Swingline Company, The

National Labor Relations Board - Board Decisions

Jun 18, 1981

256 N.L.R.B. 704 (N.L.R.B. 1981)

704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Swingline Company; Spotnails, Inc. and Local
222, affiliated with International Production,
Service and Sales Employees Union
The Swingline Company and John Griffin and Local
808, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America
The Swingline Company; Spotnails, Inc. and Local
808, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Petitioner. Cases 29-CA-7563, 29-
CA-7564, 29-CA-7585, 29-CA-7776, 29-RC-
4658, and 29-RC-4659
June 18, 1981
DECISION, ORDER, AND
CERTIFICATION OF
REPRESENTATIVE
On December 11, 1980, Administrative Law
Judge Robert T. Snyder issued the attached Deci-
sion in this proceeding. Thereafter, Respondents
and Intervenor' filed exceptions and supporting
briefs.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 and conclusions3 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that Respondent Swingline Compa-
ny and Respondent Spotnails, Inc., Long Island
City, New York, their officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended Order, except that the attached
notice is substituted for that of the Administrative
Law Judge.
I Local 222, affiliated with International Production. Service and Sales
Employee Union, was permitted to intervene in this proceeding.
2 The Respondents has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
3 Chairman Fanning disavows the Administrative Law Judge's citation
of Walgreen Co., d/b/a Globe Shopping City, 203 NLRB 177, fns. 23 and
69 (1963), because the Chairman dissented in that case.
Chairman Fanning also places no reliance on the Administrative Law
Judge's citation of Essex International. Inc., 216 NLRB 831, fn 66 (1975),
because he dissented in that case. Nor does he rely on the statement in
the Administrative Law Judge's Decision to which fn. 66 is appended be-
cause it describes the standard for setting aside elections based on the
conduct of third parties, although the conduct of a party is in issue in this
case.
256 NLRB No. 119
CERTIFICATION OF
REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Local 808, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America. and that, pursuant to
Section 9(a) of the Act the foregoing labor
organization is the exclusive representative of all
the employees in the following appropriate units
for the purposes of collective bargaining with re-
spect to rates of pay, wages, hours of employment,
and other terms and conditions of employment:
Unit A: All production and maintenance, ship-
ping and receiving employees employed by
Spotnails, Inc., herein called Spotnails or
jointly called the Employer with the Swing-
line Company, at 43-34 32nd Place, Long
Island City, New York, excluding all office
clericals, professionals employees, guards
and supervisors as defined in the Act.
Unit B: All production and maintenance, ship-
ping and receiving employees employed by
The Swingline Company, herein called
Swingline, at 32-00 Skillman Avenue, Long
Island City, New York, excluding all office
clericals, professional employees, guards and
supervisors defined in the Act.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate em-
ployees concerning their union activities.
WE WILL NOT warn employees to refrain
from displaying union insignia or otherwise in-
terfere with their rights to engage in union ac-
tivities.
WE WILL NOT threaten employees with
plant removal, layoff, or other reprisals be-
cause of their union membership, activities, or
desires.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights guaranteed
under Section 7 of the National Labor Rela-
tions Act.
THE SWINGLINE COMPANY SPOT-
NAILS, INC.
THE SWINGLINE COMPANY, ET AL. 705
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge: These
consolidated cases were heard in Brooklyn, New York,
on July 14, 15, 16, 21, 22, and 23, 1980. Cases 29-CA-
7563 and 29-CA-7564 involve charges by Local 222, af-
filiated with International Production, Service and Sales
Employees Union, herein called IPSSEU, against The
Swingline Company, herein called Swingline, and Spot-
nails, Inc., herein called Spotnails, respectively, herein
collectively called Respondents, of various acts of inter-
ference, restraint, and coercion of employees exercising
rights guaranteed them by Section 7 of the National
Labor Relations Act, as amended, herein called the Act.
The acts alleged include interrogations, warnings, and
threats of discharge, which Respondents have denied.
Case 29-CA-7585 involves a charge by employee John
Griffin alleging his discharge in violation of Section
8(a)(1) and (3) of the Act, which Respondents also deny.
The consolidated complaint in these three cases issued on
January 11, 1980.
Cases 29-RC-4658 and 29-RC-4659 arise out of repre-
sentation elections conducted by the Board on October
25, 1979, upon petitions filed by Local 808, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called Teamsters, in units
of all production and maintenance shipping and receiving
employees employed by Swingline and Spotnails, respec-
tively, in which both IPSSEU, as Intervenor, and the
Teamsters participated. The Teamsters won both elec-
tions decisively,' and IPSSEU filed timely objections. In
a Supplemental Decision and Report on Objections
issued March 20, 1980, by the Regional Director, certain
of the objections, not overruled, were consolidated for
hearing with the outstanding consolidated complaints
since they were substantially identical to issues in the
unfair labor practice cases. 2
Case 29-CA-7776 involves a charge by the Teamsters
alleging interrogations, warnings, threats and promises of
benefit, on which complaint issued March 26, 1980, and
was then consolidated for hearing with the other consoli-
dated cases.
Upon the entire record, including my observation of
the demeanor of the witnesses and after careful consider-
ation of the briefs filed by all of the parties except for
the General Counsel, I make the following:
I Among approximately 1,174 eligible employees of Swingline, 1,084
cast ballots, 658 voting for the Teamsters, 389 voting for IPSSEU, 10
voting against union representation, and 27 voting under challenge.
Among approximately 113 eligible employees of Spotnails, 104 cast bal-
lots, of which 68 were for the Teamsters. 33 were for IPSSEU, and none
were against union representation, with 3 challenged ballots.
2 All four numbered objections were overruled but hearing was or-
dered on a portion of other objectionable conduct alleged by IPSSEU
during the course of the investigation and considered as a fifth objection
FINDINGS AND CONCLUSIONS
1. RESPONDENT'S BUSINESSES, THEIR
INTERRELATIONSHIP, AND THE STATUS OF THE
UNIONS INVOLVED
Respondent Swingline, an unincorporated division of
Swingline, Inc., a Delaware corporation and wholly
owned subsidiary of American Brands, Inc., is engaged
in the manufacture, sale, and distribution of staple ma-
chines, staples, and related products at its principal office
and place of business located at 32-00 Skillman Avenue,
Long Island City, herein called the Skillman Avenue
plant, and at two other nearby places of business located
at 43-11 32nd Place and 45-20 33rd Street, Long Island
City, in the Borough of Queens, City and State of New
York. Respondent Spotnails, a wholly owned subsidiary
and division of Swingline, Inc., is engaged in the manu-
facture, sale, and distribution of industrial nailing and sta-
pling equipment and related products at its principal
office and place of business located at the Skillman
Avenue plant, Queens, New York. Swingline, Inc., and
Spotnails have a common chief executive office, and the
executive vice president of Swingline, Inc., is in charge
of its fastner division, which includes both Respondents.
Requests for funds or working capital for either Re-
spondent are made directly to Swingline, Inc. Insurance
requirements of both Respondents are handled directly
by American Brands, Inc., the parent of Swingline, Inc.
Further, Swingline's purchasing director assists and
guides Spotnails with its purchase requirements. Spot-
nails occupies a physically unsegregated portion of the
second floor of the Skillman Avenue plant, pursuant to
an oral agreement without fixed terms under which it
pays Swingline, to the lessor of the plant, for rental of
that portion of the space. In addition, Spotnails pays
Swingline a pro rata share of the cost of the common
utility and other fixed services it enjoys. Employees of
both enterprises share a common cafeteria, corridors, ele-
vators, and to some extent, lavatories and work in the
same shipping and receiving areas. While there has been
no regular pattern of employee interchange, when an
employee has been shifted from Spotnails to Swingline
he has been given credit for length of service with Spot-
nails.
With respect to labor relations, IPSSEU has represent-
ed employees of Swingline and Spotnails for purposes of
collective bargaining in the units previously described
for the past 25 years. Labor relations policies for the
Long Island City facilities are set by Swingline, whose
executives have generally negotiated the practically iden-
tical contracts for employees in both units.
Based on the foregoing facts, which were stipulated to
by Respondents, I conclude that at all times material
herein, Respondents have been affiliated businesses with
common officers, ownership, directors, and operators
and constitute a single integrated business enterprise
whose directors and operators formulate and administer
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a common labor policy affecting the employees of both
enterprises. 3
In the course and conduct of their integrated Queens,
New York, business operation, Respondents annually
purchase and receive goods and materials at their plants
in excess of $50,000 in interstate commerce directly from
points located outside the State of New York. Respond-
ent's admit, and I find, that they are employers engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act. The complaint also alleges, Respondents
amended their answer to admit and so stipulated, and I
find that the Teamsters and IPSSEU are each labor or-
ganizations within the meaning of Section 2(5) of the
Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES AND
OBJECTIONS
A. Background
IPSSEU had represented the employees of Swingline
and Spotnails in each of the two units at issue herein in
collective bargaining for 25 years when the Teamsters
filed their petitions. Most of the incidents involved here
arose during the latter stages of the preelection period,
particularly the day preceding and the day of the elec-
tion, as interest and concern among employees support-
ing each of the two unions and union electioneering
reached its peak. During this period also, IPSSEU con-
tinued to represent the unit employees in the preexisting
collective-bargaining relationship.
Respondents maintained an official position of neutral-
ity between the two unions, manifested most concretely
by the holding of formal supervisory meetings during
which supervisors were instructed to remain neutral and
not to discuss either union or the upcoming election with
employees and by the issuance of a one page letter to all
employees on May 21, 1979, 4 well before the filing of
the petitions on July 30. In it, Swingline President John
F. Thomas expressed regrets for the fact that the two-
union fight was leading to confusion, unhappiness, and
disruption; noted the Employer's interest in maintaining a
calm, peaceful working environment; affirmed the em-
ployees' right to select either union; and assured them
that whichever union was so chosen, that choice would
be honored by Respondents. 5
Respondents also appear to have maintained a flexible
no-solicitation rule, prohibiting any union or other solici-
tation on worktime, which had the effect of interfering
with production. In point of fact, Respondents main-
tained a very lenient policy during the preelection
period, pursuant to which they refrained from disciplin-
D See N.L.R.B. v. CK. Smith d Co., Inc., e. al., 569 F.2d 162 (Isl Cir.
1977), cert. denied 436 U.S. 957 (1978); Radio and Television Broadcast
Technicians Local Union 1264 v Broadcast Service of Mobile. Inc., 380 U S.
255, 256 (1965); Marine Welding and Repair Works, Inc., Williamson
Engine and Supply. Inc., Greenville Manufacturng and Machine Works,
Inc.: and Greenville Propellor Works, Inc. v. N.L.R.B., 439 F.2d 395, 397
(8th Cir. 1971).
