U. S. Plastics Corp.

National Labor Relations Board - Board Decisions

Sep 18, 1974

213 N.L.R.B. 323 (N.L.R.B. 1974)

U.S. PLASTICS CORPORATION 323
U. S. Plastics Corporation and Truck Drivers, Chauf-
feurs and Helpers Union, Local 42, a/w Internation-
al Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America. Case
1-CA-9225
September 18, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
spondent President Samuel Oren replied, "If you
don't want to go on the third shift, have the Union get
you a job." As indicated above, Oren at the end of
June also unlawfully told DiOrio that he would be put
back on the first shift if he would give up the Union.
In view of Respondent's linking of the transfer to
DiOrio's union activities as well as Respondent's
other unlawful conduct directed at DiOrio, we con-
clude that the transfer was discriminatorily motivated
and therefore violated Section 8(a)(3) of the Act. We
shall modify his recommended Order accordingly.
On February 19, 1974, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief and Respon-
dent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The Administrative Law Judge found without ex-
ception, and we agree, that Respondent engaged in a
number of violations of Section 8(a)(3) and 8(a)(1) of
the Act including certain coercive conduct which was
directed against Leonard DiOrio, a leading protago-
nist of the Union: harassing and interrogating him on
January 29 and 30 and on March 24 and 27, 1973; 1
accusing him in early April of being the instigator of
the organizing campaign; threatening him in late
April with discharge for bringing union cards and
leaflets into the plant; and promising DiOrio, who
had been transferred from the third shift on April 1,
a return to the more desirable first shift in late June
if he would refrain from union activities. The Admin-
istrative Law Judge also properly found without ex-
ception that Respondent violated Section 8(a)(3) of
the Act by denying DiOrio overtime on March 24 and
by issuing on April 24 a written warning to discipline
him for asserting his right to self-organization. How-
ever, the Administrative Law Judge found that Re-
spondent did not further violate Section 8(a)(3) of the
Act on April 1 by transferring DiOrio against his
wishes from the first to the third shift. For reasons
which follow, we find merit in the General Counsel's
exception to this finding?
The record shows that, when DiOrio protested, Re-
1 All dates below refer to 1973.
2 As indicated in his separate opinion , Member Fanning concurs in the
foregoing findings.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that Respondent, U.S. Plas-
tics Corporation, Lynn, Massachusetts, its officers,
agents, successors, and assigns shall take the action
set forth in the said recommended Order, as so modi-
fied.
1. Insert the following as new paragraphs 1(c) and
2(b), respectively, and reletter the subsequent para-
graphs accordingly:
"(c) Transferring employees from one shift to an-
other for engaging in union activities.
"(b) Offer Leonard DiOrio a return to his former
job on the first shift, or, if that job no longer exists,
to a substantially equivalent position on that shift."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
MEMBER FANNING, concurring in part and dissenting
in part:
I concur in my colleagues' adoption of the Admin-
istrative Law Judge's finding that Respondent violat-
ed Section 8(a)(1) and (3) of the Act by engaging in
extensive unlawful conduct which involved creating
the impression of surveillance of the employees' union
activities, interrogation and harassment of employees,
threats of reprisal, denial of overtime, warnings of
disciplinary measures against employees because of
their union activities, threats to move the plant, prom-
ises of benefit, initiating and circulating an antiunion
petition, threats not to hire employees because of
union activities, threats of discharge, and discrimina-
tory discharges. I also join my colleagues in finding
that Respondent further violated Section 8(a)(3) of
the Act by transferring employee Leonard DiOrio to
a less desirable shift.
However, because the Administrative Law Judge
erred by including five supervisors 3 in the stipulated
3 Group Foremen Albert Baker, James Baker, Nicola Balducci , Nicholas
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production and maintenance unit, I would, contrary
to my colleagues, reverse his finding that the Union
did not achieve majority status on either April 14 or
May 21, 1973, and therefore did not violate Section
8(a)(5) and (1) of the Act by refusing to recognize and
bargain with the Union. Thus, the Administrative
Law Judge improperly found that there were in the
unit on those dates 59 and 54 employees, respectively,
rather than 54 and 49 employees, and that the 29 and
26 valid authorization cards on each occasion fell
short of a majority.
Following an organizational campaign which com-
menced in December 1972, the Union on March 19,
1973, sent a letter to Respondent demanding recogni-
tion and also filed a petition for an election (Case
1-RC-12640). On April 23, and May 10, upon
Respondent's refusal to recognize the Union, the lat-
ter filed charges and amended charges.
On May 1, the Acting Regional Director issued a
Decision and Direction of Election wherein he found
"on the basis of the record as a whole and the stipula-
tion of the parties" that, inter alia, the two Bakers,
Balducci, Vanagel, and Schuman were supervisors
within the meaning of the Act and as such were ex-
cluded from the unit.
During the week of May 21, David Riemer,
Respondent's counsel, and Richard Hunt, business
agent of the Union, met to discuss settlement of the
outstanding issues. Hunt submitted to Riemer a list of
employees which showed a majority of them had
signed authorization cards. Riemer glanced at the list
and stated, according to Hunt's uncontradicted testi-
mony in the instant proceeding, that he trusted Hunt
and therefore accepted the latter's assurance that the
Union did in fact represent a majority of the employ-
ees4 Accordingly, on May 29, Respondent formally
recognized the Union as the collective-bargaining
representative of the production and maintenance
employees and asserted its readiness to bargain with
the Union.' However, as indicated above, Respon-
dent on May 31 and June 1 unlawfully sponsored an
antiunion petition wherein a number of employees
protested Respondent's recognition of the Union, and
Respondent on June 5 withdrew recognition from the
Union and filed a petition for an election (Case 1-
RM-854).
At the hearing in the RM case, the parties once
more stipulated that the Bakers, Balducci, Vanagel,
and Schuman were "supervisors in that they may hire
Vanagel, and Daniel Schuman.
4 At a hearing held on June 20, 1973 , in connection with the Employer's
petition for an election (Case 1-RM-854), the parties stipulated that Riemer
during the week of May 21 told Hunt, "We agree that [the Union] represents
a majority."
s Pursuant to the Union's request , the Regional Director vacated the Deci-
sion in Case 1-RC-12640.
or fire employees or effectively recommend hiring or
firing of employees or effectively recommend other
personnel changes which would [affect] the employ-
ees' wages and hours and working conditions and/or
that [they] responsibly direct employees in the course
of their duties." On July 5, the Acting Regional Direc-
tor issued a Decision and Direction of Election where-
in it was again found "on the basis of the record as
a whole and the stipulation of the parties" that the
above-named group foremen were supervisors within
the meaning of the Act .6
Despite the Acting Regional Director's findings in
the RC and RM decisions as to the supervisory status
of the five group foremen, the Administrative Law
Judge refused to rely thereon on the ground that the
Acting Regional Director never "came to grips" with
the question whether they possessed authority which
brought them within the definition contained in Sec-
tion 2(11) of the Act. In addition, in view of Respon-
dent President Samuel Oren's statement at the
hearing in the instant case that he did not know how
to explain the word "effectively," the Administrative
Law Judge gave no weight to his testimony that the
Bakers , Balducci, and Vanagel had "authority to ef-
fectively recommend . . . wage increases [and] pro-
motions."'
It is well established that the Board may take offi-
cial notice of and rely on the stipulations of the parties
and the resultant findings of Regional Directors as set
forth in their decisions. It is significant that the posi-
tions of the parties as to the supervisory status of the
five group foremen remained constant at the hearings
in both RC and RM cases and that in the latter the
parties not only stipulated that the five group foremen
were supervisors but also spelled out the various indi-
cia of supervisory authority which they possessed. I
would therefore adopt the stipulations and the Acting
Regional Director's findings that Albert and James
Baker, Balducci, Vanagel, and Schuman were super-
visors and would conclude that as such they did not
belong in the unit.' Accordingly, I would hold that
there were 54 and 49 employees, respectively, in the
unit on April 14 and May 21 and that the Union,
which obtained 29 and 26 valid authorization cards
on those dates, represented a majority of the unit
employees.
There remains the question whether Respondent
violated Section 8(a)(5) and (1) of the Act by refusing
to recognize and bargain with the Union. As Respon-
Thereafter, the Decision in Case I-RM-864 was vacated because of the
complaint issued in the instant case.
r It is noteworthy that the Administrative Law Judge put little faith in
Oren's credibility.
r As the Administrative Law Judge deemed Oren an unreliable witness, I
would find it unnecessary to determine whether his testimony should be
accorded any weight.
U.S. PLASTICS CORPORATION 325
dent engaged in sustained and flagrantly coercive
conduct, I would find that the employees' majority
designation of the Union as expressed in their author-
ization cards provides a more reliable measure of the
employees' true desires than would be provided by an
election. Therefore, in order to protect the employees'
statutory rights and interests, I would find that
Respondent's refusal to bargain with the Union on
and after April 14 violated Section 8(a)(5) and (1) of
the Act and would issue a bargaining order?
Alternatively, I would rely on Snow & Sons 10
where, as here, Respondent had no doubt as to the
Union's majority status. In the instant case, Respon-
dent demonstrated its belief to that effect by recogniz-
ing the Union for a few days until its abrupt reversal
of that action following its sponsorship of the unlaw-
ful antiunion petition. Accordingly, as Respondent
unlawfully withdrew its recognition of the Union,
whose majority status it had acknowledged, and re-
fused to bargain therewith, I would find that Respon-
dent violated Section 8(a)(5) and (1) of the Act and
would order Respondent to bargain collectively with
the Union.
In sum, I would find on the basis of either Gissel or
Snow & Sons that Respondent contravened Section
8(a)(5) and (1) of the Act by refusing to bargain col-
lectively with the Union which represented a majority
of the employees in the unit and issue an appropriate
bargaining order.
9 N.L.R.B. v. Gissel Packing Co., 395 U.S. 375. See also my dissent in
Steel-Fab, Inc., 212 NLRB No. 25.
10 Fred Snow, Harold Snow and Tom Snow d/b/a Snow & Sons, 134 NLRB
709, enfd. 308 F.2d 687 (C.A. 9, 1962).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial, that we violated Federal Law by discharg-
ing employees and discriminating against them in
other ways for engaging in union activities, we hereby
notify you that:
The National Labor Relations Act gives all em-
ployees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a represen-
tative of their own choosing
To act together for collective bargaining or
other aid or protection
To refrain from any or all of these things.
WE WILL NOT discharge you for engaging in
union activities.
WE WILL NOT transfer you from one shift to
another for engaging in union activities.
WE WILL NOT deny you overtime for engaging
in union activities.
WE WILL NOT issue written warnings to you os-
tensibly for violations of our rules which are un-
related to your union activities when our real
reason is your union activities.
WE WILL NOT interrogate you about your union
activities or attitudes or the union activities or
attitudes of others.
WE WILL NOT harass you because you are en-
gaging in union activities.
WE WILL NOT threaten you with reprisals for
engaging in union activities.
WE WILL NOT threaten you with discharge for
engaging in union activities.
WE WILL NOT threaten to move our plant to
another State if you elect to be represented by a
union.
WE WILL NOT promise benefits to you if you
refrain from union activities.
WE WILL NOT create the impression we have
your union activities under surveillance.
WE WILL NOT initiate or circulate antiunion pe-
titions among you.
WE WILL NOT in any manner interfere with you
or attempt to restrain or coerce you in the exer-
cise of the above rights.
WE WILL offer Kathy Spillane, Deborah Por-
trait, and John Comeau immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights
and privileges, and make them whole for any
earnings they lost, plus interest, as a result of
their discharges.
WE WILL offer Leonard DiOrio a return to his
former job on the first shift, or, if that job no
longer exists, to a substantially equivalent posi-
tion on that shift.
WE WILL make Leonard DiOrio and James Mc-
Carthy whole for any earnings they lost, plus
interest, as a result of being denied overtime on
March 24 and April 14, 1973, respectively.
WE WILL remove from our files and destroy
written warnings we issued to Audrey Parsons on
April 20 and 24, 1973, and Leonard DiOrio and
Richard Needham on April 24, 1973.
All our employees are free, if they choose, to join
Truck Drivers, Chauffeurs and Helpers Union, Local
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
42, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization.
U.S. PLASTICS CORPORA-
TION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Seventh Floor, Bulfinch Building, 15
New Chardon Street, Boston, Massachusetts 02114,
Telephone 617-223-3300.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge: The
charge in this case was filed on July 18, 1973,1 and amended
on August 31. The complaint was issued on August 31 and
amended on September 27 and again , numerous times, dur-
ing the course of the hearing. The hearing was held on
October 16, 17, 18, 19, 24, 25, and 26 and November 12, 13,
14, and 15 in Boston, Massachusetts.
The principal issue litigated was whether, in view of vari-
ous violations of Section 8(axl) and (3) of the National
Labor Relations Act, as amended, alleged by the General
Counsel, Respondent should be found in violation of Sec-
tion 8(a)(5) of the Act. For the reasons set forth below, I find
that, while Respondent committed some, although not all,
of the 8(a)(l) and (3) violations alleged, no finding of an
8(aX5) violation is possible because the General Counsel
has failed to prove the Charging Party represented a majori-
ty of Respondent's unit employees. (Respondent's motion
to dismiss , which I took under advisement at the conclu-
sion of the hearing, is disposed of by my findings below.)
