. that
Respondent was not as careful about keeping track of ab-
sences and enforcing the 200 hour rule as Sirkus claims. His
admitted failures to communicate to his secretary that cer-
tain employees were on leave of absence, which caused her
to mark them absent. supports this latter conclusion, as do
Sirkus' failure to warn various employees and erroneous
computations of absences.
Sirkus' testimony as he explained errors in, omissions
from, and changes of Respondent's personnel and attend-
ance record was convincing neither in content nor delivery.
The weight of his testimony and the reliability of those rec-
ords suffered further damage from the testimony of Karen
Decker. his secretary.
Decker testified that she was instructed by Sirkus on June
8, the day Ward returned to work for the Company. to
make out a new personnel card for Charles Ward, a subse-
quently challenged voter, and omit therefrom the notation
that he had quit and moved to Oklahoma. Sirkus instructed
her to replace this notation with leave of absence dates cov-
ering the period March 10 to June 7, 1977. The nes, card"
5: Sirkus states that the practice now is to require a written request. hut
also states that in the spring and summer of 1977 employees made oral
requests.
"1 Decker does not knob what happened to the original card which she
obtained rom the quil and termination" tile.
DI) (CISIONS ()1: NAIIONAI, IABOR R A IONS BOARD
reflects these dates under "leave of absence" with the rea-
son therefor reading "left area." Decker further testified
that Sirkus instructed her in the summer of 1977 to make
out a ne\w card hir another employee,': leaving off mateial
that had appeared on the original but had been crossed out.
and then alternated with Sirkus in writing information on
the new card. While doing this wkriting she used a couple of
pens because Sirkus told her to.
I credit this uncontroverted testimony of Decker who im-
pressed me as a honest and forthright witness testifying
only to that which she knew to be true. In arriving at this
conclusion I have also taken note that Decker was still em-
ploved as secretary to Sirkus and would not be likely to give
false testimony about the actions of her superior who still
controlled her working conditions and tenure of employ-
ment.5'
No reason for the change in Ward's card was proffered. I
am convinced that a reasonable inference can be drawn
from the evidence that the change was made to render
Charles Ward an eligible voter. The new card was made out
on June 8, after the May 23 execution of the election agree-
ment which contains the proviso that the payroll period for
eligibility was May 21. before Ward was rehired on June 8.
In order for Ward to be an eligible voter in the June 29
election he would have had to be an employee during the
payroll period for eligibility. The entry on the original per-
sonnel card, reflecting that he had quit and gone to Okla-
homa, would have shown him to be an ineligible voter not
in the unit during the payroll period for eligibility because
his re-employment did not commence until June 8. The
entry of a leave of absence on the second card covering the
period he was gone would possibly have been evidence in
support of Respondent's original contention that he was
eligible voter because it would indicate that Ward was con-
tinually employed throughout the eligibility period, al-
though on a leave of absence. Respondent's ultimate stipu-
lation that Ward was an ineligible voter because he was not
employed on the eligibility date supports the conclusion
that the original card showing him as quit and gone to
Oklahoma was accurate. My conclusion that Charles
Ward's personnel record was deliberately changed by Sir-
kus in order to make him appear an eligible voter was not
lightly arrived at. The alteration of' potential evidence bear-
ing on an issue in a Board proceeding. here eligibility in a
Board approved and conducted election, is a serious act not
lightly to be imputed to anyone. I have found no logical or
reasonable alternative conclusions.
All that I conclude from the intriguing incident of the
alternating writings and multiple pens is that it would ap-
pear that the most reasonable explanation for these myste-
rious goings-on is a conscious effort by Sirkus to conceal the
fact that all entries were made at the same time. For what
purpose I do not know.
These alterations and apparent efforts at concealment on
certain of Respondent's records by Sirkus, or at his behest.
4 the identity of this employee is not clear. but Decker identified cards of
Michael Hampl and Roseanna Reed, both of whom were employed befire
she was, as new ones she made out
5 Federal Stainless Sink Div. of L'nar o Indusrie., I, 197 NLRB 489,
491 (1972).
render all Respondent's personnel and attendance records.
which are under Sirkus' control and contain nianyi changes
made by Sirkus or at his command. suspect. His testimony
about these records is also overshadowed by these events
described by [)ecker. Accordingly. I conclude that Respon-
dent's records under Sirkus' control and his testimony
about those records are unreliable and are not to be cred-
ited unless supported b other credible evidence or inescap-
able logical probability. or are contrary to Respondent's
interest.
