Sunshine Art Studios, Inc.

National Labor Relations Board - Board Decisions

May 13, 1965

152 N.L.R.B. 565 (N.L.R.B. 1965)

SUNSHINE ART STUDIOS, INC. 565
Sunshine Art Studios , Inc. and General Teamsters , Chauffeurs,
Warehousemen and Helpers , Building Materials, Heavy and
Highway Construction Employees Local Union No. 404, Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America . Case No. 1-CA-4520. May 13,
1965
DECISION AND ORDER
On February 5, 1965, Trial Examiner Abraham H. Mailer issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in his attached Decision. Thereafter,
Respondent filed exceptions to the Decision with a supporting brief.
The General Counsel filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision,
the exceptions and brief, and the entire record in this case, and hereby
adopts the Trial Examiner's findings, conclusions, and recommen-
dations.1
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that Respondent, Sunshine
Art Studios, Inc., Springfield, Massachusetts, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the Trial Exam-
iner's Recommended Order.
I We agree with the Trial Examiner that Respondents rule pertaining to solicitation
is unlawful Walton Manufacturing Company, 126 NLRB 697 Howevei, as that rule
did not deal with distribution of literature, we find it unnecessary to pays upon the Trial
Examiner's consideration of the Board 's decision in Stoddard-Quark Manufacturing Co,
138 NLRB 615
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge, an amended charge , and a second amended charge, filed March 17,
March 25, and April 27, 1964, respectively, by General Teamsters, Chauffeurs, Ware-
housemen and Helpers , Building Materials , Heavy and Highway Construction
Employees Local Union No. 404 , International Brotherhood of Teamsters , Chauf-
152 NLRB No. 60.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
feurs, Warehousemen and Helpers of America, herein called the Union, the Regional
Director for Region I of the National Labor Relations Board, herein called the Board,
on April 29, 1964, issued a complaint on behalf of the General Counsel of the Board
against Sunshine Art Studios, Inc., herein called the Respondent, alleging that the
Respondent had laid off and refused to recall employees William P. Dupuis and Frank
Plummer because of their union membership or activity, in violation of Section
8(a) (3) and (1) of the Act. In its duly filed answer, Respondent denied the com-
mission of any unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Abraham H. Maller
at Springfield, Massachusetts, on June 11, 12, 15, 16, and 17, 1964. All parties were
represented and were afforded full opportunity to be heard and to introduce relevant
evidence.
At the opening of the hearing, the General Counsel moved and was granted leave
to amend the complaint by alleging that the Respondent has interfered with,
restrained, and coerced its employees by the following acts and conduct: (a) Respond-
ent, since April 1963, has promulgated, distributed, maintained, and enforced a
written regulation prohibiting the solicitation of employees on company property for
any purpose whatsoever without permission from the Respondent; (b) Respondent
threatened its employees with discharge if they continued to engage in protected
activity; and (c) Respondent offered and granted employees wage increases with an
object of inducing them to refrain from participating in concerted or union activities,
all in violation of Section 8 (a) (1) of the Act. In its duly filed amended answer,
Respondent denied the commission of any unfair labor practices. Later in the heav-
ing, the General Counsel further amended the complaint by alleging that the Respond-
ent attempted to coerce and cause employee Ciriaco J. Albano not to appear and
testify at the hearing in answer to a subpena issued by the Board. Respondent
requested and was given leave to further amend its amended answer by denying orally
the additional allegations.
At the conclusion of the hearing, all parties were afforded the opportunity to present
oral argument and to file briefs with me. Briefs were received from counsel for the
General Counsel and from the Respondent.
Upon consideration of the entire record,' including the briefs of the parties, and
upon my observation of each of the witnesses, I make the following-
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
The Respondent maintains offices and places of business in the city of Springfield,
Massachusetts, and in the town of East Longmeadow, Massachusetts, and is now and
continuously has been engaged at said plants in the manufacture, sale, and distribution
of greeting cards and related products. During the year preceding the issuance of the
complaint, the Respondent in the course and conduct of its business operations, manu-
factured, sold, and distributed at said plants products valued in excess of $200,000
of which products valued in excess of $200,000 were shipped from said plants directly
to States of the United States other than the Commonwealth of Massachusetts. In
view of the foregoing, I find and conclude that the Respondent is engaging in com-
merce within the meaning of the Act and that it will effectuate the policies of the Act
for the Board to assert jurisdiction here.
II. THE LABOR ORGANIZATION INVOLVED
General Teamsters, Chauffeurs, Warehousemen and Helpers, Building Materials,
Heavy and Highway Construction Employees Local Union No. 404, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is
and has been at all times material herein a labor organization within the meaning of
Section 2(5) of the Act.
111. THE ISSUES
1. Whether the Respondent maintained and enforced a nonsolicitation rule which
violated Section 8 (a) (1) of the Act.
'On August 19, 1964, I received from counsel for the General Counsel a motion to
correct the record in certain particulars therein specified. No opposition to such motion
has been filed. Upon consideration of the motion (which is hereby received in evidence
as 'Trial Examiner's Exhibit No. 1), it is hereby ordered that said motion be and it is
hereby granted.
SUNSHINE ART STUDIOS, INC. 567
2. Whether Respondent threatened certain employees with discharge if they did
not abandon the strike.
3. Whether the Respondent gave employees who crossed the picket line a wage
increase to induce them to refrain from engaging in concerted activities.
4. Whether employees Dupuis and Plummer were laid off because they had
engaged in concerted activities.