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of
oral argument and briefs, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Massachusetts corporation, is engaged in
Lynn , Massachusetts , in the business of manufacturing
1 Dates are 1973 unless otherwise indicated.
polyethylene film and bags. During 1972 Respondent
shipped products valued in excess of $50,000 directly to
customers located outside the Commonwealth of Massa-
chusetts.
Local 42 exists for the purpose of organizing employees
and representing them in collective bargaining. Employees
join and participate in its activities.
11. THE UNFAIR LABOR PRACTICES
A. Chronology
Local 42's efforts to organize Respondent's production
and maintenance employees had its genesis in December
1972 when Harold Horton, a maintenance man, contacted
Angelo Colella, an organizer for the local, told him the
employees were interested in union representation, and
gave him a list of their names and addresses which Respon-
dent had prepared and made available to employees for
Christmas purposes. In January Colella placed an ad in a
local paper which urged employees in the Lynn area who
were interested to contact Local 42. The ad did not single
out Respondent by name.
Colella kicked off his campaign with a letter mailed on
January 25 to the employees on the Christmas list. The letter
began, "Thank you very much for your tremendous re-
sponse to our recent newspaper article concerning your
right to join Teamster Local 42." It set forth Section 7 of the
Act as employees' protected right to join Local 42 and urged
Respondent's employees to execute and return the enclosed
authorization card.
On January 29 and 30 Colella reconnoitered the plant.
While outside the gate he met and talked to Leonard Di-
Orio, an employee in the extrusion department, where poly-
ethylene film is made. DiOrio subsequently mailed in an
authorization card dated January 30, the first card obtained
by Local 42.
Colella leafleted the plant for the first time on January 31,
obtaining authorization cards from several employees,
among them Harold Horton. Others who signed cards at
this time were Kathy Spillane and Deborar Portrait, two
employees in the conversion department, where some of the
polyethylene film extruded in the extrusion department is
converted into plastic bags. The Misses Spillane and Por-
trait were discharged on February 22.
On March 19 Local 42 sent a letter to Respondent de-
manding recognition. At the same time it filed a petition for
an election in Case 1-RC-12640.
On March 27 John Comeau, an extrusion department
employee who had signed an authorization card on March
5, was discharged.
On March 29 Respondent distributed a leaflet to its em-
ployees which urged them not to be fooled by Local 42's
campaign, stated that the Union was trying to create prob-
lems for them and their company, and claimed that the
Union was only interested in their money.
On April 11 a prehearing conference was held at the
Board' s Regional Office in Boston in connection with Case
1-RC-12640. A number of employees attended with Colel-
la. Following the conference, Colella and the employees
prepared a leaflet about the conference and distributed it
U.S. PLASTICS CORPORATION
outside the plant . The leaflet named Leonard DiOrio, Au-
drey Parsons, John Robertson, Stephen Thompson, and
John Comeau as the employees who had attended the con-
ference . It accused Samuel Oren , Respondent's president,
founder, and owner, "and his high priced Lawyers" of stall-
ing the election in order to subvert the rights of
Respondent's employees.
On April 16 Leonard DiOrio was transferred from the
first to the third shift.
On April 19 James McCarthy, an extrusion department
employee who had signed more than one authorization
card, one as early as February 26, terminated his employ-
ment. Whether he quit or was discharged is the threshold
issue with respect to McCarthy posed in this record.
On April 20 Respondent adopted a system of written
warnings and issued the first one to Audrey Parsons.
On April 23 a hearing was held at the Board 's Boston
office in Case 1-RC-12640. Once again a group of employ-
ees attended with Colella. Once again they all leafleted the
plant later in the day. The leaflet listed the employees who
had attended the hearing as Leonard DiOrio, John Rob-
ertson, Rose Mary Sargent, Richard Needham, James Mc-
Carthy, Alicia Ulloa, Audrey Parsons, Sharon Chesley, and
John Comeau . Once again the theme of the leaflet was that
Respondent was stalling in order to subvert the rights of its
employees.
Also on April 23 Local 42 filed a charge in Case 1-
CA-9034. It alleged substantially the same violations as the
charge in this case, with the exception of the discharge of
Audrey Parsons, since, of course, Mrs. Parsons had not yet
been fired.
On April 24 a second written warning was issued to Au-
drey Parsons . Written warnings were also issued to Leonard
DiOrio and Richard Needham.
On May I Audrey Parsons was discharged . That same
day the Acting Regional Director issued his Decision and
Direction of Election in Case 1-RC-12640.
On May 10 Local 42 amended its charge in Case 1-
CA-9034 to add the discharge of Audrey Parsons as an
alleged violation of the Act.
Sometime during the week of May 21 David Riemer,
Respondent 's attorney , and Richard H. Hunt, business
agent for Local 42 and Colella's superior, met to discuss
settlement of the entire situation which had developed.
They agreed that Respondent would recognize Local 42
voluntarily and offer to take back some but not all of the
persons alleged as having been discriminatorily discharged
in Case 1-CA-9034 and that Local 42 would withdraw its
charge in that case and its petition in Case 1-RC-12640.
On May 29 Respondent formally recognized Local 42 as
the collective-bargaining representative of its production
and maintenance employees by sending Local 42 a letter to
that effect.
On May 30 Samuel Oren announced to Respondent's
employees that he had voluntarily recognized Local 42.
On May 31 Local 42 requested withdrawal of Cases 1-
RC-12640 and 1-CA-9034, and the latter was approved
without prejudice by the Regional Director. That same day
a petition was prepared and circulated in the plant which
read:
327
We the undersigned employees of U. S. Plastics
Corp. disagree and protest against the decision made
yesterday, May 30, 1973, by Mr. Samuel S. Oren.
We do not want the Teamsters Union, Local 42 to
represent us.
On June 1, when this petition continued to be circulated
in the plant, the Regional Director issued an Order Vacating
Decision and Direction of Election and Permitting With-
drawal of Petition with Prejudice in Case 1-RC-12640, thus
canceling the election scheduled to be held in that proceed-
ing on June 5.
Also on June 1 Respondent offered jobs as new employ-
ees to Deborah Portrait, John Comeau, and Audrey Par-
sons . Comeau subsequently returned to work.
On June 5 Respondent formally withdrew recognition
from Local 42 and filed a petition for an election in Case
1-RM-864.
On June 20 a hearing was held in Case 1-RM-864.
Sometime in late June (and again in late July) Respon-
dent refused to hire Allen Parsons, Audrey Parsons' broth-
er-in-law.
On July 5 the Acting Regional Director issued a Decision
and Direction of Election in Case 1-RM-864.
On July 19, as a result of the filing of the original charge
in this case the day before, the election scheduled for July
31 in Case 1-RM-864 was postponed indefinitely.
On August 31, the day on which the charge was amended
and the complaint issued in this case, the Regional Director
issued an Order Vacating Decision and Direction of Elec-
tion and Dismissing Petition in Case 1-RM-864.
B. Credibility
This record is crammed with credibility conflicts of the
who-said-what-to-whom variety. In most instances I have
attempted to indicate my resolution of them at the point in
the sections which follow where the particular incident is
taken up. However, the problem of their credibility is so
pervasive in the case of two witnesses that a more extensive
discussion of my reasons for discrediting them is in order at
this point.
The first, and most important, of these two witnesses is
Samuel Oren . Oren is an extremely intelligent , highly edu-
cated man who happens to speak broken English, so broken
that it is , at times , difficult to understand what he says and,
always, easy to underestimate him. It is obvious that any
activities by Respondent in response to Local 42's organiz-
ing campaign, even those in which supervisors other than
Oren have been named by the General Counsel as the cul-
prit, grow out of Oren's response to the campaign. Oren is
the boss . Others in management take their lead from him.
Oren stoutly denied making the statements attributed to
him by witnesses for the General Counsel which, in my
opinion , the key 8(a)(1) and (3) allegations of the complaint
turn on. The picture presented of Oren by the General
Counsel's witnesses was of a man whose response to every
situation which developed between late January and late
May was couched in union terms. Oren, at one point, con-
ceded this was so , although his explanation was that he was
328
only kidding, thus:
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. (By Mr. Costa) Did it ever happen that Mike
Nappi and James McCarthy were standing together
having a conversation , you walked over and said, this
is no place to hold a Union meeting . If you want to
hold one, go down to the Union Hall. Did you ever say
anything like that?
A. No, I never said it. The only one thing is, what
I say, I have in my nature , when I am walking through
the factory, I am always trying to especially, I am say-
ing some time , you are talking to[o] much , don't you
talk, you know, watch your extruders. You will talk
later while you are making meetings . You know, do you
need a president to your meetings . Things like that I am
saying sometimes but about Union meetings you are
holding , I really never have-I don't recall . I never had
a discussion like that with Mike Nappi , with James
McCarthy for sure because-
Q. With anybody?
A. -I am glad when they are watching the extru-
ders.
Q. With anybody? Did you ever, have that conver-
sation with anybody?
A. About the Union? No. It was like for lunchtime
when either Nappi sitting in around a group , maybe I
said, what is this a Union meeting or maybe I said it
as a joke but not really-and they understand this. Do
you need a president? Would you take me? In the
conversation , if it's a Union conversation , maybe I did
say it like that. But it 's really a joke, I say, play words
and nothing of a serious thing.
However , a more accurate insight into what went on in
Respondent's plant is provided by a discharged supervisor,
Harold Baker , who testified for the General Counsel. A
rumor circulated through the plant that Respondent was
thinking about moving to North Carolina. Baker, whose
testimony I credit despite Respondent 's argument that the
manner of his leaving Respondent's employ makes him a
prejudiced witness unworthy of belief , revealed that Oren
himself planted the rumor in order to check on Local 42's
sources of information in the plant, thus:
Q. What did Mr. [Oren] say to you? And what did
you say to him?
A. Well, he asked me, he said-he had mentioned
this to me-he said "I want you to tell this to one
person, Sharon Chesley, but just don't off and tell her.
Go over and be-he said "Use a little-be diplomatic,
use a little diplomacy"-I forget what he said, but he
said "Just kind of bring it up, you know, in a way-tell
her, you know, not to say anything to anyone. You
know, just between you and her." He said "We wanted
to see what happened ." Evidently , he wanted to see
what-like, he would say something and, three or four
days later , the Union would be standing out there with
a paper-a little cartoon , something about-
Q. Mr. Baker , just tell me, what was the conversa-
tion you had with Mr. [Oren] about North Carolina?
A. Well, he said he was going-this is how it all
came up-maybe I'm not expressing myself right-I'm
doing my best-best I can. But he said to me that he
was going to move to North Carolina because he could
get land down there for nothing. They's been trying to
get him down there for a long time and the taxes-for
so many years he'd have to pay no taxes and the labor
down there would be cheaper. And he said he would
close his factory if the Union kept bugging him before
he'd let them in there, and move down there.
Oren's interest, as revealed by Baker, in which employees
were not signing authorization cards for the Union is also
revealing . Local 42 distributed cards in ways which placed
more than one in the hands of most, if not all, employees.
Baker told how he brought to Oren unsigned cards turned
over to him by employees who did not favor organization,
thus:
Q. And what did you do-were these blank cards?
A. Right, with a letter, a letter in there.
Q. And what did you do with the cards?
A. I gave them to Mr. [Oren].
Q. Did he ask you for them?
A. Well, more or less. I said-he said "These guys
were you know, he always accused everyone-he never
accused me of joining, of trying to get the Union in
there, but he said "This guy-". I said "Well, look,
these guys gave me the cards here. I'll get the cards."
He said "Oh, that's good. Do that." So I got the cards
and I said "Well-here's the cards." And, well, they
must have gotten a card-a few of these guys who
didn't sign-every two weeks or a month-and they
brought them in a couple of times after and I said
"That's okay. You don't have to do that anymore."
Q. So, in other words, you were giving the cards to
Mr. [Oren]-
A. Yes one time, Then he said just to show him
there was a card in the envelope with a person's name
on it, I said "See, here's the card and everything. They
didn't sign ; this one didn't sign, that one didn' t sign."
Because he wanted to-he was telling me-if we ever
do go on strike, he says, we have to have some people
to run the factory. He says "We'll have the good peo-
ple."
Because I am convinced from his personality as well as
the record as a whole that Samuel Oren did talk openly to
his employees about the Union but was not candid with me
about those conversations, I have discredited him wherever
his testimony is in conflict with that of another witness. I
have relied on his testimony only in those instances where
facts are undisputed or his version is corroborated by the
testimony of another witness.
The other witness I have discredited is Audrey Parsons.
In his effort to prove through authorization cards that Local
42 represented a majority of Respondent's employees, the
U.S. PLASTICS CORPORATION 329
General Counsel had Mrs. Parsons testify about a card
bearing her name . On cross-examination she admitted that
she had deliberately lied about the card in a sworn affidavit
she gave to a Board investigator . Because I do not, where
there is a dispute about the facts, believe witnesses who
testify before me under oath who have lied under oath at
other times and in other places , I have also discredited
Audrey Parsons generally.