I further conclude that the change in Ward's record dem-
onstrates that the grant of leaves of absence is a tool arbi-
trarily used by Respondent to suit its own purposes, with
little regard for the real reasons for the absence. The grant
or ref'usal of leaves of absence directlv effects the accumula-
tion of chargeable absences covered by work rule 47. Re-
spondent's substitution of "leave of absence" for "quit" in
Ward's case and its selectively generous grants of' leave in
circumstances contrary to its own professed policies, com-
bined with its habit of changing employee' records to reflect
a leave of absence rather than a chargeable absence and its
assignment of homework to accomodate employees, belies
the contention that work rule 47 was strictly enforced. En-
forcement of work rule 47. more specifically 47-3-c. is in
large part dependent on Respondent's arbitrary and capri-
cious exercise of its power to pick and choose which ab-
sence will be chargeable and which will not. with no par-
ticular relationship between that decision and Respondent's
claimed established policies.
Arbitrary and capricious practices are not however in
and of themself unlawful. I therefore now turn to an exami-
nation of the application of work rule 47-3-c to the alleged
discriminatees all of whom had been charged with 200
hours of absence at their dismissal.
Lorraine Perry signed a union authorization card, got be-
tween 55 and 60 signed by other employees. passed out
union literature and other materials. attended the confer-
ence with Respondent at the Board's offices on May 23.
became chairman of the organizing committee in June. and
served as the Union's election observer on June 29.
Perry5, was the first employee discharged under the 200
hour rule. In January, Sirkus called her in to give her a
warning for absence, but relented when he found she had
been to her granddaughter's funeral" which he had not
known. She was told by Sirkus in early June that she had
received a warning in January and a written warning in
February. She denied receiving the February warning and
Sirkus showed a February 23 letter to her." I credit her that
she did not receive it."5 Sirkus told her that if she missed
, I observed Perry Ito he a forthright and candid witness worthy of credit.
7 Her absence record indicates she left early on January 19 and was ab-
sent January 20 and 21. The record also bears a notalion thal these days are
not counted in the 200-hour computation.
" The letter is addressed to Perry and warns her of discharge for continu-
ing absenteeism. It is signed by Sirkus using James Lawless' name. Lawless'
signature on Bibeau's termination letter is completely different. Sirkus was
uncertain how it was delivered, and I find that it was not received. I consider
the document to be unreliable because it was prepared and signed by Sirkus
who caused the questionable alteration of other records. and because no
other witness testified to its preparation or delivery.
" .eadperson Charlton's testimony aboult statements made by Perry with
respect to a written warning does not reasonably support a conclusion that
Perry did receie the letter
480
pie of an employer, w hose ahbsntce rules are as elastic as a
rubber band, deliberately building a series of arnlngs de-
signed to support a discharge for the rcason CentLuaill uti-
lied. Sirkus well knew Perr was taking medical tests at the
hospital. and even expressed some concern ahbout the test
results when he discharged Perry. lie had pre\iously, gone
to considerable lengths to supply homework to emplo cecs
who could not come in to work, and had been considerate
of Jane Brigg's extended absences. No leniicc\ . as shosknl/
to Perry. and the action against her wkas rapid and stern. I
do not believe that Sirkus was concerned either ahboult Per-
ry's 4-day absence or enforcement of rule 47.
I find that Respondent. who knew of Perr 's considerable
union activities and demonstrated b its other acts a pro-
clivity to threaten and retaliate agilllst union actiCists.
falsely claimed warnings were given to Pcrrx in .,lanuIar
and February: warned her in June without ,iny colorable
reason therefor. and did so or discriminators reasons: and
used rule 47-3-c as a pretext to mask its discrimlnator nim)-
tive in discharging her in order to discourage union actli -
ties among its employees. 't'he discharge of' .orraine Perry
is violative of Section 8(a)(3) and ( I) of the Act.
Like Perry,. Josephine Quinn was known h\ Staco to he a
union adherent from Malrch 8 when it reccised the nilon's
initial list of organizing committee members. In arly
March, apparently after the letter was sent, Quinn called I.
