Unaflex Rubber Corp.

National Labor Relations Board - Board Decisions

Feb 14, 1975

216 N.L.R.B. 589 (N.L.R.B. 1975)

UNAFLEX RUBBER CORPORATION
Unaffex Rubber Corporation and Transportation
Employees Association affiliated with District 2,
Marine Engineers Beneficial Association-Associ-
ated Maritime Officers , AFL-CIO. Case 29-CA-
3875
February 14, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On October 31, 1974, Administrative Law Judge
Irving M. Herman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and has
decided to affirm the rulings, findings,' and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Unaflex Rubber
Corporation, Brooklyn, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
I We agree with the Administrative Law Judge's conclusion that the
cases cited by the Respondent in opposition to *a remedial bargaining order
are inapposite but not necessarily for the reasons he sets forth in his fn. 11.
Thus, we have not required that a demand for recognition be made except
in an 8(ax5) context (which was neither alleged nor litigated here); we have
found that bargaining orders may be granted to remedy violations of
sections other than Sec. 8 (aX3) of the Act; and it has not been Board
procedure to require that any party specifically request such a remedial
bargaining order.
Nor do we rely on the cases cited by the Administrative Law Judge in the
last paragraph of his analysis regarding the issuance of a bargaining order.
We find those cases inapposite inasmuch as they involve 8(aX5) allegations
and findings, which are not present here . Contrary to the Administrative
Law Judge, we find that the bargaining order is appropriate solely because
the Respondent has engaged in unfair labor practices likely to destroy the
Union's majority and seriously impede an election, the effects of which
cannot be eliminated by the customary remedy. N.LR B v. G,ssel Packing
Company, Inc., 395 U.S. 575, 600 (1969).
DECISION
STATEMENT OF THE CASE
589
IRVING M. HERMAN, Administrative Law Judge: This
case was heard before me on September 23 and 24, 1974,1
at Brooklyn, New York. The charge was filed on May 29
by Transportation Employees Association affiliated with
District 2, Marine Engineers Beneficial Association-
Associated Maritime Officers, AFL-C102 (herein called
the Union), and duly served on Respondent the same day.
Complaint issued August 30. The primary issues are
whether Respondent violated Section 8(axl) and (3) of the
National Labor Relations Act, as amended (29 U.S.C., Sec.
151 et seq.), herein called the Act, by interrogating, polling,
and threatening its employees concerning the Union, and
by laying off employees for choosing the Union; and
whether a bargaining order is warranted in the circum-
stances.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the brief filed on
behalf of Respondent, and a letter filed for General
Counsel in lieu of a brief,3 I make the following:
FINDINGS AND CONCLUSIONS
1. RESPONDENT'S BUSINESS
The complaint alleges, the answer admits, and I find that
Respondent is a New York corporation engaged at
Brooklyn, New York, in the manufacture, sale, and
distribution of expansion joints and related products; that
during the year preceding the complaint, Respondent
shipped over $50,000 worth of its products directly to
States other than New York; and that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Union organization and Respondent's reaction
There is no substantial disagreement as to the essential
facts, synthesized below from the testimony of all the
witnesses . On May 22 Respondent announced to its
I All dates are in 1974.
2 The complaint was amended at the hearing to reflect this name.
3 No other briefs have been filed.
216 NLRB No. 102
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees that it had become economically advisable to
get 8 hours' work for 8 hours' pay, and hence cease paying
for the employees' 30-minute lunch period , and that such
change would be effectuated June 3 . Later that day seven
employees visited the Union 's offices where they executed
cards authorizing the Union to represent them for
collective-bargaining purposes . The 8-hour change was at
least one factor motivating the visit . Three additional
signatures were obtained at the plant by some of these
employees later that day and the following day.
On May 28, the Union sent Respondent a telegram
requesting recognition as representative of "the majority of
your employees ." The only statutory employees then
working for Respondent were 15 production and mainte-
nance employees .4 The telegram was received by Respon-
dent early that afternoon . Horace White , Respondent's
president, called the foremen in and asked if they knew
anything about it, and one of them said he had told White
there would be trouble over the 8-hour day . White,
admittedly "very angry," ordered the employees to be
called down to his office . That was about 1 : 30 or 1 :45 p.m.