C. 8(a)(3) and Related 8(a)(1) Allegations
1. Kathy Spillane and Deborah Portrait
The discharges of Kathy Spillane and Deborah Portrait
on February 21 are alleged as violations of the Act. The
General Counsel contends they were discharged in retribu-
tion for signing authorization cards for Local 42 . Respon-
dent contends they were discharged for absenteeism and
bad work.
A week before she was discharged Oren approached Miss
Portrait at her machine . He asked her whether she had
talked to the men from the Union. She said no. Oren said,
"Don't let it bother you because you are not going to."
Miss Spillane and Miss Portrait were among the first
employees to sign authorization cards. They had worked for
Respondent as second-shift packers for only some 6 weeks
when they were discharged. Both had had some difficulty
in acquiring dexterity in handling bags as they came from
the machines in the conversion department , thus causing
more waste than a normally skilled packer . In this respect,
Miss Portrait 's record was poorer than Miss Spillane 's. Miss
Spillane, on the other hand, had a poorer record than Miss
Portrait with respect to attendance, caused by her problems
in finding babysitters to stay with her 2-year-old son. They
were informed of their discharges by their immediate fore-
man on the evening of February 21. When they asked the
reason , the foreman referred them to Oren.
That evening Sharon Chesley, another employee in the
conversion department , overheard William Boardway,
manager of the department , instructing the foreman to dis-
charge Miss Spillane and Miss Portrait at the end of the
shift. A few minutes later, when Oren happened to walk
through the department , Miss Chesley asked him if it was
true Kathy and Debbie were getting fired . Oran answered
yes. Miss Chesley asked why. Oren said because he had
heard they had signed union cards . Miss Chesley, unaware
that they had signed cards, said she knew for a fact that they
had not . Oren said, "Well, that 's what's going to happen to
anybody that signs a union card."
Miss Spillane and Miss Portrait returned to the plant to
pick up their checks on February 22. They asked to see
Oren . Albert Rozzi , Oren 's assistant , summoned them to
Oren 's office . (My findings as to what was said in this inter-
view are based on Rozzi's testimony. The only important
disagreement among the witnesses is over whether Oren or
Miss Spillane first brought up the subject of the Union.)
Miss Spillane asked why they had been fired. Oren told
them because of their absenteeism and poor production.
Miss Spillane asked if they were being fired because they
had signed union cards . Oren told them no, he did not care
what they did, "what you do outside is your business , inside
is my business."
Based on the testimony of Miss Chesley, I find that Oren
was motivated , at least in substantial part , to discharge
Kathy Spillane and Deborah Portrait on February 21 be-
cause they had engaged in union activities. When he did so,
Respondent violated Section 8(a)(3) and (1) of the Act.
The words Oren spoke to Miss Chesley on February 21
also constituted a threat to discharge other employees for
engaging in union activities , an independent violation of
Section 8 (a)(1) of the Act. (The complaint also alleges an
independent 8(a)(1) violation based on Miss Chesley's con-
versation with Oren in that "Oren . . . inform[ed] employ-
ees that the reason why certain other employees were fired
... was because of their Union activities." Such a charac-
terization of the exchange is encompassed in the broader
conclusion that Oren threatened to discharge employees.)
The words Oren spoke to Miss Portrait a week before her
discharge constituted coercive interrogation about her
union activities, another independent violation of Section
8(a)(1) of the Act.
2. John Comeau
The discharge of John Comeau on March 27 is also al-
leged as a violation of the Act. In his case, Respondent
contends he was discharged for not properly attending the
extruders he was operating.
Comeau was a group foreman , i.e., an extruder operator
with responsibility over five machines, on the third shift.
("Group foreman" is a job title which lies at the heart of the
unit and majority issues discussed in section E, below.) An
extruder operator must stay near the extruder most, al-
though not all, of the time. When he leaves, for example, to
get a cup of coffee , he should return within a few minutes.
On the night of March 26-27, Oren came to the plant twice
during the middle of the night, a not unusual thing for him
to do. In checking the extruders by looking at the closed-
circuit TV screen in his office, he noticed that Comeau was
not where he should be for periods of time he considered
excessive . He returned to the plant again around 5:30 a.m.
This time he checked on Comeau by peeking into the extru-
sion department. He observed Comeau away from his ma-
chine and talking to another employee, again for a period
Oren considered excessive.
Shortly after 7:30 a.m., end of the third shift, Comeau was
lounging near the front stairs in the plant waiting for anoth-
er man to leave with him when Oren came by. Oren began
castigating Comeau . He told Comeau he was no good for
the factory. He told Comeau he was not doing his work and
had brought the Union into the shop. Comeau protested he
had had nothing to do with bringing the Union in, he had
not even known they were there until he saw them outside.
Oren said the people in the shop seemed wild, the Union
was going to be a downfall. He then asked Comeau why he
liked the Union. Comeau said he had friends in it and union
workers got benefits such as better pay and better holidays.
Oren said, "Well, if you like the Union, why don't you let
the Union get you a job? Who hired you, me or the Union?"
Comeau said, "You did."
Oren said, "Why do you like the Union?" Comeau pro-
ceeded to tell him all over again. Oren said, "If you like the
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union so much, let the Union get you a job. You're fired."
Pursuant to the deal worked out in late May between
Local 42's top official and Respondent's attorney, Comeau
returned to work in June as a new employee . Respondent
gives its employees seven paid holidays, New Year's Day,
Memorial Day, Fourth of July, Labor Day, Columbus Day,
Thanksgiving, and Christmas. Employees do not receive
holiday pay during their first 6 months. Comeau did not
receive holiday pay for the Fourth of July, Labor Day, or
Columbus Day, the three holidays which occurred between
his rehire and opening of the hearing in this case.
There is much testimony in the record going to the ques-
tion of whether Comeau did or did not stay away from his
extruders too long , thus neglecting his work and taking a
chance of excessive loss to Respondent if the polyethylene
bubble burst in his absence. I am not persuaded that he did
although I have no doubt that Oren thought he did and thus
was angry enough to lash out at him when Oren bumped
into him just after the end of the shift. The significant thing
about Comeau's discharge is, I think, that in this, as in all
the incidents which occurred in the plant during the Febru-
ary-June period, Oren saw the situation in terms of the
Union's threat. He admitted, in his version of his argument
with Comeau , that he accused Comeau of engaging in union
activities instead of tending to his work, thus:
... in the morning I see that he is in the back room
talking to-this is about 5:34-talking there in the
back room. So, I didn't like it because our job is very
dangerous and people don't have to leave their place.
They must stay all the time. So, I come to him and I
says, what is the big idea that you are not staying with
your extruder, not watching them . Why are you run-
ning around all the factory? What is that? Something
you make propaganda for the Union or what?
and took Comeau's dare to fire him for that reason, thus:
He says yes, I do. I says, you can do everything you
want for the Union, any propaganda but outside and
not on our working time. He says, I love the Union. I've
been in the Union and I do what I please. I says no,
you cannot. So what, you want to fire me? I says, yes,
you are fired. That's my conversation with him. So, go
upstairs, take your card and get your pay. That's how
it was like, my conversation with John Comeau.
Oren also admitted that Comeau was a good worker up
until the week he was discharged. When this is coupled with
the words which Oren spoke to Comeau in discharging him,
the conclusion is inescapable that he did so because he
thought Comeau was neglecting his work to engage in union
activities . Since it has not been established in this record
either that Comeau was, in fact, neglecting his work or, in
fact, engaging in union activities on company time in con-
travention of a valid no-solicitation rule, it follows that
Oren's motive was discriminatory within the meaning of the
Act. Respondent, therefore, violated Section 8(a)(3) and (1)
of the Act by discharging John Comeau on March 27. (An
allegation of the complaint that Respondent, in the person
of Oren, in February and March, "inform[ed] employees
that they were being discharged because of their Union
activities," thus independently violating Section 8(axl), is
encompassed in the 8(a)(3) and (1) findings with respect to
John Comeau as well as Kathy Spillane and Deborah Por-
trait.)
The complaint also alleges an independent violation of
Section 8(a)(1) in that Respondent, on July 4, September 3
(i.e., Labor Day), and October 8 (i.e., Columbus Day),
"fail[ed] to pay holiday pay to employees for the reason that
they engaged in union activities." The only evidence ad-
duced in support of this allegation is that with respect to
Comeau. Since Comeau was denied holiday pay on the days
in question not because he had engaged in union activities
but because his status was that of an employee with less
than 6 months' service, Respondent did not commit the
offense alleged. In any event, holiday pay is part of the total
required to remedy the discriminatory discharge of Comeau
under the reinstate-and-make-whole portion of my recom-
mended Order. I find, therefore, that Respondent did not
violate Section 8(a)(l) of the Act by failing to pay holiday
pay to employees because they engaged in union activities.
3. James McCarthy
The complaint alleges Respondent discriminated against
James McCarthy by eliminating overtime work for him on
April 13 and discharging him on April 19. Unlike the other
four employees named in the complaint as having been
discriminatorily discharged, Respondent does not admit it
discharged McCarthy. The issue posed in the record is
whether he, in fact, quit.
In the weeks prior to the termination of McCarthy's em-
ployment, Oren frequently talked to him about the Union.
During the week of March 12 Oren stopped McCarthy as
he was walking from the coffee machine to his extruder. He
asked McCarthy if he knew anything about the Union
trying to get into the plant, whether he had signed an au-
thorization card or attended any meetings . On Monday,
March 26, the first workday after the union meeting on
March 24 which is the subject of the surveillance allegation
discussed in section D, 1, below, Oren talked to McCarthy
about Stephen Thompson, the General Counsel' s witness
for that incident. On March 27 Oren asked McCarthy if he
knew who had put some prounion material on the bulletin
board. A day or two later Oren asked McCarthy if he was
going to a union meeting scheduled for Saturday, March 31.
(Colella, Local 42's organizer, held weekly Saturday meet-
ings of Respondent's employees during March and part of
April, when his organizing efforts were at their peak.) When
McCarthy replied yes, Oren said the Union was going to
cause a lot of trouble for him and his employees, he loved
the employees and did not want to see them hurt by the
Union. Sometime during the week of April 2 or April 9 Oren
approached McCarthy at the timeclock as he was punching
out at 3:30 p.m. and accused McCarthy of posting a union
leaflet which had appeared on the bulletin board a day or
two before. McCarthy denied it. Oren insisted McCarthy
had. McCarthy demanded Oren name his accuser. Oren
refused. Both McCarthy and Oren lost their tempers. The
upshot was a threat by McCarthy to see a lawyer if Oren did
U.S. PLASTICS CORPORATION 331
not stop harassing him about the Union.
On Friday, April 13, Earl Stickney , Respondent 's plant
manager , instructed McCarthy not to come in for overtime
work the next day. (The supervisory hierarchy in the plant
runs from Oren to Rozzi to Stickney to Boardway to fore-
men. Stickney has primary responsibility for the extrusion
department ; Boardway, for the conversion department.)
Stickney told McCarthy that Oren was cutting his overtime.
When McCarthy asked why, Stickney said , "Well, you
know how Mr. Oren feels about the Union and everything."
(I credit McCarthy over Stickney as to this conversation
without , however , discreding Stickney generally. My find-
ings below, for example , with respect to Respondent's eco-
nomic explanation for cutting back on overtime in this
period are based on Stickney's testimony.)
The following Monday, April 16, McCarthy stopped
Oren as he walked by and asked Oren why his overtime had
been cut . Oren said for the good of the company . McCarthy
said he did not understand the explanation , he needed the
overtime badly. Oren said the company was having too
many expenses , if McCarthy did not like his decision, Mc-
Carthy could complain to the Union.
Overtime is normally scheduled on a voluntary basis on
Saturday morning . In the extrusion department , the em-
ployees engage in cleanup work and shut the extruders
down for the weekend . In the conversion department, some
of the bag-making machines are run, the number depending
on how many operators want to work and how much pro-
duction Respondent needs. In the period in question (not
only with respect to McCarthy but also with respect to
Audrey Parsons and Leonard DiOrio as to whom the com-
plaint also alleges discriminatory elimination of overtime;
see sections immediately following) Oren instructed Stick-
ney to cut down on overtime because business was slow and
expenses too high.
On the morning of April 19 Oren broke up a conversation
McCarthy was having with Michael Nappi , another extru-
der operator . Oren asked them what they were talking
about . They said something about the shop . Oren said,
"This is no place to hold a union meeting . If you want to
hold one , go to the Union hall."
Later that day the incident occurred which led to the
termination of McCarthy' s employment . There is no dispute
that Oren and McCarthy got into a fight over the fact that
McCarthy was producing rolls of polyethylene film which
were heavier than the maximum figure allowed under
Respondent's tolerances and was marking the weight they
should have been instead of their actual weight on his pro-
duction records . As in the case of John Comeau , there is
much testimony about how heavy the rolls were and wheth-
er McCarthy had been told to handle the paperwork as he
was. All details about the merits of the argument are, in my
opinion , irrelevant , for whether McCarthy was discriminat-
ed against turns, first , on whether he was discharged or quit.
