United Telecontrol Electronic, Inc.

National Labor Relations Board - Board Decisions

Sep 12, 1979

244 N.L.R.B. 997 (N.L.R.B. 1979)

UNITED TEI.ECONTRO. ELE.FCTRONI(CS
United Telecontrol Electronics, Inc. and Angela Kym
Sampoli. Case 22 CA-8522
September 12, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PNEI.I.()
AND TRUESDAIE
On June 18, 1979, Administrative Law Judge El-
bert D. Gadsden issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting 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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
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 Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, United
Telecontrol Electronics, Inc., Asbury Park, New Jer-
sey, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
In sec. Ill. B. of his Decision the Administrative Law Judge inadvertently
quoted Plant Manager William Larkin as testifying that President Harold
Sher talked to employee Angela Kym Sampoli about the latter's use of a o-
yo during working time. There is no indication in Larkin's testimony that
Sher raised this subject with Sampoli. Additionally, in sec. III. C. of his
Decision, the Administrative Law Judge inadvertently quoted employee Mi-
chael McHale as testifying that he admitted his union activities to Plant
Manager Larkin in May 12, 1978. McHale in fact testified that he made this
admission on May 13, 1978. We hereby correct these inadvertent errors.
2 The Administrative Law Judge inadvertently failed to include in his rec-
ommended Order the cease-and-desist language which the Board tradition-
ally provides in cases involving 8(a)(1) and (3) violations. Under the stan-
dards set forth in our recent decision in Hickmott Foods, Inc. 242 NLRB
1357 (1979)., we believe that a narrow cease-and-desist order would be ap-
propriate in the present case. Accordingly, we shall modify the recommend-
ed Order to require Respondent to cease and desist from in any like or
related manner infringing upon employee rights. Additionally. we shall mod-
ify the notice to conform to the recommended Order.
1. Insert the following as paragraph l(e):
"(e) In any like or related manner interfering with.
restraining, or coercing employees in the exercise of,
the rights guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative aw Judge.
APPENI)IX
Noici( To EMPt.OYEES
POSTED BY ORDER OF THE
NATII(NAI. LABOR RE.AIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportuni-
ty to present evidence, the National Labor Relations
Board found that we violated the National Labor Re-
lations Act, as amended and has ordered us to post
this notice.
WE WILL NOI coercively interrogate employ-
ees about their and other employees' union
membership, activities, and desires.
WE WILt. NOT create the impression that we
are surveilling the concerted and/or union activi-
ties of our employees.
WE WI.L NOT threaten employees with partial
or total closure of our plant if our employees
organize a union.
WE WIt lL NOI discourage membership in Local
2066, International Brotherhood of Electrical
Workers, AFL-CIO. or any other labor organi-
zation, by laying off employees, or otherwise dis-
criminating against them in any manner in re-
spect to their tenure of employment or any term
or condition of employment.
WE WIl. N in any like or related manner
interfere with, restrain, or coerce employees in
the exercise and enjoyment of rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act, except to the extent that such rights
may be affected by lawful agreements in accord
with Section 8(a)(3) of the Act.
WE WIL.L recall, or offer to recall, Angela Kym
Sampoli for immediate employment to the job
she held on May 16, 1978, or. if such position no
longer exists, to a substantially equivalent posi-
tion without prejudice to her seniority or other
rights previously enjoyed, and WE wi.t. make her
whole for any loss of pay suffered by reason of
our discrimination against her, with interest.
All our employees are free to become, remain, or
refuse to become or remain, members of said Union,
or any other labor organization, except to the extent
244 NLRB No. 152
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that such rights may be affected by lawful agreements
in accord with Section 8(a)(3) of the Act.
JNIIF.I) TFI CONTROI. EI.E( IRONICS, INC.
DECISION
SIAIEMINI ()N I li1e CASI
EIBIRrI D. GAI)S)IN, Administrative Law Judge: Upon
a charge of unfair labor practices filed on June 13. 1978, by
Angela Kym Sampoli, an individual, sometimes herein
called the Charging Party, against United Telecontrol Elec-
tronics. Inc., herein called Respondent, a complaint and an
amended complaint were issued by the Regional Director
for Region 22 on behalf of the General Counsel on August
4, 1978, and November 6, 1978, respectively.
The complaint as amended alleges, in substance, that Re-
spondent, on or about May 12 and 13. 1978. through its
plant manager, interrogated its employees concerning their
sympathies for, membership in. and activities on behalf of
the Union; that on or about May 12. 1978. Respondent,
through its plant manager, created the impression of sur-
veillance of the activities of its employees concerning their
sympathies, membership in, and activities on behalf of the
Union; and that on May 16, 1978, Respondent discharged
an employee and has since failed and refused to reinstate
said employee because said employee organized, joined,
and assisted the Union and sought to bargain collectively
through representatives of her own choosing, in violation of
Section 8(a)(1) and (3) of the Act.
Respondent filed an answer and an amended answer on
August 4, 1978, and November 6, 1978, respectively, deny-
ing that it has engaged in any unfair labor practices as
alleged in the complaint. Briefs have been received from
counsel for the General Counsel and counsel for Respon-
dent, respectively, which have been carefully considered.