5. Whether the Respondent 's statement to employee Albano that he did not have
to respond to a subpena is a violation of Section 8(a) (1).
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is primarily in the business of producing Christmas cards with the name
of the sender imprinted thereon . As a sideline, it also prints stationery . The Christ-
mas card business is highly seasonal . The peak season starts in September and runs
through the early part of December of each year, and Respondent operates a night
shift in the multigraph department as well as a full day shift. Most of Respondent's
employees are seasonal , being hired in the latter half of the year and discharged or
laid off when the season ends. During the slack season , the mechanics dismantle,
clean , and reassemble the Multigraph machines preparatory for the busy season. In
addition , the mechanics operate machines as needed , printing samples and stationery,
and make repairs to operating machines . In 1963, Respondent employed three
mechanics : Stearns, Dupuis, and Plummer.
Prior to the events involved in the instant proceeding , Respondent operated
two plants in the city of Springfield, Massachusets, one at Bernie Avenue and the
other on Warwick Street. In April 1963 the Bernie Avenue plant was closed and
some of the departments , as well as others from the Warwick Street plant , were trans-
ferred to a new plant at East Longmeadow, Massachusetts. Gary Tampone was
named manager of the East Longmeadow plant. Tampone had been employed by
the Respondent for 21h years. Prior to coming to the Respondent he had had con-
siderable experience with two other companies in the greeting card business . Origi-
nally, his function with the Respondent was to develop a store line ; i.e., the type of
greeting card which is purchased directly from a rack in a store, as distinguished from
boxed merchandise. Later, he was made plant manager of the Bernie Avenue plant.
Prior to accepting the position as plant manager at East Longmeadow, Tampone was
asked by Ryland Robbins, vice president , treasurer , and general manager of the
Respondent , whether he would accept the position . Tampone told him that he would
do so provided that he would not be strangled with past policies of the operation that
had existed in the Bernie Avenue plant. Robbins agreed to Tampone's conditions.
Among the departments moved to East Longmeadow was the multigraph depart-
ment which was under the Supervision of Harry Rosen . This department had pre-
viously been in the Warwick Street plant and, while there, had been operated by
Rosen with little supervision from the plant manager . When the multigraph depart-
ment was moved to East Longmeadow, Rosen came under the general supervision of
Tampone, and certain differences of opinion regarding the operation of the multigraph
department developed between the two men . Among other things, Tampone felt that
Rosen was inclined to overstaff the department , did not pay any attention to house-
keeping, construction of the department , or flow of work. Rosen finally left Respond-
ent's employ in May 1964.
B. Sequence of key events
In the latter part of 1963 the Union began to organize the production and mainte-
nance employees of the Respondent . Dupuis, a mechanic at the East Longmeadow
plant, was approached and asked to assist the Union in its organizational drive.2
Initially, Dupuis refused , but in October of 1963 changed his mind, signed a union
authorization card, and was given 20 cards to pass out . He was successful in obtain-
ing signatures to all 20 cards.
On October 28 the Union called a strike in protest against the discharge of a certain
employee not involved in the instant proceeding . Dupuis was named a picket captain,
and together with Plummer , picketed continuously each day of the strike from 7 a.m.
2 Dupuis had been president of the local of the United Papermakers and Paperworkers
Union , AFL-CIO, which represented Respondent ' s employees from 1958 until It was
decertified in August 1960 . At the time of the occurrence of the events Involved in this
case, Dupuis was chairman of the employees ' grievance committee
563 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to 10 p.m. Unlike other employees who picketed sporadically for short periods,
Dupuis and Plummer were the only employees who picketed for long periods of
time. Respondent was aware of Dupuis' and Plummer's picketing activities.
On the first day of the strike, employees of the multigraph department were told by
Supervisor Rosen that they would be given $2 for every day they worked during the
strike. Rosen testified that Plant Manager Tampone had told him that the increase
was given for the purpose of compensating the nonstrikers for "whatever hardship was
involved in crossing the picket line."
On or about October 30, General Manager Robbins met with Dupuis and Circiaco
J. Albano, the head papercutter at the East Longmeadow plant who was also a
striker.3 The meeting was held at a local restaurant. Robbins asked them why they
were on strike and they answered that one of the employees had been discharged.
Robbins explained to them that the employee had been laid off. Dupuis and Albano
indicated that they did not think the strike would last very long. Robbins then told
them that if the strike was over by Friday, things would proceed as usual; however,
if the employees were not in by Friday, they might as well look for another job. The
strike ended on Friday, November 1, 1963, and the strikers reported for work on the
following Monday.
Between December 11 and 14, 1963, most of the employees on the day shift in the
multigraph department and all of the employees on the night shift of the multigraph
department were laid off. Only about 12 of such employees remained Dupuis and
Plummer were laid off on December 13 The General Counsel contends that Dupuis
and Plummer were laid off discriminatorily for union membership and/or activity.
The Respondent contends that their layoff was motivated solely by economic
considerations.
C. The no-solicitation rule
When Respondent opened its plant at East Longmeadow, it published and dis-
tributed a list of rules and regulations for its employees. Among them was the
following:
G. Plant Lawns and Parking Lot
1. Solicitation of employees is not permitted on company property for
any purpose whatsoever without written permission from 45 Warwick St.