Walter Munzer and told him that she had signed a union
card and her name w\as on the organizing cllmlitte. hut
she had not wanted to do this. She asked i she would lose
her job if she withdrew her name. NMunzer replied that she
would not unless the plant closed down. After that phone
call, she wore union buttons and T-shirts.
Unlike Perry. I find no evidence of any plan to set Quinn
up for discharge. Contrary to the General Counsel. I tind
no mistreatment of Quinn in only granting a I-week leave
of absence in August. There is no evidence that longer was
requested or needed. arnd she returned after the leave and
worked without losing any time for 4 continuous weeks.
For the period immediately before her return to work in
October Quinn was off sick. Respondent's records contain a
doctor's slip certifying that she was under his care for bron-
chitis and pleurisy and could return to work October 19.
Her 8-day absence was assessed against her in reaching the
200 hours relied on for her discharge. In view of Respon-
dent's practice in granting retroactive leaves of absence and
its grant of one to Shirley Thomas tor a flu-like illness,' it
would seem that a retroactive leave to Quinn vsould have
been appropriate. That she did not perform the routine act
of executing a leave request form does not explain why
Sirkus did not avail her of that opportunity. Although the
matter is not entirely free from doubt. I am persuaded that
the General Counsel has set forth a prinma ftIcic case that
rule 47-3-c was disparately and stringently applied to
Quinn, a 6-year employee, because Respondent knew she
was a union leader and Respondent was engaged in a cam-
paign of retaliatory action against such people. as evi-
denced by its action against Caruso and Perry. Respondent,
unhanded perhaps by the questionable behavior of Sirkus
l Thomas' written request says "health reasons."
three days b the fillowing Januar she would he dis-
charged.
Perry was otI' work having medical tests done at the hos-
pital on August 16 17. 18. and 19. Sirkus called her in on
August 23, told her that he had to discharge her because of
the 4 days lost taking tests. told her that she had missed 218
hours, gave her paychecks to her, and wished her good luck.
Between the time of' Perry's absence for her granddaugh-
ter's funeral, which I find was excused and tor which no
warning theretor was warranted or given, and February 23
her absence record shows that she left early twice, once to
see the doctor and once because she was sick: missed 3 days
sick: and had an excused absence one day. Considering Re-
spondent's lenient policy toward others and the fact that of'
the six incidents one was excused and the other five related
to illness, a written warning would he unusually harsh and
I doubt that a written warning was even prepared or di-
rected to her on February 23. By June. Respondent sas
well aware that she was a leading union adherent by virtue
of her name in the Union's letter to Staco received March 8
as a committeeman and her appearance with the Union at
the May 23 election agreement meeting. Her record hears
the notation that she was excused on May 23 to go to Bos-
ton, the site of the meeting, and shows no other absences or
late arrivals or leavings between May 12 and June 15. I am
persuaded that the early June warning issued her by Sirkus
was precipitated by her attendance in Boston. and that Sir-
kus seized on a January warning, which he did not give,
and the February 23 letter, which was not shown to be
delivered or received, as a pretext to issue a verbal warning.
It appears to me that Sirkus was stimulated by Perry's at-
tendance at Boston, which confirmed that she was one of
the stronger union adherents, to retaliate against her and
pave the way for later adverse action.
When Perry appeared as the Union's election observer
she thereby served notice on Respondent of her continuing
union leadership. Respondent, by Sirkus, seized on her 4-
day absence to take medical tests in August as a reason for
her termination. She would have been charged with only
186 hours had her last 4 days not been counted against her.
The rapidity of Respondent's action, in sharp contrast to
the treatment of Ethel Jane Jones and Sirkus' testimony
that he had insufficient time to take action against some
employees who had quit because he did not receive notice
of absences for several day's, in making the decision to fire
Perry and August 22 and then firing her on August 23 on
the basis of the sickness absences of August 16. 17, 18. and
19 indicates an unseemly eagerness to get rid of her.