When the employees had congregated there, White said he
had received the telegram and asked who had "started
this." 5 Upon being told that it was not the work of any
particular individual but rather the group as a whole, he
stated that his insistence on 8 hours of work had become
economically necessary , and to employee Ahearn's protest
that he was depriving the men of something they were
entitled to by "precedent," White responded , "don't give
me any of that Philadelphia lawyer bull shit." He also
asserted that "no union" 8 was going to tell him how to run
his business, that "if he wanted to, he could close the
company down ," 7 and he proceeded to poll the employees
by name on whether they were "going to work the eight
hour day or are you going to go with the union?" Up to
that point, no employee had said he was refusing to work 8
hours . Respondent , as admitted by its vice president,
inferred such a refusal merely "from the fact that they had
gone to the Union ." After White had called on about five
of the employees , either he or Ahearn suggested that the
men vote outside the rooms In any event , 10 of the men
did step outside as Plant Superintendent Bonk said, "If you
want the Union , out the door ." Following a brief
discussion , they voted to stay with the Union .9 Ahearn
thereupon stuck his head inside the office and so reported
to the Whites . Horace White said , "Okay, gentlemen,
goodbye." Ahearn then inquired whether the nine men
were fired , laid off, "or what," and Howard White replied
they were laid off for lack of work , Howard testifying he
meant that no work was available if the men were
unwilling to work 8 hours a day. The nine who had voted
for the Union then left . Rudy Gil returned to work.
Respondent never replied to the demand for recognition.
4 The admittedly appropriate unit alleged in the complaint consists of
"All production and maintenance employees of Respondent, including
painters, builders, cutters and wrappers , exclusive of all other employees,
guards and supervisors as defined in Section 2(11) of the Act."
S The quote is from the testimony of Respondent's witness , Rudy Gil.
6 According to his son, Vice President Howard White, Horace may have
added "or anyone else."
7 Thus testified Respondent's witness , Devine. According to the
testimony of General Counsel's witnesses , White said it had taken him only
2. Events after May 28
Several of the laid-off employees returned to the plant
after May 28 to collect their pay and talked with Howard
White, who told them that they were welcome back if they
agreed to work an 8-hour day and that Respondent did not
care how they felt about the Union. Horace White joined
in the conversation with some and said that the men could
vote on whether they wanted a union . Employee Devine
offered to transmit the message to other employees and did
so. Some of the men did go back to work. The four
employees who had returned by June 7 were paid on that
day for the period they had missed work,10 Horace White
stating "it was all a misunderstanding ." No similar
compensation was given any of the other employees.
On July 2, Respondent sent the following letter to those
who had not yet returned:
We are writing because there may have been some
misunderstanding about our working conditions at
Unaflex, as brought forth on May 28, 1974.
As stated then, the company's economic situation
absolutely requires that we receive 8 hours of work for
the hours pay given our employees. We will be happy
to re-employ any of you who were then working and
who would work in conformity with the schedule that
the company requires ; 8 hours work for 8 hours pay.
A number of our employees refused at that time to
accept this arrangement but many of them have
subsequently changed their minds and have returned to
work on that basis. Please realize that if you want to
come back to work here, your old job is waiting for you
at the same wages and working conditions that you
then had (except that, as was announced early in May,
after June 3rd our schedule calls for 8 hours pay for 8
hours of work). You have the right not to work here if
you don't want to, but as stated you have your old job
here if you wish it.
Finally, we remind you that we do not care how you
or any of our employees feel about the union who has
petitioned to represent you and we will respect your
decision about any other union but let us again
emphasize that is your business. Whether you want a
union or not is completely unrelated to the problem
about working an 8 hour day for 8 hours pay, which
caused a number of you to leave. If you and our other
employees select a union to represent you, we will
respect your choice and will deal with the union as your
representative.
The offer to return will be held open for you until
July 12th, 1974 after which time we will assume you no
longer desire to work at Unaflex and we shall feel free
to fill your position with someone else.
We look forward to your returning to work here.
5 minutes to open the place and he could shut it down in the same time.
8 Respondent's witness, Rudy Gil, testified that Ahearn advanced the
suggestion "because he saw the way everybody, you know, was scared and
didn't want to say anything."
9 The 10 consisted of 9 of the card -signers (the 10th , Commarato, having
been absent that day) and Rudy Gil. The latter was the only one to vote
against the Union.
io These were Frank Devine, Salvatore Curto, Steven Umbria, and Nick
Pnnzivalli.