Upon the entire record in this case and from my observa-
tion of the witnesses I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is now and has been at all times material
herein a corporation duly organized under, and existing by
virtue of, the laws of the State of New Jersey. Respondent
maintains its principal office and plant at 3500 Sunset Ave-
nue, Asbury Park, New Jersey, where it is, and has been at
all times material herein, engaged in the manufacture, sale,
and distribution of electronic components, electric barbecue
grills and related products.
In the course and conduct of its business operation dur-
ing the preceding 12 months, a representative period, Re-
spondent caused to be manufactured, sold, and distributed
at said plant products valued in excess of $50,000, of which
said products valued in excess of $50,000 were shipped
from said plant in interstate commerce directly to States of
the United States other than the State of New Jersey.
The complaint alleges, Respondent admits, and I find
that Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. IHI I.ABOR OR(IANIZAIION INVOIVEI)
The complaint alleges. Respondent admits, and I find
that ocal 2066. International Brotherhood of Electrical
Workers, AFL. CIO. herein called the Union, is and has
been at all times material herein a labor organization within
the meaning of Section 2(5) of the Act.
Ill. Iii AL.Lil(;i) UNIFAIR LABOR P'RA( I S('IS
The record shows that Respondent carried out its manu-
facturing, selling, and distributing electronic components.
electric barbecue grills, and related products under the di-
rection of the following named persons, who have occupied
the positions with Respondent set forth opposite their
names as follows: Harold T. Sher. President: William Lark-
in, Plant Manager.
Respondent admitted that at all times material herein the
above-named persons have been and are now supervisors
within the meaning of Section 2(11) of' the Act and have
been and are now agents of Respondent acting on its be-
half.
During the hearing. upon motion of counsel for the Gen-
eral Counsel, paragraph 9 of the complaint was amended to
become paragraph 9(c), thus alleging that on or about May
13, 1978. at the Asbury Park plant Respondent, by its Plant
Manager William lIarkin. threatened its employees with
partial shutdown of the plant, and loss of jobs because of
their membership in, activities on behalf of, and sympathies
fbr the Union.
A. The Organizing Activities of Kym Sampoli and Her
Fellow Employees, and Respondent's Knowledge Thereof
Angela Kym Sampoli was employed by Respondent in
December 1976 as a memory repair person. She was ad-
vised and laid off on a Friday in June 1977 for lack of work.
She was rehired in August 1977 as a shipping clerk (perma-
nent). While in the latter job capacity Sampoli testified that
she also perfbrmed screwing screws for heads, core, and
Char-B-Que in the machine shop when the work in ship-
ping was slow. In January 1978 Sampoli said that she had a
conversation with fellow employee Michael McHale. a
painter for U.T.E., about employees' raises and the advan-
tages of unionization. She said that she held other such
conversations with McHale between January and May
1978. However, prior to May 1978 she said that she also
held such conversations with fellow employees Steve Oliver.
Pat Johnson, and Ann Pardue, as well as with other em-
ployees.
Sampoli further testified that as a result of the above-
described conversations with fellow employees she and fel-
low employee McHale went to the I.B.E.W. in Wall Town-
ship in May 1978. At that time McHale talked to one of the
presidents there who referred them to Bill Donovan of Lo-
cal 200 of the I.B.E.W., who later got in touch with them.
Consequently, they had a meeting with Larry Hilliard at
the Hilton on May 10, 1978, at which time Hilliard gave
them pamphlets and union authorization cards. Present at
that meeting were Kathleen McHale, wife of Michael
McHale, McHale, and Sampoli. After the meeting she said
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UNITED TELECONTROL ELECTRONICS
that she and McHale went to her house where they signed
the union cards.
When she (Sampoli) went to work the next day McHale
gave her some urion authorization cards to distribute,
which she gave out and talked about to fellow employees
Steven Oliver and Pat Johnson.
On Friday, May 12, 1978, Sampoli said that she talked to
Richard Kittell, the receiving clerk, who had told her that
he had not received a raise in quite a while, and that he
desired to sign a card. On that afternoon she had a conver-
sation with William Larkin. plant manager, when he asked
her had she heard anything about a union. She said that she
asked, "What union?" and he said "someone said some-
body was distributing union cards." She said that she re-
plied, "No," and Larkin then said he knew who "he" was.
and she asked how do you know its a "he" instead of a
"she." Larkin said that he knew it was Louie Pagan because
somebody had so informed him. He then said. "Here I do
you favors and let you work overtime on Saturdays when I
don't have to. How can somebody lie to my face?" Sampoli
sand that she asked Larkin again how do you know its a
"he" and not a "she," and he said that he did not and
walked away.
Subsequently, on the same afternoon, Sampoli said that
she asked employee Jimmy Moye if he would like to sign a
union card, and Moye said "yes." He signed the card and
returned it to her. Shortly thereafter Ann Pardue came into
the bank, and she asked her if she would like to sign a union
card. Pardue said, "No, I'm too close to management and I
don't want to get hurt. But I wish you luck." Employee
Elizabeth Doyle came into the bank and Sampoli asked her
if she would like to sign a union card, and she said "No."
Fellow employee Michael McHale was with Sampoli at the
bank during these conversations and his, as well as Ann
Pardue's, testimony corroborates Sampoli's testimony in
this regard.