McCarthy's version of the event was that , while he did tell
Oren at one point he did not have to take any of "this
bullshit," he only left when Oren "told me if I didn 't like it
go around the Union hall and get out." Oren insisted he
never told McCarthy to get out.
In concluding that Oren did not tell McCarthy to get out
but that, rather , McCarthy told Oren what he could do with
his job and stalked out, I have relied on the testimony of
Stickney, Foreman Michael Foley, and Larry Naselroad, a
group foreman , all of whom were present during the latter
part of the argument . Stickney and Foley, who were called
as witnesses by Respondent , both testified that the exchange
between Oren and McCarthy ended when McCarthy told
Oren he could "take his [obscenity] job and shove it up his
[obscenity]." More important, Naselroad, called as a wit-
ness by the General Counsel to corroborate McCarthy's
testimony that Oren had told him to get out, testified:
"About all I could remember hearing was Mr. [Oren] yelling
at Jimmy to, if he didn't like it that he could leave any time
he wanted. He could just get out." This quote falls short of
a direct order to McCarthy to get out of the plant. It is just
the sort of line which would have led McCarthy to tell Oren
to take his job and shove it. I find that McCarthy quit on
April 19.
McCarthy returned to the plant the next day and asked
Oren for his job back. Oren told him to get out, he did not
work there anymore , and Oren did not need him anymore.
Oren also told McCarthy to go down to the union hall.
Since McCarthy quit, the question of Oren's motive for
acting toward McCarthy as he did on April 19 does not
arise . I find Respondent did not violate Section 8(a)(3) and
(1) of the Act by discharging James McCarthy. However,
the antiunion motive for denying him his usual overtime on
April 14 is established by the words Stickney spoke to Mc-
Carthy on April 13. I find, therefore, that Respondent vio-
lated Section 8(a)(3) and (1) of the Act by denying James
McCarthy overtime on April 14.
As to the independent 8(a)(1) allegations of the complaint
which are predicated on Oren's dealings with McCarthy, I
find Respondent interrogated him about the union activities
of Respondent 's employees, harassed him because of his
union activities , and, in the conversation about the March
31 union meeting , impliedly threatened employees with re-
prisals for engaging in union activities . Each is a violation
of Section 8(a)(1) of the Act . (An allegation in the complaint
that Respondent violated Section 8(a)(1) when Stickney and
Oren "inform[ed] employees that their overtime work was
being eliminated because of their Union activities" is en-
compassed in the broader conclusion that McCarthy was
discriminatorily denied overtime.)
4. Audrey Parsons
The complaint alleges Respondent discriminated against
Audrey Parsons by eliminating overtime work for her on
April 12, issuing disciplinary warnings to her on April 20
and 24, and discharging her on May 1. While Respondent
concedes she was discharged , it contends that her failing to
work after May 1 was the result of a misunderstanding and
not a unilateral decision by Respondent to terminate her.
Unlike the other four persons discharged , Mrs. Parsons
was one of the employees who led the organizing effort in
the plant. (The Misses Spillane and Portrait did nothing
more than sign authorization cards. Comeau and McCarthy
did not attend conferences and/or hearings at the Board's
regional office on behalf of Local 42 until after they were
discharged or quit.) She held two of the Saturday meetings
already referred to in her home . She went to the Board's
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boston office with Colella on both April 11 and 23. On
each of those days she subsequently helped Colella distrib-
ute leaflets outside the plant which denigrated Oren in
harsh terms.
The General Counsel had Mrs . Parsons testify as to two
incidents in March which would, if found, be independent
violations of Section 8(a)(l). One , on March 17, involved
harassment by Oren . The other , on March 24, involved
interrogation by Foreman Curtis MacKay . Both Oren and
MacKay denied that the incidents described by Mrs. Par-
sons ever occurred . Since I have discredited Mrs. Parsons
generally , there is no evidence in the record that Oren and
MacKay committed the acts alleged . Consequently, I make
no findings of fact as to either of these two incidents.
On April 12, the day after Mrs. Parsons attended the
conference in Boston in connection with Case 1 -RC-12640
and then helped leaflet the plant, both Stickney and Board-
way spoke to her . My findings as to each conversation are,
of course , based on the testimony of Stickney or Boardway
and not on the testimony of Mrs . Parsons.
Stickney stopped by Mrs. Parsons' machine and said,
"How's everything going this morning?"
Mrs. Parsons said , "You mean with the machine?"
Stickney said, "Yes."
Mrs. Parsons said , "Everything is fine , but I'm surprised
you're talking to me."
Stickney said, "Well, why wouldn't I be?"
Mrs. Parsons said , "Well, now that it's out in the open,
I'm supporting the union , I didn 't think you'd speak to me
at all."
Stickney laughed and said , "Well, I know everybody's
entitled to their own opinion . That's your opinion . It doesn't
have to me mine ." They chatted for a few minutes, and
Stickney walked away.
Boardway, that day, talked , to her about staying by her
bag-making machine and not wandering away when the roll
of polyethylene film which is fed into the machine was being
changed. He did not tell her she would be in trouble if she
was caught wandering around "because the company
knows you 're for the Union."
On April 13 Boardway told Mrs. Parson not to come in
for overtime the next day.
On April 20 Mrs . Parsons was given a written warning
which read:
Subject : Excessive Absenteeism and Tardiness
In the month of April 1973 you have been absent
from work a total of four days, arrived late six days and
have left early other days. All of these absences have
been unauthorized.
Therefore , if you are again absent one more day
without authorization , you will be discharged.
On April 23 Respondent posted the following notice near
two telephones in its plant:
To: All Personnel
Subject: Telephone Calls
All emergency calls are to go through the office. The
two pay telephones in extrusion and shipping -dock are
to be used during breaks and lunch time . They are not
to be used during working hours.
Warnings will be given to those who do not obey this
rule. After the second warning , you will be discharged.
Al Rozzi
Controller
On April 24 Mrs. Parsons went to one of the telephones
during worktime , read the notice , and made a call. Later
that day she was issued a second written warning:
Subject: Violation Notice # I
At approximately 11:25 a.m. on April 24, 1973 you
knowingly violated the policy of U. S. Plastics Corp.
pertaining to pay telephone usage . Prior to making the
call you reread this policy that is posted by the tele-
phone and disregarded this policy.
Let me remind you that continued violation of U. S.
Plastics Corp . policies is ground for discharge.
The facts surrounding Mrs. Parsons ' discharge are essen-
tially undisputed, including the tenor of her final telephone
conversation with Oren on May 1. The only important fact
at issue is whether, as Mrs. Parsons testified , Oren said to
her specifically, "You're fired ." Since I have discredited
Mrs. Parsons in all respects , I find that he did not. My
findings as to what was said are a paraphrase of the remain-
der of what Oren and Mrs . Parsons testified passed between
them.
Mrs. Parsons has a small child. Because of babysitter
problems , she was frequently late or absent . She was off sick
on Monday, April 30. The next morning she called the plant
to report that she would be late because her babysitter had
not shown up on time . She talked to Oren. Oren told her not
to bother to come in at all . Oren intended merely to convey
the idea that he was bothered by her lateness and that, as
long as she was going to be late anyhow, Respondent could
get along without her services that day. Because of Oren's
difficulty in communicating in English , Mrs. Parsons under-
stood him to mean that she was discharged . Consequently,
she did not attempt to go to work thereafter. (Why she failed
to respond to Respondent 's offer of rehire in June following
the abortive settlement between Respondent and Local 42
is unexplained in the record.)
As with Kathy Spillane, Deborah Portrait, and John Co-
meau, the issue with respect to Mrs . Parsons' discharge is
whether Oren was motivated by her union activities . Since,
unlike the other three, there is no direct evidence (even in
Mrs. Parsons ' version of the words Oren spoke to her on
May 1) stemming from the discharge incident on which to
base such a finding , the issue must turn on whether other
evidence of Respondent's treatment of her will support such
an inference . The only such evidence relates to the two
written warnings she received.
Rozzi decided to set up a formal written warning system
U.S. PLASTICS CORPORATION
in 1973 after he became aware of Local 42's organizing
activities . (Prior to the warning issued to Mrs . Parsons on
April 20, the only written warning issued to an individual
employee, as distinguished from admonitions addressed to
all employees and posted on the bulletin board, was one
given Leonard DiOrio in May 1970.) Oren admitted that the
system was adopted in response to union activities in the
plant, thus:
Before [the organizing campaign began] they was told
by saying, and then they start to give them hell, from
this time the union activity start to be and they stopped
to listen to us. They stopped to listen , my workers. You
say to them, why you are not coming in, I was busy,
and they feel themselves very, very free. That's why
they forced us to start to write warnings.
Since Respondent adopted a system of written warnings
to discipline its employees for asserting their right to self-
organization and issued the warnings alleged in the com-
plaint (see also the sections on Leonard DiOrio and Richard
Needham which follow) pursuant to that purpose, I find
Respondent violated Section 8(a)(3) and (1) of the Act when
it issued written warnings to Audrey Parsons on April 20
and 24 . However , I do not find in the issuance of these
warnings sufficient evidence of animus against Mrs. Par-
sons because of her role as a union leader to outweigh the
fact that her ceasing to work for Respondent on May 1 was,
in fact, the result of a misunderstanding and not a deliberate
effort by Oren to get rid of her. While the issue is a close
one, I do not think the General Counsel has sustained his
burden of proving Respondent's discriminatory motive
even when all the evidence of other unfair labor practices
committed by Respondent is thrown into the scales on Mrs.
Parsons' side. I find, therefore, that Respondent did not
violate Section 8(a)(3) and ( 1) of the Act by discharging
Audrey Parsons on May 1.
As to Mrs. Parsons failure to work overtime on April 14,
there is nothing even in her version of what Boardway said
to her about not coming in to indicate a discriminatory
motive. Moreover, I credit the testimony of Stickney that
the basic reason for cutting down on overtime in this period
was economic and the testimony of Boardway that his rea-
son for telling her not to come in on April 14 was lack of
work. Therefore, I find Respondent did not violate Section
8(a)(3) and (1) of the Act by denying overtime to Audrey
Parsons on April 14.
I also find the General Counsel has failed to prove Re-
spondent, in the persons of Samuel Oren and Curtis Mac-
Kay, committed independent violations of Section 8(axl)
by harassing Audrey Parsons on March 17 or interrogating
her on March 24. In addition, I find Respondent, in the
person of William Boardway, did not violate Section 8(axl)
by threatening employees with retaliation because of their
union activities , threatening employees that Respondent
would be more strict with its employees if the Union got in,
and interrogating employees concerning their union activi-
ties.
5. Leonard DiOrio
333
The complaint alleges Respondent discriminated against
Leonard DiOrio by denying him overtime on March 24,
transferring him from the first to the third shift on April 16,
and issuing a disciplinary warning to him on April 24. Re-
spondent contends it was not discriminatorily motivated
when it transferred him.
DiOrio, like Audrey Parsons, was one of the leaders of the
organizing campaign. He signed the first authorization card.
He went to the Board's Boston office with Colella and sub-
sequently helped leaflet the plant on April 11 and 23. More
important, as my findings with respect to conversations
between Oren and DiOrio on January 29 and 30 establish,
Oren thought, incorrectly, that DiOrio was responsible for
contacting Local 42 in the first place.
DiOrio, a third-shift group foreman, was originally hired
to work on the third shift in 1963. He left and returned on
a number of occasions, each time working on either the
second or third shift until, on July 6, 1971, he was transfer-
red to the first shift. At the time, DiOrio was courting Oren's
private secretary. (The issue which aroused the most passion
at this long and difficult hearing was whether Oren transfer-
red DiOrio at the request of Oren's secretary in order to
promote the romance. I make no finding because the point
is immaterial . DiOrio married the lady in November 1972.
In the interest of simplicity, I refer to her as Janet or Mrs.
DiOrio regardless of the time in question.) Leonard and
Janet DiOrio both quit on July 15, 1971, for reasons which
are irrelevant to this case. She returned on August 21, 1972,
and left for good on January 15, 1973. He returned on
November 15, 1971, and went to work on the first shift. He
worked on the first shift from that time until April 16, 1973.
On January 29, the day DiOrio talked to Colella outside
the plant, Oren came to DiOrio's extruder and asked him
how many rolls he had left to wind. DiOrio said two. Oren
said that, when DiOrio was finished, he did not want DiOrio
to work for him anymore. DiOrio asked why. Oren said
because he had something to do with the Union. DiOrio
denied it . Oren told DiOrio to get his check. He said he
would fix it so that DiOrio could collect unemployment.
DiOrio asked if there was a problem because of the Union.
Oren said that, if DiOrio engaged in union activities, he
could not work there.
DiOrio went to Rozzi's office to get his check. He told
Rozzi what had happened. While DiOrio was waiting for his
check, Oren went into Rozzi's office. DiOrio was sum-
moned into the office a few minutes later. DiOrio again
protested that he had had nothing to do with the Union.
After a short discussion, Oren told DiOrio to go back to
work until Oren found out he did.
The next day, January 30, Oren told DiOrio he had heard
Mrs. DiOrio had sent the company's Christmas list to the
Union. DiOrio denied it, pointing out that his wife did not
even work there anymore.