4 Unless otherwise noted, all dates hereinafter are in 1979.
s Consistent with that position, in their post-hearing brief, Respond-
ents, while noting their belief that the objections are of no significant
consequence, take no position on what remedy, if any, should be granted
in the representation cases.
ing employees for infractions of this rule, and further, ex-
ercised restraint as well in disciplining supervisors for
participating in electioneering, except in instances where
the supervisor's involvement had been corroborated or
independently established. 6
The allegations in these consolidated proceedings raise
the issue with respect to Section 8(a)(l) of the Act, as to
whether Respondent's policies were adhered to by low-
level supervisors, and with respect to Section 8(a)(3), the
issue as to whether Respondents finally acted to enforce
their no-solicitation policy against Griffin after his re-
peated infractions made evident their was no other
choice. Finally, the consolidated objection proceedings
present the issue as to whether the elections conducted
should be set aside or a certification of representative
issued to the Teamsters.
B. The Discharge of John Griffin
John Griffin and another individual named Joseph
Vaughn were both hired a day apart, in mid-August, on
the referral and recommendation of IPSSEU Business
Representative Jerry Nuzzo.7 Swingline was in need of
power press operators and Industrial Relations Manager
Paul Nagle agreed that Nuzzo could send Griffin in for
work in that capacity. Vaughn, a friend of Griffin's, was
hired a day later as a metal grinder.
On the day he reported for work on the day shift,
Griffin was assigned by Irving Sloane, now general su-
pervisor of the press department but then its foreman, to
sanding metal parts at a machine located in the depart-
ment in the basement of the Skillman Avenue plant
building. Griffin continued to be employed in the press
department at sanding and other duties until his dis-
charge on October 26, the day following the election.
All of his work assignments were confined to the base-
ment press department work areas.
From the very first day of his employment, Griffin
was observed by Sloane away from his work station and
conversing with other employees in other work areas
within the press department and other departments in the
building. Griffin's unauthorized absences from his work
duties became habitual and resulted in a series of repri-
mands and orders to return to his work area, issued by
Sloane. Griffin also made a practice of reporting late for
work and was absent from work often during his less
than 4-month tenure with Swingline.8
One supervisor, Francisco Quinones, was suspended with pay during
the election week for failing to comply with the Employers' prohibition
7 There is also evidence that a second IPSSEU representative, Joe La-
velle, was also in contact with Swingline in the successful attempt to
place both Griffin and Vaughn in positions with the Company. Griffin
himself informed another employee that he was put on the job at Swing-
line by IPSSEU The same employee was provided the same information
by Lavalle.
' Griffin's earning record card shows that apart from his first week of
employment when he worked 37 hours, he never approached 40 hours in
a week, the regular 5-day, 8-hour-per-day workweek required of all em-
ployees, and his weekly work hours varied between a low of 15-3/4
hours in his second week to a high of 31-3/4 hours in his eighth week
with no work hours the week of October 13, and no overtime hours at
all In contrast, the earning record cards of the more than 100 other day-
shift press department employees for the same year show a remarkable
consistency, registering 40 hours for the most part with occasional weeks
Continued
THE SWINGLINE COMPANY, ET AL. 707
Sloane periodically reported to Nagle that Griffin had
wandered around the shop, had left his work station, and
was absent or late on many occasions. Nagle made note
of these reports and instructed Sloane to continue to
report any future difficulties of like nature with Griffin.
Griffin's conduct did not improve and on Nagle's
instructions Sloane attempted in discussions with Griffin,
but without success, to convince him to cease his unau-
thorized movements, latenesses, and absences. Sloane
made clear in testimony that Griffin's work duties were
confined to the basement of the main or Skillman
Avenue plant building. Even on a short assignment of a
period of 3 or 4 days to a clean up detail in the tool-and-
die room, also located in the basement of the same build-
ing, Sloane could not foresee any circumstances under
which Griffin's work would take him outside that room.
Yet, a number of witnesses produced by the Teamsters
testified that Griffin was seen by them campaigning for
IPSSEU on working time in the Skillman Avenue plant
other than in the basement work areas on various occa-
sions during September and October leading up to the
October 25 election. Griffin was also viewed as aggres-
sive and provocative in his electioneering behavior by
certain of the employees. On one occasion, according to
one employee whose testimony was not disputed, Griffin
was soliciting for IPSSEU, in English,9 2 to 3 days
before the election in the hallway and bathroom on the
main floor of the Skillman Avenue plant outside the
cafeteria at either 10:30 or 11: a.m.,' ° just prior to or at
the employee's lunchbreak. Griffin made insulting re-
marks, uttered profanity, and acted as if he would start a
fight with anyone who provoked him. According to this
employee, employees generally were trying to avoid him
and to refrain from getting into any discussion of the two
unions.
On election day, employee witnesses placed Griffin all
over the main plant as he electioneered and did not
punch in or report for work. Griffin was shouting, hold-
ing a megaphone, whistle, and IPSSEU literature, going
into various departments at different times during the
day and standing in the street soliciting votes for
IPSSEU at midday, during employee lunch breaks. Rich-
ard Mateo, then Swingline personnel clerk who became
an employment interviewer shortly after the election,
and whose status as supervisor is in dispute, but whose
testimony in this regard was not disputed, testified that
during the election he chased Griffin away from the
staple packaging area, about 100 feet from the polling
area on the main floor of the Skillman Avenue plant,
while Griffin was electioneering with a megaphone.
Prior to election day, Mateo had also witnessed Griffin
on worktime move about in the cafeteria soliciting
of 32 hours and with regular assignments of overtime and incentive
hours.
9 For many employees employed by Swingline, their native tongue is
Spanish, yet those who testified regarding Griffin's activities were able to
identify the substance of his electioneering comments in English I credit
their unrebutted versions of these events and take notice of the fact that
while not completely articulate in English, they were able to communi-
cate and understand simple English phrases at the workplace.
lo Employees on the day shift received two 10-minute work breaks, at
9 a.m. and 2 p.m., and press departments employees had a lunch period
from 11 to 11:30 a.m.
IPSSEU votes. More than once he had been asked by
Griffin's supervisor if he had seen Griffin, and, on locat-
ing him in the cafeteria, had reported these instances to
Nagle, his own supervisor in personnel.
On the day following the election, Friday, October 26,
Griffin reported for work. In the late morning, Nagle re-
ceived a telephone call from the cafeteria manager seek-
ing help because two employees were quarreling. When
Nagle emerged from his personnel office around the
corner from the cafeteria he saw Griffin and another em-
ployee arguing in the hallway in front of a few onlook-
ers. Nagle was informed by an onlooker that the dispute
concerned union matters, with the other employee sup-
porting the Teamsters and Griffin backing IPSSEU.
Nagle told them both that the election was over, and to
break it up and they did so. Later, around noon, Sloane
called Nagle to inquire as to Griffin's whereabouts. "
Nagle did not know, but he was determined then to
question Griffin as to why he was away from his work-
place, and, if it was not for a compelling reason, to dis-
charge him. Accordingly, Nagle left word with Sloane
to send Griffin to him when he appeared at his work-
place. Nagle next saw Griffin passing the personnel
office at 1:30 p.m. He had not appeared there at Sloane's
request and had not been at work since 11:30 a.m. Nagle
called Griffin in and asked him where he had been.
When Griffin replied he had been at lunch, Nagle told
him his lunch was 11 to 11:30 a.m., this was 1:30 in the
afternoon and, based on all his other absences and unau-
thorized leaving of the workplace, that he was being ter-
minated. Griffin asked if he could talk to Rao, an
IPSSEU delegate. Nagle agreed but also informed Grif-
fin he would get his final check. The check was pre-
pared and given to Griffin before he finally left the
Swingline premises that day.
Griffin testified that when he reported for work his
second day of employment, in mid-August, his timecard
was missing, and on referral to the personnel department
was told by Nagle that he was fired but given no reason.
According to Griffin, after Lavelle of IPSSEU interced-
ed with Swingline, he returned to his job 2 days later. 2
Griffin asserts he campaigned for IPSSEU from the
beginning of his employment, but did so on work and
lunch breaks. He acknowledged that once, in his third
workweek, Sloane advised him not to speak about unions
during working hours, but denies that he did so. On an-
other occasion, in September, Griffin claims that Richard
Mateo told him he did not want Griffin to be speaking
for IPSSEU if he wanted his job. Griffin states he was in
the personnel office and Industrial Relations Manager
Nagle was seated at a desk 3 yards away. Barrington
Biggs, a fellow employee, who Griffin placed with him
II Griffin should have been back at work at 11:30 a.m., after his lunch
break.
i2 This alleged series of events is not supported by Griffin's earning
record card which shows 5 consecutive workdays. totaling 37 hours his
first workweek with no overtime hours-the only week in which Griffin
worked 5 days. Neither Sloane nor Nagle supported Griffin's story of
early discharge and rehire Griffin does not claim his separation at the
time is discriminatory and neither the complainant nor General Counsel
urges a finding of violation As Griffin's testimony is not supported by
the evidence. I do not credit him in this regard
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the time, testified about a similar incident but did not
support Griffin's version of the location or of the con-
versation. Biggs testified, after his recollection was re-
freshed by reviewing his Board affidavit, that in the
afternoon "coming near up to my break" while he and
Griffin were conversing in the hallway between the cafe-
teria and personnel offices, Mateo came up and said he
did not want any union matters discussed up there on the
working premises at the time. Biggs did not recall any
implied threat. Mateo denied ever telling any employee
he would lose his job for supporting either union. Grif-
fin's version, not supported by the employee who partici-
pated in the conversation, is not credited.
Griffin also testified that a week before the election,
on October 19, Nagle informed him that the coming
week would be his last. Griffin says he replied that if
IPSSEU wins the election, he would be contradicting
himself. Again, Griffin placed Biggs with him at the time
in the personnel office. Yet, Biggs did not recall any con-
versation with Griffin and Nagle present and denied
hearing any supervisor or foreman voice support for
either union. Nagle did not recall this conversation but
did not deny that he was prepared to fire Griffin at the
time because of his leaving his work area and record of
poor attendance but had second thoughts, not wanting
any problems close to the election (after having appar-
ently been prevailed upon by IPSSEU) and kept Griffin
until the incidents described the day following the elec-
tion. Accordingly, I credit Griffin that such a conversa-
tion did take place, but even Griffin does not claim that
during it, Nagle uttered any discriminatory remarks or
that he, Griffin, questioned Nagle as to the reason for his
planned discharge, a rather odd omission for an employ-
ee who urges that his ultimate discharge was discrimina-
tory. ' 3
As earlier noted, Griffin's denial that he observed Re-
spondent's work rule regarding electioneering on work-
ing time was contradicted by a significant number of em-
ployee witnesses,' 4 as well as three Swingline repre-
sentatives. Griffin's known propensity to proselytize in
the plant had become notorious and even led to fears on
the part of Teamsters employee adherents that engaging
Griffin in union related conversations could have serious
consequences since the Company must have known of
Griffin's activities and by failing to rein him in it was ap-
pearing to favor IPSSEU. Griffin was in other respects
as well a particularly unsympathetic and untrustworthy
"3 Nagle did testify that he recalled talking once with Griffin, either
inside his office or directly outside, about the problems of not only Grif-
fin's latenesses and absences but also his unauthorized leaving of his work
area. Nagle told Griffin that he had to knock it off, that he was there just
as any other employee without special privileges. Nagle added that he
had heard Griffin was going around talking to people working a power
press and he was therefore endangering their safety. Griffin was not
called on rebuttal to respond to this conversation or any of the others
previously cited.