Based upon the foregoing undisputed and credited testi-
mony, I conclude and find that employees Angela Kym
Sampoli and Michael McHale, along with other fellow em-
ployees, commenced an organizing campaign for the Union
on or about May 12. 1978; that McHale and Sampoli were
the leading organizers of the campaign; that Plant Manager
William (Bill) Larkin admitted that he learned about the
employees' organizing activity prior to Sampoli's layoff by
Respondent on May 16, 1978; that the testimony infra, of
leadgirl Ann Pardue established that the latter advised Re-
spondent, through its foreman and supervisor, Cliff
Streuble, that Sampoli had asked her to sign a union card
on Friday, May 12, 1978; and that Respondent laid off
Sampoli on Tuesday, May 16, 1978, allegedly for lack of
work in the shipping department.
B. Respondent's Discharge of Employee Angela Kym
Sampoli
Sampoli further testified that she did not report for work
on Saturday, May 13, or on Monday, May 15, 1978, but
instead reported for work on Tuesday, May 16. At about
2:30 or 3 p.m. she said that group leader Al Murray came
to her and gave her a slip for unemployment. She asked
Murray if this was a layoff and did anyone else know about
it, and he said. "Yes, Ann Pardue." Sampoli said that she
then went to the office of Plant Manager Bill Larkin. Mi-
chael McHale was present, and she told Larkin that she had
been laid off. McHale reacted by breaking his pencil and
exclaiming, "Oh. good faith." and Plant Manager Larkin
responded, "he took it harder than you did."
On October 1, 1978. Sampoli said that she received a
telegram from the Company asking her to return to work
on a Friday morning at 8 o'clock. She reported for work as
requested and was given a different job in the Char-B-Que
department for the same rate of pay, $2.90 per hour. Sam-
poli said that she asked Laurie Kurdy about Blue Cross-
Blue Shield, and Kurdy said that no she would not receive
such coverage. She then asked Kurdy about a raise. and the
latter said that she was receiving maximum salary. $2.90,
for Char-B-Que work. Sampoli said that she then asked
Plant Manager Larkin about Blue Cross-Blue Shield, and
he said that he would talk to Laurie Kurdy. He later re-
turned and advised her that she would receive insurance
coverage after 30 days, but $2.90 per hour was the maxi-
mum salary. In this regard, Sampoli said that she recalled
when she was laid off in 1977 that she had insurance cover-
age immediately upon her return to work. With respect to
the Char-B-Que salary, she said that her boyfriend. Ray-
mond Robinson, worked in Char-B-Que for $3.15 per hour.
and that there were others earning more than $2.90 per
hour.
Sampoli also stated that she previously worked as a ship-
ping clerk but had been assigned to Char-B-Que on occa-
sions: and that basically the jobs were unskilled, but you
would be given a brief training period. When she was asked
about prior layoff practices of Respondent Sampoli said
that about 15 employees were laid off on Friday. January
13. 1978, because the core area had reduced their hours of
work.
Just prior to her layoff Sampoli said that work was ver>
slow (15 to 20 hours a week). She had asked management
about work on several occasions but received no response.
She came to work on May 16. 1978, with a yo-yo. with
which she played after she was laid off. Even though Plant
Manager Larkin asked her to put the yo-yo away. she ac-
knowledged that she still played with it in her area and that
other employees saw her. She said that McHale was more
active in the union drive than she was. She had requested to
be laid off on many occasions, but a layoff did not occur
until after the card signing incident at the bank with Ann
Pardue, subsequent to the yo-yo incident. She said that she
played with the yo-yo in the morning and received notice of
her layoff about 2:35 p.m. to 2:45 p.m. on May 16, 1978.
William Larkin, plant manager for Respondent for 5
years who has been in its employ for 10 years, testified that
he has control over the daily operations of the plant. He
said that he sometimes hires employees and first learned of
the employees' organizing activity in May 1978. shortly be-
fore Sampoli was laid off. He learned from employee Louie
Pagan that employee Michael McHale was involved.
Plant Manager Larkin further testified that aside from
lack of work he said that he observed Kym Sampoli playing
with a yo-yo, and he reported such fact to her supervisor.
Harold Sher. He said that Sher had talked to Sampoli be-
fore about playing with the yo-yo because it was disruptive
999
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to other workers. On three prior occasions Plant Manager
Larkin said that he asked Sampoli not to play with the yo-
yo, and that on each occasion she said she would stop. He
acknowledged that he did not ever issue a written warning
to her, and that no record of either incident was placed in
her personnel file. Correspondingly, he acknowledged that
whenever an employee is discharged for cause such fact is
indicated in his or her personnel file.
Employee Ann Pardue, leadgirl for Respondent, corrobo-
rated Sampoli's and McHale's testimony to the effect that
she was approached by Sampoli in the bank and asked to
sign a union card on a Friday afternoon. On that Monday
she said that the union representative was at the plant's
gate. She said that when she went to work on Monday she
told Supervisor Cliff Streuble, foreman, that they were ap-
proached in the bank by Mike McHale and Kym Sampoli,
who asked them to sign a union card, and that she told her
"no." She said that she advised Sampoli she did not want to
get involved because she was leadgirl. Streuble did not re-
spond.
Pardue further testified that on Tuesday, May 16, Sam-
poli did not appear with a yo-yo and a fire hat.
Larkin denied ever having had a discussion with Sampoli
about the Union. He said that Sampoli was recalled by
Respondent in September 1978, and that when she returned
they had the following conversation:
A. Yes, she asked me if she would be if she was
being brought back, if she would get an increase and if
she was getting benefits.
