Superior Container, Inc.

National Labor Relations Board - Board Decisions

Sep 25, 1985

276 N.L.R.B. 521 (N.L.R.B. 1985)

SUPERIOR CONTAINER
Superior Container , Inc. and National Production
Workers Union Local 707 of Cleveland and the
Employee Grievance Committee , Party in Inter-'
est. Cases 8-CA-16086, 8-CA-16309-1, 8-
CA-16309-2, and 8-CA-16526
25 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 30 September 1983 Administrative Law
Judge Karl H. Buschmann issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority. in this proceeding to a three-
member panel. • .
The Board has considered the, decision and the
record in light of the exceptions and brief' and has
decided to affirm the judge's rulings, findings,2 and
conclusions3 only to the extent consistent with this
Decision and Order.
"1 On 24 August 1984 the General Counsel filed a motion to consolidate
the present case with Cases 8-CA-17024, 8-CA-17308, and 8-CA-17449,
involving the same parties as the present case We hereby deny the
motion In so doing, we note that to the extent the present case and the
latter cases involve related issues, the Board may take official notice of
its present decision
2 The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings Additionally , we are satisfied that the Respondent's conten-
tions that the judge was biased are without merit There is nothing in the
record to suggest that his conduct at the hearing , his resolutions of credi-
bility, his rulings , or the inferences he drew were affected by any bias or
prejudice
In the part of his decision entitled "Section 8(a)(1) Conduct ," the judge
found that several employees observed Mozden as he drove by Perkins
Restaurant The record, however, shows only that employee Mauldin
saw Mozden In the part of his decision entitled "The Section , 8(a)(5)
Conduct ," the judge found, based on a stipulation,' that the Respondent
employed 31- maintenance and production employees on Friday, 13 April,
whereas the stipulated date was 13 August In the part of his decision
entitled "The Employer 's Failure to Bargain," the judge stated that the
Respondent 's misconduct included "threats to close the plant," but it is
clear from other portions of his decision and his conclusions of law that
he did not find such a violation These inadvertent errors are insufficient
to affect our decision -
The judge found that the Respondent violated Sec 8(a)(1) of the Act
when its president Houston stated to employee Ormston that people who
signed union cards would be fired In so doing, the judge found Orm-
ston's testimony was not refuted The Respondent excepts, pointing out
that Houston denied having made such a remark In the circumstances
here, and particularly noting the remedies provided by the judge for simi-
lar violations , we find it unnecessary to pass on this issue
3 In adopting the judge 's conclusion that Houston's interrogation of
Maxwell violated Sec 8(a)(1) of the Act, we find it unnecessary to rely
on Johnnie 's Poultry Co , 146 NLRB 770 (1964), which the judge cited.
Although the judge found that the Respondent violated Sec 8(a)(2)
and (1) of the Act by dominating and controlling the formation and ad-
ministration of an employee committee in the nature of a labor organiza-
tion, he did not order the Respondent to disestablish that committee We
521
1. The judge found that the Respondent violated
Section 8(a)(1) of the Act when its attorneys inter-
viewed numerous employees on 7 January 1983 in
preparation for the hearing in this proceeding. We
disagree. .
-The judge found that the employees who met
with the Respondent's attorneys were told that
their participation was voluntary and that there.
would be no benefits or threats, but concluded that
the record failed to show that the employees were
given clear assurances that no reprisals would
result from their - participation or ' their answers. In
so concluding, the judge relied on the following
testimony from the Respondent's attorney Snyder:
We had a written preface, such as a police of-
facer has when he -interrogates someone. We
,had the opening remarks which were -that e-v-
erything was voluntary. If you didn't wish to
speak to us there is no problem; if you do
speak to us, there is no threat here involved,
anything you say will not be relayed. There is
no threat, no promises.
The judge reasoned that the Respondent's preced-
ing unlawful conduct created a coercive atmos-
phere' surrounding the interviews. The judge also
found that the interviews went-beyond trial prepa-
ration because the attorneys asked two employees
whether they could vote freely in a future election.
The judge concluded that the record failed to es-
tablish that the specific safeguards of Struksnes
Construction Co., •165 NLRB 1062 (1967), and John-
nie's Poultry Co., supra, were met here.
We do not agree with the judge that the Re-
spondent failed to give the employees adequate as-
surances against reprisal . Snyder's statement, as set
forth above, that there was no threat involved and
that anything said would not be relayed indicated
clearly an assurance to employees that " no reprisals
would take place. Snyder's statement could, only
have been made clearer by the use of the word
shall order the Respondent to withdraw recognition from and to disestab-
lish the employee committee -
In adopting the judge 's conclusion that the Respondent violated Sec
8(a)(3) of the Act by discriminatorily terminating employees Reese,
Wilson , and Mauldin, we conclude that the Respondent failed to show it
would have terminated them in the absence of their union activities
Thus, we adopt the judge's findings that the Respondent's economic justi-
fication was a pretext based on the fact that the remaining work force
worked overtime shortly after the layoff and that the Respondent hired
new employees without first recalling the three individuals Additionally,
we rely on Houston's testimony that savings were not important in his
decision , his testimony that he did not follow his prior practice of reduc-
ing the workweek from 5 days to 4 because he needed to save "perma-
nent costs" although he subsequently hired replacements for the three
discriminatees, and the fact that Houston attempted to explain the over-
time by referring to a new machine, about which he then contradicted
himself by testifying that the machine produced sheets which required no
further handling or processing .
276 NLRB No. 55
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"reprisal, but we have long held that "magic
words', are not required. Thus, where the employ-
er's assurances to employees clearly convey the
message that no harm will befall them if they
choose not to answer or not to answer favorably to
the employer as is the case here, no violation
occurs. Lammert Industries, 229 NLRB 895, 927
(1977). We also disagree with the judge's conclu-
sion that the Respondent's prior unlawful conduct
created a coercive atmosphere. In so doing, we
note that the employees were interviewed privately
by the Employer's attorneys, and -received appro-
priate assurances, and that the Employer's unfair
labor practices occurred some 4 months prior to
the, interviews. In similar circumstances, the Board
has found that such questioning did not violate the
Act.4 Finally, we reject the judge's conclusion that
the question whether the employees could vote
freely in a future election rendered the interviews
unlawful. In so doing, we note that the question
did not probe the employees' views concerning the
Union. Accordingly, based on all of the circum-
stances here, we conclude that the interviews did
not violate Section 8(a)(1) of the Act.