14 Griffin and Vaughn, the other August IPSSEU employment refer-
ral, were the only two witnesses to claim that Mateo had solicited votes
for the Teamsters by shouting "vote for 808" with a raised arm as he
directed employees to the polling area in the hallway of the main floor of
the Skillman Avenue plant on October 25. More than two dozen wit-
nesses called by the Teamsters who had voted during many different time
periods that day testified that Mateo engaged in no electioneering and no
shouting for the Teamsters but only directed them to the polling area.
witness. Griffin provided three different versions of his
initial firing by Nagle, first stating on direct that Nagle
did not give him any reason for his firing, then testifying
for the first time on cross-examination after confronted
with his pretrial affidavit, in which he swore that "I did
not ask why I was fired and he didn't tell me" that he
had indeed asked Nagle why he had been fired but had
not received any reply. Contrary to documentary evi-
dence introduced by Respondent showing receipt by
Griffin of his last pay check on Friday, October 26,
which he endorsed in blank, was in turn endorsed by
Vaughn and was cashed the same day, Griffin swore he
had not been to work on October 26 but had instead re-
ceived permission directly from Nagle to be out to
Monday, October 29, because of his wife's hospitalization
and had been fired on October 29. Contrary also to over-
whelming testimony to the contrary by employee wit-
nesses who saw Griffin in their departments, in the plant
hallways, and in the street on election day, holding and
using a megaphone or similar device to amplify his voice
while soliciting votes for IPSSEU, Griffin's denial that
he had or used a bullhorn on election day campaigning is
more than suspect, it is not worthy of belief. I5 Based on
the foregoing, I do not credit Griffin's version of the
events which precipitated his discharge.' 6 In particular,
I also do not credit Griffin's claim that, because his
home had burned and his wife was hospitalized while
pregnant, he had received permission from Nagle to
report late for work indefinitely starting the first week in
September while he picked up his daughter at an aunt's
house daily and took her to a babysitter. Apart from all
the foregoing indicia of an unreliable witness, Griffin's
apparent interpretation that his domestic problems gave
him license thereafter to report late and remain absent
from time to time without further requests or confirma-
tions that such permission continued is not believable.
Nagle denied that he ever indicated to Griffin that it was
perfectly okay for him to come in whenever he pleased
at any time he liked and in his own words stated that
while he had no specific recollection, he would not have
been so lenient as not to tell him at the same time that he
was expected to shape up.
Resolution
Griffin's failure to comply with the ordinary and
normal rules governing an employment relationship left
him vulnerable to discharge. An employee with Griffin's
abysmal attendance record over such a short period of
time can derive little comfort from the fact that his em-
15 Vaughn testified that he obtained batteries from someone in person-
nel, specifically denied by Nagle, in order to fix the megaphone which he
had in his possession for use by IPSSEU supporters on election day.
While Vaughn also testified the device did not work mechanically, it
would appear that such a device could very well amplify sound manually
merely by virtue of its design. Furthermore, a photograph introduced in
evidence depicting Griffin from the rear gesticulating in the middle of the
street outside the plant at midday of the election shows Griffin's right
hand raised holding literature and Griffin's left hand with forefinger
curled toward a taut thumb, a gesture consistent with the grasping of
such a device, but not at all consistent with holding or blowing a whistle,
another item witnesses recall Griffin using that day.
,' Including Griffin's assertion that Nagle discharged him on October
29 because he had campaigned for Local 222
THE SWINGLINE COMPANY. ET AL. 709
ployer was well aware that he was spending considerable
time while on its premises engaged in solicitation of sup-
port for IPSSEU in the upcoming representation elec-
tion. The fact is that this employer went to great lengths,
well beyond what could be appropriately held to be rea-
sonable, in exercising restraint toward Griffin for his ab-
sences, tardiness, and leaving the workplace during the
day. Respondent's industrial relations director testified
that the Company wished to avoid problems with the in-
cumbent IPSSEU during the preelection period while
the existing contract continued to be administered on a
daily basis. While one can question Respondent's failure
to act sooner, there is no basis for attributing any dis-
criminatory motive to Respondents' 7 when Nagle finally
concluded as a consequence of the events on the day fol-
lowing the election that matters had finally gotten out of
hand with respect to Griffin. Thus, in accordance with
the standards recently announced in Wright Line, a Divi-
sion of Wright Line, Inc., 251 NLRB 1083 (1980), the
General Counsel has failed to make a prima facie show-
ing sufficient to support the inference that protected con-
duct was a "motivating factor" in Respondents' decision.
While Respondents' flexible no-solicitation policy was
adopted and transmitted orally, it is nonetheless a valid
exercise of employer authority, the enforcement of
which cannot be held to be an interference with employ-
ee Section 7 rights. ' When Nagle finally acted after the
election to terminate Griffin's employment basing his de-
cision on an accumulation of incidents and conduct by
Griffin at least in part exhibiting a willful violation of a
valid company rule prohibiting union solicitation during
work time, Respondents acted well within the law. ' 9
Without being obliged to make such a showing, Re-
spondents have established that they would have dis-
charged Griffin even in the absence of any protected
conduct in which he engaged during the course of his
solicitations. I accordingly conclude that Griffin's dis-
charge did not violate Section 8(a)(l) and (3) of the Act
and that these complaint allegations should be dismissed.
C. The Various Incidents of Alleged Interrogations,
Warnings, Threats, Promises of Benefit, and Union
Solicitations
These incidents may be appropriately separated into
three categories; (I) conduct which preceded the filing
of the petitions;20 (2) conduct engaged in during the
17 Griffin has not been credited as to any of his claims that Respond-
ents warned him to refrain from union activity in the plant on his own
time, conduct which may have independently violated the Act and may
have provided some basis, however slight, for a showing of hostility
toward Griffin for the exercise of protected concerted activity. Further-
more, the relevant complaint fails to allege any such threat or warning
directed toward Griffin.
18 There has been no showing that the rule was adopted for an illegal
purpose or was enforced in a disparate manner. As shown, Nagle even
acted against supervisors to abort managerial involvement in the election
campaign when circumstances and the proofs warranted.
'O See Whitcraft Houseboat Division, North America Rockwell Corpora-
tion, 195 NLRB 1046 (1972); Clear Lake Hospital, 223 NLRB 1 (1976)
20 Prepetition conduct may not itself form the basis for setting aside
the election, The Ideal Electric and Manufacturing Company, 134 NLRB
1275 (1961), even though it may lend meaning and dimension to related
post petition conduct. See Dresser Industrres. Inc., 231 NLRB 591 (1977).
critical period alleged by IPSSEU in its charge and elec-
tion objections referred for hearing; (3) conduct prior
to2 ' and after the election alleged by the Teamsters in its
charge.
i. Prepetition conduct
The petitions in Cases 29-RC-4568 and 29-RC-4569
were filed on July 30. At the end of May, Rosa Rivera
testified she had a conversation with Jose Colon, a fore-
man's helper. At the time, Rivera, an inspector of elec-
tric tacking machines, was present with a few other em-
ployees at the workplace in the morning while some
tables were being set up. The employees started to dis-
cuss the union campaigns. Colon, who was present,
asked Rivera which of the two she liked. Before Rivera
responded, Colon told her he liked the Teamsters but
could not say it only because of the position he held.
Rivera did not recall her reply. Then, sometime in June,
as Rivera was entering the plant about 7 a.m. to begin
work, while holding a piece of literature distributed by
IPSSEU, Colon was standing near the timeclock observ-
ing a group of employees who had lined up to punch in.
When he saw her, Colon asked, "Why are you carrying
that garbage for? What do you need it for?" Rivera re-
plied, "we're in a free country and I can carry any kind
of paper I like and continued on into the plant."
Respondents in their answer admitted the status of
Colon and another general foreman's assistant, Migdalia
Ocasio, as supervisors under the Act. A number of em-
ployees who testified also placed Colon as well as Ocasio
in the posture of front line supervisors in the assembly
department who oversee the work of employees under
them, assign them work, direct them in their jobs, and
see to it that they comply with various work rules; for
example, seeing to it that they punch in at the beginning
of the workday as did Colon in the incident just de-
scribed. Furthermore, both Colon and Ocasio, as well as
all other foreman and supervisors of Respondents, had
been called to supervisory meetings and instructed to
remain neutral during the campaign,22 a fact to which
Colon himself alluded in the May conversation with
Rivera and which constitutes another indicia of their
status with Respondents. I conclude that Colon and
Ocasio at all times material herein were supervisors
within the meaning of Section 2(11) of the Act. I also
credit Rivera's testimony, particularly in light of Re-
spondents' failure to call Colon to rebut.
Resolution
At first blush, Colon's May inquiry and even his June
exclamation appear to lack the coercive impact normally
associated with unlawful interrogations or similar re-
straining remarks. Colon is a low-level supervisor, his
21 This conduct forms no part of the objections referred to hearing
22 In either September or October. Ocasio informed employee Maria
Bueno, an employee in electric stapling, that the office had called her in
and other supervisors and line leaders and told them that they would lose
their jobs if they said anything about the election. Just after the election,
Ocasio took Bueno aside and said I just wanted to let you know that I
was for 808, but I did not want to talk about it because my job was at
stake.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May questioning took place on the plant floor, informal-
ly, in the context of an employee initiated union related
conversation, and without any evidence of threats of
reprisal or promises of benefit. However, as noted re-
cently by the Board, even inquiries of this nature "con-
stitute probing into employees' union sentiments which,
even when addressed to employees who have openly de-
clared their union adherence, reasonably tend to coerce
employees in the exercise of their Section 7 rights."2 3
The second remark, in one sense, was a registration of
personal feeling by the same low-level supervisor unac-
companied by either threat or promise. Yet, here too the
Board has commented in a like situation that neither the
opinion nature of a warning nor the speakers' low-level
status are conclusive since employees to whom they are
directed can reasonably assume that the supervisor is
privy to the decisions of Respondent's management.2 4 I
conclude that Rivera did not take Colon's statement as
representing Respondents' position on the matter in light
of its recent letter of neutrality, 25 and, further, in light of
Rivera's personal knowledge of the restraint Respondent
had placed on Colon implicit in Colon's final statement
during his inquiry at the end of May. However, Colon's
remarks conveyed Colon's displeasure with her union ac-
tivity and was an attempt to discourage further activity
of like nature. Even though not necessarily representing
the highest authority in the plant, it could serve reason-
ably to dissuade even so committed an adherent as
Rivera from courting the continued displeasure of her
immediate superior. I therefore find that these prepetition
items of conduct constitute an unlawful interrogation and
warning, in violation of Section 8(a)(l) of the Act.