2. Eating outside will be permitted only in specified areas (East).
3. Smoking will be permitted in a 50 foot area encircling the plant.
Respondent argues that the rule is valid because it applies narrowly to plant lawns
and parking lot. Respondent's interpretation of the application of the rule is valid,
as it appears under the general heading "Plant Lawns and Parking Lot." However,
the conclusion that the rule is therefore valid does not follow. By the very nature
of their duties, the employees would be inside the plant during working time and
would be outside on plant lawns and parking lot only during nonworking time. It is
therefore clear that the rule was applicable to employees on this portion of the Com-
pany's premises during nonworking time The rule was therefore presumptively
invalid, as it unduly restricted the concerted activities of the employees during non-
working time. Walton Manufacturing Company, 126 NLRB 697.
It may well be that Respondent intended to prohibit the distribution of literature in
a desire to maintain a neat and orderly appearance of the lawn and parking lot. This
it may have had a right to do. Stoddard-Quirk Manufacturing Co, 138 NLRB 615,
616-617. However, the rule as written does not purport to deal with the distribution
of literature. It deals only with solicitation, and the Board and the courts have drawn
a clear distinction between these concepts. Stoddard-Quirk Manufacturing Co.,
supra. I therefore find and conclude that the Respondent maintained an invalid no-
solicitation rule, in violation of Section 8(a) (1) of the Act.
There is no evidence in the record of Respondent's enforcement of the foregoing
no-solicitation rule. However, there is evidence of two occasions on which the
Respondent sought to prohibit union solicitation in the plant. Dupuis testified that he
solicited employees to sign authorization cards and that Plant Manager Tampone
spoke to him about it. However, Dupuis' testimony contains the implication that he
3 The meeting was instigated by Thomas Gatto, supervisor of the folding department
at the East Longmeadow plant It is not clear from the record whether in so doing
Gatto was acting at the instance of Robbins . However, it is unnecessary to make a
determination as to this.
SUNSHINE ART STUDIOS, INC. 569
may have been soliciting on working time, and it is clear that thereafter when he
solicited on nonworking time, his activity was not interfered with by the Respondent.4
Also, on April 8, 1964, just prior to a Board-conducted election, certain employees
were passing out union literature during the afternoon break period. Plant Manager
Tampone called the employees to his office and placed a call to Respondent's counsel.
After some delay, he spoke to Respondent's counsel and told them what had occurred.
He was advised that the action of the employees was "perfectly all right," and that
was the end of the incident.5
I find and conclude that these two instances do not prove that the Respondent
enforced a no-solicitation rule during nonworking time within the plant. As I have
indicated above, Dupuis' testimony contains the implication that, when Tampone
stopped him from soliciting union authorizations, Dupuis was acting on working time,
and it is clear from his testimony that thereafter when he did it on nonworking time,
Respondent did not interfere with his activities. The second incident indicates an
abortive attempt by Respondent to halt the distribution of union literature during a
break period, but it is clear that Respondent withdrew its opposition when advised
by its counsel that the employees' action was "perfectly all right." I therefore find
and conclude that the Respondent did not violate the Act by enforcing a no-solicitation
or no-distribution rule applicable to nonworking time within the plant.
D. Wage increase to nonstrikers
As noted above, it is undisputed that Supervisor Rosen told the employees in the
multigraph department that they would be given $2 for every day they worked during
the strike. According to Rosen's credited testimony, Plant Manager Tampone told
him that the increase was given for the purpose of compensating them for "whatever
hardship was involved in crossing the picket line." However, the record is devoid
of any evidence that the employees experienced any hardship other than the fact that
it was an unpleasant chore to cross the picket line manned by fellow workers 6 There
is no evidence that there was mass picketing, threats, violence, or other malicious
conduct on the part of the strikers. In these circumstances, it is apparent that the only
purpose of the additional pay was to deter employees from joining the strike. This
is substantiated by the testimony of Louise Deslaurier who testified credibly that
Rosen told her that "if I stayed in the shop and didn't go out on strike that he would
give me an extra two dollars ($2), the shop would pay me," but that she joined the
strike the following day and never received the additional pay.
It is well settled that the granting of a wage increase for the purpose of discourag-
ing a strike is a violation of Section 8(a)(1) of the Act. Keil Company, 117 NLRB
828, 843; James Thompson & Co., Inc., 100 NLRB 456, 465-466. The fact that the
increase was temporary, only for the length of the strike, does not lessen the restrain-
4 Dupuis testified as follows :
Q. Did you ask employees to sign authorization cards to turn or rather deduct
certain money from their weekly pay?
A. Yes, I did.
Q. This was something that Mr. Tampone was not in favor of was it not?
A. That is right.
Q Notwithstanding the fact it was done was it not?
A. Until he told me about it.
Q. Yes and then after he told you about it what was done? It still was done
was it not?
A. Not on Company time.
Q. But it was done in the plant while not on working time is that right"
A. That is right.
Q. Was anybody ever punished or reprimanded for it?
A. Not that I know of.
5 The record contains evidence of two other instances of solicitation within the plant
by employees and of the Respondent's attitude thereto. It is not claimed, however, that
these instances involved concerted activities within the meaning of the Act, and they
are relied upon by the General Counsel solely to prove union animus in relation to the
layoff of Dupuis and Plummer. They are discussed infra in that context.
BAs Supervisor Rosen put it: "There was a certain amount of shouting and harassment
and I would assume at least from discussion that it was not exactly pleasant to come
to the plant at that time."
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing effect of Respondent's conduct. Accordingly, I find and conclude that the
Respondent violated Section 8(a)(1) of the Act by offering to its employees addi-
tional pay of $2 per day for each day that they worked during the strike.