2. The judge concluded that the Union achieved
majority status on 13 August 1982 based on his
finding that as of that date the Union had obtained
16 valid cards in a unit of 31 employees. The judge
further found that the Respondent's unfair labor
practices were sufficiently pervasive and substantial
to preclude a fair election, and that a bargaining
order was warranted. We find, contrary to the
judge, that the card signed by employee Ismael Fi-
gueroa, was not- valid and thus we find that the
Union never attained majority status.5
The judge found that Figueroa's card should be
counted because - Figueroa would be able to com-
prehend the meaning of signing a union authoriza-
tion card. In so doing, the judge relied-heavily on
the following testimony of the Respondent's attor-
ney Snyder concerning his interviews with Fi-
gueroa: "The only thing I was able to understand
that Ismael said was, at one point he said, `I don't
want the Union.' That is the only thing he said in
any manner that you could understand. I don't
know whether he understood what I was saying at
-all; I doubt it." Based, on this testimony, the judge
concluded that if Figueroa could express his oppo-
sition to the Union he could certainly comprehend
and express his partiality in favor of the Union and
therefore could comprehend the meaning of sign-
4 See Lammert Industries, supra
b In view of our finding that Figueroa's card was invalid and that the
Union therefore never attained , majority status , we find it unnecessary to
pass on the validity of the cards signed by employees Springer, Cange-
losi, Comer, and Bongalis
ing a union authorization card. The judge further
concluded that despite Figueroa's total lack.of un-
derstanding of the English language and further
that he was solicited in English, the card- was nev-
ertheless valid. Relying on NLRB v. American Art
Industries, 415 F.2d 1223, 1229 (5th Cir. 1969), de-
nying enf. on other grounds to 166 NLRB 943
(1967),6 the judge further found that because the
authorization cards were unambiguous on their
face, the fact that Figueroa was literate in Spanish
only was irrelevant.
Contrary to the judge, we conclude that the
record establishes that Figueroa was not able- to'
comprehend the meaning of signing a union au-
thorization card. Although the judge relied on Sny-
der's testimony to show Figueroa's comprehension,
that testimony, as quoted above, demonstrated Fi-
gueroa's inability to communicate in the English
language. Further, the judge found that when Fi-
gueroa was called as a witness he failed to function
in the English language, and we note-that in view
of Figueroa's:inability to testify without an inter-
preter, the General Counsel excused Figueroa as a
witness without eliciting testimony from him. Ad-
ditionally, we note the judge's finding that wit-
nesses familiar with Figueroa generally corroborat-
ed the fact that he had little or no command of the
English language. Therefore, we find, based on the
credited evidence, that Figueroa was unable to
comprehend his card which was printed in English.
Finally, the judge, as noted above, found that Fi-
gueroa's signature on the card was solicited in
English, and the record is devoid of any credible
evidence that Figueroa obtained an understanding
of the card by other means. In such a case, what-
ever facial presumption of validity which might
otherwise attach to a signed card if the card itself
is unambiguous has been rebutted here by the, evi-
dence that Figueroa was unable to read it because
he could' not 'read the language in which it was
printed and could not understand it because it was
not otherwise explained to him in a language he
could understand. We therefore conclude that the
card signed by Figueroa was not valid and that be-
cause the Union had only 15 valid cards of a unit
of 31, it never attained majority status. According-
ly, for the reasons expressed in our recent decision
in Gourmet Foods, 270 NLRB 578 (1984), we do
not adopt the judge's recommended remedy insofar
as it provides for a bargaining order. We further
conclude that the Respondent did not violate Sec-
tion 8(a)(5) and (1) of the Act by refusing the
6 Contrary to the judge, we conclude that American Art Industries is
distinguishable from the instant case In American Art Industries, at least
one of the card solicitors spoke Spanish , whereas in the present case the
judge found that Figueroa was solicited in English
SUPERIOR CONTAINER
W-
Union's recognition demand, by changing its over-
time policy, of by changing its bonus policy. We
shall dismiss these allegations.?
ORDER
The National Labor Relations Board orders ' that
the Respondent, Superior Container, Inc., Warrens-
ville Heights, Ohio, its officers , agents , successors,
and assigns, shall ...
1. Cease and desist from
(a) "Discharging or otherwise discriminating
against any employee because of activities on
behalf of National -Production Workers Union
Local 707 of-Cleveland or-any other labor organf-
zation. - - - - -
(b) Coercively interrogating any employee about
union support or union activities.
(c) Engaging in surveillance or creating the im-
pression of surveillance of its employees' union ac-
tivities. -
(d) Expressing to employees the futility of select-
ing'the Union•as their bargaining -representative.
(e) Dominating and controlling the creation or
administration of an employee committee in the
form of a labor organization. -
(f) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action, neces-
sary to effectuate the policies of the Act.
(a) Withdraw all recognition from the employee
committee as representative of its employees' for
the -purpose of dealing with Superior Container,
Inc. concerning grievances,. labor disputes, wages,
rates- of pay, hours of employment; or other condi-
tions of work and completely disestablish the em-
ployee committee.
(b) Offer James Reese, Siegfreid Mauldin, and
James Wilson immediate. and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed, and make them whole for
any loss of earnings and other benefits- suffered as a
result of the discrimination against them, in the
manner set forth in the remedy section of the ad-
ministrative law judge's decision.
(c) Remove' from--its files any reference to the
unlawful discharges and notify the employees- in
7 On 28 February 1984 the General Counsel filed a motion to "clarify"
the remedial portion of the judge's recommended Order which relates to
unilateral changes regarding Christmas bonuses and overtime to provide
a make-whole remedy Thereafter, the Respondent filed an opposition. In
view of our conclusion that the .Respondent did not violate Sec 8(a)(5)
and (1) -of the Act by making those unilateral changes, we deny the Gen-
eral Counsel 's motion -
523
writing that this has been done and that the dis-
charges will not be used against them in any way.
(d) Preserve and, on request, make. available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other 'records necessary to. analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its facility in Warrensville, Heights,
Ohio, copies of "the attached notice marked "Ap-
pendix." Copies of the notice, on forms provided
by the Regional Director for Region 8, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(f)' Notify the Regional Director in writing
within 20 days from the date of this Order. what
steps the Respondent has taken to comply..
IT IS. FURTHER ORDERED that the complaint is
dismissed insofar as 'it alleges violations of the- Act
not specifically found.
MEMBER DENNIS, dissenting in part. -
Contrary to the majority, I 'would adopt the
judge's findings that the Union represented a ma-
jority of unit employees on •13'August 1982, and
that a bargaining order is appropriate to remedy
the Respondent's unfair labor practices in violation
of Section 8(a)(1), (2), and (3)-of the Act.'