2. Conduct during the critical period
Rivera further testified that one day in mid-September
she did not report for work but instead attended an off-
premises meeting held between IPSSEU representatives
and Swingline in the capacity of a member of the
IPSSEU employee committee, at which the parties dis-
cussed IPSSEU's apparent demand that Respondents
continue negotiations for a renewal agreement in the face
of the then pending Teamsters petitions. Between 35 to
45 employee committee members attended. It was Ri-
vera's recollection that the Swingline spokesman, Her-
bert Carr, vice president of manufacturing, informed
IPSSEU representatives that if the Union could prove
that the employees really wanted to continue its repre-
sentation, the Company would continue negotiations. In
any event, Rivera returned with the other employees in
two chartered buses to the Skillman Avenue plant at the
close of the dayshift at 3:30 p.m. and, at the direction of
IPSSEU representatives and along with other IPSSEU
committee members, commenced to approach employees
in their departments leaving work as well as employees
23 PPG Industrres Inc., Lexington Plant, Fiber Glass Division, 251
NLRB 1146 (1980), expressly overruling to the extent inconsistent there-
with Stumpf Motor Company, Inc., 208 NLRB 431 (1974), and B. F
Goodrich Footwear Company, 201 NLRB 353 (1973).
24 Id. at 1436. Nevertheless, Rivera's reply demonstrates that this criti-
cism of employee alignment with IPSSEU did not have the effect which
may have been the reasonable tendency of the remark.
25 Cf. Walgreen Co., d/b/a Globe shopping Cirv, 203 NLRB 177 (1973).
arriving for overtime to sign cards to have IPSSEU con-
tinue to represent them. As Rivera was handing out the
cards, Myllan, a general foreman in the electric tacking
department, asked her who had given her permission to
give out the cards. Rivera told him she did not need per-
mission because the Union was negotiating with Swing-
line. Colon, who was also present, told her she should be
working. Myllan then asked her to stop, also told her she
should be at work and that he needed people specializing
in jobs then being performed 26 and that there was a lot
of overtime work available. When Rivera refused to
cease her activity Myllan left, but Colon, who remained,
angrily exclaimed in the presence of at least 10 other em-
ployees "look at her, she wants 808 and now she is get-
ting the signatures for 222, so, she should be ashamed."
Rivera said she then became nervous and left.
Later, toward the end of September, as Rivera was
talking with a few other employees during their break,
including Antonio Stevens, electrical tacking chief in-
spector, Colon came up and addressing Stevens stated,
"You people are from the 222 committee, when is the
date of the election?" Colon added that everyone had
been asking him when the date would be and he had told
them not to ask him but rather the Local 222 committee
members who should know. Rivera understood that
Colon's remark had really been intended for her since
she was the only person who was a member of the Local
222 committee and she believed he would choose not to
address her directly because there had been a falling out
between them lately, apparently since the earlier inci-
dent. Accordingly, Rivera, addressing her remarks to
Stevens, said we do not know the date, and its selection
is a decision of the Department of Labor. Rivera testified
that at this point Colon said that 808 should win, that the
employees should vote for 808 because if 222 won, the
Company would lay off all the 808 supporters.2 7
Then, a day before the election, October 24, just
before quitting time, about 3 p.m., Rivera was at a work-
table where approximately six other employees were
seated assembling and wiring electric tackers. Colon
came up, and screamed, "Tomorrow, you know what
you have to do so the s- of a b- will no longer be
laughing at you, to be making fun of you." I also credit
"6 The testimony at this point in the record is not clear, in part at least
because of the employment of an interpreter to translate the questions put
to Rivera into Spanish and her Spanish answers into English. Certain
errors in the transcript are hereby noted and corrected.
27 The witness' testimony here illustrates the problems which are
sometimes encountered when the testimony is filtered through the trans-
lation process. Thus, Rivera testified about Colon's statement regarding
layoffs three times. The first time, on direct examination by General
Counsel, the translator probably erred in failing to repeat precisely the
witness' answer given in Spanish. Nevertheless, the substance of Colon's
remarks is apparent. On cross-examination by Teamsters counsel, Rivera
responded positively to a question which in my judgment constituted a
proper clarification of Colon's comment. Finally, it could be argued that
on examination by IPSSEU counsel, the answer now had a different em-
phasis, for example, a change from Colon making a suggestion to now
directing employees to vote for 808. Yet, the witness appeared to be
trying to explain Colon's intent and not the words he used. I have cred-
ited Rivera, again particularly in the absence of any contrary evidence
and on the basis of her generally trustworthy demeanor and effort to tes-
tify carefully in accordance with her best recollection, in a version which
is a synthesis of the three and which I conclude best represents what
Colon in fact said.
THE SWINGLINE COMPANY, ET AL. 711
Rivera's testimony in this regard, Colon never having
been called as a witness by Respondents.
Another employee, Consuello Arbreu, an assembler,
testified that after voting in the election at 11:30 a.m.,
while walking back to her workplace with another em-
ployee, she overheard Colon and Ocasio in Spanish ask a
group of four or five employees from the same depart-
ment, who also had just voted, if they had done what
they had been told, and voted for Local 808. Abreu also
testified for the first time on cross-examination that after
the election, on October 25, Colon stated to employees
that if 808 won a lot of people from 222 would be
thrown out. She also testified, in accordance with and
after having been read a portion of her pre-trial affidavit,
that at no time did she hear Colon say the employees are
to vote for 808, or that if 222 won the election employ-
ees will be discharged. Abreu then contradicted herself
and testified that such comments were made by Colon to
a group of employees but after December 18, the date of
her affidavit. She next contradicted herself again to say
only herself and the employee who had accompanied her
from the polling place had heard these remarks. Abreu
contradicted herself yet again by indicating that the
statement regarding layoffs if 222 won was phrased
rather in terms of layoffs of 222 adherents if 808 won,
and that this statement, the one she had attributed to
Colon on October 25, was made perhaps 2 months after-
ward.
I cannot credit such confused testimony and will, ac-
cordingly, disregard Abreu's allegations, including an-
other in which she claimed Teamsters observers told
voters how to cast ballots by holding the printed ballot
which they handed to voters with the fingers of their
hand placed on the box showing the Teamsters as one of
the choices.
Employee Irma Jachez testified that at the beginning
of October, she overheard Colon tell another employee,
Rufino, in the assembly department, that there would be
an election, that a new union was coming in, and there
would be better benefits than those under Local 222.
Jachez heard Rufino reply that he was going to vote for
222, because that is the one he liked better.
Jachez also testified that 2 or 3 days later she heard
Colon tell a new woman employee seated at a worktable
5 or 6 feet behind her that there was going to be a new
union at work because the union that was there before
had never done anything for the Swingline employees,
that they never gave any benefits at all. Jachez denied
that Colon had told the woman to vote for Local 808.
Edward Rivera, secretary-treasurer of Local 222,
IPSSEU, testified about an altercation with Marcel
Zommer, Swingline's plant engineer in charge of the
maintenance department, during which he alleged
Zommer attacked him physically and verbally in the
presence of employees and warned employees not to sup-
port IPSSEU but rather to assist the Teamsters. Accord-
ing to Rivera, sometime in late September, while some
maintenance employees were on lunchbreak between
11:30 a.m. and 1 p.m. he joined them in the cafeteria and
discussed various work problems they were having with
Zommer. Rivera was accompanied by Theresa Rodri-
guez and Alfredo Duenas, IPSSEU business representa-
tives. After 15 minutes, Zommer entered the cafeteria.
As alleged by Rivera, Zommer, uninvited, came over
and sat down a few feet from the table at which he and
about five employees were talking. Zommer's presence
caused a suspension of the conversation. Rivera asked
Zommer to leave because he was part of management
but Zommer refused, saying he had the right to be any-
where because he was a boss. Rivera then told him to
get lost, but rather than leaving, according to Rivera,
Zommer then interjected himself, commented about the
high cost of Rivera's suit, again refused to leave, and
then told the IPSSEU representatives they were not
going to be around, that there was no reason for the
people to talk to Rivera because their time was coming.
At this point, as related by Rivera, Zommer got a little
angry and grabbed Rivera's jacket lapel as he rose from
his seat. Rivera grabbed Zommer's front in turn, pushed,
and both went down with Rivera on top. Theresa Rodri-
guez then came between them. Zommer screamed he
was going to call the police and that he was going to kill
Rivera. Rivera added that right after the incident
Zommer said he was going to make sure that 808 would
win the election because we were a bunch of goons.
Zommer then left the cafeteria. When Rivera was then
asked on direct examination whether this last comment
about 808 was made before or after Zommer grabbed
Rivera. he now testified that while seated Zommer had
also commented directly to the employees that Local 808
was a better union than Local 222 and he recommended
the former. Rivera further testified that Zommer re-
turned after about 10 minutes just as Rivera was leaving,
repeated his earlier comments that he was going to
throw us out and tell the people to vote for Local 808,
and when Rivera told him to stay away from him,
Zommer told Rivera he had a gun and was going to
shoot Rivera. Rivera then left but on the way out saw
Nagle and briefly spoke with him about the incident.
The Teamsters called a maintenance employee, Mialan
Koscika, a member of the Local 222 employee negotiat-
ing committee, who also testified about the incident.
Koscika placed the time as 2:30 p.m. when maintenance
employees take their afternoon workbreak. The lunch
periods had concluded. Rather than there being 250 to
300 employees in the cafeteria as claimed by Rivera,
Koscika placed the number at or about 30 or 35, some of
whom were employees just arriving to start the night
shift. Koscika placed two employees at one table with
Rivera and another group of three at a second table.
After a discussion of grievances against Zommer, includ-
ing claims that Zommer treated and paid fellow Ruma-
nians better than he did others in the department,2 8
Zommer entered the cafeteria, Rivera saw him and
called him over saying I want to talk to you. Zommer
sat down at the next table and asked, "about what."
Rivera said, "how you treat these people." Rivera also
told Zommer that the people had him up to here, in ref-
erence to complaints about his treatment of the workers.