E. Threat to discharge the strikers
As previously stated , General Manager Robbins met with Dupuis and Albano on
or about October 30, 1963, to discuss the strike. During the conversation, Robbins
told him that if the strike was over by Friday, things would proceed as usual; however,
if the employees were not in by Friday, they might as well look for another job. In
his testimony, Robbins explained that what he meant by the latter statement was that
"since it was going to be a long strike it didn't seem to make much sense that they
should be without work." Although the atmosphere of the meeting was friendly,
and the discussion was carried on in a normal conversational tone, the fact remains
that Robbins' statement was made without explanation. Though put in the form of
a suggestion , Robbins' statement could reasonably be interpreted by Dupuis and
Albano as a threat, as Robbins had the power to convert the suggetsion into a reality.
As the Court of Appeals for the First Circuit said in a similar context: "However, in
order not to be a threat a prediction must relate to an event over which the speaker
has no control" (N.L R.B. v. Teamsters, Chauffeurs, Warehousemen and Helpers
Local 901 (Valencia Baxt Express, Inc.), 314 F. 2d 792, 794 (C.A. 1)). See also
N.L.R.B. v. W. C. Nabors, d/b/a W. C. Nabors Company, 196 F. 2d 272, 276 (C.A.
5); James Thompson & Co, Inc, 100 NLRB 456, 464-465. As strikers, the employ-
ees were engaged in a protected concerted activity. Associated Wholesale Grocery of
Dallas, Inc., 119 NLRB 41, 49; Texas Natural Gasoline Corporation, 116 NLRB
405, 414. Consequently, Respondent's threat to terminate their employment reason-
ably tended to inhibit them from continuing to strike and therefore infringed on their
statutory right to engage in such activity. Accordingly, I find and conclude that
Robbins' statement to Dupuis and Albano constituted a violation of Section 8(a) (1)
of the Act.
F. The layoff of Dupuis and Plummer
1. The working records of the discriminatees
Dupuis was hired in September 1957. In the first 2 years of his employment, he
operated a C & P machine (a hand-operated type of Multigraph machine) during
the Christmas rush season. In the off season, he worked at inventory, loading trucks,
and cleanup. During his third year of employment, he began to operate the Verna
machine, producing samples, and operated Multilith machines, producing promotional
literature. In 1960 he became an apprentice mechanic under the direction of Maurice
Stearns and learned how to dismantle and reassemble the machines in the multigraph
department. In addition to his mechanical work, he operated the Heidelberg, the
C & P, Multilith, and Multigraph machines. As time progressed, Dupuis learned to
set and lock up the machines for other operators and to repair them. Although the
operation of these machines could be learned in a day or more depending upon the
particular machine, and the operations performed with maximum efficiency in a
matter of weeks, or months, a year's experience would be required to learn to set and
lock them up. As to performing all types of mechanical work, at least 2 years of
experience is required.
Dupuis was a capable employee, and his ability was recognized by the Respondent,
as evidenced by increases in his salary from $1.25 an hour when he was originally
hired to $2 31 an hour when he was laid off. This compares to a wage rate of between
$1.25 and $1.65 an hour for the other nonsupervisory employees in the multigraph
department. It is also significant that in December 1962 Respondent gave Dupuis a
Christmas bonus of $75, which was $25 more than he had received in the previous
year. Further evidence of Respondent's high regard for Dupuis' ability is found in a
statement by Plant Manager Tampone to Dupuis in the presence of several other
employees. In August 1963 a grievance committee consisting of Dupuis, Albano,
Forelady Virginia Ward, and Helen Gadreault conferred with Plant Manager Tam-
pone. The subject of the grievance was Tampone's moving of senior people from one
job to another and laying them off or terminating their employment if they could not
do the new job. Tampone explained that what he was trying to do was to form a hard
core nucleus of all the senior help so that they could be moved from department to
department and that these people would be the ones that maintain the plant through-
out the year with an influx of new people to handle the busy season. Dupuis, who
was chairman of the committee, said, "You mean to tell me if you take me out of my
SUNSHINE ART STUDIOS, INC. 571
department and put me on some other job that I couldn't possibly do I would be out
next?" Tampone replied, "Oh, no, you don't expect us to let you go . . . . You
couldn't be replaced by anyone off the street." 7
Plummer was hired in September 1961. He had taken 3 years of printing courses
in school which qualified him to operate the C & P, Verna, and Heidelberg machines.
Plummer did stockwork for the first 2 or 3 days and then became a Multigraph
machine operator. He also operated the Verna machine for stationery samples. In
January 1963 he was made an apprentice mechanic and learned how to dismantle
machines, clean the parts, and reassemble the machines. He also repaired machines,
set them up for other operators, and operated the machines himself. His starting
salary of $1.10 per hour had been increased to $1.65 per hour by the time that he was
laid off.
During their entire tenure, neither Dupuis nor Plummer had ever been laid off.
On the contrary, it had been Respondent's practice to have the mechanics dismantle
the Multigraph machines, clean them, and reassemble them during the slack season so
that they would be ready for operation when the busy season started.