1. In determining the Union's majority status I
would count the unambiguous authorization card
employee Ismael Figueroa signed. The majority
concludes that "Figueroa was not able to' compre-
hend the meaning of signing a union authorization
card" because he could not read, or communicate
in the language in which the card was written. I
disagree with such questionable reasoning, and
would find Figueroa's card a valid designation of
e If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board " -
I also agree with the fudge that the attorney interviews of employees
in this case failed to conform to the safeguards of Johnnie 's Poultry Co,
146 NLRB 770 (1964), and were therefore unlawful . The questions the
attorneys posed sought information concerning the employees ' state of
mind, namely , whether they could vote freely in a future election. Em-
ployees' subjective views on this issue are irrelevant to the Board's reso-
lution of it, which must be objective The employees ' views also would
tend to reveal attitudes toward the union and the employer The attor-
neys' questions thus exceeded proper bounds of case preparation and had
a tendency to evoke additional information about union matters
524 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union as bargaining representative because of committee. The evidence presents no-circumstances
the Supreme Court's decision in NLRB v. Gissel that mitigate the need for a bargaining order.9
Packing Co.,2 and the Fifth Circuit's decision in
NLRB v. American Art Industries.3
In Gissel, the Court approved the Board's Cum-
berland Shoe doctrine4 and declared that employees
should be bound by the clear language of what
they sign unless the language is deliberately and
clearly canceled by representations to disregard ,the
language. In American Art Industries, the court
found that where - the English language authoriza-
tion cards were unambiguous and no employee was
told that the cards were to be used solely for ob-
taining an election, the fact that the signers spoke
only Spanish and were unable to understand either
written or spoken English was "irrelevant."5 I
agree with the court's analysis because requiring a
probe of an employee's subjective motivations, i.e.,
what he thought he was signing, is an "endless and
unreliable inquiry."6
2. Because I agree with the judge that Figueroa's
card and the other authorization cards in dispute
are valid, I would find that the Union achieved
majority status 13•'August 1982. I would also find
that a bargaining order is appropriate under the
analysis set forth in my concurring opinion in Re-
gency Manor Nursing Home.7
The Respondent here engaged in serious unfair
'labor practices including the discriminatory dis-
charge of three employees, a "hallmark" violation
of the Acts The unfair, labor practices were perva-.
sive. The hallmark violation directly affected' 10
percent of the employees in the small unit of 31.
Further, the, Respondent's president was iltvolved
in unlawful conduct directed at all unit employees;
he announced the unlawful discharges at a meeting
of all employees, and, at that time stated he would
not tolerate any union coming into the plant; at a
second meeting on the same day he announced for-
mation of an employee committee to discuss and
solve problems, and appointed members to the
2 395 US 575 (1969)
3 415 F 2d 1223, 1229 (5th Cir 1969)
4 Cumberland Shoe Corp, 144 NLRB 1268 (1963)
5 The court based its decision on the Supreme Court's approval of the
Cumberland Shoe doctrine and not on the facts the majority points out in
an attempt to distinguish American Art Industries from this case
6 Gissel, 395 U S at 608 To the extent Board cases are inconsistent
with this analysis , I would overrule them E g , Maximum Precision Metal
Products, 236 NLRB 1417, 1425 (1978), Sans Souci Restaurant , 235 NLRB
604, 608 (1978), Hartz Mountain Corp, 228 NLRB 492, 527 (1977), Gate
of Spain Restaurant, 192 NLRB 1091 (1971), City Welding & Mfg. Co,
191 NLRB 124, 137 (1971), Brancato Iron Works, 170 NLRB 75, 81
(1968)
7 275 NLRB 1261 (1985) I would date the bargaining obligation as of
18 August 1982, when the Union demanded recognition I would also
adopt' the judge 's finding that the Respondent thereafter violated Sec
8(a)(5) by making unilateral changes in employee terms and conditions of
employment
8 See NLRB v. Jamaica Towing, 632 F 2d 208 (2d Cir 1980)
e The interval of time between the unfair labor practices and this deci-
sion does not itself warrant withholding a bargaining order
APPENDIX ..
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE'
NATIONAL LABOR RELATIONS BOARD
An Agency of-the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge or otherwise- discrimi-
nate against any of you for activities on behalf of
National Production Workers Union Local 707 of
Cleveland or any other labor organization.
WE WILL NOT coercively interrogate you about
your union support or activities.
WE WILL NOT engage in any surveillance or
create the impression of surveillance of your union
activities. - -
WE WILL NOT express to you the futility of se-
lecting the Union as your bargaining representa-
tive.
WE WILL NOT dominate and control the creation
or administration of employee committees in the
form of labor-organizations.
WE WILL NOT in any other manner interfere
with, restrain , or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL withdraw all recognition from the em-
ployee committee as representative of our employ-
ees for the purpose of dealing with us concerning
grievances, labor disputes, wages, • rates of pay,
hours of employment, or other conditions of work
and completely disestablish the employee commit-
tee.
WE WILL offer James Reese, Siegfried Mauldin,
and' James Wilson immediate and full reinstatement
to their former jobs. or, if those' jobs no longer
exist; to substantiallyi equivalent positions, without
prejudice to their seniority or any other rights or
SUPERIOR CONTAINER
1-
privileges previously enjoyed and WE WILL make
them whole for any loss of earnings and other ben-
efits resulting from their discharge, less any net in-
terim earnings, plus interest.
WE WILL notify each of the employees that we
have removed from our files any reference to his
discharge and.. that the discharge will not be used
against him in any -way.
SUPERIOR CONTAINER, INC.
Mark Neubecker, Esq., of Cleveland Ohio, for the Gener-
al Counsel.
William Snyder, Esq. and Glenn Waggoner, Esq. (Marsh-
man, Corrigan & Snyder), of Cleveland, Ohio, for-Re-
spondent.
Domenic Spirito and John L. Oliverio, Esqs., of Cleveland,
Ohio, for the Union.
DECISION
KARL H. BUSCHMANN, Administrative Law Judge.
These cases arose on charges, as subsequently amended,
filed by the Union between September 17, 1982, and
February 23, 1983, and the complaints issued by the Re-
gional Director for Region 8 of the National Labor Rela-
tions Board. The complaints were ordered consolidated
on April 6, 1983. The consolidated complaint alleges that
the Respondent, Superior Container, Inc., engaged in
certain unfair labor practices in violation of Section
8(a)(1), (2), (3), and (5) of the National Labor Relatios
Act. Respondent's answer and amended answer filed on
'April 13, 1983, admit certain jurisdictional allegations in
the complaint and deny the commission of any of the al-
leged unfair labor practices. On April 19-21, 1983, a
hearing was held before me in Cleveland, Ohio.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and the Company, I
make the following
FINDINGS OF FACT
I. BACKGROUND
The Respondent, Superior Container, Inc., is an Ohio
corporation located at 4500 Emery Industrial Parkway,
Warrensville Heights, Ohio, where it is engaged in the
manufacture and sale of cardboard boxes. The parties
stipulated, and I find , that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act. -
The record supports my finding that the Union, Na-
tional Production Workers Union, Local 707 of Cleve-
land is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
Prompted by Respondent 's failure in the summer of
1982 to pay its employees the customary bonus, James
Reese, an employee of Superior Container, contacted the
Union in early August for the purpose of exploring union
representation of Respondent 's production and mainte-
nance employees . At the Union's behest , Reese surveyed
the sentiment of the 31 production and maintenance em-
525
ployees on August 9 and 10. Concluding that most em-
ployees favored the Union, Reese and fellow employee
David Ormston obtained union cards.-from the Union.