Lorraine Perry had accumulated 200 record hours at the
time of her discharge, but I do not believe that was the real
reason for her discharge. Respondent's purported reliance
on January and February warnings which did not happen
and a June warning I have found to be precipitated by
Perry's union activity is, in my view, an attempt to manu-
facture support for the discharge. I am convinced that Re-
spondent was building a record against Perry, a 7-year em-
ployee, in order to dispose of a leading union adherent. This
is not a situation where an employee whom the employer
want to get rid of for discriminatory reasons engages in
conduct of sufficient gravity warranting discharge notwith-
standing the Employer's unlawful desires. This is an exam-
S l'A(() INC. 4XI
DECISIONS 01 NATIONAL LABOR RELATIONS BOARD
vis-a-vis the personnel records which causes me to discredit
him, has failed to rebut this primarfiwcie case. Accordingly. I
find that the discharge of Josephine Quinn transgressed
Section 8(a)(3) and (I) of the Act.
Francetta Baker had accumulated over 200 record hours
of absence when she was discharged by James Lawless on
October 25. 1977. She had signed a card, attended three
union meetings, and wore a union T-shirt on the day of the
election.
When Lawless called her in to discharge her, he told her
that she was a good worker whom he liked but he had to
discharge her for missing over 200 hours. He also told her
that Respondent had discharged Lorraine Perry for the
same reason, and therefore had to discharge Baker.6'
I do not believe that the evidence supports a finding that
Baker was discharged because of her union activities. I.aw-
less' statements to her fairly imply, however, that a primary
reason for her discharge was the discharge of Lorraine
Perry, which I have found to be an unfair labor practice. I
conclude that Respondent's predominant motive in firing
Baker was a desire to disguise the unlawful nature of Per-
ry's discharge. A discharge to perfect an earlier unfair labor
practice is but an extension of the prior action and carries
the same stamp of illegality. I therefore conclude and find
that the discharge of Francetta Baker was tainted by anti-
union considerations and was violative of Section 8(a)(3)
and (I) of the Act.
12. The termination of Darlene Williams
On or about October 30, Williams' daughter was injured
and Williams, through Frederick Rhode, a friend, then se-
cured a leave of absence form from Robert Sirkus on Octo-
ber 31. Williams filled it out and Rhode returned it to Sir-
kus who advised him that all he could grant Williams was a
I-week personal leave. This was insufficient time to take
care of Williams problem. Rhode then spoke to James Law-
less, Sirkus' superior, and told him that Williams needed
more than a week. Lawless told Rhode that Williams would
probably exceed 200 hours of absence if she took time off
additional to the I-week leave, and suggested that she quit
to avoid this happening and come back when she was able.
I credit Rhode's testimony that James Lawless said he
would see that Williams was rehired, and that if he had
retired when she returned and there was any question about
her rehire Rhode should go to I. Walter Munzer who would
support Lawless' decision to rehire her. Rhode related Law-
less' statements to Williams. Williams quit and returned
about the third week in November. Lawless told her it was
alright for her to work and she did so for one day. 2 The
following day Sirkus called her and told her not to come
into work because he had been advised by counsel that if
the Company did this for one employee it must do it for all.
Prior to his call to Williams, Sirkus told James Lawless "We
61 Baker and James Lawless are in substantial agreement regarding the
content of this conversation. I credit Baker where there are variations be-
tween the two.
52 I credit Williams that this communication was made directly to her, hut
even if it was made through Rhode it would not affect my decision.
can't do things like that any more, Jim. because of the fact
of the 200 hours," and that if' it was done for Williams
anyone who got near 200 hours absence would quit and
later come back and start fesh, which would destroy the
rule.
James Lawless' arrangement with Williams, through
Rhode, again illustrates that as late as early November Re-
spondent was not concerned about strict enforcement of the
2(X) hour rule, as does his assurance that Respondent's pres-
ident, I. Walter Munzer, would support his action. Sirkus'
later advice to Lawless that the rehire of Williams could no
longer be done because of the 200 hour rule, which Respon-
dent lays to advice of counsel, was a modification of Re-
spondent's application of the rule. That I.awless. Sirkus'
superior, and one of the developers of the 2(X) hour rule.
had to be so advised demonstrates that rule 47 had not been
contemplated or used from its inception as a hard and fast
rule permitting no exceptions. That there was any impropri-
ety in rehiring Williams obviously never crossed Lawless'
mind until Sirkus so advised him. I conclude that circum-
vention of the rule in selected cases was considered proper
by James Lawless and, apparently. I. Walter Munzer.