In November 1963, Supervisor Rosen told Dupuis that "he could not look forward
to much of a slack season this year because of the work we had to do in making the
new tool room, sorting out all this accumulation of material from Warwick Street
plus the fact that the stationery line was going to be heavier this year than it had
ever been." 8
2. The layoff
In the middle of December 1963 Respondent's busy season came to a close and
between December 11 and 14, all of the seasonal employees were laid off. In the
multigraph department, only 12 rank-and-file employees out of a complement of
approximately 135 employees remained. Dupuis and Plummer were laid off on
December 13, and were notified of their layoff 1 hour before quitting time. Super-
visor Rosen, who notified them of their layoffs, gave them no reason therefor. Nor
did they receive any severance pay or Christmas bonus. Rosen told them that he had
tried to keep them on, but that the decision was General Manager Tampone's and
that he could not do anything about it .9 Nor were Dupuis and Plummer told how
long they would be laid off. Tampone admitted that he did not talk to either of the
discriminatees when they were laid off, but that in February 1964 Dupuis called him
and asked him if he was permanently laid off and that he replied that he would call
him back as soon as Respondent required Dupuis' services and that same went for
Plummer?o
7 The, credited testimony of Dupuis, corroborated by the other members of the com-
mittee. It appears that Tampone's statement was not limited to Dupuis, but was ap-
plicable to all members of the committee. While Tampone first denied telling Dupuis
that "his job was secure," he testified later, "I told them I had no intention of replacing
them with anybody that was new and this is the essence of the discussion."
'The credited and uncontradicted testimony of Dupuis Stearns' testimony that Re-
spondent had a heavier volume of work on printed stationery in 1964 bears out Rosen's
prognostication in this regard
9 The credited testimony of Dupuis and Plummer was corroborated by Supervisor
Rosen He explained that prior to the move to the East Longmeadow plant he had
handled the personnel for his department, but that since the move Plant Manager Tampone
was in charge of personnel He testified further that he told Dupuis and Plummer that
be had discussed the matter of their layoff with Tampone and that had he been in charge
of the department they probably would have been kept on
30 In his brief, the General Counsel argues that the testimony of Respondent's witnesses
that it always intended to recall Dupuis and Plummer should be treated as self-serving
declarations which are inconsistent with the Respondent's actions, inter alaa, Respond-
ent's omission of Dupuis' and Plummer's names from the eligibility list in the Board-
conducted election of April 7, 1964, in Case No 1-RC-7644, Respondent's failure to
notify them on the date of layoff that they would be recalled, and Respondent's recall
of employees having lesser experience and seniority, etc. General Counsel argues that,
if anything, the facts demonstrate that Dupuis and Plummer were permanently severed
from their employment On July 29, 1964, Respondent filed a motion to introduce new
evidence consisting of the affidavit of Ryland Robbins, Jr., treasurer of Respondent, to
the effect that Dupuis and Plummer were reinstated to their former positions on July 6,
1964. In the alternative, Respondent moved that the hearing be reopened to receive
evidence to the same effect. Counsel for the General Counsel filed an opposition to said
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plant Manager Tampone testified that he decided to lay off Dupuis and Plummer
sometime between September and December 1963, and that he did not consult with
anybody in arriving at this decision.
3. Respondent's operations after the layoffs
With the layoff of Dupuis and Plummer, the work of dismantling and reassembling
machines was performed by the chief mechanic, Maurice Stearns." Assigned to
assist him was James Oskard, then a young man of about 20. Oskard had been hired
in September 1964 as a materials handler. In assisting Stearns, Oskard did the
unskilled labor of washing the parts of the machines.12 Stearns found his work
"pretty rough at times," as in addition to preparing the machines for the Christmas
season, he had to set and lock up the machines for other operators, make repairs on
operating machines, make plates, strip negatives, and help operators get the right
color. He testified that from time to time he complained to Supervisor Rosen about
needing more help. According to Stearns, Supervisor Rosen found it necessary to
spend between 25 and 50 percent of his time making mechanical repairs after the
layoffs, and Forelady Ward made more adjustments and minor repairs to machines
than in a comparable period during the prior year.
According to Stearns, Respondent had a heavier volume of work on printed sta-
tionery and had more machines operating in the first half of 1964 than during the
comparable period in 1963. Also Respondent experienced more "comebacks," i.e.,
work that had to be done over, during this period 13 According to Stearns, the
reason for the increase in "comebacks" was the fact that Respondent was operating
with inexperienced help.
Of the 12 employees retained in the multigraph department after the layoffs, only 1
had as much seniority as Plummer . The rates of pay of these employees varied from
$1.25 to $1.55 per hour.
4. General Counsel's contentions
In support of his contention that the layoff of Dupuis and Plummer was discrimi-
natorily motivated, the General Counsel points to the following conduct by Respond-
ent, which the General Counsel contends demonstrates Respondent's union animus:
1. General Manager Robbins' threat to Dupuis and Albano that the strikers should
look for other jobs if they did not abandon the strike.
2. A letter which the Respondent admittedly sent to its employees, in which it
referred to the Union's "insidious control of trucking and their irresponsible tactics,"
charged that the Union "can do inestimable damage to the Company, its employees
and the community," and stated:
We do not believe that you want to place your future destiny in the power of
these outsiders who would gamble your jobs and your security just to get their
"paws" on your paycheck.
motions These motions were denied by me for the reason that whether these employees
were subsequently reinstated does not beat upon the issue whether their layoffs were
discriminatorily motivated or were the result of economic conditions However, in view
of the foregoing argument advanced by the General Counsel in his brief, i cannot close
my eyes to the proffered evidence . Moreover, the issue as framed by the complaint and
Respondent ' s answer was not that Dupuis and Plummer were discharged , but that they
were laid off, and the case was tried on the issue as framed I find and conclude that
these employees were not discharged but were laid off. In any event, whether they
were laid off or discharged is of no consequence in this case, since the Respondent violated
the Act if its action, whether layoff or discharge , was motivated by their membership
in or activities on behalf of the Union Willard Bronze Company, 148 NLRB 1686
11 At the time of the hearing , Stearns had been employed by Respondent for 8 years.
He is related by marriage to Dupuis . He had been subpenaed by the General Counsel,
and had not previously discussed his testimony with any representative of the Board
I found Stearns to be a credible witness
1'-At the time of the layoff, Oskard was receiving $140 per hour Patently, he had
less seniority than Plummer According to Stearns, Oskard was not as good an operator
of JIultilith machines (which he did from time to time ) as either Dupuis or Plummer
Al'o, General Manager Tampone admitted that Oskard did not have the ability of
Plummer
1d Forelady Ward denied that Respondent was having more " comebacks" during the
first half of 1964 than previously . As between Stearns and Ward , I am compelled to
credit Stearns ' testimony Stearns appeared to be completely neutral , whereas Ward
candidly admitted owing a debt of gratitude to the Respondent for past favors.