On the morning of Saturday, March 24, the day of the
alleged surveillance incident covered in section D, 1, below,
when DiOrio was on overtime, Oren asked DiOrio if he was
going to the union meeting that afternoon. DiOrio said no,
he did not want to be fired. Oren turned to Stickney and told
him to send employees home. Stickney sent DiOrio home
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
around 10 a.m. (The record is unclear as to just who or how
many employees were sent home at this time . This finding
is based on the testimony of DiOrio, which I credit, that he
knew Stickney sent him home on Oren's instructions be-
cause "Mr. Oren was standing right there and he told Mr.
Stickney to send us all home." Stephen Thompson is the
only other employee who testified he was sent home early
on March 24. He was instructed to leave by Boardway.
DiOrio testified Thompson, Comeau, and "another fellow,
I don't know his name," were sent home in addition to
himself . There is no explanation of why the General Coun-
sel has failed to allege discrimination against other employ-
ees sent home that morning. He did amend the complaint
to allege an independent 8(a)(1) violation by Respondent in
the person of Boardway.)
On March 27, a few minutes after John Comeau was
discharged, Oren came to DiOrio's extruder and began up-
braiding him about the Union. DiOrio protested that he had
nothing to do with the Union. Oren said, "Well, I heard that
you and your wife sent a Christmas list in."
DiOrio said, "You're wrong, Mr. Oren." He threatened to
have his lawyer write a letter to Oren if Oren did not stop
yelling at him about the Union.
On two occasions in the first half of April while DiOrio
was still on the first shift, Stickney said to him, as he walked
past DiOrio's work station, that he knew DiOrio was the
instigator of the Union. DiOrio said he was not.
On the morning of April 16 Oren sent DiOrio home,
telling him to return that night for the third shift. Two of the
three persons who were in the area when Oren spoke to
DiOrio testified in addition to DiOrio about what was said.
They are Rozzi and David Rosman, supervisor on the ship-
ping dock. Joe Broniatowski, an employee who was working
with DiOrio that morning, was not called as a witness, a fact
to which I attach no significance . Mrs. DiOrio testified
about a phone conversation with her husband and Rosman
just after Oren spoke to DiOrio. None of the witnesses to
the conversation claims to remember everything that was
said. None of their acounts is inherently inconsistent with
the others. Consequently, my findings as to what happened
are a synthesis of the testimony of all.
DiOrio had been assigned to help load a truck on the
morning of April 16. (This was not an unusual assignment
for DiOrio while he was on the first shift. When DiOrio
transferred from the third to the first shift, he dropped back
to operator status, then, at Stickney' s request because of his
special talents and experience, to swing man in the extrusion
department and, finally, again at Stickney's request, to
swing man throughout the plant.) At breaktime, DiOrio
used the phone on the dock to call his wife, apparently a
daily custom. Rozzi happened to be in the area conferring
with Rosman about the shipment being loaded at that mo-
ment . Enter Oren.
Oren told DiOrio he wanted to talk to him. DiOrio ended
his conversation with Mrs. DiOrio and hung up. Oren in-
structed DiOrio to punch out and go home so that he could
return that night on the third shift. DiOrio protested. Oren
explained that he needed a group foreman in the extrusion
department and DiOrio was the only employee immediately
available to fill the job. DiOrio said his wife would kill him.
He explained that his wife was apprehensive about being
alone at home at night. Oren told DiOrio he was the bread-
winner in the family and should, therefore, be prepared to
stand up to his wife like a man . Oren said he would transfer
DiOrio back to the first shift in a couple of weeks, as soon
as he could find somebody else and train him for the job.
DiOrio continued to protest that Oren should transfer any-
body other than him because going back to the third shift
placed him in an impossible position with his wife. Oren
finally ended the argument by ordering DiOrio to do as he
had been told. He said, "If you don't want to go on the third
shift, have the Union get you a job." DiOrio elected to go
on the third shift. He was still on it at the time of the hearing.
As soon as Oren left the shipping dock, DiOrio called his
wife and told her he had been transferred. Mrs. DiOrio
protested. DiOrio put Rosman on the telephone to explain
that DiOrio had had no choice. Rosman told Mrs. DiOrio
what Oren had said about the transfer being only tempo-
rary.
Sometime in the last half of April, DiOrio had a series of
three conversations with Curtis McKay, third-shift foreman
in the extrustion department, about soliciting for the Union
in the plant. There is no dispute between DiOrio and Mac-
Kay that these conversations took place and little as to what
was said . MacKay denied he told DiOrio specifically that
he would be fired. MacKay testified DiOrio was actually
passing out cards and leaflets rather than merely carrying
them, as DiOrio testified. As to these details, I have credited
DiOrio over MacKay.
On the first occasion, DiOrio walked into the plant with
some blank authorization cards he had picked up from Co-
lella. MacKay saw the cards as DiOrio was putting them
into his lunchbox. MacKay said, "If you get caught passing
those cards around, you're going to get fired." DiOrio said
he was not passing them around but if anybody wanted a
card they could have one. The next day MacKay told Di-
Orio the same thing with respect to some union leaflets
DiOrio carried into the plant with him. Once again, DiOrio
said he was not passing them around. A couple of days later,
MacKay again approached DiOrio as he came into the
plant to go to work. MacKay said, "You know, if you gave
up this whole Union, the people would give it up too."
DiOrio said, "I have no control over the people. What
they do is their business."
Near the end of the third shift on April 17 DiOrio went
to the top of one of the extruders to change the treater
paper. (The size and complexity of the line of integrated
machines known collectively as an extruder are treated in
somewhat greater detail in section E, below. Suffice it to say
at this point that DiOrio climbed stairs to a level well above
floor level to carry out his chore.) When he had finished he
called down to Foreman Jack Allen to turn the treater back
on. The treater did not get turned on. Three rolls of polyeth-
ylene film were ruined before the oversight was noted and
corrected. Consequently, Respondent issued the following
written warning to DiOrio on April 24:
Subject: Spoiled Merchandise
On April 17, 1973, you ruined three rolls (10% of
your production) because you neglected to turn on the
treater. You have had excessive waste problems in the
past and it must stop. You have been employed at U.S.
U.S. PLASTICS CORPORATION 335
Plastic Corp. for approximately seven years (off and
on). Therefore, you are well knowledgeable of proce-
dures that must be followed.
Hence if this spoiled merchandise happens again
without good reason, you will be discharged.
Respondent's plant closed down for vacation the first
week in July. Just before the vacation period, Oren ap-
proached DiOrio in the extrusion department. He told Di-
Orio that, if DiOrio would give up the Union, he would
transfer him to the first shift after vacation . When DiOrio
returned from vacation he showed up for the first shift. He
told Stickney that Oren had told him he would be on the
first shift. Stickney checked with Oren. He reported back to
DiOrio that Oren said he was still on the third shift. A few
nights later , when Oren made one of his frequent nocturnal
visits to the plant, DiOrio asked why he had not been trans-
ferred . Oren said because he was still needed on the third
shift.
The issue of whether Respondent transferred Leonard
DiOrio from the first shift to the third shift on April 16 in
retaliation for his union activities or because it needed him
on the third shift generated more testimony in this record
than any save only the issue of Local 42's majority. At the
end, it came down to a haggle over the details of Mr. and
Mrs. DiOrio's romance, facts which obviously have no bear-
ing on why Oren acted as he did on April 16. If the parties
had not elected to fight so hard over what strikes me as a
relatively trivial change in DiOrio's conditions of employ-
ment, the whole thing might be dismissed as a tempest in a
teapot.
I am not persuaded that the General Counsel has estab-
lished Respondent's discriminatory motive by a preponder-
ance of the evidence . Respondent 's need for an experienced
group foreman in the extrusion department that day is un-
controverted. It is uncontroverted that DiOrio had become
a plantwide swing man on the first shift , filling in when
needed at such unskilled jobs as loading trucks and thus not
utilizing his skill as an extruder group foreman , the nonsu-
pervisory job (see section E, below ) calling for the highest
technical skill in the plant. That DiOrio was hired and
worked most of his career on other than the first shift is
admitted . It is uncontroverted that there was no other first
shift employee of comparable skill who had not been hired
specifically for the first shift and thus had a more valid
objection than DiOrio to an involuntary transfer to the
third. That DiOrio was told the transfer was only temporary
indicates Respondent gave some weight to his protest on
April 16 and only insisted on having its way because it had
no satisfactory alternative. That DiOrio was not, in fact,
transferred back to the first shift is explained by the filing
of the charge in Case 1-CA-9034 on April 23 in which
DiOrio 's transfer is specifically alleged as a violation of the
Act. When charges are filed during organizing situations,
positions harden , for reversal of the action complained of
becomes a propaganda point for the other side. The only
solid bit of evidence supporting a theory that Respondent
was discriminatorily motivated is Oren's statement to Di-
Orio "if you don't want to go on the third shift, have the
Union get you a job." It is simply another example of Oren's
propensity during this period to react to any situation in-
volving his employees in terms of their union activities.
While it shows Oren had the Union on his mind when he
spoke to DiOrio, it is insufficient to prove that his thoughts
about the Union played any substantial part in his decision.
I find, therefore, Respondent did not violate Section 8(a)(3)
and (1) of the Act by transferring Leonard DiOrio from the
first to the third shift on April 16.
For the reasons already set forth in section 4, above, I
find Respondent violated Section 8(a)(3) and (1) when it
issued a written warning to DiOrio on April 24. I also find
Respondent violated Section 8(a)(3) and (1) by denying
DiOrio overtime when it sent him home early on March 24.
Its motive is established by the fact Oren asked DiOrio
about his union activities and immediately ordered Stickney
to send him home without any intervening circumstances
which might establish a nondiscriminatory reason for no
longer needing his services that morning. (The allegation
that Respondent committed an independent 8(a)(1) viola-
tion when employees were sent home on March 24 is en-
compassed in the 8(a)(3) finding with respect to DiOrio. See
section entitled "Remedy" below.)
As to independent 8(a)(1) allegations in the complaint
which are predicated on DiOrio's experiences, I find Re-
spondent committed violations when Oren harassed and
interrogated Leonard DiOrio on January 29 and 30 and
March 24 and 27 and when Oren promised DiOrio a benefit
(transfer to the first shift) in late June if he would refrain
from union activities. I also find Respondent violated Sec-
tion 8(a)(1) when Stickney, in early April, harassed DiOrio
by accusing him of being the instigator of the organizing
campaign and when MacKay, in late April, threatened him
with discharge for bringing union cards and leaflets into the
plant. An allegation that MacKay "blame[d] employees for
bringing the Union in at Respondent's plant" is, I assume,
predicated on the third of MacKay's three conversations
with DiOrio. I find no violation in MacKay's suggestion
others would follow DiOrio if he gave up the Union.
6. Richard Needham
The only discrimination alleged against Richard Need-
ham in the complaint is a disciplinary warning issued on
April 24. (The General Counsel produced no evidence in
support of an allegation that another such warning was
issued to Needham on May 7. I granted Respondent's mo-
tion to strike at the conclusion of the General Counsel's
case.)
Richard Needham took off on April 23 to accompany
Colella to the Board's office in Boston. When he called the
plant that morning to report that he would not be in, Oren
answered the phone. Needham told Oren where he was
going . Oren said the only time an employee could take off
was when he was sick.
When Needham came to the plant the next morning, his
timecard was missing from the rack . Needham looked up
Stickney. Stickney took Needham to his office where he
gave Needham the following written warning dated April
23:
Subject: Excessive Absenteeism
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
You were absent from work on Monday , April 23rd,
without authorization . Calling in one-half hour after
your shift starts is not considered an approval.
Therefore , if you are out one more day without au-
thorization , you will be discharged.
Later that morning Curtis MacKay asked Needham if he
was for the Union. Needham replied, "Definitely." A few
minutes later he was sent to the shipping department, where
he worked for the balance of the day.
Two or three days later MacKay said to no one in particu-
lar, as he passed Needham in the plant, "There goes the
Union steward."
For reasons already set forth in section 4, above, I find
Respondent violated Section 8(a)(3) and (1) of the Act when
it issued a written warning to Richard Needham on April
24.
I find MacKay did not interrogate Needham about his
union activities in violation of the Act when he asked him
his views on April 24. MacKay's words conveyed nothing
more than idle curiosity. Like similar queries he admitted
putting to several other employees on other occasions, they
were part of the normal exchange between a first-line super-
visor and a man he worked closely with and thus were not
coercive. I also find nothing coercive in MacKay's referring
to Needham in a bantering manner as the union steward.
The General Counsel elected to allege Needham's trans-
fer only as an 8(a)( 1) harassment rather than as an 8(a)(3)
and (1) discrimination. Regardless of the point of view from
which it is viewed, there is no merit to it. There is no dispute
that Respondent must occasionally transfer a machine op-
erator to the shipping dock for a day or so in order to help
the shipping department's lone foreman and lone rank-and-
file employee load or unload a truck. If Respondent did
harass Needham on this occasion by selecting him, it must
be shown that Respondent was motivated by antiunion ani-
mus. There is no evidence to support such a finding. Even
if MacKay's innocuous question to Needham a few minutes
before the transfer is given all the weight it will bear, there
is still no evidence. The record does not show to whom, if
anybody, MacKay relayed the fact that Needham was ad-
mittedly a union supporter. Neither does it show who made
the decision to transfer Needham. For that matter, it does
not even show who told MacKay to go to shipping, for
MacKay could not recall who gave him the order. I find,
therefore, that Respondent did not commit an independent
8(a)(1) violation of the Act by harassing Richard Needham
on April 24.