Between August 11-13, they obtained 16 signed union
cards -from their fellow employees out of a total of 31
employees. It was stipulated that 31 employees constitut-
ed an appropriate unit for purposes of collective bargain-
ing. ,
On August 10, 1982,1 prior to leaving on a business
trip to Michigan, Loren W. Houston, president of Supe-
rior Container, assembled the employees for a meeting.
He informed the employees that because of the adverse
financial position of the Company any planned pay raises
were canceled and that the bonuses would be delayed.
Houston also discussed the possibility of raising the
workweek from 4 days to the customary 5-day work-
week. .
On August 12, the Union-held its first meeting with in-
terested employees at the Perkins restaurant from about
4 to 6 p.m. Representing the Union were John Oliverio,
secretary and treasurer, and Domenic Spirito, president
of Local 707. Approximately 12 employees attended the
meeting . Edward Mozden, one of Respondent's supervi-
sors, drove in his car to the meeting and was recognized
by several employees.
Loren Houston, who had been informed of the union
campaign on his return from Michigan on August 13, as-
sembled the employees for a meeting. He informed them
that the Company was losing money and announced the
layoff of five employees. He subsequently met with indi-
vidual employees during the same afternoon to discuss
the Union. At another meeting on August 13, he set up
an employee committee to deal with employee problems.
On August 18, 1982, the Union informed the Respond-
ent that it represented a majority of the employees. On
September 8, representatives of the Respondent and the
Union met concerning the latter's request for recogni-
tion. The Company ultimately denied that request.
On August 20, 1982, one of Respondent's employees
circulated a document upon which employees and. card-
signers indicated their opposition to the Union.
Starting in September 1982 Respondent scheduled its
employees to work overtime. Employees who refused
overtime were subjected to discipline. Several employees
received bonuses on December 10, 1982, which were less
generous than they had been in previous years. And in
January 1983, Respondent hired several employees. The
laid-off employees were not recalled.
This background set the stage for certain conduct by
Respondent which the General Counsel has alleged con-
stituted numerous unfair labor practices. As violations of
Section 8(a)(1) of the Act, Respondent stands accused of
repeatedly and unlawfully interrogating its employees
and threatening them regarding their union activities and
of surveillance and, creating the impression of surveil-
lance of their union activities As violations of Section
8(a)(2) of the Act, it is alleged that Respondent dominat-
I There was testimony that this meeting took place on August 11,
1982. Since the record shows that Loren Houston was on travel from
August 11 to the morning of August 13; I have inferred that the meeting -
must have been on' August 10
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed and supported a labor organization in the form of an
employee committee. The layoff or termination of three
employees, James Reese,` James Wilson, and Siegfried
Mauldin is alleged as an act of unlawful discrimination in
violation of Section 8(a)(3) of the Act and Respondent's
refusal to recognize the Union as the employees' bargain-
ing overtime practices are alleged- as violations of Sec-
tion 8(a)(5) and (1) of the Act. As an appropriate remedy
the General Counsel requests an order to cease and
desist, an order to reinstate the discharged employees,
and a bargaining order.
II. THE 8(A)(1) CONDUCT
The complaint alleges that Loren Houston had a con-
versation with employee David Ormston on August 11,
1982, in which he made certain threats and created the
impression that employees' union activities were under
surveillance. The record, however, shows convincingly
that Houston left the plant on a business trip early on
August 11, and did- not return until the morning of
August 13. I have therefore not credited Ormston 's testi-
mony relating to several conversations on that date -
On August 12,' 1982, about the time the union meeting
was scheduled for 3:30 p.m. at Perkins Restaurant,' Re-
spondent's supervisor Edward Mozden Jr. searched for
the meeting place which, according to his testimony, he
suspected was at the Howard Johnson Restaurant. The
record contains Mozden's admissions that he. had prior
knowledge of the union meeting and that he decided to
drive to the area in search of that meeting. Several of the
employees, including • Siegfried Mauldin, Okeyleen
,.Comer, and Kum Maxwell recognized Mozden's car.
They observed him as he -drove by the Perkins Restau-
rant. Employee Comer spotted Mozden on her way to
the meeting. She called the restaurant and 'alerted fellow
employee David Ormston that she had seen their super-
visor in the vicinity of the meeting.2 Mozden disclosed
the facts of a,union meeting to his supervisor- who re-
layed the information to -Houston prior to the employee
- meeting on August -13. - '
.The law is clear. A supervisor's surveillance of em-
ployees' union meetings even if motivated by his own
curiosity violates'Section 8(a)(1) of the Act. Intertype Co.
v. NLRB, 371 F.2d .787 (4th Cir. 1967). Since Mozden
basically admitted the facts outlined above, I have no
difficulty in finding a violation of Section 8(a)(1) of the
Act.
Following Houston's return from Michigan, he assem-
bled the employees for a noon meeting on August 13. He
informed the employees that the economic situation of
the Company was bad and that five employees had to be
laid- off. He named James Wilson, Siegfried Mauldin,
Marvin Kowalcyk, James Reese, and Robert Crossno.
Toward the end of -the meeting, Mauldin asked Houston
whether he could say, a few words to the employees.
Houston agreed. Mauldin told the employees that he be-
lieved the layoff had "to do with the Union" and that he
would be outside' with union cards for the employees to
sign . At this point, Houston angrily prohibited any fur-
2 Among the approximately 12 employees in attendance were James
Reese, James Wilson , and Siegfried Mauldin, the alleged discnminatees
ther mention of the Union, stating that he would not tol-
erate any, union talk nor any union to come into the
plant.3 Houston promptly ordered Mauldin to get out
and-admitted in his testimony to-telling Mauldin, "not
on my property you won' t • pass -cards out." (Tr. 443.)
These remarks, by Respondent's highest executive, clear-
ly indicated to the employees- the futility of selecting the
Union as their bargaining agent, and interfered with their
rights protected under Section 7 of the Act. Respondent
therefore violated Section 8(a)(1) of the Act.
During the afternoon of the same day, Houston held
another employee meeting, as well as individual meetings
with several employees. At the meeting with all employ-
ees in the lunchroom, Houston announced the formation
of an employee committee.' Houston testified that his
idea. of forming such a committee was prompted by his
conversation with Kum Maxwell. The record shows that
Maxwell had approached Houston following the earlier
meeting at noon and complained that even though she
had seniority, she was assigned to "working all over the
place." She felt that she received discriminatory treat-
ment. Houston, generally assuring her that he would
look into the matter, used the occasion to question her
about the Union. He asked her whether she had attended
the union meeting and whether she had signed a card.