SUNSHINE ART STUDIOS, INC. 573
3. A change in Respondent's attitude toward Dupuis as evidenced by the following
incidents: Prior to the strike Dupuis had sold candy in the plant for the benefit of
his daughter. Plant Manager Tampone had observed Dupuis doing so and told him
that if he wanted to sell candy he should have obtained permission from Tampone,
but that since he had already started he could continue to sell candy. About 2 weeks
after the strike, Dupuis solicited employees to join the Sunshine Social Association.
Plant manager told him that he should know better than to solicit. Dupuis replied
that all he was asking the employees to do was to join the social organization, which
he thought was a company function. Tampone told him to stop and "if I ever catch
you doing it again it will be too bad for you " 14
The General Counsel also points to the fact that, as admitted by General Manager
Robbins; Respondent's policy had been to base layoffs on seniority and ability,
neither Dupuis nor Plummer had ever been laid off in the past; before the strike Plant
Manager Tampone had assured Dupuis and the other senior employees that Respond-
ent considered them important in its operational plans; and notwithstanding the fore-
going, the Respondent retained in the multigraph department, 12 employees, 2 of
whom were seasonal employees , none of whom were senior to Dupuis , and only 1 of
whom had seniority equal to that of Plummer. As to ability, Plant Manager Tampone
admitted that both Dupuis and Plummer were able employees and that Oskard, who
was retained to assist Stearns, had neither the ability nor the seniority of even
Plummer.
5. Respondent's contentions
The thrust of Plant Manager Tampone's testimony is that- He expected less work
in 1964 than the plant had in 1963; 15 he changed Respondent's policy with
regard to the number and type of employees to be retained at the East Longmeadow
plant during the slack season; under the new policy, only persons who could work in
more than one department were kept on; and he had determined to get along with
only one mechanic (and an unskilled helper ) during the slack season instead of
three mechanics. Respondent points out that the evidence establishes the correctness
of Tampone's economic decision, in that the multigraph department has operated
efficiently with only one mechanic between the time of the layoff and the date of
the hearing. Respondent argues that it cannot be compelled to adhere to its previous
policy of not laying off mechanics during the slack season and that Tampone was
free to change it. As further evidence that its decision to lay off Dupuis and
Plummer was not discriminatorily motivated, it points to the fact that an analysis of
the persons retained does not show any pattern of disparate treatment of strikers
versus nonstrikers.
6. Concluding findings as to the layoffs
After carefully considering the record and the contentions of the parties, I find
and conclude on balance that the layoff of Dupuis and Plummer was discriminatorily
motivated . It is true, as Respondent contends , that Respondent was not prevented
from changing its policy with regard to the retention of mechanics during the slack
season . Certainly, neither Dupuis nor Plummer obtained a prescriptive right in
that regard . Nor, as a matter of managerial prerogative . was Respondent bound to
adhere to the implied assurance against layoff which Plant Manager Tampone gave
to Dupuis and the other senior employees . But the significance of Tampone's state-
ment is not that it created any rights in its listeners . Rather, it indicates that Respond-
ent's attitude toward Dupuis before the strike was reversed after the strike. This
change in attitude was evidenced in other respects as well , witnesseth Tampone's
threat to Dupuis when the latter was soliciting membership in the Sunshine Social
Association after the strike, as contrasted to his friendly attitude toward Dupuis' sale
of candy in the plant before the strike. That this marked change stems from
Respondent 's union animus is evidenced by Dupuis ' open, notorious , and continued
presence on the picket line and Respondent 's threat to Dupuis and Albano that the
strikers had better look for other employment if the strike continued past Friday.
Respondent admits that its policy was to base layoffs on seniority and ability, but
seeks to justify its retention of employees with little seniority on the ground that the
employees who were retained were versatile; i.e , they were experienced in other
departments as well as in the multigraph department. However, this attempted justifi-
cation breaks down in the case of Oskard who had no experience in departments other
than the multigraph department and who admittedly was inferior to Plummer in
ability, experience, and versatility. Considering the fact that Oskard earned only 25
cents an hour less than Plummer, the monetary savings involved would hardly justify
14 Both of the foregoing incidents are based on the uncontradicted testimony of Dupuis.
15 Tampone gave no explanation for this expectation.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
retaining an employee admittedly inferior to Plummer and supports the conclusion
that Plummer's activity on behalf of the Union was the motivating force behind his
layoff 16
In the light of the foregoing , Respondent 's attempted justification of the layoff of
Dupuis and Plummer as based on a managerial decision to operate during the slack
season with only one mechanic must be deemed to be a pretext rather than the under-
lying motive . 17 The fact that Respondent did get along with only one mechanic
after the layoffs "proves only that ... [Respondent ] realized an economic dividend
from its antiunion activity " (N.L.R.B. v. Biscayne Television Corporation, 337 F. 2d
267, 268 (C.A. 5) ).