7. Allen Parsons
As originally issued, the complaint alleged that Respon-
dent discriminated against Allen Parsons, Audrey Parsons'
brother-in-law, 1. refusing to hire him on April 23 and July
31. After Parsons stoutly insisted, through direct, cross, and
redirect examination , that his crucial interview with Oren
took place in June, I granted the General Counsel's motion
to amend the complaint from April to June. The circum-
stances leading up to that amendment make it impossible to
find any merit to this allegation.
Parsons' version of his first interview with Oren on one
of the several times he want to the plant to apply for work
was that he identified himself as Mrs. Parsons' in-law and
Oren turned him down by saying "we're having enough
trouble now; we don't need any more Union followers."
The problem is not that I credit Oren's denial he spoke these
words, for I do not. The problem is that I cannot credit
Parsons either.
Parsons' reason for insisting this interview took place
when he went to the plant in June and not on April 23 was
that he specifically remembered that his sister Phyllis, who
quit to get married on April 20 and was not rehired until late
June, and sister-in-law Audrey, who was discharged on May
1, were not employed by Respondent at the time. However,
there is in evidence an affidavit taken from Parsons by
Colella on May 5 which places the interview on April 23 and
attributes the same remark to Oren. I have no reason to
doubt the date on the face of the affidavit. On the other
hand, I have no reason to reject Parsons' own testimony as
to when he got such a response from Oren. In order for
Oren's remark to be evidence on which to base a finding
that he was discriminatorily motivated when he refused to
hire Parsons, I would have to find the remark was written
down in an affidavit before it was made, an impossible
conclusion. Since there is no credited evidence on which to
find a discriminatory motive, I find Respondent did not
violate Section 8(a)(3) and (1) of the Act by failing to hire
Allen Parsons in June and July.
The General Counsel has alleged as independent 8(a)(1)
violations Respondent's refusal to rehire Stephen Thomp-
son and Sharon Chesley. Thompson quit in April. He went
to the plant in July and applied for rehire. The only person
he spoke to was a receptionist. He did not get a job. I find
the General Counsel has failed to prove Respondent violat-
ed the Act by refusing to rehire Stephen Thompson. (I re-
jected the General Counsel's offer of proof that, if permitted
to testify about what the receptionist told him, Thompson
"would testify that this secretary told him that Mr. Oren did
not wish to rehire him because he had been involved in
union activity." I hereby deny the request in the General
Counsel's brief that I reverse this ruling.)
Sharon Chesley quit in May and moved to Florida in
June. Before she left she asked John Robertson, an employ-
ee, to ask Boardway whether she could return to work.
Robertson went to both Boardway and Oren. I credit Rob-
ertson over Boardway as to their conversation. (Boardway
simply testified he could not recall Robertson ever asking
him about Miss Chesley.) Boardway told Robertson Miss
Chesley could not come back because she was in with the
Union. Oren simply told Robertson no.
Around September 21 Miss Chesley, who had moved
back to Lynn, ran into MacKay in the Dubonnet Cafe. I
credit Miss Chesley over MacKay as to what they said to
each other. (Both testified that they chatted in a friendly
fashion for an extended time. MacKay's version of what
follows is that he urged Miss Chesley to go to Oren for a
job and she demurred on the ground she was for the
Union.) She told MacKay she was on her way to the plant
to apply for a job. MacKay asked her whether she had ever
signed a union card. When she said yes, MacKay told her
to forget it.
U.S. PLASTICS CORPORATION 337
The General Counsel does not contend John Robertson
applied for a job on Miss Chesley's behalf in June. I find
she did not apply for a job by talking to MacKay in Septem-
ber. Therefore , I find the General Counsel has failed to
prove Respondent violated the Act by refusing to rehire
Sharon Chesley . However , I do find Respondent violated
Section 8(a)(1) by threatening its employees with retaliation
for engaging in union activities when Boardway told Rob-
ertson that Respondent would not rehire her, in the event
she did apply , because she was in with the Union.
D. Other 8(a)(1) Allegations
1. Surveillance
Another issue which generated considerable heat during
the hearing was whether Samuel Oren engaged in surveil-
lance of a union meeting on the afternoon of Saturday,
March 24 . Colella held one of his regular Saturday meetings
that afternoon at Local 42 's office in Lynn . Stephen Thomp-
son testified that, when he arrived for the meeting, he ob-
served Oren and his son -in-law , Michael Mades , sitting in
a car some 75 yards away on the parking lot of a cafe. Oren
and Mades both denied being there.
March 24 , it will be recalled , was the day on which Di-
Orio, Thompson , and others were abruptly sent home in
mid-morning by Oren . Sometime that morning (whether
before or after Thompson was told to go home is unclear)
Oren approached Thompson and asked him if there was a
union meeting that afternoon . (While , as discussed in more
detail below , I do not credit Thompson as to actual surveil-
lance, I have not discredited him generally .) Thompson said
yes. Oren told Thompson that , if he attended , he would be
fired . Thompson told Oren to go to hell and walked away.
Thompson attended the meeting . He was not fired. On
Monday, March 26 , Oren told James McCarthy he had
fired Thompson and, if he found whoever else was involved
with the Union , he would fire them too.
As to whether Oren engaged in surveillance of a union
meeting, I credit the testimony of Mades that Oren was not
parked outside Local 42's office over Thompson 's testimony
that he was . Mades, in addition to being Oren 's son-in-law,
is a manufacturer 's representative for Respondent as well as
other companies . His testimony is, obviously , subject to the
suspicion of bias and prejudice . I credit him over Thomp-
son, nonetheless , for a number of reasons . Thompson alone
of the several witnesses who attended the March 24 meeting
testified that he saw Oren across the street . Thompson ap-
parently raised no hue and cry at the meeting about Oren
sitting outside and spying. Thompson referred to the car in
which he saw Oren and Mades as Oren 's car and described
it, yet his description did not jibe with the appearance of
Oren's car . Therefore , I find Respondent did not violate
Section 8(a)(1) by engaging in surveillance of its employees'
union activities on March 24 . However , I do find that Re-
spondent interrogated employees and threatened them with
discharge for engaging in union activities in violation of
Section 8 (a)(1) when Oren spoke to Thompson on March 24
and McCarthy on March 26 in incidents related to the
March 24 union meeting.
Two other portions of the record relate to other allega-
tions of the complaint that Respondent gave employees the
impression of surveillance.
On February 1, the day after Colella first leafleted the
plant , Oren accused Michael Nappi , an extruder operator of
passing out leaflets. A few days later, Oren approached
Nappi and said, "I hear you are with this union thing."
Nappi said , "No, I am not with any union thing."
Oren said , "Well, I have heard it from other people that
you are associated with the Union and their goings on."
Nappi said , "No. Whoever said that to you, bring them
to me right now and have them tell me to my face , and you'll
find out who the liar is , them or myself , because I have
nothing to hide . If you do, they won't come."
Oren said, "All right," and walked away. Thereafter,
Oren frequently talked to Nappi in antiunion terms. One
such occasion was the incident on April 14 already de-
scribed in section C ,3, above , when Oren broke up a conver-
sation about work between McCarthy and Nappi by telling
them to hold their union meetings at the hall.
A day or two before Saturday , April 7, Robert Black, a
third-shift employee , accepted a union leaflet as he entered
the plant . He stuck it into his pocket . The next morning, a
first-shift employee asked if he had seen the leaflet . He told
her he had and pulled out the copy he had in his pocket. He
showed it to her.
On April? Oren took Black into an office in the produc-
tion area and accused him of passing out leaflets for the
Union . Black was puzzled at first but then remembered
what had happened a day or two earlier . Black laughed
and explained . Oren said, "Well, I do not want you passing
out any more propaganda , and if you do not like it, you
can leave."
I find Respondent violated Section 8(a)(1) of the Act by
creating the impression that it had the union activities of its
employees under surveillance when Oren accused Nappi
and Black of passing out leaflets for Local 42. I also find in
Oren 's treatment of Nappi and Black further 8(a)(1) viola-
tions in that Respondent harassed its employees.
2. The promise of promotion
In May Oren summoned John Robertson to his office. In
the course of a discussion about the good and bad points of
unions, Oren told Robertson he would promote him to
group foreman if the Union did not get into the plant. If it
did, he said , that would be a different story . I find Respon-
dent committed an 8(a)( 1) violation by impliedly promising
a promotion to an employee if he would refrain from engag-
ing in union activities when Oren made this remark to Rob-
ertson.
3. The threat to move the plant
The most revealing insight into Oren 's reaction to Local
42's campaign to organize his employees was provided by
Foreman Harold Baker . Baker was discharged in July as the
result of an argument with Oren over his pay . The argument
culminated in Baker 's grabbing Oren 's necktie and giving it
a jerk . Despite Baker 's frank admission that he was angry
when he left Respondent and the undisputed testimony of
Albert Rozzi that Baker told him, as Baker was leaving, that
he was going to "fix" Oren by making a lot of trouble for
him on the "petition," I credit Baker.
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baker related many conversations with Oren about the
organizing campaign , starting as early as January. In the
first instance , Oren instructed him to keep an eye on the
employees and get rid of those who supported the Union.
Thereafter, he discussed various employees in terms of
Oren's having learned they were prounion and instructing
Baker to find some pretext to get rid of them . Baker ignored
these instructions . At other times , Oren told Baker to find
out whether employees had signed authorization cards.
Baker did so by asking the employees . It was in this context
that Baker gave the second of the two portions of his testi-
mony I have set forth verbatim in the section entitled "Cred-
ibility" above. Oren also told Baker to find out whether
employees were attending union meetings , and Baker did so
by asking them . Baker also told employees they would get
a raise if the Union failed to get in.
The only subparagraph of the written complaint which
refers to Baker alleges that he "and Curt MacKay, in or
about April, 1973, promis[ed] employees that they would
not be harassed if they inform Samuel Oren that they no
longer supported the Union." There is nothing in any of the
testimony by or about Baker or MacKay to support such an
allegation . I find , therefore , Respondent did not commit an
independent 8(a)(1) violation in such a manner . (Similarly,
there is no evidence in the record to support an allegation
that Oren "inform[ed] employees who were supporting the
Union that he would not hire their relatives because he did
not want additional supporters of the Union to be em-
ployed." I also find Respondent did not commit an inde-
pendent 8(axl) violation in this manner.) The General
Counsel did not elect to amend the complaint during the
hearing to allege interrogation and promise of benefit as
8(axl) violations by Respondent in the person of Baker
because , I assume , he considered such findings accumula-
tive. Consequently, I make no such findings although, obvi-
ously, they would be supported by the record.
The General Counsel moved to amend the complaint
during the hearing with respect to Baker in only two re-
spects. One was to add his name to those of Rozzi, Stickney,
and Boardway in the subparagraph which alleges circula-
tion of the antiunion petition, the subject of the next section.
The other was to add an allegation that "Harold Baker did
tell employees that Respondent would move to North Caro-
lina if the Union got in." The facts with respect to that facet
of Baker's activities are as follows:
Oren noticed that things which happened in the plant
became the subjects of union leaflets handed out at the gate
a few days later. In order to test this phenomenon, Oren told
Baker to tell Sharon Chesley, in confidence, that Oren was
being wooed by authorities in North Carolina with offers of
free land, low taxes and cheap labor and he would accept
them and move the plant to North Carolina if the Union got
in. Baker did as he was instructed. Sure enough, the rumor
surfaced in a short time. Oren then instructed Baker to tell
the same thing to other employees . Baker did so. I find
Respondent violated Section 8(a)(1) by threatening to move
its plant to another state when Baker told employees Re-
spondent would move to North Carolina in the event the
Union got in.
4. The antiunion petition
The one facet of this case about which there is no dispute
in the record is Respondent's role in the initiation and circu-
lation of the antiunion petition on May 31 and June 1.
Immediately following Oren's announcement to the em-
ployees on May 30 that he had decided to recognize Local
42, Harold Horton, the maintenance man who had started
the whole thing by first contacting Angelo Colella, Local
42's organizer, discussed the situation with Arthur Herrera,
another employee. They decided that they did not like the
fact that Oren had acted unilaterally when the election in
Case 1-RC-12640 was due to be held in less than a week.
Consequently, Horton went to the office on May 31 and
talked to Rozzi. Rozzi agreed with Horton's point of view.
They decided between them that the best way to proceed
was to circulate a petition in the plant protesting Oren's
decision. Horton asked Rozzi to put it into words. Rozzi
agreed to do so. As a result, a petition couched in the terms
set forth in the section entitled "Chronology" above was
drafted by Rozzi and typed in his office. While this was
being done, Herrera also went to the office and talked to
Rozzi. Rozzi told him not to worry, the problem was being
taken care of.