He also wanted to know how many ,employees had at-
tended the union meeting and signed union cards. Max-
well candidly responded to all- questions,' admitting her
attendance at-the meeting and the signing of a union
card. In his testimony Houston did not deny interrogat-
ing Maxwell about the Union. Indeed, he admitted
asking her certain questions about her union involvement
but he claimed that he was not interested in names, only
the numbers. It is well settled that interrogation, if coer-
cive in light of all the surrounding circumstances includ-
ing 'time, place, and personnel involved, violates Section
8(a)(1) of -the Act. -The interrogation by Respondent's
chief executive, at the plant ' during the height of the
union campaign was clearly coercive. Moreover,, even if
Houston had only been interested in numbers, he failed
to give her any assurances against reprisals, as required.
Johnnie's Poultry Co., 146 NLRB 770, 774 (1964).
During the same afternoon, Houston had a brief con-
versation with Terry DeBenedictus during which Hous-
ton unlawfully created -the impression to this employee
that union meetings were, kept under surveillance. De-
Benedictus testified5 as follows about the encounter (Tr.
289-290.). -
A.. We ' were headed over to the rotary machine,
and he asked me if I went to the meeting last night,
and I asked him what meeting. He said, you didn't
go to that meeting.last night, and I_said no. And he
said good. _
Still, on the same day, August 13, employee Robert
Crossno, who was one of the employee's' mentioned for
layoff during the noon meeting, approached Houston to
8 Mauldin's testimony , although uncorroborated was uncontradicted.
* This matter is discussed below .
This testimony was not contradicted
SUPERIOR CONTAINER
plead for his job. During this conversation, Houston
asked Crossno what he knew about Siegfried Mauldin's
earlier statements during the meeting and who "was
starting the Union business." Crossno replied that he did
not really know but that it could have been "the people
that he laid off." (Tr. 216.) At the conclusion of this epi-
sode, Houston rescinded the layoff of this employee. It is
clear that the interrogation of this employee was coer-
cive. Crossno knew what was at stake, namely, his job.
Houston-aware that the employee needed his job-used
the occasion to press for the most sensitive information.
Chesterfield Chrome Co., 203 NLRB 36 (1973).
Houston finally talked to David Ormston on that day
near the big press in the plant. Ormston's following testi-
mony is not refuted (Tr. 332):
He asked if I know what Sigie [Mauldin] was talk-
ing about and I told him no. He said, you tell me
what went on in that Union meeting, yesterday and
today, and don't you lie to me. He was yelling at
me at this point.
I said, I don't know nothing about any Union meet-
ing, because I didn't go to one. He went on to say
those people that signed Union cards would be
fired.
Again, it is clear that Houston's interrogation was co-
ercive, and designed to elicit important information in a
tense atmosphere. Not only was Respondent's interroga-
tion of this employee coercive, but Houston uttered a
threat, in no uncertain terms, that anybody signing a
card would be fired. Statements of this type emanating
from the Employer's chief executive during a union cam-
paign on plant premises have a clear coercive and re-
straining effect upon the employees
The record contains the testimony of Thomas Bie-
gacki, a former employee, who testified that his supervi-
sor, Larry Caraballo,, interrogated him about the Union
on August 19 and threatened him on August 21 because
of his union sympathy. According to Biegacki, Caraballo
initially wanted to know if he was for the Union or
against it and then stated that Caraballo had found out
that Biegacki was for the Union. Caraballo emphatically
denied having had such a conversation with any employ-
ees. Because the evidence is contradictory and because
of Biegacki's questionable conduct resulting in his dis-
charge, I have not credited his testimony. Moreover, the
evidence surrounding these episodes was too sketchy to
make an adequate finding of the surrounding circum-
stances. I therefore dismiss the allegations of the com-
plaint relating to those conversations.
On September 27, 1982, Caraballo, at the behest of
Houston, summoned Maxwell to Houston's office. There,
Houston asked Maxwell to restate the substance of their
meeting which occurred on August 13, 1982, and told
her that an agent of the Board would question her about
that conversation. She related the substance of what she
had remembered. Houston repeatedly asked her whether
she remembered a statement to the effect that he would
close the shop. She answered that she did not remember
such a statement and assured him that she would tell the
truth. This"meeting was coercive in nature. Houston ap-
527
peared angry and seemed to make an attempt to pressure
this employee to recant some of her recollection of the
previous meeting.
The allegation in the complaint that Houston unlawful-
ly threatened an employee on December 10, 1982, is
based on the testimony of DeBenedictus who recalled
that Houston asked him to come to his office. While
handing him a $50 bonus, Houston engaged in small talk
asking him how things were-going in the plant He stated
at one point that he would be next in line to be laid off.
The evidence relating to this brief discussion does not in-
dicate any other surrounding circumstances and is plain-
ly insufficient for a finding of unlawfulness.-
Finally, the complaint alleges as unlawful the inter-
views conducted on January 7, 1983, by Respondent's
counsel, William F. Snyder, and Glen D. Waggoner with
numerous employees about the prospective unfair labor
practice case In this regard the record shows that the
employees were told that their participation was volun-
tary and that there would be no benefits or threats Em-
ployees Maxwell and DeBenedictus credibly testified
that Attorney Snyder, among other questions, asked
whether they could vote freely in a future union elec-
tion. While the record is clear that Respondent's attor-
neys questioned the employees about the instant proceed-
ing, the record fails to establish that the specific safe-
guards designed to minimize the coercive impact of em-
ployee interrogation were met. See Struksnes Construc-
tion Co., 165 NLRB 1062 (1967); Johnnie's Poultry Co.,
146 NLRB 770 (1964). To be sure, employees were told
that cooperation was fully voluntary and that no benefits
would be involved. However, the record does not show
that the employees were given clear assurances of no re-
prisals resulting from their participation in the interview,
or the substance of their answers.6 Moreover, the em-
ployer had already engaged, in unlawful conduct and cre-
ated a coercive atmosphere and by asking whether these
employees would vote freely in an election, Respondent
attempted to elicit information concerning an employee's
subjective state of mind. It is well established that an em-
ployer loses the privilege of interrogating employees in
preparation of the defense for a trial if he transgresses
the boundaries of the specific safeguards. I don't believe
that Respondent has met them. Accordingly, I find, that
Respondent violated Section 8(a)(1) of the Act:.
At one point DeBenedictus testified as follows (Tr 305)
Mr Synder We told you that anything you said would not be
used against you?
DeBenedictus Yes
Because of the leading nature of the question , I have not relied on the
witness' answer for the accuracy of Respondent's conduct For a more
reliable version of the attorney's conduct, I have relied upon Mr
Synder's own testimony, as follows (Tr 648)
We had a wntten preface, such as a police officer has when he inter-
rogates someone We had the opening remarks which were that ev-
erything was voluntary If you didn't wish to speak to us there is no
problem, if you do speak to us, there is no threat here involved, and
anything you say will not be relayed There is no threat , no prom-
ises We had it wntten out
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
III. ALLEGED VIOLATION OF SECTION 8 (A) (2) OF
THE ACT
On August 13, 1982, about 2 p.m. Respondent held a
meeting of the whole shop in the cafeteria . Houston an-
nounced that he wanted a committee and needed volun-
teers. When no one volunteered, he selected several em-
ployees, including David Ormston, Okeyleen Comer, and
Nick Bongalis to serve on the committee. Houston said
that the committee was` expected to address employee
complaints or safety complaints and meet once a month.