UNAFLEX RUBBER CORPORATION 591
B. Analysis
As found above , a "very angry" Respondent , reacting to
the Union 's bargaining demand , interrogated its employees
concerning the origin of the union activity and polled them
openly as to their union desires in a coercive atmosphere
that included not only a threat to close the plant but also
the layoff of all the employees who chose the Union when
Respondent forced upon them the alternatives of opting
for the Union or accepting the loss of their paid lunch
period. This conduct clearly violated Section 8(a)(1) and
(3) of the Act, a conclusion which Respondent did not
appear seriously to contest at the hearing where it urged
post-May 28 "ameliorating" or "mitigating" circumstances
to defeat a bargaining order . In its brief, however,
Respondent strangely argues that "the fact that some may
have viewed the choice given by White as either (a) electing
to work the eight hour shift or (b) going for the union,
should not be allowed to confuse the issue" because "the
crucial point was of their willingness to work the eight hour
day . . . and the signifying by an employee of the `eight
hour day' did not necessarily preclude his support of the
union." As shown above , the May 28 meeting was
precipitated by White's receipt of the Union's bargaining
demand ; and it was in the context of his "very angry"
response , embracing the statement that "no union" was
going to tell him how to run his business and the threat
that he could shut down the operation , that he commenced
the poll with the words (as testified by Howard White),
"what's it going to be? Are we going to work the eight hour
day or are you going to go with the Union?" Moreover, the
issue thus posed was of Horace White's own creation
because, as Howard White admitted, any thought on
Respondent 's part that its employees might refuse to work
the 8 hours was inferred solely "from the fact that they had
gone to the union." In the face of that, any "confus[ion] of
the issue" must stem from Respondent's brief which goes
on to overtax credulity completely by the suggestion that
"the Whites could have thought of the employee walkout
as a form of 'concerted action ' in protest against the
company's changing the work week."
Nor can there be any doubt that but for the allegedly
"ameliorating" or "mitigating" circumstances after May
28, N. L. R. B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969), would require a remedial bargaining order because
of the impossibility or unlikelihood of holding a fair and
free election in the face of the coercion practiced by
Respondent.11
In my opinion , it is doubtful whether even an invitation
to return to work, accompanied by a clear retraction of
prior unlawful statements and other conduct , undoes the
coercive atmosphere initially created by such conduct so as
to render likely a fair and free election . I am not satisfied
that the coercive effects of the original spontaneous
conduct reflecting the natural feelings of an employer are
necessarily dissipated by subsequent statements made and
action taken after consulting counsel . Especially is this so
where, as here, there is neither a concomitant offer to
compensate the employees for the time lost from work by
reason of the unfair labor practices 12 nor even an
acknowledgment to the Union that the bargaining demand
has been received . Moreover, there is no clear retraction
here in any event. The letter of July 2 purports to "remind"
the employees that Respondent does not care how they feel
about a union and to "again emphasize" that that is the
employees' business; and it continues, "whether you want
a union or not is completely unrelated to the problem
about working an 8 hour day for 8 hours pay, which caused
a number of you to leave." To employees who had been
told by their employer that he very much cared how they
felt about a union and that it was sufficiently his business
to condition their continued employment on their giving
up the Union, this disingenuous document could hardly
have served to dispel the fears generated by Respondent's
conduct of May 28.
Respondent urges that White's action here was only
similar to the discharge action he took against the
employees the previous year before any union had entered
the picture. The short answer to this is that an unfair labor
practice is no less such simply because the employer is the
type who brooks no interference from any source. His right
to run his business entirely as he sees fit stops where the
employees' Section 7 rights begin. And it is small comfort
for the employees to know that their employer might have
reacted just as violently to a nonunion challenge.
Independently of Gissel, I find, in agreement with' the
General Counsel, that a bargaining order is warranted on
the basis of the circumstances surrounding the May 28 poll
of the employees which demonstrated to Respondent that
the Union commanded the support of at least 9 of the 15
employees involved. Cf. Nation-Wide Plastics Co., Inc., 197
NLRB 996 (1972); Sullivan Electric Co., 199 NLRB 809
(1972).13
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8 (a)(1) of the Act
by interrogating, polling , and threatening its employees
concerning the Union.