I told her I did not know the answer at that time, but
I would find out and get back to her.
This was sometime in the morning, approximately.
Later on that afternoon I got back to her and told
her that she was coming back at the rate that she had
left at and that she was being reinstated with full bene-
fits.
Larkin said that Sampoli was recalled as an assembler
and assigned to a different position from her original posi-
tion, shipping clerk, which still existed but was not filled
and was being performed by another employee who always
worked as a shipping clerk. He said that the assembly work
for which Sampoli was recalled ended in July and picked
up in mid-September 1978. He acknowledged that Sampoli
had receiving as well as shipping experience. With respect
to layoffs, he said that a substantial number of Respon-
dent's employees who perform seasonal work were laid off
in July.
Clifford Sireuble, a supervisor for Respondent, testified
that on Monday, May 15, 1978, the day the Union com-
menced leafleting the plant, employee Ann Pardue came to
him and told him that she was asked by Michael McHale to
sign a union card. Streuble's testimony in this regard par-
tially confirms the testimony of employee Ann Pardue. On
the day that Angela Kym Sampoli was laid off Streuble
said that Sampoli was walking down the aisle working a yo-
yo and snapping bubble gum. He said that he later reported
the incident to Sher. His position with Respondent is prod-
uct manager of military contracts, and he supervises six
employees. He acknowledged that he hires and fires em-
ployees.
The parties herein stipulated as follows:
The stipulations are that on July I, 1976 a Thursday,
one employee was laid off. That on July 2, 1976, a
Friday, four employees were laid off.
That on July 7, 1976 a Wednesday, five employees
were laid off.
That on April 20, 1976, a Friday, one employee was
laid off.
That on 10/29/76 one employee was laid off.
MR. BROOKS: What day was that?
Ms. GREENFIELD: 10/29/76.
MR. BROOKS: What day?
Ms. GREENFIELD: Friday, I'm sorry. Thank you.
That on 10/12/76, a Friday, one employee was laid
off.
That on 1/7/77, a Friday, one employee was laid
off.
Then on 1/21/77, a Friday, one employee was laid
off.
That on 3/14/77, a Monday, one employee was laid
off.
That on 4/16/77, a Saturday, one employee was laid
off.
That on 8/18/77, a Thursday, three employees were
laid off.
That on 8/19/77, a Friday, five employees were laid
off.
That on 8/26/77, Friday, one employee was laid off.
That on 9/30/77. a Friday. one employee was laid
off.
That on 1 1/1 1/77. a Friday, one employee was laid
off.
That on 11/30/77, a Friday, one employee was laid
off.
That on 1/13/78, a Friday, five employees were laid
off.
That on 7/19/78, a Wednesday, one employee was
laid off and that on 7/21/78, a Friday, eighteen em-
ployees were laid off.
This list represents all employees laid off from the
period 7/1/76 to the present and that all those employ-
ees were laid off for the reason that there was a lack of
work, that they were laid off by the employer.
Harold Sher, president of Respondent, testified that sev-
eral weeks before Sampoli's layoff he was informed by
Larkin that there was not much business in his area. More
specifically, he said that on Tuesday, May 16, he was ap-
proached by Larkin and one of two supervisors: they com-
plained that Sampoli was disrupting people in the work
area by playing with a yo-yo, and that since they did not
have much work in that area he felt that the best thing to
do was to terminate her. He gave instructions to terminate
Sampoli. When he was asked did he mean layoff he said
yes.
In this regard, President Sher said that he saw the Union
leafleting the plant on Monday, May 15, 1978. He said that
layoff for lack of work was the official reason given Sampoli
for her layoff, but that another reason was disrupting the
work force with a yo-yo. He also said that layoffs are gener-
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UNITED TELECONTROL El ECTRONICS
ally issued on Friday, but there have been layoffs issued on
other days for lack of work.
C. Respondent s Interrogation of Employ'ee Michael
McHale About His Union Activities
Michael McHale testified that on the day the plant closed
because of snow he spoke with Sampoli about working con-
ditions in the plant. As a result of that conversation and
other conversations with her Sampoli accompanied him to
the I.B.E.W.'s office in Wall Township in May 1978. iHe
corroborated Sampoli's testimonial account of their orga-
nizing efforts. He further testified that he drove Sampoli to
work on the day after their visit to the Union and gave
Sampoli a couple of cards, which she returned to him that
afternoon unsigned. However, on that same morning, while
he was in the paint room with his helper John Mitchell,
McHale said that Larkin came in and asked him, "Are you
passing a petition to organize a union?" and he replied.
"No. I am not." Larkin then said, "Well, I heard you
were-someone told me my painter was passing a petition."
McHale said that he denied it, and Larkin left.
McHale further testified that later in the afternoon of
May 12 the following occurred:
I approached Bill, walked over to him and he said.
"If you're not passing a petition, you better straighten
out Louie Pagan. because he told me you approached
him and asked him to sign a card."
And I still denied at this point that I was passing a
petition. ...
Manager Larkin testified in this regard as follows:
A. (Continuing) I went to Mike and I had just re-
lated to Mike that an employee, meaning Louis, had
come to me and stated that he was being intimidated
by Mike into signing a card, and I went to Mike, I
related to Mike, and I said to him, are you doing this?