Zommer said if you want to talk to me do it in my
office. Rivera then insisted on Zommer discussing his
28 The witness testified mostly in English, with an interpreter in Serbo-
Croatian present to assist in translating as necessary.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
treatment of these employees right there. Zommer de-
clined, saying, "I am sorry no, I don't want to talk with
man who wears suit three or four hundred dollars."
Rivera responded, "Don't b- s- me, you have a sweat-
er, $50, $60, you are rich too." As related by Koscika,
Rivera at this moment rose and grabbed Zommer by his
shirt front and while doing so caused Zommer's eye-
glasses to fall to the floor and Zommer's chair to fall
over. In grabbing Zommer, Rivera's hand also grazed
Zommer's face and caused a slight scratch on Zommer's
cheek. Zommer told Rivera to pick up his eyeglasses.
Rivera refused but grabbed Zommer's front again saying,
"I grabbed you over here, not where your glasses are."
At this point, a Rumanian maintenance employee, came
between the two, separated them, and Zommer left. Kos-
cika remained for 10 minutes to the end of his break and
when he and the other employees left, Zommer had not
returned. Koscika did not recall any other comments by
either of the two main participants. When asked specifi-
cally, he recalled Theresa Rodriguez being present and
that she tried to keep Rivera quiet. Koscika's careful,
straightforward presentation was impressive. He was also
able to identify each of the employees who was present
during the incident, by full name or nickname. On cross-
examination by both General Counsel and IPSSEU
counsel, his recital was consistent with his direct exami-
nation in all major respects. The point that stayed with
Koscika and the other employees present after the inci-
dent was that Zommer had appeared to be motivated by
a desire to show the workers he was not afraid of
Rivera. That characterization is consistent with Zom-
mer's baiting of Rivera and his response to Rivera's
physical attack. Yet, at no time did Koscika suggest that
Zommer had started the fight or had cursed Rivera or
warned employees they should support the Teamsters. In
fact, according to Koscika, no unions were mentioned
during the whole incident.
It is noteworthy that no employee witnesses were
called to corroborate Rivera's account.2 9 Koscika had
been a supporter of IPSSEU. His testimony against its
interests is entitled to greater weight on that factor alone
than Rivera's self-serving interest in showing conduct of
Respondents' supervisors warranting a reversal of the
election outcome. In contrast to Koscika's evenhanded
recital, Rivera attributed rther coercive statements to
Zommer after his initial narrative. His failure also to de-
scribe in detail his chance encounter with Nagle makes
suspect his claim that Zommer twice threatened him
with bodily harm. Such a threat would normally have
elicited an effort to restrain Zommer by peaceful means.
Yet, Rivera failed to testify that he even reported this
matter to Nagle, much less that he sought police protec-
29 When, at the close of the hearing, Rodriguez had been unable to
appear on behalf of IPSSEU as scheduled, its counsel sought and ob-
tained an all party stipulation that if she had testified with respect to the
Rivera-Zommer incident, her testimony would have corroborated the
story and facts as related by Rivera. While I received that stipulation in
evidence, it cannot substitute for my personal observation of the witness
during her direct and cross-examinations as basis for determining credibil-
ity. Further, that stipulation in effect requires that I view her corrobora-
tive testimony in the same manner as that of Rivera. I cannot give it any
greater weight. Therefore, to the extent I find Rivera's version lacking in
verisimilitude, her stipulated testimony cannot change that conclusion.
tion. In my judgment, it would have been far more likely
that Rivera rather than Zommer would have initiated the
effort to involve Zommer in the problem airing as a way
of demonstrating to the employees before the election
the effectiveness of IPSSEU in enforcing the contract
and employee protections, and further, far more likely
that Zommer would refuse to be drawn in, rather than
that Zommer would have himself then initiated a dispute
with the IPSSEU delegate. Based on the foregoing, as
well as my close observation of the two witnesses who
did testify to the matter,3 0 I credit Koscika. I do not
credit Rivera's version, and I conclude that no directions
to employees to assist the Teamsters and refrain from
supporting IPSSEU took place on this occasion.
Employee Rogers Ivy, a staple machine inspector,
called as a witness by counsel for the Regional Director,
testified that on October 25, the day of the election, as
he and a small group of workers were talking about the
election, Joe Bodai, a foreman in the assembly depart-
ment,3 1 came up to them and made a comment. Ivy had
just told the others it would be best if they vote for 222.
Bodai commented 222 "would do the same thing they
did the last 26 years for us and not give us nothing." He
said this was his own opinion. This comment is not al-
leged in the complaint but is included in the objections
alleged by IPSSEU. Bodai did not testify. I credit Ivy.
As earlier noted, the status of Richard Mateo as a su-
pervisor is in dispute. First employed by Swingline in ap-
proximately 1974, he has been employed in one capacity
or another by the personnel department for the last 4
years. By January 1979, Mateo had become a personnel
clerk. Like other employees Mateo punched a timeclock
and was paid hourly. His duties included showing new
employees to their work stations, arranging for locker is-
suance, introducing them to their foremen, acting as in-
terpreter for Spanish-speaking job applicants, administer-
ing first aid, listening to employee complaints, and assist-
ing in security arrangements. Gradually, beginning in
August and ending in November, Nagle groomed Mateo
for greater responsibility as a personnel interviewer. In
August, Mateo started to make recommendations for
hire, particularly of unskilled applicants, with Nagle re-
taining final authority to accept or reject Mateo's advice.
Nagle testified that as time went on and he determined
that Mateo's judgment in these matters was maturing, he
came to accept Mateo's recommendation 80 percent of
the time. Furthermore, Mateo exercised the responsibility
of making independent hiring decisions with respect to
approximately 30 percent of the unskilled applicants.
During this same period of time over the summer and
the fall, Swingline was hiring unskilled labor at the rate
of five per day.3 2 Upon Mateo's promotion to interview-
30 1 am not unmindful of the fact that Zommer did not appear to deny
Rivera's allegation. It could be that after Koscika had testified as a Team-
sters witness, Respondent's presentation coming last, company counsel
determined his appearance was unnecessary. In any event, Koscika wit-
nessed the full affair and his version is entitled to the far greater weight.
:I Respondents admitted his supervisory status under the Act.
12 Mateo, not present during Nagle's testimony. minimized his own
hiring and recommending for hiring functions prior to November. His
recollection of effectively recommending as few as four unskilled appli-
Continued
THE SWINGLINE COMPANY, ET AL. 713
er in November, he was given full authority to hire all
unskilled employees.
In addition to Mateo's hiring role, he appears to have
represented Swingline on occasion in dealing with
IPSSEU representatives in Nagle's absence or unavailabi-
lty in resolving minor grievances and complaints to a
greater extent than Nagle was willing to attribute to
iim. 3 3 Furthermore, even if Mateo's role as company
epresentative in dealing with employees directly was
imited, from time to time he appears to have acted in a
Supervisory role or, at least, in a posture in which em-
ployees could reasonably infer that Mateo represented
and spoke for supervisory authority. 3 4 Thus, e.g., Mateo
directed Griffin to return to his workplace and to cease
violating the Company's no-solicitation rule when in-
formed of Griffin's absence by his immediate supervisor,
and Mateo informed employee Jackie Miles that if his at-
tendance and tardiness did not straighten up, he could
not save his job anymore.
Respondents, in their brief, and the Teamsters during
the hearing argued that Mateo did not enjoy supervisory
status, primarily because his hiring recommendations and
hiring of a portion of unskilled workers were hedged in
by specific company guidelines which made his process-
ing of applicants a routine enterprise lacking in the exer-
cise of independent judgment. I cannot ascribe so limited
a role to Mateo's employment activities, particularly in
light of Nagle's frank appraisal that as Mateo's judgment
became more seasoned, he permitted him a wider lati-
tude in making independent decisions on hiring without
requiring consultation on each applicant, and, further,
that in borderline situations, it was Mateo's initial deci-
sion whether to consult Nagle at all. The guidelines also
were oral and not so specific as to remove Mateo's exer-
cise of independent judgment in making hiring recom-
mendations and decisions. 3 5 For the foregoing reasons I
conclude that Richard Mateo, at all times material
herein, was a supervisor within the meaning of Section
2(11) of the Act.
Griffin's claim that in September Mateo threatened
him with discharge for soliciting IPSSEU support on his
own time has already been discredited. Another employ-
ee, Enrique Cartagana, testified that a week before the
election while he and Mateo were alone in the cafeteria
he asked Mateo what he thought about the election.
Mateo replied that 808 was going to win and that Carta-
gana should vote for 808. Cartagana, who later was an
IPSSEU observer at the election, merely replied okay
and that ended the exchange. Employee Jackie Miles tes-
tified that he went to vote on October 25 at p.m. with
a group of about 20 other fellow employees from the as-
cants prior to November must be held to be faulty to a major degree In
view of the significant exercise of these roles attributable to him by his
immediate superior, Industrial Relations Director Nagle.
3 Even Nagle agreed that he had issued no specific instructions to
Mateo as to which minor employee problems he could handle indepen-
dently
34 I am not unmindful of the fact that in the perception of at least one
employee, Enrique Cartagana, Mateo was not considered a boss prior to
the election.
35 These responsibilities and the use of independent judgment they cil-
tailed readily distinguish the cases cited by Respondents at page 15 of
their brief
sembly department. He was at the rear of the group
about 15 feet behind them as he came down the rear
stairway from the second floor work area and saw
Mateo standing at a point where the hallway on the main
floor leading from the area where the employee cafeteria
and personnel offices are located makes a right angle
turn toward the voting area.3 6 As he passed by this
point with no one else within earshot, Mateo and Miles
first exchanged greetings and then Mateo asked Miles
who he was going to vote for. Miles responded that is a
secret. Mateo responded, "You know, we are friends."
Miles then said he was voting for 222, to which Mateo
replied, "I don't want to hear that." Miles proceded on
to the polling area.
Mateo denied making either of these comments to Car-
tagana or Miles or engaging in any solicitations, interro-
gations, or threats to any employees. While I have previ-
ously credited Mateo with respect to his exchange with
Griffin in September, as to these exchanges I credit Car-
tagana and Miles. Miles was friendly with Mateo, having
played with him on the Swingline softball team, and it
would have been logical for Mateo to have initiated the
interchange and to have followed up with his friendly in-
quiry, and even his final comment was not out of charac-
ter for a personnel functionary with Mateo's responsibil-
ities and predilections. 37 Miles, who had to have his rec-
ollection refreshed with respect to Mateo's comments
concerning saving his job in the past, was otherwise
direct and straightforward in his presentation. Cartagana,
who did not consider Mateo a boss and who testified he
sought Mateo's union opinion in the cafeteria, also did
not prevaricate and made a believable presentation.
A major IPSSEU allegation in the objection proceed-
ings is that Mateo engaged in outright verbal electioneer-
ing in favor of the Teamsters while stationed in the hall-
way as employees passed by him on the way to vote.