Houston testified that employee Kum Maxwell had come
to him complaining of discriminatory treatment in the
plant. Prompted by her complaint, he decided to form an
employee committee and testified as follows (Tr. 446-
447):
So I had a 'meeting and I said we are going to get,
back in the situation were we are going to have a
committee and we are going to meet and we are
going to discuss . these things . If there are some
problems out here and you want to discuss them,
you discuss them with this committee, and we will
get together once a month and we will solve as
much as we probably can, but I will make the final
decisions.
There was a committee appointed. There were five
people appointed by me, and a little bit of each;
new people that had only been there for two years,
people that had been there for 20 years, people that-
had been there for 10 or 12 years; that is how I did
it with different positions.
On August 16, the committee met again under the di-
rection of.Houston on company premises. The five em-
ployee representatives who had been selected by Hous-
ton, as well as several supervisors , were present. Hous-
ton initially stated that he ought to fire everybody. The
committee discussed favoritism by supervisors , machines
which failed , and management 's demand for more pro-
duction . Houston took notes and indicated that he would
look into these matters . Although 'Houston expected
committee members to meet monthly to deal with em-
ployee complaints, no further meetings were scheduled.
Section 8(a)(2) of the Act prohibits an employer to
dominate or control the formation or administration of a
labor organization. Clearly, encompassed with this prohi-
bition are employee committees created by the employer
to deal with employee grievances. NLRB v. Metropolitan
Alloy Shop, 624 F.2d 743 (6th Cir. 1980).
IV. THE 8 (A)(3) CONDUCT
The layoff of five employees on August 13, 1982, was
partially rescinded on the same day. First , -- Marvin
Kowalcyk was saved because he, as an experienced press
operator , had apparently been mistakenly included in the
layoff. Later in the afternoon, Crossno was able to extri-
cate himself from the fate of some of his fellow employ-
ees by appealing directly to Houston . This left James
Wilson , Siegfried Mauldin , and James Reese who were
not only laid off on August 13 but also never recalled.
According to the General Counsel , Respondent 's action
was motivated by union animus. Respondent, on the
other hand, argues that the economics of the Company
necessitated their termination appropriately based on se-
niority:
Respondent 's claim of the Company 's financial woes
was primarily based on the testimony of President Loren
Houston -and Joseph Skoda, an accountant. The record
does, not contain any documentary evidence such as
comparative sales figures-or balance sheets to corrobo-
rate this testimony . However , even assuming that Re-
spondent had suffered economically, the record conclu-
sively shows that the layoff was an unprecedented event
in the 20-year history of the,Company. In the past when
sales were slow, Respondent had never laid off , any em-
ployees . Instead the Company had resorted in bad finan-
cial times to a 4-day workweek or assigning employees
to sweep floors or paint . walls. Even though Respondent
regarded the layoff as an economic decision, the record
shows that, shortly. after the layoff, Respondent resumed
the 5-day workweek and, as of the end of August, re-
quired overtime work of most of its employees to oper-
ate a newly purchased machine. And in January 1983,
the Company hired three new employees who performed
some of the work which previously been done. by the
laid-off employees. Yet the laid-off employees were not
recalled . Of particular significance was Houston 's testi-
mony that the status of the three employees-was, "they
quit." Houston testified as follows (Tr. 469):
Because I wanted them to stay until 3:30, and they
decided that they didn't want to. And after" the situ-
ation with Mauldin, the other two definitely said
that they wanted to punch out and leave. And I
said , well, go ahead . And as far as I am concerned,
they quit.
Houston 's testimony in this regard conflicts with the
testimony of Wilson, Reese, and Mauldin. They credibly
testified that Houston specifically gave his permission
that they could check out immediately following the an-
nouncement ,of their layoff.
In any case , on the basis of the foregoing and apart
from any union consideration, I find Respondent's ver-
sion of the layoff and the failure to recall these individ-
uals to be unconvincing and implausible . Respondent's
economic justification is especially suspect when the re-
maining work force worked overtime shortly after the
layoff and when Respondent augmented its staff with
new employees without first recalling the three individ-
uals. Considering the possibility of antiunion motivation,
the inference is inescapable that the layoff was antiunion
motivated . First , the record is clear that Houston knew
of his employees' union involvement prior to the layoff,
at least to the extent of the union meeting of the previ-
ous afternoon . Second, all three had attended the meet-
ing on the previous day and signed union cards. Reese
was the ringleader of the union campaign . Third, Hous-
ton showed his union animus by prohibiting Mauldin
from any solicitation on company premises . And signifi-
cantly , Respondent 's `"entire conduct during the union
campaign had included unfair labor practices . I find,
therefore , that Respondent unlawfully discriminated
SUPERIOR CONTAINER
against these individuals because of their union involve-
ment. -
V. THE 8(A)(5) CONDUCT ,
By stipulation, the record established that Respondent
employed 31-- maintenance and production employees on
Friday, April' 13. The unit is defined as:
All production and maintenance employees em-
ployed,by the Employer at its Warrensville Heights,
Ohio facility; excluding office clerical employees,
professional employees, guards, and supervisors as
defined in the Act and any other employees.
It is also undisputed that 16 cards, a bare majority in
the words of Respondent's counsel, were executed by
the employees. The Respondent has. attacked validity of
six cards and also argues that the cards of the three dis-
-criminatees-having quit their employment-cannot be
counted.? The following cards have been put in issue:
1. Ismael Figueroa (G.C. Exh. 2(d)): Respondent's ob-
jection is based. upon this employee's inability, to speak
the English language . Figueroa was' called as a witness
-but it was soon evident that this. witness seemed to be
unfamiliar with the English language. The testimony of
witnesses familiar with Figueroa generally supported Re-
spondent's argument that he had little or no command of
the English language . Attorney Synder similarly testify-
ing about Figueroa's unfamiliarity with the English lan-
guage stated, however, as follows (Tr. 649):
The only thing I was able to understand that Ismael
said was, at one point he 'said, "I don't ,want the
Union." That is the - only thing he said in any
manner that you could understand. I don't know
whether he", understood what I was saying at all; I
doubt it.,
A cardsigner • who, can express his opposition to the
Union can certainly comprehend and express his partiali-
ty in-favor of the Union. Figueroa-,would therefore be
able to comprehend the meaning of signing a union au-
thorization card. However, assuming his total lack of-
un-derstanding of the English language and ' further finding
that he was solicited in English, the card is nevertheless
valid. In NLRB v. American Art Industries; 415, F.2d
1223, 1229 (5th Cir. 1969),' the court dealt with a similar
situation where 11 cardsigners spoke only Spanish and
-were unable to understand either written or spoken Eng-
lish. Since there, as here, authorization cards were unam-
biguous on their face, the fact that the 11 employees
were Spanish speaking was irrelevant. ,
2. Nick Bongalis (G.C. Exh. 2(a)):' Respondent objected
to this card because Bongalis "printed his name on a
Union card" and testified at one point that he "didn't
want to sign it." (Tr. 43.) The testimony in its entirety,
however, clearly shows that he intended to sign the
card. For example, he testified ,as follows (Tr. 43): -
529-
. Mr. Snyder. Mr. Bongalis listen to the question
'-Do you have a signature, did you sign your 'name?