And he denied it.
Subsequently, Larkin admitted that he stated in his affi-
davit submitted to the Board that the same day Pagan told
him McHale had approached him Larkin went to McHale
and asked him if he had asked Pegan to sign a card.
McHale denied that he had asked Pagan to sign.
Subsequent to his return from the bank later on May 12
McHale said that Larkin came back to the paint shop, and
he McHale told Larkin that he wanted to talk to him. Lark-
in said, "Yes, I figure you would." McHale said that he
then pulled Plant Manager Larkin aside and told him that
he was passing a union petition, that he had lied yesterday
when he denied it because he was not sure of his legal rights
and how well he was protected. Larkin said, "Well, I'm
glad you came to me."
McHale continued to testify as follows:
And we went back into the paint room because I
had to start the washers and I said, how did you find
out I was passing the petition.
And he said he got called into the office and Ray
Herter said to him-Ray Herter's the vice president of
the company....
A. (Continuing) Mr. Larkin told me that Mr. Herter
had told him his painter was passing a petition and to ptl
a lid on it.
He then went and talked to--he told me he talked to
Louie Pagan who had given Bill the union card that I
had given him, to Louie. and told him I had ap-
proached him and asked him to sign a card.
I asked Bill about whether what his opinion was.
whether the company could handle the union finan-
cially? And he told me absolutely not because we'd
already been underbid by another company on the
Char-B-Que contract and the only reason conlctmpor
let us keep it is because we could do a better job than
this company.
He also explained we had lost a few government
contracts to, I think it was. Motorola.
I don't know what other companies. That's hhy the
government sales were down and he said that it' Char-
B-Que was to be organized or U.T.E.. that Char-B-Que
would definitely close next year....
He asked if Ray and Kym were in on it and I said
yes. Then he asked me why didn't I go to management
before I went to the union, and I said I didn't. because
I didn't think management would be very responsive to
us, probably just push us off and I said it doesn't really
matter, because Monday morning the union reps are
going to be here leafleting.
He said well, is there any way you can hold them
off? At least until I get in touch with Mr. Sher and Mr.
Herter?
HEARING OFFiCERS: Who is Mr. Sher and Mr. Her-
ter?
TIE WINESS: President and vice president of the
company.
I said well, if Mr. Sher and Mr. Herter want to sit
down and talk to us, I could go to the union and say
they really didn't have enough support as they thought
they did, and at least hold them off a couple of days.
Bill said he would call me before the weekend, be-
fore the weekend was over....
Q. In the course of this conversation, did Mr. Lark-
in discuss personal subjects?
A. Yes, he went on to explain that if Char-B-Que
closed-no, he said if you don't want to do it for the
company. do it at least for me.
He was referring to me going to the union and call-
ing them off.
He said he just bought a new house. and "if Char-B-
Que closed I would be probably laid off," because that
was a major function of his job.
McHale further testified that he received a telephone call
from Larkin when he returned and was advised byv Plant
Manager Larkin that he was not able to get in touch with
Sher and Herter. McHale said that he told him the Union
would be there in the morning. He said that there were 30
employees at char-b-que.
McHale reported to work on Monday. May 16. and after
lunch he said that he passed Plant Manager Larkin's office
and the latter said to him. "I see your boys are still outside"
(referring to the union representatives), and McHale said.
"Yes, and they plan to be here for a while." I.arkin then
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tried again to impress upon him that the Company could
not handle the Union financially, and that the Company or
a particular section thereof would close. He continued to
testify as follows:
In talking about Mr. Sher and Mr. Herter, I said, if
they're really willing to sit down and talk, maybe I will
call off the union, and Bill said, well, they can't--they
have been advised by their lawyer they can't sit down
and talk to you, they cannot promise or threaten, or
anything. You just have to rely on their good faith.
At that point Kym Sampoli came into the office and
said, Michael, I've just been laid off, and I got mad-
In early July, one morning at about 9 a.m., McHale said
that he told Larkin that he had a job offer which would pay
him 35 cents an hour more than he was receiving, and he
wanted to give Respondent reasonable notice since he was
the only painter. Larkin said, "I'll submit your resignation."
At 2 p.m. Larkin came to the paint room and said, "I have
some good news and I have some bad news." McHale con-
tinued to testify as follows:
I said, Wait a minute, and I called my helper, John
Mitchell over and I wanted somebody there to hear.
He said, Harold and Ray have accepted your resig-
nation, only they want to you leave today and they'll
pay you for another extra week, which they did.
He said that he advised Plant Manager Larkin that he
was not going to accept money for days he was not work-
ing. Larkin said, "Well, I don't think you have a choice."
when he attempted to explain why he decided to withdraw
his resignation Larkin said, "Well, it really doesn't matter."
McHale said that he kept insisting he did not want to
resign now, and about 2 hours later Laurie Tracal brought
him his checks. After continued insistence that he did not
want to resign Larkin said, "Well, okay, I quess we don't
have a choice," and he took back the checks. McHale said
that he then went outside to his car and reconsidered
whether he should take the job offer in view of what Larkin
had said about him making a big mistake by remaining. A
few minutes thereafter he decided to withdraw his resigna-
tion.