When the petition was ready, Rozzi took it to Horton and
asked him if that was what he had in mind. Horton said it
was and signed it. Herrera, who was also present, signed
next. Thereafter, the petition was circulated on May 31 and
June 1 by Albert Rozzi, Earl Stickney, William Boardway,
and Harold Baker as well as several nonsupervisors such as
Horton. Oren was informed of what was going on while the
petition was being circulated. Ultimately, 36 persons signed.
At least three-Stickney, Boardway, and Foreman Michael
Foley-were supervisors. Boardway and Stickney signed
last. After they signed, the petition was presented to Oren.
Oren based his decision to withdraw recognition from Local
42 on the petition.
I find Respondent violated Section 8(a)(1) of the Act by
initiating and circulating an antiunion petition.
E. Section 8(a)(5)
1. The unit issue
There is no dispute that the words used by the Regional
Director in his Decision and Direction of Election in Case
1-RM-864-all production and maintenance employees at
the Employer's Lynn, Massachusetts, plant, but excluding
office clerical employees, professional employees, salesmen,
guards and supervisors as defined in the Act-describe a
unit of Respondent's employees appropriate for purposes of
collective bargaining within the meaning of Section 9(b) of
the Act. The dispute is over whether group foremen are
supervisors. Respondent contends they are. The General
Counsel contends that the title has no significance, arguing
that certain specified persons designated group foremen are
supervisors while others are not.
Respondent's position is one that it reserved during oral
argument at the conclusion of the hearing and advances for
the first time in its brief. If Respondent is correct, John
Comeau would clearly not be entitled to the protection of
U.S. PLASTICS CORPORATION 339
the Act and the whole issue of discrimination against Leo-
nard DiOrio would take on a dimension not considered in
section C,5, above, since both were admittedly extrusion
department group foremen on the third shift. (I have not
overlooked references to "temporary" or "acting" status in
the record, particularly with respect to DiOrio. The point is
that each did the work of a group foreman when he worked
in the extrusion department.) Respondent made no such
argument with respect to Comeau or DiOrio either at the
hearing or in its brief. As my approach to their cases indi-
cates, I have no doubt that, individually, they were not
supervisors within the meaning of the Act. Given the way
this record was put together, I do not think the unit issue
can be resolved on the basis of the job title to find that all
group foremen are supervisors within the meaning of the
Act. As my ultimate finding that they are not is, essentially,
a finding that all persons who bear the title group foreman
are not supervisors within the meaning of the Act, an expla-
nation of how the General Counsel arrived at his position
is essential to an understanding of the issue.
On the day before the hearing opened, counsel for the
General Counsel and Respondent entered into a stipulation
with respect to Local 42's majority status, the details of
which are controversial and irrelevant. Before the day end-
ed, however, Respondent's counsel withdrew from the stip-
ulation. At the opening of the hearing, counsel for the
General Counsel attempted to rely on the abortive stipula-
tion even to the point of calling Respondent's attorney to
testify about the events of the preceding day. I sustained an
objection on the ground that what had happened between
counsel in preparation for trial was irrelevant to the majori-
ty issue. Since the General Counsel had no stipulation Local
42 had ever represented a majority of Respondent's unit
employees, he undertook to prove it by introducing authori-
zation cards.
A necessary element in proof of majority through author-
ization cards is a list of employees in the unit on some
specific date against which to count the cards. The General
Counsel had elected to argue the 8(a)(5) aspect of this case
on alternate theories. The first came to be referred to in this
record as his Snow & Sons 2 theory; i.e., having recognized
Local 42 voluntarily, Respondent violated Section 8(a)(5)
by thereafter refusing to bargain. The second came to be
referred to in the record as his Gissel3 theory; i.e., Respon-
dent violated Section 8(a)(5) by committing Section 8(a)(1)
and (3) unfair labor practices so serious that a fair election
has become impossible. The General Counsel was initially
loath to specify a date on which he contended Local 42 had
achieved a majority. He finally singled out April 14. Alter-
nately, in support of his Snow & Sons theory, he undertook
to prove majority as of May 21.
Counsel for General Counsel and Respondent tried with-
out success to come to some agreement as to who was in the
unit on April 14 and May 21. Finally, the General Counsel
introduced payroll ledger cards for a number of persons
employed on each of these dates. While not contending at
the time that there was any dispute about these persons,
2 Fred Snow, Harold Snow and Tom Snow d/b/a Snow & Sons, 134 NLRB
709, enfd . 308 F .2d 687 (C.A. 9).
3 N.L.R.B . v Gissel Packing Co ., Inc., 395 U.S . 575 (1969).
Respondent did not stipulate all were in the unit. In addi-
tion, counsel stipulated that nine other individuals below
the admittedly supervisory levels, which run from Oren
through foremen (sometimes referred to in the record as
"chief" foremen), were employed by Respondent on April
14 and May 21. They are Albert Baker, James Baker, Nicola
Balducci, Joe Broniatowski, Elio Marcangelo, F. Lubrano,
Jose Rivera, Daniel Schumann, and Nick Vanagel. All are
referred to in the record as group foremen. None signed
authorization cards for Local 42. The issue posed in this
record is whether they are supervisors within the meaning
of the Act.
The manner in which the General Counsel came to his
position that some group foremen are supervisors and some
are not is revealing. In his Decision and Direction of Elec-
tion in Case 1-RC-12640, the Regional Director listed
"group foremen" among the specific exclusions. However,
in that proceeding, the unit description was stipulated by
the parties. In Case 1-RM-864, supervisors became an issue
which the parties finally resolved by a horse trade. Foot-
notes 4 and 5 of the Regional Director's Decision and Di-
rection of Election in that case indicate the compromise
they worked out:
[4] Based on the record as a whole and the stipulation
of the parties, the following individuals are found not
to be supervisors and are included in the unit: Larry
Naselrodd, [sic] Donald Kerrivan, Leonard Diorio, Kath-
erine Thomas, [sic] Perry Hampton and Jose Rivera.
[5] Based on the record as a whole and the stipulation
of the parties, the following individuals are found to be
supervisers and are excluded from the unit: Samuel S.
Oren, President; Al Rozzi, Controller; Bill Boardway,
Corporate Officer; Earl Stickney, Operations Manag-
er; David Sidilou, Plant Engineer; Harold Baker, Chief
Foreman; Peter Spathanas, Chief Foreman; Michael
Foley, Chief Foreman; Curtis MacKay, Chief Fore-
man; Elio Marcangelo, Chief Foreman; Jerzy
Wiendczak, Chief Foreman; James Baker, Foreman;
Nicholas Balducci, [sic] Foreman; Albert Baker, Fore-
man; Nick Vanagel, Foreman; Daniel Schuman, [sic]
Foreman; and John Allen, Foreman.
As part of the colloquy with counsel, which started at the
opening of the hearing and ended during oral argument just
before it closed, about just what evidence the General
Counsel was relying on for proof of majority, I ruled on the
10th day of the hearing as follows:
ADMINISTRATIVE LAW JUDGE: I'm going to announce,
just so there is no misunderstanding about where I'm
going to come out in resolving this issue, that I plan to
place no reliance on General Counsel's Exhibit 3-I the
decision and direction of election in case [l -RM-864]
in determining who is and who is not a supervisor at
this plant below the level of Chief Foreman. I find no
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis in General Counsel's [3-I] in view of what I've
heard in this hearing for concluding that the Regional
Director 's findings as to supervisory and nonsuperviso-
ry status [are ] reliable enough to be binding on me.
I hereby reaffirm that ruling . It is clear that , in his handling
of the supervisory issue in Case 1-RC-12640 and Case 1-
RM-864, the Regional Director never had to come to grips
with the question of whether any of the nine individuals I
am concerned with possesses authority which brings him
within the definition of supervisor found in Section 2(11) of
the Act.
The General Counsel does not rely on the Regional
Director's findings . Rather , he bases his argument that all
nine are supervisors on such testimony as this answer elic-
ited from Oren on cross -examination:
Q. Now, James Baker, Nicholas [sic] Balducci, Al-
bert Baker and Nicholas Vanagel , throughout 1973,
had the authority to effectively recommend the wage
increases, promotions?
A. Every Group Foreman, not only them , has that
right.
The General Counsel never attempted to demonstrate
that Oren understood "effectively " to mean what it has
come to stand for as a term of art in Board decisions, i.e.,
a recommendation which is acted on by higher authority
without independent investigation . It is obvious Oren did
not understand that was the import of General Counsel's
question . Other answers from other witnesses are equally
useless . Therefore , I give no weight to any testimony by any
witness in this vein.
There is no evidence in this record on which I am pre-
pared to find that Respondent 's group foremen , especially
the nine who are in issue , have "authority , in the interest of
the employer, to hire , transfer , suspend, lay off, recall, pro-
mote, discharge, assign , reward , or discipline other employ-
ees . . . or to adjust their grievances, or effectively to
recommend such action." If they are , in fact , supervisors
within the meaning of the Act , it is because they have "au-
thority . . . responsibly to direct [other employees]." This
question turns on what their duties are in relation to the
employees with whom they work.
Of the nine group foremen in issue , two can be disposed
of simply . Joe Broniatowski has the additional title of "as-
sistant shipper ." As already indicated , he works in the ship-
ping department under the "shipper ," David Rosman.
Rosman and Broniatowski are from the shipping
department's total full -time complement. When more help
is needed from time to time, an additional employee is
transferred temporarily to help Broniatowski . There is no
evidence that Broniatowski directs the second man or is
responsible for the work he performs . They work side by
side under the direction of Rosman. I find Joe Broniatowski
is not a supervisor within the meaning of the Act.
Elio Marcangelo works in the conversion department on
the first shift . There are 15 machines in the conversion
department , operated principally by women , which make
bags . Marcangelo 's job is to assist the foreman in overseeing
the operation of the machines . There is no group foreman
in the conversion department on shifts other than the first
because not all the machines are in operation and, thus, the
foreman does not need an assistant . There is no evidence
Marcangelo is responsible for the work performed by first-
shift machine operators . I find Elio Marcangelo is not a
supervisor within the meaning of the Act.
The other seven men in issue-Albert Baker , James Bak-
er, Nicola Balducci , F. Lubrano, Jose Rivera, Daniel Schu-
mann , and Nick Vanagel-are extrusion department group
foremen , working on various shifts . There are 15 units (or
lines) in the extrusion department . They are operated con-
tinuously from Monday through Friday. Each of the 15
units which extruder operators tend consists of 8 compo-
nent parts , the extruder proper , nip rolls , pinch rolls, winder,
perforator , treater, bubble folder , and printing press. The
treater sits above the other units in a tower arrangement.
The other parts sit one behind the other . All eight, designed
and, I gather , in some aspects invented , by Samuel Oren,
permit a continuous operation from the resin raw material
to rolls of printed and perforated polyethylene film. The line
can be adjusted to produce different results according to the
order being filled . Without attempting to translate the ef-
forts of witness and counsel to convey exactly how large one
complete line is by comparing it with the dimensions of the
hearing room, suffice it to say it is big.
Each shift in the extrusion department is comprised of 10
men, I foreman and 3 teams of 3 men each . Each team is
comprised of a group foreman and two extruder operators
and tends five lines . Each of the operators tends two lines.
The group foreman tends the fifth and oversees the work of
the two operators on his team.
The distinction between a group foreman and an operator
is skill . Operators are promoted to group foremen. Group
foremen make more money than operators. Although it is
obviously an oversimplification to say that group foremen
are distinguished from operators by their ability to "bring
up the bubble," this particular skill, especially important in
Respondent 's production process , is a good example of the
difference between them . When the bubble is up, the line is
producing film in a nearly automatic fashion . All the opera-
tor has to do, other than keeping an eye on the line, is end
a roll when it reaches the proper size, weigh it, record the
weight, and place the roll in a box for shipping . When the
bubble breaks, it is imperative that the line be shut down
without delay . Bringing the bubble back up is a tricky oper-
ation requiring a skill which not all operators have. All
group foremen do. The other major difference between
group foremen and operators is that group foremen make
most, if not all , the adjustments required on any of the five
machines assigned to the team when they are changed over
from one order to another.
The only evidence in the record bearing on the "responsi-
bility" of group foremen in directing the work of the two
operators under them is found in the testimony of Larry
Naselroad , the group foreman called as a witness by the
General Counsel to corroborate the testimony of James
McCarthy that Oren told him to "get out" of the plant. He
testified as follows:
U.S. PLASTICS CORPORATION 341
Q. Now, you say "supervise"; how do you supervise,
what do you say to them, what do you do?
A. Well, I talk to them and try to make sure the rolls
are coming off at the correct length, the bag is correct
size , the printing is kept clean.
ADMINISTRATIVE LAW JUDGE: Are you responsible for
their work product?
THE WITNESS : Yes, I'm responsible for their work.
not, there are, in the record, one or more authorization cards
bearing the names of 37 of the 59 persons in the unit on
April 14 and 34 of the 54 on May 21. Twenty-nine of the
employees who were in the unit on April 14 and 26 of the
employees who were in the unit on May 21 are represented
by at least one valid card. The cards were authenticated by
the signer himself or by a witness who testified credibly he
had either seen the person whose name the card bears sign
it or received it directly from that person (N.L.R.B. v. Ho-
* well Chevrolet Company, 204 F.2d 79, 85-86 (C.A. 9, 1953) )
Q. I see. Now, you stated that you are responsible
for work. Could you explain for us, first of all, in what
way are you responsible?