I am persuaded, as the General Counsel suggests, that
the termination of Williams after I-day's work on rehire
was done in order to preserve the facade of an inviolate
work rule relied upon by Respondent to support its unlaw-
ful discharges of Perry, Baker, and Quinn shortly before.
Accordingly, the termination of' Darlene Williams violates
Section 8(a)(3) and ( I ) of the Act for substantially the same
reasons that the discharge of Francetta Baker does.
Upon the foregoing findings of fact and conclusions
based thereon, and upon the record as a whole, i make the
following:
CON(CII SIONS O)i LAW
I. The Respondent. Staco, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union. United Furniture Workers of America,
AFL-CIO, is a labor organization within the meaning of'
Section 2(5) of the Act.
3. The following unit constitutes a unit appropriate for
collective bargaining:
All production and maintenance personnel, including
leadmen and local truckdrivers employed by Staco,
Inc. at its Poultney, Vermont location, excluding office
clerical employees, over-the-road truckdrivers, guards
and supervisors as defined in the Act.
4. Alfred Pemberton, Margaret Williams, James Ham-
blin, Sr., Michael Hampl, David Rudolph, Frederick John
Rhode VI., and Phyllis Jones are supervisors within the
meaning of Section 2(1 1) of the Act.
5. Charles Ward was not an employee of Staco, Inc., on
the election eligibility date.
6. By coercively interrogating employees about their
union activities and those of other employees, and about
how they would vote or had voted in a Board conducted
election, Respondent has violated Section 8(a)(1) of the
Act.
482
Respondent be ordered to rescind and abrogate its unlawful
no-solicitation and no-distribution rules and the provision
in its pension plan outline providing for forfeiture of bene-
fits for action detrimental to Respondent. and notify its em-
ployees that it has taken such action. I shall not recommend
that Respondent now grant Kyri Bibeau the $50 loan re-
fused her in June 1977, provided however that any future
requests by her for such loans be processed in a nondis-
criminatorv manner.
Pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORI)ERM
The Respondent. Staco, Inc., Poultney, Vermont. its
agents, officers, successors, and assigns, shall:
I. Cease and desist from:
(a) Discouraging membership in the Union, or any other
labor organization, by discharging, transferring. or sus-
pending employees or otherwise discriminating in an man-
ner with respect to their tenure of employment or any term
or condition of employment.
(b) Coercively interrogating employees concerning their
vote in a Board conducted election or their or other em-
ployees' union activities and desires.
(c) Threatening employees with layoff, plant closure, for-
feiture of pension benefits, or other unspecified reprisals be-
cause they' engage in union activities.
(d) Threatening employees with a refusal to bargain with
the Union, and to cause a strike by said refusal to bargain.
(e) Promising or granting benefits to employees in order
to induce them to refrain from union activities.
(f) Maintaining in effect or enforcing any rule which
tends to prohibit employees from engaging in union talk or
solicitation or other concerted activity protected by the Act
on nonwork time in nonworking areas of its facility.
(g) Denying employees loans because they engage in
union activities.
(h) In any other manner interfering with. restraining, or
coercing its employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Offer to Kyri Bibeau. Lorraine Perry, Josephine
Quinn, Francetta Baker, and Darlene Williams immediate
and full reinstatement to their former jobs, without preju-
dice to their seniority or other rights or privileges, and make
them whole for any' loss of earnings they may have suffered
by reason of their discriminatory, discharge. in the manner
set forth in the section of this Decision entitled "The Rem-
edy."
(b) Make Frank Caruso whole for any' loss of earnings he
may have suffered by reason of his unlawful suspension and
transfer, in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
i In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labo)r Relations Board. he findings.
conclusions. and recommended Order herin shall, as provided in Sec. 102 48
of the Rules and Regulations, he adopted by the Board and become its
findings, conclusions, and Order. and all objections thereto shall he deemed
waived for all purposes.
7. By threatening employees with layoff, plant closure,
forfeiture of pension benefits, and other unspecified repri-
sals because of their union activities, Respondent has vio-
lated Section 8(a)( I of the Act.