In arriving at the conclusion that Dupuis and Plummer were discriminated against,
I am not unmindful of the fact that some employees who had not struck were also
laid off in December and others who had struck were retained . As to the first group,
it does not appear whether they were seasonal employees who would have been laid
off in any event when the season ended . However, the fact that Respondent retained
employees who had struck does militate against the conclusion that Dupuis and
Plummer were discriminated against. But it is far from conclusive . 18 Dupuis was a
recognized leader among the employees , and he and Plummer had been most active
in picketing during the strike. In discriminating against the most demonstrably active
union adherents , Respondent could strike a telling blow against the Union at a time
when the Union was engaged in organizing the plant and seeking to represent the
employees.
The fact that 11/2 months had intervened between the time of the strike and the
layoff does not derogate from the conclusion that the layoff was discriminatorily moti-
vated . The strike occurred at the height of Respondent 's busy season , and it would
have been extremely inadvisable from an economic viewpoint to take action against
the union adherents when Respondent needed every experienced employee it had,
particularly in view of the production lost during the strike . But taking action when
the busy season was over constituted a minimal risk and enabled the Respondent to
justify its action by economic considerations.
Accordingly , I find and conclude that Respondent laid off Dupuis and Plummer
because of their union activity, in violation of Section 8(a)(3) and (1) of the Act.
G. Advice to disregard the Board's subpena
On or about June 2, 1964, just prior to the hearing of the instant proceeding, the
General Counsel subpenaed Albano. It soon became common knowledge in the
plant that Albano had been subpenaed, and on or about June 8 or 9 Tampone
approached Albano and said, "I hear you have a subpena." Albano admitted that
he had. Tampone then said, "You know you don't have to go or you can be sick."
To this, Albano replied, "I'm sorry but I got the subpena and I am going to appear."
Tampone, though called as a rebuttal witness by the Respondent, did not testify
as to his version of the incident. However, counsel for the Respondent in cross-
examining Albano suggested to him that Tampone was "kidding" when he made the
statement to Albano.
Whether Tampone's remark was made in jest is unimportant, unless Albano under-
stood him to be joking. A. P. Green Fire Brick Company, 140 NLRB 1067, 1071,
enfd. 326 F. 2d 910 (C.A. 8); N.L.R.B. v. Marval Poultry Company, Inc., 292 F. 2d
454 (C.A. 4), enfg. 129 NLRB 803. Albano, however, testified credibly that he did
not think that Tampone was kidding, and his reply to Tampone, "I'm sorry but I got
the subpena and I am going to appear," is hardly the response that one would make
if one believed that the suggestion were made in jest. I therefore find and conclude
that Tampone advised Albano to disregard the subpena and that Albano did not
believe Tampone to be joking when he so advised him.
Is Plummer 's rate was only 10 cents per hour higher than the highest paid employee
retained in the multigraph department.
III do not credit Plant Manager Tampone's testimony that this decision was arrived
at after "a meeting of the minds" with Supervisor Rosen. Rosen, who impressed me as
a neutral and credible witness, contradicted Tampone in this regard. Tampone's state-
ment is also contradicted by his earlier testimony that he did not consult anybody with
respect to his decision to lay off Dupuis and Plummer.
18Indeed, it has been held that "[T]he fact that respondent retained some union
employees does not exculpate him from the charge of discrimination as to those dis-
charged" (N.L.RB. v. W. C Nabors, d/b/a W. C Nabors Company, 196 F._2d 272, 276
(C A 5)) See also, Willard Bronze Company, 148 NLRB 1686
SUNSHINE ART STUDIOS, INC. 575
Tampone's statement to Albano "interfered with the right of employees to par-
ticipate in proceedings before the Board and ... further tended to impede the Board
in the exercise of its power to compel the attendance of witnesses at its proceedings
and to obstruct the Board in its investigation . As this conduct has a tendency to
deprive employees of vindication by the Board of their statutory rights, it violated
Section 8 (a)(1) of the Act" (Winn-Dixie Stores, Inc., etc., 128 NLRB 574, 579).
See also, Alterman Transport Lines, Inc., 127 NLRB 803, 804.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IV, above, occurring in con-
nection with the business operations of the Respondent set forth in section I, above,
have a close , intimate , and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices within
the meaning of Section 8 (a) (1) and (3) of the Act, I shall recommend that it cease
and desist therefrom and that it take certain affirmative action designed to effectuate
the policies of the Act. Since I have found that the Respondent laid off William P.
Dupuis and Frank Plummer because of their activity on behalf of the Union, I shall
recommend that, if it has not already done so, the Respondent be required to offer
them immediate and full reinstatement to their former or substantially equivalent
positions , without prejudice to their seniority or other rights , dismissing if necessary
any employees hired after their layoff. Respondent should also be required to make
them whole for any loss of earnings they may have suffered because of the discrim-
ination against them , with backpay computed in the customary manner.19 I shall
further recommend that the Board order the Respondent to preserve and make
available to the Board or its agents , on request , payroll and other records to facilitate
the computation of the backpay due and the right of employment.
As the unfair labor practices committed by the Respondent are of a character
striking at the root of employee rights safeguarded by the Act, I shall recommend
that it cease and desist from infringing in any manner upon the rights guaranteed in
Section 7 of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and upon the
entire record in the case , and pursuant to Section 10(c) of the National Labor
Relations Act, as amended , it is recommended that the Respondent , Sunshine Art
Studios, Inc., its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in General Teamsters, Chauffeurs , Warehousemen
and Helpers , Building Materials , Heavy and Highway Construction Employees, Local
Union No . 404, International Brotherhood of Teamsters, Chauffeurs , Warehousemen
and Helpers of America , or in any other labor organization of its employees, by
laying off or in any other manner discriminating against employees in regard to hire
and tenure of employment or any term or condition of employment , except as per-
mitted by the proviso of Section 8(a) (3).