Mr. Bongalls: Yes.
Mr. Synder: Is that your signature on that card?
Mr. Bongalis: Yes. -
Only after' leading questioning did. he testify that he
placed his name in print on the card and-that he later,
after consulting with his parents, changed his mind and
signed a document on November' 19 for the purpose of
recalling his card: He clearly intended' to sign the card,
and was not misled nor did he effectively revoke it. I
therefore, find that his card is valid. ,
3. Ann Springer (G.C. Exh. 2 (f)). The evidence shows
that Springer circulated a list, dated-August 20, 1982,
which states, "I do not wish to have my vote counted."
The list, which is otherwise not addressed to anyone,
contains her signature and that of six employees. Spring-
er simply handed the list to Respondent,but did not com-
municate with the Union. Obviously, Springer had not
effectively revoked her card. First to,,be effective, a rev-
ocation must be communicated to the Union and second,
at the time the list was circulated, Respondent had em-
barked on a program 'of serious unfair labor practices, in-
cluding threats, interrogation, and discriminatory layoffs.
A revocation resulting from the activity of the employer
after the commencement of the unfair labor practices is
invalid. Struthers-Dunn, Inc. v. NLRB, 574 F.2d 796 (3d
Cir. 1978). ,The law is' clear that an attempt to revoke a
,union card under these circumstances was ineffective.
4. 'Julian Cangelosi (G.C. Exh. 2(b)): Respondent's ob-
jection to his card is based on Cangelosi's testimony that
he attempted' to revoke his card from David Ormston
but- was unsuccessful because ' Ormston ignored 'his re-
quest for the return or the destruction of the card The
record shows that on August 13; prior to the lunchbreak,
Ormston had obtained Cangelosi's signed card, and
,thereafter Cangelosi requested its-return. Cangelosi testi-
fied that he' -made that request before lunch. Ormston,
however, testified that Cangelosi did not request that his
card be returned prior to the noon meeting. Ormston tes-
tified that Julian (Cangelosi) told him to tear up or burn
'the card because he did not want to- get fired. Ormston
unequivocally stated that Julian talked to 'him after the
noon meeting when the, layoff of five employees was an-
nounced.8 In resolving this obvious conflict in testimony,
I am mindful of the Court's admonition in NLRB v.
Gissel Packing Co., 395 U.S. 575, 608.(1969), that employ-
ees are more likely to give, testimony adverse to the
Union. many months after the card drive particularly
where company officials have S made, threats of, reprisal.
Moreover, •Cangelosi's demeanor as a witness indicated
that he was timid and unsure of his 'statements. I there-
fore credit Ormston's testimony that Cangelosi made a
request for the revocation of his card after the announce-
ment of the layoff on August 13. It, is well settled that
the revocation of a card is ineffective when it is a prod-
uct of the employer's unfair labor practice. L'Eggs Prod-
s It is often necessary to require fairly strong evidence of revocation
7 In view of my finding that these employees were wrongfully laid off, before cards secured at a much earlier date are adjudged invalid NLRB
that argument need not be discussed further v Southbridge Metal Works, 380 F 2d 851, 855 (1st.Cir 1967)
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ucts v. NLRB, 619 F.2d 1337, 1350 (9th Or. 1980); Ware-
house Groceries Management, Inc, 254 NLRB '252, 255
(1980). The testimony of Ormston clearly -shows that
Cangelosi attempted to revoke his card because of his
fear of reprisals. I find therefore that his card is valid.
5. Okeyleen Comer (G.C Exh. 2(c)). Comer signed her
card on August 1.1, 1982. After talking to her,husband,
she retrieved the card shortly after-, a union meeting,
probably on August 12. However, she returned the card
to the Union within a day or two. Sometime after the
employees were laid off, she again requested the return
of her card. ,Her second request was probably made a
week after she had signed it.9 In any case, it: is clear that
the Employer's unfair labor practices had commenced
after she had executed her card and prior to her attempt-
ed revocation. The Employer's misconduct prompted her
change of heart. Again, the law is clear; that under these
circumstances, her. revocation was ineffective. Her card
was therefore valid.
6. Gary McCall (G.C. Exh. 2(e)): McCall signed a card
on August 11, 1982. Respondent argues ;that this employ-
ee did not understand the signficance of his signature
'when he executed the card, and that he later" signed
Springer's list of employees who attempted to revoke the,
cards.
As already discussed, for several reasons Springer's list
did not constitute, an effective revocation: McCall testi-
fied in a timid and uncertain manner that' he `.`sort of
glanced over" the card and that he was unaware that he
would join 'a union by executing. an authorization' card.
However, the subjective attitude of, an employee is not
relevant to -the consideration of whether the card ' was
valid. On its face that card was clear and uiiambiguous.
He was certainly not misled., His card is therefore not in-
valid. NLRB v. 'Gissel Packing Co supra,' 39.5 U.S. at
614. ,
.7. Laura Szabo, (G.C. Exh. 2(g)): This employee signed
a ;union card on August 11, 1982, She testified that she
was under some pressure to, sign the card: because she
did not want to lose her, ride to work. Respondent
argues that her signature' was, obtained by coercion ' In
this regard, -the record shows that in response to ques-
tioning by Respondent's counsel whether she had signed
a card under pressure-she responded -(Tr. 92): "Well, I
felt that I was under some pressure because that was the
ride I was going -to-work with, and didn't have acar at
the time." In direct reply as to whether she signed the
card for fear of losing her ride she replied; "-It's -half and
half, some pressure." Assuming that her subjective
motive' for the execution 'of the card was at ' issue, it is
clear that her answer was ambiguous.' While she may
have felt some coercion , it is clear that she also ex-
pressed her own preference. The type of coercion which
would normally invalidate a card, such as threats of re-
prisals by the Union once it organized the establishment,
was clearly not present here. Accordingly, I find 'the
card-valid. '
The record is not clear when Comer made her requests for the return
of her 'card ,
VI. THE EMPLOYER'S FAILURE TO BARGAIN
In summary, I have found that the Union had
achieved a majority on August 13, 1982, with 16 valid
cards in a unit of 31 employees. The Union made its re-
quest for recognition on August 18, 1982, when Union
Representative Spirito called Loren Houston, as well as
Attorney Synder. The parties met on September 8, 1982.