This claim was supported by only 2 of the 28 employees
who testified as to Mateo's behavior at the intersection
of the two corridors as they proceeded to vote at various
times while the polls were open from 6 a.m. to 5 p.m.38
These two witnesses were Griffin and Vaughn.
Griffin testified that as he passed by the intersection at
or about 2 p.m. on the way to vote with approximately
100 packing department employees walking ahead of
him, he saw Mateo, seated on a chair, raise a clenched
fist and proclaim "Vote for 808." Earlier in the day, at
his lunchbreak, Griffin along with Biggs and another
is Respondents had constructed a hallway leading to the voting area in
a rear section of the factory floor by placing bailed wire on both sides of
an open work space to form a passageway of some 50 feet from Mateo's
position to the voting area Mateo had been assigned by Nagle to direct
employees to the voting area as they were released in turn by department
to vote oer the time the polls remained open. The assignment was made
after Nagle had received reports early that morning that employees had
been attempting to enter the polling area through the corridor Nagle de-
termined to strictl control access by having Mateo check personal iden-
tification (identity badges having been issued to all employees the previ-
ous day) and to monitor the movement of employees in accordance with
the release schedule to prohibit loitering and confusion.
': As stated earlier, Mateo had unnecessarily and erroneously sought
to minimize to an extravagent degree his hiring role during the preelec-
tion period His credibility thus left something to be desired
'" See fn
34, upr.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
friend stood outside the cafeteria near the men's locker
room and saw Mateo make a similar gesture with his first
as hundreds of employees passed by to vote but was too
far away to hear any remarks. Significantly, Griffin
could not identify any of the hundreds of employees or
their departments as they proceeded down the hall ap-
proximately 50 feet away within viewing distance. Also
significantly, Biggs did not corroborate Mateo's gestures
or speech. He testified that neither Mateo nor any other
foreman or supervisor spoke in his presence in favor of
one union or the other, although he was in the cafeteria
with Griffin a good portion of the day.
Biggs' experience was similar to a number of other em-
ployees who testified that Mateo acted in an evenhanded
manner in enforcing Respondents' procedures for voting.
Biggs himself was turned back by Mateo because he did
not have a clip for his I.D. badge, which he produced
from his wallet. After procuring a clip so he could dis-
play the badge, Biggs passed Mateo a second time to
vote without incident. Other employees were admon-
ished by Mateo to stay out of the area after they had
voted, asked to show their identification, or directed to
the proper exit to their department as they passed him by
a second time after casting their ballots. Three employ-
ees, Carl Espinal, Marcos Quijije, and Roberto Buergos,
as well as Mateo, all corroborated the facts concerning
an incident arising during the same period to which Grif-
fin testified, between 1:45 and 2:15 p.m. As these em-
ployees, among a group of 30 from the assembly depart-
ment, went by Mateo, Espinal, when about 20 feet from
Mateo, shouted out in Spanish, "vote for 808" while
thrusting his right first upward. Mateo motioned Espinal
over, directed him to cease such conduct and to keep
quiet, and, after receiving an apology from Espinal, sent
him on his way.
Vaughn testified that he also had been sent back by
Mateo because he did not have his I.D. tag when he
went to vote at 9 a.m. with 15 other employees. But
Vaughn swore that just before he was stopped, Mateo
clapped his hands and intoned "808, 808, 808."3 9 How-
ever, on cross-examination, after having been shown his
pretrial affidavit in which he had sworn that Mateo had
raised a clenched fist, Vaughn was uncertain whether the
gesture was clapping or a raised fist but was sure that
Mateo did something with his hands. Vaughn was also
the only witness who insisted that 808 representatives
were using a megaphone to broadcast their message out-
side the plant on election day. Vaughn also claimed that
the personnel office supplied him with batteries for his
megaphone, further, that the Company, Swingline, had
furnished the megaphone for IPSSEU. 40 Yet, in contra-
diction to this, Vaughn denied that he had ever talked to
employees about supporting 222, or that he ever heard
Griffin do so, in spite of finally recalling seeing Griffin
outside the plant on all his breaks that day.
a9 Vaughn denied that Mateo spoke to him the second time he went to
vote when he was alone.
40 Nagle who was unusually frank and forthright in admitting that
Swingline had, indeed, been overly lax in permitting electioneering by
employees violative of its no-solicitation policy and, in particular, had
failed to control Griffin, strongly denied any breach of managerial neu-
trality as, e.g., that his office provided the batteries. I credit his denial.
Vaughn was fired the same day as Griffin, the day
after the election, after hitting another employee while at
work on election day because he "wanted to." Vaughn
said he failed to ask Nagle the reason for his discharge.
Vaughn proved also to be less than forthcoming in hi,
explanation of how he just happened to be in the neigh.
borhood of the Board's office without an appointment
the day he supplied the Region with his affidavit.
Given the inconsistencies and incongruities in the testi-
mony of Griffin and Vaughn, and having previously dis-
credited Griffin with respect to the events relating to his
discharge, and in light of the overwhelming testimony
regarding Mateo's proper conduct during most hours of
the election, including the times alleged by Griffin and
Vaughn, I conclude that their stories regarding Mateo's
gesture and shouts for the Teamsters are imaginable and
I do not credit them.
I also conclude that another employee's claim that
Mateo indicated a preference for the Teamsters while di-
recting employees to the polls by raising his right hand
in the direction of the polling place toward a sign with
the legend "Vote 808" hanging on the bailed wire fence
15 to 20 feet away cannot be credited. Most other em-
ployees who were asked could not recall seeing such a
sign. The witness could identify only the gesture of a
raised hand generally extended in the same direction as
the polls and the sign as the basis for Mateo's signaling a
preference. Such a result may not be reached on so ten-
uous a thread of evidence. 4
Finally, Mateo was alleged by IPSSEU in its election
objections to have walked down 50 feet from his moni-
toring post to the election area, where, by his presence
alone in the vicinity of the polls, he may have intimidat-
ed and threatened employees casting their ballots. A por-
tion of employee Rogers Ivy's statement of October 26
was read into evidence as a past recollection recorded
when he failed to recall from it that while he was an
election observer in the voting area, he saw Mateo look
in for about 30 seconds and then leave. Mateo himself
confirmed that on two or three occasions he went down
the corridor toward the polls, once to get a Board agent
to answer a phone call and the other times for a reason
he believed related to the election but which he could
not then recall. There is no independent evidence show-
ing what, if any, impact, Mateo's momentary proximity
to the polling area had on voter independence, or if any
employees other than Ivy 4 2 saw Mateo just outside the
polling area. Given the extremely limited nature of the
evidence adduced, I am unable to find that Mateo's pres-
ence constituted a form of intimidation of employees
such as would warrant setting aside the election and rec-
ommend its dismissal, even assuming that the Regional
Director intended that this matter be heard as an alleged-
ly nonverbal warning attributed to Mateo.
41 Neither was this claim considered nor forwarded to hearing by the
Regional Director who frames the factual issues to be determined. See
Sec. 102.69 of the Board's Rules and Regulations.
42 Recall that Ivy was directed by Mateo to cease his loitering in the
corridor outside the polling place after he had voted.
THE SWINGLINE COMPANY, ET AL. 715
Resolution
While an employer may not provide aid and support
to a labor organization without violating Section 8(a)(2)
of the Act, the Board has recognized that an employer
need not remain silent when confronted with rival labor
organizations competing to represent its employees. The
employer may indicate its preference for one of the com-
peting organizations, provided it does not accompany
such statements of preference with threats of reprisals or
promises of benefit. 4 3 This standard has been employed
in determining whether the employer's statements violat-
ed Section 8(a)(1) of the Act, 4 4 as well as in deciding if
an election should be set aside.4 5 The foundation for this
rule stems from the employer's right to free speech pro-
vided in Section 8(c).4 6
In light of these cases it is clear that Colon's statement,
"vote for 808 because if 222 wins, the Company will
layoff all 808 supporters," contains a threat of reprisal
sufficient to place it beyond the protection of Section
8(c).4 7 However, the other statements by Colon, to
which Rivera testified, lack any threat of reprisal or
promise of benefit, are not otherwise coercive, and do
not violate the Act. Neither are the statements attributed
to Colon by Jachez that Local 808 would provide better
benefits than Local 222 violative, since they lacked any
threat of reprisal or promise of benefit. One might argue
that Colon's statements were implicitly indicating that
better benefits could be achieved by selecting Local 808
because Respondent would bargain more favorably with
Local 808 than Local 222, and would therefore be an im-
permissiable promise of benefit. 4 8 However, the more
reasonable interpretation of his statements is that Colon
felt Local 808 would provide better benefits because it is
a better representative. Similarly, the statement that Su-
pervisor Bodai made contained no promise of benefit or
threat of reprisal if one voted for Local 222. He merely
indicated that in his opinion Local 222 had not been rep-
resenting the employees effectively and if retained by
them would continue to do nothing-a personal opinion
as to Local 222's future lack of effectiveness. Such an ex-
pression of opinion has been found insufficient to justify
setting aside an election.
I also conclude that Mateo's4 9 response to Cartagana's
question, regarding Mateo's opinion of the unions, is not
43 See Fabriko. Incorporation, 227 NLRB 387 (1976), .41Alley Construction
Company. Inc., 210 NLRB 999, 1004 (1974); Builders Suppvly Co. of
Huston, 168 NLRB 163, 165, fn. 13 (1967), modified in other respects 410
F.2d 606 (1969); Gold of California, Inc., 123 NLRB 285, 286 (1959).
44 Builders Supply Co.. supra.
46 Alley Constructrion Co., supra.
41 See NL.R.B. v. Builders Supply, supro at 607 608.
47 See PPG Industries Inc.. supra; see also Duvernoyv d Sons. Inc., 177
NLRB 538 (1969) (Here two unions sought to represent Respondent's
employees. When a supervisor stated to an employee that "[c]an't [the
employees] see that we won't have jobs if Local 3 gets in here," the Ad-
ministrative Law Judge was affirmed in his conclusion that this statement
violated Section 8(aXl) of the Act. Id at 540)
48 See Fabriko, supra, 227 NLRB at 387, fn. 2.
49 Mateo, as noted above, has been determined to be a supervisor
under Sec. 2(11) of the Act. However, even if this were not the case, his
comments would be attributed to Respondent since his "responsibilities
put him in a position to be identified with management in the eyes of the
employees . . ." The Huntington Hospital. Inc.. 227 NLRB 316, 317 318
(1976) (Here, an individual, not even employed by Respondent, was con-
sidered to have been viesed by Respondent's employees as a mlanage-
violative conduct. Neither the content of his response
(which merely indicated his preference for 808), nor the
circumstances in which the conversation took place had
a coercive effect. However, Mateo's inquiry to Miles as
to how he intended to vote does violate Section 8(a)(1)
of the Act. The Board has clearly stated that any interro-
gation of employees as to how they are going to vote in
a pending election is a violation of Section 7 of the Act,
even if the employees were assured that no reprisals
would occur. 50
3. Conduct alleged bh the Teamsters as iolatixc of
Section (a)( I)
'lihe comttplaint i Case 29 CA-7776 contlains allega-
tionis directed tow\ard coercive conduct engaged in bh
Assistail I oremlan Antonio Colicchio. 3 i Employee Vic-
toria Krosta testified that o October 24, the da before
the electiol., while at her orkplace at 12:30 p.m.. she
had a conllversation ith Colicchio. He as at a corner
cahietel right next o a , orklinc of machines she ispects
\shc r ie sold cosmetics to employees. Krosta \% as \ ear-
ing a printed I'camsters -shlirt of a dark orange color
Vshich colltained the niame of l.ocal No. 80(8 as \ell as
Ihe heads of horses. Krosta asked for some cosmeltics.