William Larkin also testified that he had a second con-
versation with Michael McHale on Saturday, May 13,
1978, during which time McHale approached him and in-
formed him that he had solicited applications for a union.
He told McHale that as far as the Union is concerned, he
would like to talk over the pros and cons with him. McHale
said that he was bringing in the Union to seek better wages,
benefits, etc. Larkin denied that he discussed the financial
status of the Company or that he said the Company would
close down if the Union were selected. He denied that he
discussed any other employees who were active in the
Union.'
I do not credit Plant Manager Larkin's denial that he discussed the finan-
cial status of the Company with McHale, not only because I was not per-
suaded by his demeanor on the witness stand, but more importantly because
such denial is contrary to the overwhelming weight of the evidence in this
record. The credited evidence of record shows that Plant Manager Larkin
was making many efforts to prevent McHale from unionizing Respondent's
employees.
Thereafter, Plant Manager Larkin said that he did dis-
cuss the McHale conversation with Sher, president of the
Respondent, with respect to what McHale had told him. He
continued to testify in this regard as follows:
Q. What, if anything. did Mr. Sher respond to you?
A. Well, one of the things that Mike had indicated
was that he would be interested in sitting down with
management and discussing his demands, and he
wanted to know if management would be interested,
and I discussed it with Mr. Sher and he told me that he
would be receptive to hearing Mike's demands.
Q. Did they sit down?
A. No.
Sher further testified that he first learned about the union
activity of the employees over the weekend prior to May 16
when Larkin telephoned him and told him about the con-
versation which Sher described as follows:
Q. Can you remember specificially when he called
you?
A. Well, he said that-with the conversations he
had with Mr. McHale that Mike McHale was going to
pull a union in, and I just asked him, "What are the
problems? Perhaps if he came to us and discussed the
problems, we could discuss what the problems were."
President Sher further testified that he has been aware of
McHale's union activity since he has been in the employ of
Respondent, but that he has never taken any action against
McHale. After observing the union organizers on Monday,
May 15, Sher said that the Company called its attorney,
Brooks, and May 16 Brooks met with management and the
supervisors and advised them of their rights and obliga-
tions. He said that this meeting took place before the layoff
of Sampoli. Moreover, he testified that the company audi-
tors had advised it that the business year appeared to be
turning out to be a poor one, and that Respondent should
take measures to reduce costs. He said that this financial
report of the Company occurred at a point in time when the
Company had a loss of $400,000 for the year ending March
31, 1978, out of a gross volume of $2.2 million. He acknowl-
edged that Sampoli's gross weekly income was based on a
rate of $2.90 per hour for a 40-hour week.
President Sher identified Respondent Exhibit 1, annual
report for the year ending 3-31-78, published August 1978.
He said that he was advised of the financial picture by his
auditors in May or June 1978. However, he contends that
the Company knew the situation from the loss of business
for about 9 months prior thereto and had quite a layoff in
January of 1978, that it laid off about 20 people after Janu-
ary, and that other small groups were laid off prior to May
of 1978.
Analysis and Conclusions
It is well established by the undisputed, corroborated,
and credited evidence of record that in early May 1978
Respondent's employees Michael McHale and Angela
Kym Sampoli commenced organizing a union among Re-
spondent's employees. On or about May 12-13, 1978, Re-
1002
UNITED TELECONTROL. ELECTRONICS
spondent (by Plant Manager William Larkin), through its
own admission, learned about the organizing activities of its
employees, at least those of Michael McHale, on May 13,
1978. Respondent'F Plant Manager William Larkin also ac-
knowledged that he learned about the employees' organiz-
ing effort through employee Louie Pagan on or before May
12, 1978.
On May 12, 1978. Respondent (through Larkin), asked
employee Charging Party Kym Sampoli if she had heard
anything about a union, that Sampoli said "No," that Lark-
in said someone informed him that an employee was dis-
tributing union cards, and that he knew who "he" was.
When Sampoli asked how did he know it was a "he" in-
stead of a "she" Larkin said that he had been informed that
it was Louie Pagan, and that here he was doing Sampoli
favors by allowing her to work overtime, and she was there
lying to his face. I find that such inquiries of an employee
by such a high ranking managerial official as Plant Man-
ager Larkin without any assurances against reprisals by
management constituted coercive interrogation of employ-
ees about their union interest and activities in violation of
Section 8(a)(1) of the Act.
The undisputed and credited evidence of record further
shows that on Friday, May 12, 1978, employees Sampoli
and Michael McHale engaged in a union card solicitation
campaign in the plant, about which Respondent, through
Supervisor Cliff Streuble, acknowledged it was informed on
Monday, May 15, 1978, by leadgirl Ann Pardue. Sampoli
did not report for work on Monday, May 15, but she did
report on Tuesday, May 16, 1978. About 2:30 p.m. or 3
p.m. on that afternoon Sampoli was given an unemploy-
ment slip by group leader Al Murray. When Sampoli asked
Murray was the slip notice of a layoff and who else knew
about it Murray said, "Yes, Ann Pardue." When Sampoli
went to Larkin's office and announced that she was laid off.
he reacted to the surprised reaction of fellow employees
McHale by simply saying that McHale took it harder than
she did. Both the unemployment slip (G.C. Exh. 5), and the
employee's confidential history (G.C. Exh. 6) indicated the
reason for Sampoli's layoff was "lack of work."