ii The cases cited by Respondent are either inapposite or distinguisha-
ble. Respondent relies principally on Fuqua Homes Missouri, Inc., 201
NLRB 13 (1973), and Hennessy Service Corp, 204 NLRB 266 (1973). In
Fuqua, not only was the record "devoid of any evidence establishing
majority status on the part of the Union" but it "d[id ] not establish any
demand by the Union for recognition ." 201 NLRB at 130.131. In Hennessy,
the unlawful conduct "primarily consisted ] of individual acts of interroga-
tion , involving five [of the 151 employees in the unit ." In Georgetown Dress
Corporation, 201 NLRB 102, 118, fn . 60 (1973) (which, unlike the instant
case, involved no 8(a)(3) conduct), no bargaining order was sought. In Gold
Circle Department Stores, a Division of Federated Department Stores, Inc.,
207 NLRB 1005 (1973 ), which also involved no 8(aX3) conduct , there was
no bargaining demand . In Snutty's Foods, Inc, 201 NLRB 283, 298-299
(1973), the Union did not have a card majority . Nor was there a valid
majority in J J. Newberry Company, 202 NLRB 420, 431-432 (1973). And
apart from any other considerations, no 8(aX3) conduct was involved in any
of the remaining cases cited.
12 Apart from the first four to return.
13 Indeed, the reference in Respondent 's brief to the absence of any
comments to Commarato regarding unionization "even though he was one
of the employees who had signed up with the Union" suggests Respondent's
awareness of a 10th union supporter.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Respondent has violated Section 8 (a)(3) of the Act
by laying off nine of its employees because of their
preference for representation by the Union.
5. The aforesaid unfair labor practices affect commerce
within ' the meaning of Section 2(6) and (7) of the Act.
REMEDY
In order to remedy the unfair labor practices found
herein, my recommended Order will require Respondent to
cease and desist therefrom and, in view of the nature of the
violations , to cease and desist from any like or related
conduct. In order to effectuate the policies of the Act, my
recommended Order will also require Respondent to make
whole all of the laid-off employees who have not yet been
compensated for any loss of earnings they may have
suffered by reason of the discrimination against them, by
payment to each of them of a sum of money equal to that
which he would have earned from May 28 to the date of
receipt of a valid offer of reinstatement, less net earnings
during such period, with interest, in accordance with Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). As
indicated above, I shall also recommend a bargaining
order.
Upon the foregoing findings of fact and conclusions of
law, and the entire record herein, and pursuant to Section
10(c) of the Act, I hereby recommend the following:
ORDER 14
Respondent, Unaflex Rubber Corporation, its officers,
agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating or polling its employees
concerning their union preferences or activities.
(b) Threatening to close its plant to avoid union
organization of its employees.
(c) Laying off or otherwise discriminating against its
employees because of their union activities.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their Section 7 rights.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make whole Thomas Ahearn, Leonard Geraghty,
Henry Gil, Louis Rivera, and Frank Toscano for any loss
of pay suffered by reason of their layoff in the manner set
forth in the section of this Decision entitled "Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards, person-
nel records and reports, as well as all other records
necessary to analyze and compute the amount of backpay
due hereunder.
(c) Upon request, bargain collectively and in good faith
with Transportation Employees Association, affiliated with
District 2, Marine Engineers Beneficial Association-
Associated Maritime Officers, AFL-CIO, as the exclusive
representative of all the employees in the following
appropriate unit, and embody in a signed agreement any
understanding reached:
All production and maintenance employees of
Respondent, including painters, builders, cutters and
wrappers, exclusive of all other employees, guards and
supervisors as defined in Section 2(11) of the Act.
(d) Post at its place of business in Brooklyn, New York,
copies of the attached notice marked "Appendix." 15
Copies of said notice, on forms provided by the Regional
Director for Region 29, after being duly signed by an
authorized representative of Respondent, shall be posted
by Respondent, immediately upon receipt thereof, and be
maintained by it for a period of 60 days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
14 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 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
15 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively question any of our
employees about their union activities, views, or
sympathies.
WE WILL NOT threaten to close our plant to avoid the
unionization of our employees.
WE WILL NOT lay off or otherwise discriminate
against any employee because of union activity.
WE WILL NOT interfere with our employees' exercise
of their rights under the National Labor Relations Act
in any like or related manner.
WE WILL make whole Thomas Ahearn, Leonard
Geraghty, Henry Gil, Louis Rivera, and Frank Tosca-
no for any loss of pay they may have suffered by reason
of their layoffs.
WE WILL bargain collectively and in good faith with
Transportation Employees Association, affiliated with
District 2 of the Marine Engineers Beneficial Associa-
tion-Associated Maritime Officers, AFL-CIO, as the
exclusive representative of our employees, in respect to
rates of pay, wages, hours, and other terms and
conditions of employment.
UNAFLEX RUBBER
CORPORATION