Colicchio asked lher o comni over to hinl and vhen she
did so he grabbed her bh the sleee., looked at her T-
shirl, anti said, "W'halt is this, does this mnakc you eat
Tllro\\ this i the garbage" and pulled her sleevc Krosta
responded she liked the color. Then Colicchio continlued,
"Why are you for 808. \hy dotn'l ou go for 22'' Thec
pay you better. you arc stlupid. Ec ryhody(l else going for
80()8 are stupid. 222 \ill pay yoll more molne\. Colicthio
tlhe, said. I do lnot utldcrstantld at.\tlhiig and \we are all
Claz " l1c coll\cr saliotn hel t rned to the costietics
aiid t Krosta sool t .alikcd a\ay. Colicchio \ss a not c.lled
to Ilc stland to rebutl these r-emarks atd I credit tlellma
The contvers;tiontl \ias conducted in Italiill. A youlng etn-
ployeC sppol('I of 808 \was nearby and farther a;Iay
were four fenlale employees talking \ith each other.
'Three employees. Adolpho Fai;na,. Carlos Espinal, and
Carlos .lagino. each testified in substantially similar
terms to a con'ersalion %thich t ec held vith Colicchio
in thce last ve ek of November.5 The three. among five
or six employees. \rc Lit the workplace o the Second
floor of the Skillman Aenue pl;tnt svhere they ispect.
repair. or adjust staple machines. They' were talking
among themselves about the election and their concern
icillil I'['.sc II ,ill{\ L' i . i IJhctrLI\ imildc Rcpond ni t ll 1C.P.iI.I hl. It. [hi
pc r.~orl'- s.'l lt s }
" ' .t (; ( I*,, rhl ( ,,,r,,, '22 NI FI (0l04 (A)" i l tI ) A,/L ( or?,,
rO 1r>hill I1 llol r rll It ,l ( hll - . .N a - ,ll 11.:rxt t1 21]} NI R1 1 1 I1 11741
; R.piotlci¢ili 1tsligiliilt' .i ildllt c li, SlpC{s is. IL s i1is llld.tul It'
il. i ll tClII'1 t .il ( lC,' 1Is Ill h lhsl \t lh IC [lIp Ill 11'
lI,111 ll A1[{ .;11 O11 III H l l l 11t,11 \ dlxk (t l ,it {(Lth( 1I' l r IIIIIls
111 111I11111; l1l ' tlllt~ 111 I1 bl tllitt 1["1ti. ll\ t% IHI% IIsh 1tiil'1i. 11t 1111 t'Cf1
Cl[1 ilt~'\. 1't' l ii i, II1( IL ILIl '\ .II1 1 Itlh l III itI11 I 'r I iI t'ld ) '11o C llh\o. ' Il''d L
R' ,tJi tht' t{CIllH hil cI th d .lhdii , tlkt'~ ,I rlll ltl .at¢h r hilt
l'StI. ', Ihl.[l(, 1' \I I- hll p,..ndmg
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Teamsters would not become their bargaining
representative even though they needed a union to
obtain raises which had been withheld over the past year
while the cost of living continued to rise. Colicchio came
by and heard this discussion. He said that it would be
very difficult to get 808 in. The Company was very
powerful and strong. It could move within 24 hours to
another State and we would be left without work. 53 The
three employees agree that Fanna responded that the
statement was very strange. He, Fanna, understood that
the Teamsters could come in when the Department of
Labor carried out the election, that the employees had
won with an absolute majority of votes and the president
of the Company, Thomas, had assured the employees
before hand that no matter what the results of the elec-
tion the Company would recognize them as valid. Lla-
guno added that it would be impossible to move the fac-
tory because installations cost thousands, millions of dol-
lars, and the Company would also need permission from
the State in order to move. The conversation took place
in Spanish. Colicchio did not respond and left. I credit
the employees' corroborative testimony, particularly in
the absence of any rebuttal from Colicchio.
Carmilio Reyes, a floorboy on the materials line, testi-
fied to a conversation with Colicchio held at approxi-
mately 1:45 p.m., in January 1980, near the elevator
where materials are left. Reyes was wearing a printed
Teamsters T-shirt like the one worn by Victoria Krosta
as well as a Local 808 button, colored white with blue
letters. Colicchio pointed at Reyes, flipped the button
with his fingers and said, "Those horses are not going to
come in here unless the Company wants them to." Reyes
replied he hoped they would get in. Colicchio changed
the subject, saying, "Hey, let's go to work." I credit
Reyes' testimony.
Resolution
It is well established that an employee may wear union
insignia (e.g., buttons, T-shirts, etc.) while at work,
absent special circumstances; and any interference by the
employer with this right violates Section 8(a)(l) of the
Act.54 Although Colicchio did not force Krosta to
remove the Local 808 shirt, I find that his statement, to
throw the shirt in the garbage, interfered with her dis-
play of union insignia and therefore her Section 7 rights.
furthermore, the comment had the direct effect of inter-
fering with Krosta's protected activity on behalf of the
Teamsters. Similarly, Colicchio's statement to employees
Fanna, Espinal, and Llaguno, about moving the plant if
808 "came in," violated Section 8(a)(1) of the Act. It has
long been recognized that a threat of plant closure made
in the context of a union organization campaign is a
potent weapon of an employer in interfering with its em-
ployees' Section 7 rights.55 Even if Colicchio had im-
53 1 credit this version provided by Carlos Llaguno. It is only the
former portion of the statement which differed slightly, with Fanna
claiming Colicchio said "when the Company wanted that's when the
Union would enter" and Espinal asserting Colicchio said "the Teamsters
would never come in."
" See Republic Aviation Corp. v. N.L.R.B., 324 U.S 793 (1945);
N.L.R.B. v. Montgomery Ward & Co., Inc., 554 F.2d 996, (K) (tOth Cir
1977).
5 See Aircraft Hlydro-Forming Inc., 221 NLRB 581, 590 (1975).
plied that this was his belief, this would not lessen the
impact. 56 Although Fanna's and Llaguno's responses in-
dicate that they doubted that Swingline would relocate
this is not sufficient to dissipate the coercive effect it had
on them or the other employees who heard the state-
ment. 5 7
The Board has long held that an employer's statements
which indicate the futility of voting for a union or en-
gaging in unionization in general violate Section 8(a)(1)
of the Act. Where an employer indicates that it is he
who controls what will or will not be done, irrespective
of the union's presence, such futility is made clear. 58 Co-
licchio's statement to Reyes that Local 808 would not
"come in" unless the employer wanted them to, even
though it had won the election, clearly conveyed that it
was futile to have voted for this union or to continue to
support it, and thus constitutes unlawful 8(a)(l) conduct.
D. Conclusions With Respect to the Objections to
Conduct Affecting the Results of the Election
My findings with respect to Respondent's misconduct
alleged in the consolidated complaints and objections
during the critical period are contained in subsection C,
above. They show that Assistant Foreman Colon uttered
a threat to employee Rivera in the presence of a few
other employees in late September and also that person-
nel clerk Mateo interrogated employee Miles while they
were alone prior to Mile's voting on election day. All
other complaint and objection allegations have been
found to lack merit, not to warrant a rerun election5 9 or
have been discredited. 60 Another finding is that, the day
before the election, Assistant Foreman Colicchio inter-
fered with employee Krosta's protected display of Team-
sters insignia and related protected conduct.
Colon's total conduct on its face manifests support of
the Teamsters, while Colicchio's favored IPSSEU. Fur-
ther support of IPSSEU, at least by floor supervisors, is
apparent from the freedom granted Griffin in soliciting
for that union on working time at the workplace in the
months preceding the election and, in particular, on elec-
tion day. IPSSEU was also favored, again at least by
virtue of the inaction of floor supervision, by their repre-
sentatives having daily access to work areas to election-
eer and propogandize on working time during the criti-
cal period including election day."
6 Id at 590.
51 In Aircraft Hydro-Forming, fn. 53, supra, the employee stated that he
doubted the supervisor's claim that the Employer would close the plant.
However, this did not prevent the Hoard from affirming the Administra-
tive Law Judge and finding the supervisor's statement coercive. Id. at
590.
5" See, e.g., Kenworth Trucks of Philadelphia, Inc., 229 NLRB 815
(1977) (Here the employer told an employee prior to his voting that no
matter how the election turned out, it was his company and he would
run it any way he pleased. Id at 818. This statement was held to have
violafed Sec. 8(a)())
s9 Even considered under the more restrictive standard applicable to
objections, see, generally General Shoe Corporation, 77 NLRB 124. 126-
127 (1948)
() No testimony was presented with respect to Supervisor Irving
Sloane's alleged solicitation of Teamsters support set forth at p. 26 of the
Regional Director's Supplemental Decision and Report on Objections.
6 ) Ostensibly, IPSSE I was servicing its contract. Actually, some of
the time w'as spent in propagandizig Various witnesses testified to such
Continued
THE SWINGLINE COMPANY, ET AL. 717
Respondents' conduct thus substantially equally fa-
vored and opposed both unions. Under such circum-
stances, the Board has not permitted misconduct, equally
affecting both unions to allow the wrongdoer, the em-
ployer, to profit thereby at the expense of the successful
union. The losing union's objections may not prevail in
the face of employer opposition to both, particularly
where the results show substantial support for the win-
ning union. 62 Accordingly, absent any particular miscon-
duct which disproportionately supported the Teamsters,
IPSSEU's objections should be overruled. I turn now to
a closer examination of Respondents' conduct favoring
the Teamsters and, in particular, the one threat found,
made by Colon, to determine whether they tended to re-
strain employees in their free choice to reject the Team-
sters,6 3 and, thus, warrant a second election.