During this proceeding Respondent (through Plant Man-
ager Larkin and President Sher), for the first time added to
its reason for Sampoli's layoff the contention that Sampoli
was spinning a yo-yo during working time on the morning
of May 16, 1978. Respondent also contended that it had
spoken to Sampoli on prior occasions about spinning the
yo-yo, but admitted that it did not issue a formal warning
to her which was inserted in her personnel file. It was Re-
spondent's practice to indicate in the personnel file the rea-
sons for the layoff of any employee. Sampoli acknowledged
that work was slow (15-20 hours a week), prior to her lay-
off, and Respondent presented evidence that the Company
sustained a loss of $400,000 for the year ending March 31,
1978.
Hence, while it is well established that Respondent had a
lack of work in the shipping department in May 1978, the
crucial question presented for determination is whether Re-
spondent laid off Sampoli on May 16 for lack of work and
for her spinning a yo-yo or for her participation in the
unionization of Respondent's plant. With respect to the yo-
yo incident, Sampoli admitted spinning the yo-yo after she
was laid off. Respondent contends that she was spinning it
during work hours, disrupting the work of other employees,
but leadgirl Ann Pardue, who refused to sign a union card,
credibly testified that Sampoli did not appear on May 16
with a yo-yo. Consequently, I credit Sampoli's and Pardue's
version, because if Sampoli were disrupting the workers
with her yo-yo as Respondent contends Pardue, in all prob-
ability, would have seen her. So it is probably true that
Sampoli spun her yo-yo after she was laid off. Moreover.
Respondent had never issued a formal warning to Sampoli
about her yo-yo nor inserted a notation to that effect in her
personnel file. Thus, I am persuaded by the credited ver-
sions of Sampoli and Pardue, as well as the circumstantial
evidence discussed herein, that Sampoli and Pardue were
telling the truth, and Plant Manager Larkin and President
Sher were not.
As to whether Respondent laid off Sampoli on May 16
because of lack of work, I am persuaded by a composite of
the credited evidence of record that Respondent laid her off
for her union activities of which Respondent was well
aware on May 15. 1978, and not because of a lack of work.
This position is amply supported by the evidence for the
following reasons:
I. On Friday, May 12, 1978, Sampoli was coercively in-
terrogated by Plant Manager Larkin about the employees'
organizing effort, and she was accused by him of lying to
his face because she denied any knowledge of union ac-
tivity.
2. Respondent acquired definite knowledge of Sampoli's
organizing activities through leadgirl Ann Pardue on Mon-
day, May 15, 1978.
3. Although work was slow in the shipping department
for some time, Respondent nevertheless tolerated the lack
of work by allowing Sampoli to work 15-20 hours a week
until it learned of her union activity on Monday, May 15.
and it precipitously laid her off when she returned to work
on Tuesday, May 16.
4. When Sampoli asked group leader Al Murray did the
unemployment slip he gave her mean she was laid off and
who knew about it Murray replied, "Yes, Ann Pardue"
(who had reported Sampoli's soliciting her signature for the
Union to Foreman Cliff Streuble on Monday, May 15,
1978). Larkin's remark about how Sampoli took her notice
of layoff better than McHale who exclaimed, "Oh! good
faith," when Sampoli announced that she had been laid off
also supports this position.
5. Sampoli's union activity was the real and substantial
motivating reason for Respondent laying her off on May
16. The lack of work and her spinning a yo-yo before or
after her layoff were merely a pretext to conceal Respon-
dent's unlawful layoff of Sampoli in violation of Section
8(a)(3) and () of the Act.
6. Sampoli was the only employee laid off on May 12. In
fact, the record indicates that she was the only identified
employee laid off since January 1978.
It is therefore obvious that Respondent's economic de-
fense is pretextual.
Re: Michael McHale
The evidence of record is also undisputed and acknowl-
edged by Plant Manager Larkin that he approached em-
1003
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee Michael McHale on May 12, 1978, 1 day or so after
McHale and Sampoli consulted the Union, and asked him
if he was distributing union authorization cards. Although
McHale answered in the negative, Larkin nevertheless told
McHale that employee Louie Pagan had told him that
McHale was distributing union cards. During further dis-
cussion between them Larkin told McHale that he learned
about McHale's involvement in the union drive from Re-
spondent's Vice President Ray Herter, who told him to put
a lid on the union drive. Plant Manager Larkin did not
deny that he told McHale about the conversation with Her-
ter, and Herter did not testify to deny or confirm the state-
ment attributed to him.
The credited evidence further shows that Plant Manager
Larkin tried to persuade McHale to call off the union drive
until McHale and other employees could talk with manage-
ment about their problems. In response to questions by
McHale, Larkin also told McHale that in his opinion Re-
spondent could not handle the Union financially and if the
plant were unionized, and that the char-b-que department
would definitely close next year. During further discussion
on May 16, 1978, Larkin again told McHale that the Com-
pany could not financially endure unionization and would
close its doors.
When McHale informed Plant Manager Larkin in early
July that he had received a better job offer and wanted to
give Respondent adequate notice thereof since he was Re-
spondent's only painter Larkin not only had McHale's res-
ignation immediately accepted by Respondent, but also he
requested McHale to leave immediately with a gift of an
additional week's salary. McHale then changed his mind
and notified Larkin that he would not resign. Larkin then
said to McHale that he would be making a mistake to re-
main in Respondent's employ. Such conduct on the part of
Respondent further demonstrates animus towards
McHale's organizing activity.