A. Well, I just have to be sure that the work is com-
ing out properly, that's all, before it goes into the box.
And I would like to put one more thing in there and
that is, I also must check the treat. This is the ink, the
printing ink should not lift off of the film.
This testimony, I think, correctly described the relation-
ship between group foremen and operators . It is one of
leadmen or journeymen to helpers . Group foremen direct
the work of operators in the carrying out of routine, day-to-
day production activities. Nothing they do calls for that use
of independent judgment which Section 2(11) requires be-
fore the exercise of an employee 's authority raises him to
supervisory status. I find, therefore, that Albert Baker,
James Baker , Nicola Balducci , F. Lubrano , Jose Rivera,
Daniel Schumann , and Nick Vanagel are not supervisors
within the meaning of the Act.
2. The majority issue
There are, in the record, payroll ledger cards which prove
that 47 production and maintenance workers were in
Respondent 's employ on April 14, including James Mc-
Carthy and Audrey Parsons. To that number must be added
Kathy Spillane, Deborah Portrait, and John Comeau since
their discharges prior to that date were unfair labor practic-
es. To that number must also be added all nine of the group
foremen whose status the parties have disputed since they
also were in Respondent 's employ and not supervisors with-
in the meaning of the Act. There were, therefore , 59 employ-
ees in the unit on April 14.
A similar calculation, starting with payroll ledger cards of
persons in Respondent 's employ on May 21 , results in a
total of 54 employees in the unit on that date. (Sharon
Chesley's payroll card is included in the exhibit which was
entered by the General Counsel to prove the size of the unit
on May 21. However, the card establishes that the payroll
period ending April 16 was the last during which she
worked . She went on a month 's sick leave and quit at the
end of that time . She was, therefore, not in the unit on May
21.) James McCarthy and Audrey Parsons are not included
in this total because each left Respondent's employ after
April 14 and before May 21 under circumstances which did
not constitute unfair labor practices.
Regardless of whether they are technically in evidence or
or by a witness who testified credibly he was familiar with
the signature of the person whose name the card bears and
could identify it (Federal Stainless Sink Div. of Unarco In-
dustries, Inc., 197 NLRB 489). (For purposes of this analysis
I am considering cards bearing the names of Audrey Par-
sons and Fernande Baril as valid . Mrs. Parsons was the
witness as to them. A technical application of my discredit-
ing Mrs . Parsons generally would , of course , leave them
unauthenticated and reduce Local 42's valid cards to 27 as
of April 14 and 25 as of May 21. Mrs. Parsons testified the
Baril card was signed in her presence and immediately
handed to her. As to two cards bearing her name, the Gener-
al Counsel withdrew one dated February 3, initially identi-
fied by Angelo Colella, after Mrs. Parsons admitted
deliberately lying about it during the investigation, and one
dated March 24 was never authenticated by anyone. It, like
the cards bearing the names Epifanio Flores, John Keane,
and Perry Hampton discussed below, turned up near the
end of the hearing when Colella, spurred into action by Mrs.
Parsons' bombshell, managed to locate a mislaid envelope
containing various papers relating to his campaign.)
There are a total of 10 cards which cannot be counted
toward Local 42's majority on one or both dates. Cards
bearing the names of Dennis Marques and German Sissay
were properly authenticated. Marques and Sissay were in
the unit on both dates. However, their cards can only be
counted toward the Union's majority on May 21 because
both are dated May 7. Cards bearing the names of Epifanio
Flores, hired on May 8, and John Keane, hired on May 15,
cannot be counted toward the Union's majority on May 21
because they were not properly authenticated and because
they bear dates after May 21. (No inference can be drawn
that their cards put Local 42 over the top on some date
shortly after May 21 because there is no evidence in the
record as to the number of employees in the unit on any date
after May 21.)
The remaining six cards bear the names of employees
who were in the unit on both dates. They cannot be counted
toward Local 42's majority for the following reasons:
Perry Hampton-never authenticated.
Angelina Argeorgitis, Lillian Groendal, and Catherine
Thomas-all three cards were identified by Colella as hav-
ing been received through the mail during the course of the
campaign. All three ladies testified that they never signed an
authorization card and the signatures which appeared on
the cards were not theirs. I find all three cards were forged
by a person or persons unknown.
Hyda Nappi-Mrs. Nappi authenticated the card bear-
ing her name . However, when she refused , on cross-exami-
nation, to obey my instruction to answer a question as to
the name of the relative who had signed her name to the
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
card in her presence and with her permission , I granted
Respondent 's motion to strike all her testimony . (I hereby
deny the request in the General Counsel 's brief that I re-
verse this ruling .) The card is , therefore , not in evidence.
Guiseppe Lavino-the card bearing this name was initial-
ly identified by Colella as one which had been signed in his
presence . However , on cross , he testified "I don 't recall just
how it was given to me , or mailed to me ." I find , therefore,
it has not been properly authenticated.
Local 42 needed authorization cards on April 14 from 30
employees in order to represent a majority of the 59 employ-
ees in the unit on that date . Only 29 have been proved. Local
42 needed authorization cards on May.21 from 28 employ-
ees in order to represent a majority of the 54 employees in
the unit on that date . Only 26 have been proved. I find,
therefore , the General Counsel has failed to prove Local 42
ever represented a majority of Respondent's employees in
a unit appropriate for purposes of collective bargaining.
Since a union must achieve majority status before the duty
to bargain arises, I find Respondent has not violated Section
8(a)(5) and ( 1) of the Act by failing and refusing to recog-
nize Local 42 as the collective -bargaining representative of
its production and maintenance employees.
Upon the foregoing findings of fact , and upon the entire
record in this case , I make the following:
CONCLUSIONS OF LAW
1. U.S. Plastics Corporation is an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
2. Truck Drivers , Chauffeurs and Helpers Union, Local
42, a/w International Brotherhood of Teamsters, Chauf-
feurs , Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By discharging Kathy Spillane and Deborah Portrait
on February 21, 1973 , and John Comeau on March 27,
1973, for engaging in union activities , Respondent has vio-
lated Section 8(a)(3) and ( 1) of the Act.
4. By denying overtime to Leonard DiOrio on March 24,
1973, and James McCarthy on April 14, 1973, for engaging
in union activities , Respondent has violated Section 8(a)(3)
and (1) of the Act.
5. By issuing written warnings to Audrey Parsons on
April 20 and 24 , 1973, and Leonard DiOrio and Richard
Needham on April 24 , 1973, pursuant to a warning system
adopted because its employees were engaging in union ac-
tivities , Respondent has violated Section 8(a)(3) and (1) of
the Act.
6. By interrogating employees about their union activi-
ties and the union activities of others ; harassing employees
because they were engaged in union activities ; threatening
employees with reprisals , including discharge and moving
its plant to another state , for engaging in union activities;
promising benefits to employees if they would refrain from
union activities ; creating the impression it had the union
activities of its employees under surveillance , and initiating
and circulating an antiunion petition among its employees,
Respondent has violated Section 8 (a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
8. The allegation of the complaint that Respondent vio-
lated Section 8(a)(5) and ( 1) of the Act has not been sus-
tained.
9. The allegation of the complaint that Respondent vio-
lated Section 8(a)(3) and (1) of the Act by discharging James
McCarthy on or about April 19 , 1973, and Audrey Parsons
on or about May 1, 1973 , eliminating overtime to Audrey
Parsons on or about April 12, 1973 , transferring Leonard
DiOrio from the first to the third shift on or about April 16,
1973, and refusing to hire Allen Parsons in June and July
1973 have not been sustained.
10. Allegations of the complaint that Respondent violat-
ed Section 8(a)(1) of the Act by conduct not specifically
found in subparagraph 6, above , have not been sustained.
THE REMEDY
In order to effectuate the policies of the Act, it is neces-
sary that Respondent be ordered to cease and desist from
the unfair labor practices found, remedy them , and post the
usual notice . I will, therefore, recommend Respondent be
ordered to reinstate Kathy Spillane, Deborah Portrait, and
John Comeau and make them as well as Leonard DiOrio
and James McCarthy whole for any earnings lost as a result
of the discrimination against them by the payment of back-
pay computed on a quarterly basis , plus interest at 6 percent
per annum , as prescribed in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716. Since the General Counsel has not alleged that Stephen
Thompson, John Comeau, and, possibly, others were dis-
criminated against when Respondent sent them home early
on March 24 , 1973, in retaliation for the union activities of
its employees , I will not recommend that they , as well as
Leonard DiOrio , be made whole for wages they lost that
day. I will also recommend that Respondent remove from
its files and destroy the written warnings issued to Audrey
Parsons on April 20 and 24 , 1973, and Leonard DiOrio and
Richard Needham on April 24, 1973. Since the General
Counsel has not alleged institution of Respondent 's written
warning system as an unfair labor practice , I will not recom-
mend that Respondent be ordered to abandon it.
In support of his Gissle theory, the General Counsel ar-
gues that Respondent should be ordered to recognize and
bargain with Local 42 as the collective -bargaining repre-
sentative of its production and maintenance employees as
a remedy for its violations of Section 8(a)(3) and (1) of the
Act. If Local 42's majority as of May 21 , 1973, had been
proved , I would not reach the question of whether, under
Gissel, the unfair labor practices committed by Respondent
were so serious that a fair election has been rendered impos-
sible. At Richard Hunt 's request , Angelo Colella prepared
a list which , as far as he had been able to ascertain, listed
all the employees in a production and maintenance unit. On
that list he indicated which persons , as far as he knew, had
signed authorization cards for the Union . The result was an
apparent majority for Local 42 . Hunt presented this list to
David Riemer, Respondent's attorney , as proof of
Respondent's majority when they met to discuss settlement.
The record is not clear as to who placed the telephone call
which led to the meeting between Hunt and Riemer around
U.S. PLASTICS CORPORATION
May 21. There is no indication, however, that Riemer's
participation in the events of that day was not voluntary.
Riemer merely glanced at the list handed to him by Hunt.
He did not count the checkmarks which indicated card
signers. He did not ask to see the cards themselves. He took
Hunt's word, which was based on Hunt's good-faith belief,
that Local 42, in fact, represented a majority of unit employ-
ees at that moment. I think these facts bring this case
squarely within the Snow & Sons line of cases. However, I
will not recommend that Respondent be ordered to recog-
nize and bargain with Local 42 for the same reason that I
did not find Respondent violated Section 8(a)(5) and (1) of
the Act. I am aware of no case in which the Board has found
an 8(a)(5) violation or ordered recognition and bargaining
as a remedy for other unfair labor practices even though it
did not find an 8(a)(5) violation in which it has not been
proved by valid evidence in the record that the union repre-
sented a majority of employees in the unit at the time it
requested the employer to recognize and bargain with it. I
am bound by Board precedent.
In view of the seriousness of the unfair labor practices I
have found, I will recommend a broad rather than a narrow
order.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER4
U.S. Plastics Corporation, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discharging its employees for engaging in union ac-
tivities.
(b) Denying overtime to its employees for engaging in
union activities.
(c) Issuing written warnings to its employees ostensibly
for violations of its rules which are unrelated to their union
activities when its real reason is the union activities of the
warned employee.
(d) Interrogating employees about their union activities
or attitudes or the union activities or attitudes of others.
(e) Harassing employees because they are engaging in
union activities.
(f) Threatening employees with reprisals for engaging in
union activities.
(g) Threatening employees with discharge for engaging
in union activities.
(h) Threatening to move its plant to another state if its
employees elect to be represented by a union.
(i) Promising benefits to employees if they refrain from
4In 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. 102.48
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.
343
union activities.
(j) Creating the impression it has the union activities of
its employees under surveillance.
(k) Initiating and circulating antiunion petitions among
its employees.
(1) In any manner interfering with, restraining, or coerc-
ing employees in the exercise of rights guaranteed in Section
7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Kathy Spillane, Deborah Portrait, and John
Comeau immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any earnings
they lost, plus interest, as a result of their discharges.
(b) Make Leonard DiOrio and James McCarthy whole
for any earnings they lost, plus interest, as a result of being
denied overtime on March 24, and April 14, 1973, re-
spectively.
(c) Remove from its files and destroy written warnings
issued to Audrey Parsons on April 20 and 24, 1973, and
Leonard DiOrio and Richard Needham on April 24, 1973.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(e) Post at its facility in Lynn, Massachusetts, copies of
the attached notice marked "Appendix." 5 Copies of said
notice, on forms provided by the Regional Director for
Region 1, after being duly signed by Respondent's author-
ized representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed insofar
as it alleges that Respondent violated Section 8(a)(3) of the
Act by discharging James McCarthy on or about April 19,
1973, and Audrey Parsons on or about May 1, 1973, by
eliminating overtime to Audrey Parsons on or about April
12, 1973, by transferring Leonard DiOrio from the first to
the third shift on or about April 16, 1973, and by refusing
to hire Allen Parsons in June and July 1973; and that Re-
spondent has violated Section 8(a)(1) by conduct not spe-
cifically found violative of that section herein.
5 In the event that the Board's Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."