(b) Threatening employees with discriminatory action because they engage in a
strike or in any other concerted activity.
(c) Offering or granting wage increases to employees if they do not engage in a
strike.
(d) Maintaining a rule prohibiting employees from soliciting membership in any
organization on company property during nonworking time.
( e) Advising employees to disregard a subpena issued by the Board.
(f) In any other manner interfering with , restraining , or coercing its employees
in the exercise of their right to self -organization , to form, join , or assist any labor
organization , to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any or all such activities , except
to the extent that such right is affected by the proviso to Section 8(a)(3) of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Offer to William P . Dupuis and Frank Plummer immediate and full reinstate-
ment to their former or substantially equivalent positions ( if Respondent has not
19F W Woolworth Company , 90 NLRB 289; Isis Plumbing & Heating Co, 128
NLRB 716.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
already done so), without prejudice to their seniority or other rights and privileges,
dismissing if necessary any employees hired subsequent to their layoff, and make
them whole for any loss of pay they may have suffered as a result of the Respondent's
discrimination against them in the manner set forth in the section of the Decision
entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary for the deter-
mination of the amount of backpay due.
(c) Notify the above-named employees if presently serving in the Armed Forces
of the United States of their right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
(d) Post at its plants in Springfield and East Longmeadow, Massachusetts, copies
of the attached notice marked "Appendix." 20 Copies of such notice, to be furnished
by the Regional Director for Region 1, shall, after being duly signed by an authorized
representative of the Respondent, be posted by the Respondent immediately upon
receipt thereof, in conspicuous places, including all places where notices to employees
are customarily posted, and maintained by it for a period of 60 consecutive days.
Reasonable steps shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director, in writing , within 20 days from the date of the
receipt of this Decision, as to what steps the Respondent has taken to comply
herewith.2i
20 If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. If the Board's Order Is enforced by a decree of a United States Court of
Appeals, the notice shall be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order."
211f this Recommended Order is adopted by the Board, this provision shall be modified
to read, "Notify the Regional Director for Region 1, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in General Teamsters, Chauffeurs,
Warehousemen and Helpers, Building Materials, Heavy and Highway Construc-
tion Employees, Local Union No. 404, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or in any other labor orga-
nization of our employees, by laying off or in any other manner discriminating
against employees in regard to hire and tenure of employment, or any term or
condition of employment, except as permitted by the proviso to Section 8(a) (3)
of the Act.
WE WILL NOT threaten employees with discriminatory action because they
engage in a strike or in any other protected concerted activity.
WE WILL NOT offer or grant wage increases to employees if they refrain from
engaging in a strike.
WE WILL NOT maintain a rule prohibiting employees from soliciting member-
ship in any labor organization on company property during nonworking time.
WE WILL NOT advise employees to disregard a subpena issued by the Board.
WE WILL NOT in any other manner interfere with. restrain, or coerce our
employees in the exercise of their right to self-organization, to form a labor orga-
nization, to join or assist any labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activ-
ities for the purpose of collective bargaining or other mutual aid or protection
or to refrain from any and all such activities, except to the extent that such right
is affected by the proviso to Section 8(a) (3) of the Act.
WE WILL offer to William P. Dupuis and Frank Plummer immediate and full
reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, dismissing if necessary
DRIVERS, SALESMEN, & HELPERS, LOCAL 695, ETC. 577
any employees hired subsequent to their transfer, and make them whole for any
loss of pay that they may have suffered as a result of our discrimination against
them.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of the above-named Union or any other labor organization.
SUNSHINE ART STUDIOS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Boston
Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Telephone
No. 523-8100, if they have any questions concerning this notice or compliance
with its provisions.
Drivers, Salesmen , Warehousemen , Milk Processors , Cannery,
Dairy Employees and Helpers Local Union No . 695, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America; Madison Employers ' Council (Hard
Building Materials, Coal, Fuel Oil and Lumber Division) ;
Chase Redi-Mix, Castle & Doyle, J. H. Findorff & Son, Fritz
Construction Co., C. E. & P . A. Roth , Verona Redi-Mix, Wiscon-
sin Brick Co., Struck & Irwin , Four Lakes Fuel Co., Midwest
Construction, Henry Raemisch, Wingra Stone & Gravel Co.,
E. C. Voit & Sons, and Vogel Construction Co. and John B.
Threlfall d/b/a Threlfall Construction Company. Case No.
30-CE-2 (formerly 13-CE-16). May 13,1965
DECISION AND ORDER
Upon charges filed on April 2,1963, by John B. Threlfall, doing busi-
ness as Threlfall Construction Company, the General Counsel of the
National Labor Relations Board, by the Acting Regional Director for
Region 13, issued a complaint dated June 28, 1963, against Drivers,
Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employ-
ees and Helpers Local Union No. 695, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, here-
inafter called Teamsters Local Union No. 695 or the Union, the Madi-
son Employers' Council (Hard Building Materials, Coal, Fuel Oil and
Lumber Division), hereinafter called the Council, and each of Madison
Employers' Council members, alleging that they had engaged in and
were engaging in unfair labor practices within the meaning of Section
152 NLRB No. 55.
789-730-66-vol. 152-38