The central focus in weighing objections is whether
the conduct found under all of the circumstances dis-
closed by the record has sufficiently impaired the em-
ployees' freedom of choice of representative, so as to
warrant setting aside the election. While it is generally
Board policy that conduct violative of Section 8(a)(1) is,
a fortiori, conduct which interferes with the exercise of a
free and untrammeled choice in an election,6 4 it is also
nonetheless true that not every item of objectionable
conduct, including acts of interference with employee
exercise of rights guaranteed them by Section 7 of the
Act, will merit invalidating an election.6s The Board has
had occasion recently to reiterate its long held view 66
that while seeking to establish ideal conditions insofar as
possible under which employees register their choice, it
must appraise the actual facts in the light of realistic
standards of human conduct. "Otherwise, in any hard
fought campaign involving a large number of voters, it
would be impossible to conduct an election which could
not be invalidated by a party disappointed in the election
results." 6 7
solicitations on the part of IPSSEU delegates Rivera, Rodriguez, and
others. Nagle testified that he received a complaint from a Teamsters at-
torney on election day that Singline was favoring IPSSEU by permit-
ting its representatives access to plant working areas and prohibiting
Teamsters access, and Nagle responded he would advise the company at-
torney. As noted, Nagle justified Respondents' leniency on the ground
that the Companies wanted to avoid problems with the incumbent union.
The testimony regarding preferential treatment of IPSSELU was received
over strenuous General Counsel and IPSSEU objections. My ruling ap-
pears at Tr. 552 to 558. I deemed such evidence relevant on the question
being addressed as to whether there existed employee opposition against
both unions sufficient to deny support to the objections of one where he
other won decisively. I noted that I ma5 examine such conduct even
though not the subject of a Teamsters charge and admittedly not alleged
as objectionsby the winning union.
n2 The Nestle Company, 248 NLRB 732 (1980), Flat River G'las Co.,
234 NLRB 1307 (1978); Packerland Packing Company. Inc. 185 NIRB
653 (1970); Showell Poultry Company, 105 NLRB 580 (1953)
S3 Since the Teamsters won, a further examination of Colicchio's acts
of interference against a Teamsters supporter would not aid this analysis
64 Dal-Tex Optical Company Inc., 137 NLRB 1782 (1962); Plaskool
Manufacturming Company. 140 NLRB 1417, 1419 (1963)
65 See, eg.. Mississippi Valley Structural Steel Company, 16 Nl.RR
1129 (1972); v Plains Dressed Beef Inc., 146 NLRB 1253 (1964)
6 See The Liberal Market. Inc., 108 NLRB 1481. 1482 (1954) See also
Morganton Full Fashioned Hosiery Company., Huffnan Full Fashioned Ilo-
sery Mills. Inc.. 107 NLRB 1554 (1954).
a? Newport News Shipbuilding and Dr Dock Compart, 239 NI RB 82.
91 (1978).
In appraising the facts, the Board examines the impact
of statements made and is concerned with various indicia
which help in determining whether the conduct, particu-
larly acts of restraint, coercion, or interference with Sec-
tion 7 rights, is of such a nature as to disclose an atmos-
phere of fear and reprisal among voters.,8 While under
certain circumstances a threat made to a single employee
in a voting unit of 140 has resulted in setting aside an
election, 69 "the number of violations, their severity, the
extent of dissemination, the size of the unit, and other
relevant factors,"7 0 are all considered in weighing the
impact of the conduct on the electorate and whether it
could have affected the results of the election.
Applying the Board's standards to Respondents' con-
duct on the record, I conclude that the single interroga-
tion, threat, and statements of Teamsters support within
the critical period are insufficient to warrant setting aside
the election. Each of them as an action of a single low-
level supervisor acting informally on the plant floor, and
generally was a casual response to employee inquiries or
interjections in union related conversations already un-
derway among employees. The number of employees af-
fected were slight, and the conduct, generally, while suf-
ficient in a number of instances to justify findings of
8(a)(1) violations and a remedial order,?t did not rise to
the seriousness or impact on employees which should
result in setting aside the two elections in which eligible
employee participation exceed 90 percent in units of
1,174 and 113, and which were won by the Teamsters by
2 to I margins. Given the size of the units and length of
the campaigns, conduct interfering with employee rights
which is attributable to the employers was minor indeed.
Even where conduct violated the Act, employee re-
sponses were such that intimidation appeared to be limit-
ed in its impact. Furthermore, there was no evidence of
concerted antiunion activity or a preconceived campaign
by the supervisors involved; the Employers impressed
upon the employees and supervision their interest in
maintaining neutrality.
In particular, I conclude that the most serious item of
coercion, Colon's threat of layoffs made to Rivera in the
presence of a few other employees about a month before
the election, could not be said to have affected the re-
sults of the election. Unlike the threat in Greenpark Care
Center, supra, it was uttered by a low-level supervisor
who had previously informed the employee, Rivera, to
whom his remarks were principally addressed, that he
6" Issex Internaional. Inc.. 216 NLRB 831 (1975): Alley (Contruction
(Compan . Inc. 210 NLRB 999 (1974); Mississippi Valley Structural Steel
( ompanv supra. and Hy Plains Dressed Beef Inc.. supra.
6s Sol Henkind. an Individual. dh/a Greenpark Care Center. Jormerlv
known as Willoughby Health Related aciliv. 236 NLRB 683 (1978).
where the employers' comptroller asked an employee who she as
soting for and then threatened her that if she did not vote for one of the
unlons she was going to lose her job The Board noted that it was cocr-
cion of a most serious nature committed h a high-level supervisor short-
1y before the election where the presumption of repetition among voters
was fulfilled h the comptroller's followup order to the employee to
spread the word to the other employees
l} Super hril Alarkitr. In t nola Super hrijt. 231 NlRB 409
(1 977)
i' tll sct (;l h . Sll')opprli (illt . iupral
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been restrained in speaking freely. 72 Employee
knowledge of Colon's violation of the company policy of
neutrality derived as well from the president's May letter
to all employees serves to diminish the severity of
Colon's remarks, particularly given Colon's low status
and lack of evidence of any authority to discharge or
even recommend discharge. 73 The threat here was also
made in the context of an informal exchange among a
small group at the workplace, lacking in the more direct
and personal questioning and threat found in Greenpark.
Of greater significance, Colon's remarks were not exclu-
sively supportive of the Teamsters. They were subject to
varying interpretations; 222 supporters might very well
have been encouraged to continue their assistance to
IPSSEU to help insure that 222 won since they would
not be affected and 808 supporters present might have
been discouraged from continuing their support of the
Teamsters (even though they could still vote for the
Teamsters) because they wished to diminish the likeli-
hood of their own layoff. Finally, there is no evidence
here, unlike Greenpark, that Colon actively encouraged
circulation of his threat among other employees. 74 I
therefore conclude that Respondents' conduct violative
of Section 8(a)(l), in particular Colon's threat, fall within
the recognized exception to the Board's policy that such
conduct, a fortiori, interferes with the free choice in an
election. '
Accordingly, given the isolated, minor, casual, and rel-
atively nonintimidating nature of the few low-level su-
pervisor's comments during the critical period, in a set-
ting in which employees were made aware of the Em-
ployers' interest in allowing them to decide the represen-
tation question for themselves, I conclude that the con-
duct found does not establish substantial interference
with the elections, and I shall recommend that the elec-
tion results not be overturned and that the Board certify
the Teamsters.
CONCLUSIONS OF LAW
1. Respondents violated Section 8(a)(l) of the Act by
interrogating their employees concerning their union and
other protected activities, warning them to cease display-
ing union insignia and engaging in union and other pro-
tected concerted activities, and by threatening them with
a plant relocation, layoff, and loss of employment if they
72 The presumption is warranted that Rivera and the other employees
who heard Colon's threat and others to whom it may have been relayed
were aware that he, Ocasio, and all other supervisors had been warned to
refrain from electioneering at the risk of loss of their jobs, as testified to
by employee Bueno, See fn. 20, supra.
7. Recall that Colicchio's threat to 808 adherents after the election was
generally discounted by the employee recipients, in part i explicit reli-
ance on Company President Thomas' written commitment to abide by
the election results.
'4 The cases cited in Greenpark, supra at 684 fn. 10, which illustrate
the Board's willingness to set aside elections even where the violative
conduct is directed at a few employees in a large unit, are distinguishable
In these cases the key factors for setting aside the election appear to be
that the violative conduct was committed by a high-level supervisor
and/or the election results were very close. Neither of these conditions
exist in the instant case.
7s See Greenpark Care Center, and Super Thrift Markets. In. rtu Enola
Super Thrift, supra.
assisted, became, or remained members or persisted in
supporting either IPSSEU or the Teamsters.
2. The unfair labor practices enumerated above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
3. Respondents have not engaged in any unfair labor
practices not specifically found herein; specifically, Re-
spondents have not violated the Act by discharging em-
ployee John Griffin nor have they violated the Act by
making unlawful promises of benefit to influence employ-
ees to support either union as against the other in the
election campaign.
4. Respondents have not engaged in any conduct war-
ranting that the elections conducted on October 25, 1979,
in Cases 29-RC-4658 and 29-RC-4659 be set aside.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, I hereby issue the
following recommended:
ORDER'7
The Respondents, the Swingline Company and Spot-
nails, Inc., Long Island, New York, their officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating their employees as to their union
sympathies, warning them to cease engaging in concert-
ed activities on behalf of Local 222, affiliated with Inter-
national Production, Service and Sales Employees Union
or Local 808, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America and
threatening them with loss of employment if they sup-
ported or continued to support either labor organization.
(b) In any like or related manner interfering with, re-
straining, or coercing their employees in the exercise of
rights guaranteed them by Section 7 of the National
Labor Relations Act.
2. Take the following affirmative actions designed to
effectuate the policies of the Act:
(a) Post at each of the premises located in Long Island
City, Queens, New York, copies of the attached notice,
marked "Appendix A." 77 Copies of this notice, on forms
provided by the Regional Director for Region 29, shall
be signed by a representative of Respondents and shall
be posted by them immediately upon receipt thereof, and
be maintained by them for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by them to insure that said notices
are not altered, defaced, or covered by any other materi-
al.
76 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102 4 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
77 In the event that this Order is enforced by a Judgment of a United
Slates Court of Appeals, the words in the notice reading "Posted by
Order of the National I.abor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
()rder of Itie National Labor Relations Hoard "
THE SWINGLINE COMPANY, ET AL. 719
(b) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondents have taken to comply herewith.
IT IS FURTHER RECOMMENDED that the consolidated
complaints be dismissed in all other respects.
IT IS FURTHER RECOMMENDED that the Objections to
the elections conducted in Cases 29-RC-4658 and 29-
RC-4569 be overruled and that certifications of repre-
sentative be issued to Local 808, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America.