Respondent questioning the Union's majority status be-
cause it had received certain information- such as the
Springer document, refused recognition
Policy changes affecting overtime: At the end of August
or- the beginning of September, Respondent mandated
that employees work overtime as scheduled. This,change
in overtime was initiated without bargaining with the
Union..Ormston and DeBenediotus had refused to work
overtime and -received written warnings.' Ormston was
'given' a 3-day suspension in February 1983 for his refusal
to work overtime. In prior-years overtime work was op-
tional with employees. . Respondent effectuated this
change in policy without bargaining with the Union.
Policy changes, affecting, bonuses: 'In addition, Respond-
ent, contrary to past practice, changed its policy of
giving, Christmas* bonuses based on longevity. In years
past, bonuses were paid to the employees on the basis of
longevity.. In 1982, four employees received bonuses
which- were not based on their -length , of service,alone.
For example, in 1979 and 1980 the lowest bonus of $150
went to employees with about 1 year of, service. Other
employees who had worked for .7 or more years received
bonuses of $700 or more. -Respondent • does not contest
that in 1982, four employees received bonuses not only
on the basis of their seniority but also on a consideration
of their lack of cooperation in working overtime. This
resulted in a reduction of bonus pay to the following em-
ployees: Kum Maxwell, David Ormston, Terry DeBene-
dictus, and 'Thomas . Biegacki. 10 Again, the change in
policy was instituted by the Employer without bargain-
ing with the Union.
The General Counsel submits that Respondent has en-
gaged in extensive and pervasive unfair labor- practices
which undermined the Union's majority status and which
prevented the holding of a fair election. To remedy=such
conduct, the General Counsel argues • that to require a
bargaining order is,-necessary and appropriate. NLRB v.
Gissel Packing -Co., supra, 395 U.S. 613-614. - . .
The record, which includes extensive uncontested tes-
timony, as well as Respondent's own testimony, clearly
shows that Respondent violated Section 8(a)(1), (2), and
(3) of the Act. Moreover, the Respondent refused the
Union's demand for recognition on• August 18 and again
on September 8, 1982, even though it had-achieved a ma-
jority of cards. Whether this-Employer had a good-faith
doubt as to, the Union's majority status at the time _it re-
fused recognition is under these circumstances academic.
Only if there is an absence' of independent unfair labor
practices can -an employer- refuse to recognize a union
io Thereco'rd does not support a finding of discriminafory conduct as
a result of the union activity of these employees Their working habits,
including their refusal to work overtime, had precipitated Respondent's
change in policy " ;
I
.
I I .
SUPERIOR CONTAINER
based on its claim of a card majority without violating
Section 8(a)(5) of the Act. Summer & Co. v. NLRB, 419
U.S. 301 (1974). If, as here, the Employer commits inde-
pendent and substantial unfair labor practices disruptive
of election conditions , I the Board must issue a bargaining
order. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
Respondent's misconduct, including unlawful interroga-
tions, threats to close the plant, surveillance of employ-
ees' union activities , unlawful creation or domination of
employee committees, and discriminatory layoffs, was
sufficiently pervasive and substantial to preclude a fair
election. Under these circumstances, a bargaining order
and a finding of a violation of Section 8(a)(5) and (1) are
warranted. NLRB v. Lachniet, 490 F.2d 1382 (6th Cir.
1974); Ship Shape Maintenance Co., 189 NLRB 395
(1971). Since the Union achieved majority status on
August 13, when Respondent's violations had already
commenced, its bargaining obligation dated back to
April 13, 1982. Seeler v. Trading Port, Inc., 517 F.2d 33
(2d Cir. 1975).
CONCLUSIONS OF LAW
1. The Respondent, Superior Container, Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
• 2. The Union, National Production' Workers Union
Local 707 of Cleveland, is a labor organization within
the meaning of Section 2(6) and (7) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees em-
ployed by the Employer at its Warrensville Heights,
Ohio facility, excluding office clerical employees,
professional employees, guards, and supervisors as
defined in the Act and any other employees.
4. By discriminatorily terminating the employment of
James Reese, James Wilson, and Siegfried Mauldin on
August 13, 1982, because of their support of the Union,
the Company, engaged in unfair labor practices affecting
commerce with the meaning of Section 8(a)(3) and (1)
and Section 2(6) and (7) of the-Act.
5. By coercively interrogating several employees, the
Respondent repeatedly violated Section 8(a)(1) of the
Act.
6. By unlawfully engaging in acts "of surveillance and
by creating the impression of surveillance of the employ-
ees' union activities, Respondent violated Section 8(a)(1)
of the Act.
7. By expressing to the employees the futility of select-
ing the Union as a bargaining agent and by threatening
531
employees with the loss of jobs if they supported the
Union, Respondent violated Section 8(a)(1) of the Act.
8. By dominating and controlling the formation and
administration of an employee committee in the nature of
a labor organization, Respondent violated Section 8(a)(2)
and (1) of the Act.
9. By refusing to recognize and bargain with the
Union while engaging in a campaign of unfair labor
practices designed to undermine the Union's majority
status and to impede the election process, the Company
violated Section 8(a)(5) and (1).
10. A bargaining order is necessary to remedy the
Company's unfair labor practices.
11. By unilaterally changing its policy with respect to
mandatory overtime and the paying of bonuses, Re-
spondent violated Section 8(a)(5) and (1) of the Act. .
12. The unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
13. All other violations have not been substantiated.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent having discriminatonly discharged
three employees , it must offer them reinstatement and
make them whole for any loss of earnings and other ben-
efits, computed on a quarterly basis from date of dis-
charge to date of.proper offer of reinstatement, less any
net interim earnings , as prescribed in F. W. Woolworth
Co.,. 90 NLRB 289 (1950), plus interest as computed in
Florida Steel Corp., 231 NLRB 651 (1977). See generally
Isis Plumbing Co., 138 NLRB 716 (1962). As the Re-
spondent has engaged in such -egregious misconduct as to
demonstrate a general disregard for the employees' fun-
damental, rights, I find it necessary to issue a broad
order, requiring the Respondent to cease and desist form
infringing in any other manner upon the rights guaran-
teed, employees by Section 7 of the Act. Hickmott Foods,
242 NLRB 1357 (1979). As already discussed, Respond-
ent has engaged in pervasive and substantial misconduct
which would - have the tendency to undermine majority
strength of the Union and make a fair'election unlikely.
And since the Union had attained majority status on
August 13, 1982, when the unfair labor practices had al-
ready begun, a ' bargaining order should issue which
specifies the beginning of the bargaining obligation as of
that date. Respondent's unilateral changes, 'such as the
change in policy with respect to overtime work and the
paying of annual bonuses must be resolved by an order
to bargain.
[Recommended Order omitted from publication.]