8. By threatening employees with a refusal to bargain
with the union, and a strike caused by said refusal to bar-
gain, Respondent has violated Section 8(a)(1) of the Act.
9. By promising and granting benefits to employees in
order to induce them to refrain from union activities, Re-
spondent has violated Section 8(a)( 1) of the Act.
10. By restricting Frank Caruso's movement between
plants because of his union activities, Respondent has vio-
lated Section 8(a)( I ) of the Act.
II 1. By maintaining and enforcing overly broad no-solici-
tation and no-distribution rules, Respondent has interfered
with, restrained, and coerced its employees in the exercise
of their Section 7 rights and violated Section 8(a)( I) of the
Act.
12. By suspending Frank Caruso on May 5, 1977. be-
cause he transgressed the aforesaid rules, and because he
was engaging in union activities. Respondent violated Sec-
tion 8(a)(3) and (1) of the Act.
13. By transferring Frank Caruso from one job to an-
other on May 27, 1977, because he engaged in protected
union activity, and because he participated in Board pro-
cesses, Respondent has violated Section 8(a)(4). (3) and (I)
of the Act.
14. By denying Kyri Bibeau a loan because she engaged
in protected union activities, Respondent has violated Sec-
tion 8(a)(3) and (1) of the Act.
15. By discharging Kyri Bibeau. Lorraine Perry, Jose-
phine Quinn, Francetta Baker, and Darlene Williams in
order to discourage union activity and membership in a
labor organization. Respondent has violated Section 8(a)(3)
and (I) of the Act.
16. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
17. Respondent has not committed any other unfair la-
bor practices alleged in the complaint.
THE REMIEDY
In order to remedy the unfair labor practices found
herein, my recommended Order will require Respondent to
cease and desist from further violations, to post an appro-
priate notice to employees, and to offer Kyri Bibeau, Lor-
raine Perry, Josephine Quinn, Francetta Baker, and Dar-
lene Williams unconditional reinstatement to their former
jobs, or substantially equivalent positions if their former
jobs no longer exist, make them whole for all wages lost as
a result of their unlawful discharge, and make Frank Ca-
ruso whole for all wages lost as a result of his unlawful
suspension on May 5. 1977. and his unlawful transfer on
May 27, 1977. Said backpay and interest thereon is to be
computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977)." I shall also recommend that
"See, generally. Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
STACO. INC. 483
I)l:FCISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Rescind and abrogate its work rule 17 as it relates to
solicitation on company time and its announced, but un-
written rules and practices prohibiting solicitation or distri-
bution relating to union activity on nonworking time in
nonworking areas, and notity its employees of said rescis-
sion and abrogation in writing.
(d) Expunge the paragraph:
However. the Plan provides for forfeiture of your
vested interest ift' you do anything detrimental to the
Company," from the "Company's Defined Benefit
Pension Plan." and notify its employees in writing that
this provision is no longer in eflect.
(e) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all pay-
roll records and reports and all other records required to
ascertain the amount, if'any., of any backpay due under the
terms of this recommended Order.
(f) Post at its Poultney Vermont offices and facilities.
copies of the attached notice marked "Appendix."-6 Copies
t. In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to) a Judg-
of said notice, on forms provided by the Regional Director
for Region 1, after being signed by Respondent's authorized
agent, shall be posted by it immediately upon receipt
thereof; and be maintained by it for 60 consecutive days
thereafter, in conspicuous places. including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that these no-
tices are not altered, defaced. or covered by other material.
(g) Notify the Regional Director for Region I, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply with this Order.
I IS F RriliR Ri(('MMENDI:l) that Case I R 15176 be,
and it hereby is, severed and transferred to and continued
before the Board in Washington, [).C.
IT IS RE('OMMENl)DDl) that the challenges to the ballots of
James Hamblin. Sr., Michael Hampl. Alfred Pemberton,
Frederick John Rhode VI, David Rudolph. Margaret Wil-
liams, Phyllis Jones, and Charles Ward be sustained and a
Certification of Representatives he issued by the Board to
the United Furniture Workers of America, AFI. ('IO for
the appropriate collective-bargaining unit set forth here-
inabove.
ment of' the United States ('ourt of Appeals Eniorcing an Order of the Na-
tional l.abor Relations Board"
484