Based upon the foregoing credited evidence I conclude
and find that Respondent, through its Plant Manager Wil-
liam Larkin, did, on May 12, 1978, coercively interrogate
employees Angela Kym Sampoli and Michael McHale
about their interest, and other employees' interest in and
activities on behalf of the Union, creating the impression of
surveillance of those activities in violation of Section 8(a)(1)
of the Act. I further conclude and find that the record evi-
dence established that Plant Manager Larkin also threat-
ened employee McHale with shutdown of the Char-B-Que
section and/or the plant if the employees organized the
Union. The record is replete with evidence of Respondent's
knowledge of Sampoli's and McHale's organizing activities
and of its animus towards such activity.
IV. THE EFFECT OF rtHE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section 1, above, here a close, inti-
mate, and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
dispute burdening and obstructing commerce and the free
flow thereof.
V. HE REMEDY
Having found that Respondent has engaged in unfair la-
bor practices warranting a remedial order, I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
It having been found that Respondent interfered with,
restrained, and coerced its employees in the exercise of their
Section 7 protected rights by coercively interrogating them
about their union interests, activities, and desires, by creat-
ing the impression of surveilling their organizing activities,
by threatening its employees with the shutdown of its plant
or a portion thereof if the employees organized the Union
in violation of Section 8(a)(l) of the Act, and by discrimina-
torily laying off employee Angela Kym Sampoli and there-
after failing and refusing to reinstate her to her employment
because she was engaged in union activities and refused to
reveal her knowledge thereof to Respondent in violation of
Section 8(a)(3) of the Act, the recommended Order will pro-
vide that Respondent recall Angela Kym Sampoli to the
position she held on May 16, 1978, and make her whole for
any loss of earnings within the meaning and in accord with
the Board's decision in F W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977),2 except as specifically modified by the
wording of such recommended Order.
Because of the character of the unfair labor practices
herein found the recommended Order will provide that Re-
spondent cease and desist from or in any other manner
interfering with, restraining, or coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
See N.L.RB. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th
Cir. 1941).
Upon the basis of the above findings of fact and upon the
entire record in this case I make the following:
CONCLUSIONS OF LAW
I. Respondent United Telecontrol Electronics, Inc., is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Local 2066, International Brotherhood of Electrical
Workers, AFL-CIO, is and has been at all times material
herein a labor organization within the meaning of Section
2(5) of the Act.
3. By coercively interrogating employees Angela Kym
Sampoli and Michael McHale about their activities and
other employees' union activities and by creating the im-
pression that Respondent was surveilling their union activi-
ties Respondent violated Section 8(a)(1) of the Act. except
to the extent that such rights may be affected by lawful
agreements in accord with Section 8(a)(3) of the Act.
4. By threatening employee Michael McHale with the
shutdown of a portion of the plant or the entire plant Re-
spondent violated Section 8(a)(1) of the Act.
5. By discriminating in regard to tenure of employment
of Angela Kym Sampoli in an effort to discourage member-
ship in the Union, a labor organization, Respondent has
2 See, generally, Isis Plumbing & Healing Co., 138 NLRB 716 (1962).
1004
UNITED TELECONTROL ELECTRONICS
engaged in unfair labor practices condemned by Section
8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act. I
hereby issue the following recommended:
ORDER'
The Respondent. United Telecontrol Electronics, Inc..
Asbury Park, New Jersey, its officers, agents. successors.
and assigns, shall:
I. Cease and desist from:
(a) Coercively interrogating its employees about their
concerted and/or union desires and activities.
(b) Creating the impression that it is surveilling the
union activities of its employees.
(c) Threatening its employees with closure of a portion
of the plant or the entire plant if the employees organized a
union.
(d) Discouraging membership in or activities on behalf
of Local 2066, International Brotherhood of Electrical
Workers, AFL-CIO, or any other labor organization, by
laying off employees or otherwise discriminating against
them in any manner with respect to their tenure of employ-
ment or any term or condition of employment in violation
of Section 8(a)(3) and (1) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labr 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.
(a) Recall or offer to recall Angela Kym Sampoli to im-
mediate and full employment in her former position held oil
May 16. 1978, or, if' such position no longer exists, to a
substantially equivalent position without prejudice to her
seniority or other rights previously enjoyed and make her
whole for any loss suffered by reason of the discrimination
against her, with interest, in the manner described in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records. timecards.
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at Respondent's office and plant located at 3500
Sunset Avenue, Asbury Park. New Jersey. copies of the
attached notice marked "Appendix."' Copies of said notice,
on forms provided by the Regional Director for Region 22,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by it immediately upon receipt
thereof. and be maintained by Respondent for 60 consecu-
tive 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 byv any
other material.
(d) Notify the Regional Director for Region 22. in Asrit-
ing. within 20 days from the date of this Order. what steps
Respondent has taken to comply herewith.
In the event that this Order is enforced bh a Judgment ofia tnied St.ie,
court of appeals. the words in the notice reading "Posted h Order 1i the
National labor Relations Board" shall read "Poted Pursuant o a Judgnment
of the United Slates (ourt )f' Appeals Entorcing an Order ot the N;ltionl
Labor Rela3nons Board"
1005