Walter Garson, Jr. & Associates

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1226 (N.L.R.B. 1985)

1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walter Garson , Jr. & Associates and Teamsters
Union Local No. 115 a/w International Broth-
erhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America . Cases 4-CA-
14088 and 4-CA-14088-2
30 September 1985
DECISION AND ORDER -
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 11 September 1984 Administrative Law
Judge-Thomas R. Wiiks issued the attached deci
sion. The Respondent and the General' Counsel
filed exceptions, supporting briefs, 'and answering
briefs.'
The National Labor Relations Board has delegat-
ed its authority-' in this proceeding to a three-
member panel.
The Board has -considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified. - '
ORDER
The National Labor Relations Board adopts the
recommended Order of.-the administrative law
judge-as modified below and orders .that the Re-
spondent, Walter Garson,. Jr. & Associates;. Phila-
delphia, Pennsylvania, its officers, agents, succes-
sors, and. assigns, shall . take the action set forth in
the Order as modified.
Substitute the following for paragraph 2(a).
"(a) Post at its Philadelphia, Pennsylvania, copies
of the attached notice marked "Appendix."'s
Copies of the notice, on forms provided by the Re-
gional Director for Region 4, after being signed by
the Respondent's. authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained - for 60 consecutive days in
conspicuous places including • all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material."
MEMBER DENNIS, concurring in part and dissent-
ing in part.
1 The General Counsel has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings -
I join my colleagues in adopting the judge's
unfair labor practice findings.' Contrary to the ma-
jority, however, I would issue a remedial bargain-
ing order based on the analysis set forth in my con-
curring opinion in Regency Manor Nursing Home,
275 NLRB 1261 (1985). _
In the instant case, the Respondent committed at
least six "hallmark" violations. On at least five oc-
casions, the Respondent threatened employees with
plant closure and job loss in the event of unioniza-
tion. These threats were communicated directly to
a total of eight employees. In addition, the Re-
spondent unlawfully granted employees 'paid sick
leave and a personal holiday in order to discourage
their support for union representation.
Such highly coercive unfair labor practices were
likely to have had a profound impact on the em-
ployees for several reasons.2 First, as the judge
found, the unit was small, consisting of no more
than 24 employees. Second, the unlawful threats
were made to one-third the unit, and all employees
were affected by the unlawful grant of benefits.
Third, the judge found that Thomas Lydon, com-
pany official who threatened plant closure and loss
of -employment, enjoyed "special status" with the
Respondent's part owner Walter Garson Jr., which
"would necessarily lead employees to believe that
[Lydon's views were] in actuality an accurate re-
flection of Garson's intentions and disposition" (JD
slip op: at 15). Finally, the benefits were granted
by Garson himself, the Respondent's highest 'off-
cial, and were in response to employee a complaints
about the lack of paid sick days.
The Respondent's hallmark violations of pervar-
sive effect place this case squarely within Gissel's
second category and support a bargaining order.
Evidence of significant mitigating circumstances is
lacking. Accordingly, for the above reasons, I
would issue a bargaining order and dissent from
the majority's refusal to do so.
It is unnecessary to pass on the question whether the judge erred in
recommending that certain complaint allegations be dismissed , because
the finding of such additional violations would be essentially cumulative
and would not materially affect the Order
2 The majority errs in adopting the judge 's subjective analysis of the
impact of the Respondent 's unfair labor practices 'The proper test focuses
not on the actual effect of the Respondent 's conduct , but on whether it
would have the objective "tendency to undermine [the Union's] majority
strength and impede the election processes " NLRB v Gissel Packing Co,
395 U S 575, 614 (1969)
Bruce D. Bagley, Esq., for the General Counsel.
Mitchell A. Kramer, Esq. (Kramer, Kapustin & Schatz), of
Philadelphia, Pennsylvania, and Louis Rosner, Esq.
(Joseph Weiss Associates), of Philadelphia, Pennsylvania,
for the Respondent.
Norton H. Brainard III, Esq., of Philadelphia, Pennsylva-
nia, for the Union.
276 NLRB No. 137
WALTER GARSON, JR. & ASSOCIATES 1227
DECISION
STATEMENT OF THE CASE . •
THOMAS R. WILKS, Administrative Law Judge. Pursu-
ant- to unfair labor ' practice charges filed by Teamsters
Union Local- No. 115 a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Union), a ' complaint and consolidated com-
plaint were issued by the Regional Director for Region 4
of the Board against Walter Garson Jr. and Associates
(Respondent) which alleged violations of Section 8(a)(1)
and (5) of the Act in the form of coercive conduct calcu-
lated to erode the Union's support'by a majority of em-
ployees in an appropriate bargaining unit , and the refusal
to recognize the Union as the. employee-designated bar-
gaining agent . Respondent filed timely answers which
denied the . allegations of unfair labor practices and the
status of the Union as labor - organization and majority
designated employee bargaining agent . The. trial in this
matter was held before me at Philadelphia, Pennsylvania,
on May 21, 22, and 23, 1984. At the trial all parties were
afforded a full-opportunity to examine and cross- examine
witnesses , to adduce competent, relevant, and material
evidence, to argue their- positions orally, and to file post-
trial briefs. The General Counsel -moved to delete para-
graph 11(b) of the complaint and amended the alleged
appropriate unit description to exclude confidential em-
ployees and the bookkeeper. Written briefs were re-
ceived on or about July 17, 1984. On July'17, 1984, the
General Counsel filed a motion to correct transcript
which is unopposed and granted : On the record as a
whole, on my observation of the testimonial demeanor 'of
the witnesses, and on analysis of the oral representations "
and posttrial briefs, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is engaged in direct mail marketing serv-
ices and other related activities from its facility located
in Philadelphia, Pennsylvania . During the year preceding
the complaint` in the course and conduct of its business
operations , Respondent received more than $50,000 for
the services performed directly outside the Common-
wealth of Pennsylvania . It is admitted , and I find, that
Respondent is, and has been at all times material herein,
an employer engaged , in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. • -
II. LABOR ORGANIZATION
The Respondent, in its answer , denied that the Union
is a labor organization . At the trial Respondent explained
that its position was based on its belief that the Union
lost its status as labor organization by virtue of'the con-
viction of three of its agents of assault and battery, in
connection with a dispute with another employer. I sus-
tained objection to the receipt of such evidence as irrele-
vant to either the status of the Union or as to the remedy-'
al order sought, i.e. recognition and bargaining. The
General Counsel adduced unchallenged evidence con-
cerning the functions of the Union. Based on that evi-
dence, I find that the Union is, and has been'"at all times'
material herein, a labor organization within the' meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
1. Whether Respondent violated Section 8(a)(1) of-the
Act as alleged by and through the conduct of Walter
Garson, Jr. and Louise Garcon. .
2(a) Whether Ronald Centanni and Thomas Lydon are
supervisors and/or agents of Respondent -within the
meaning of Section 2(11) and (13) of the Act.:- '
2(b) If so, whether Respondent violated Section 8(a)(1)
of the Act by and through the conduct of Ronald Cen--
tanni and Thomas Lydon.
3(a) Whether the union represented a majority of'em-
ployees-in an appropriate unit on the relevant date.
3(b) Whether an extraordinary remedy consisting of a
bargaining order is warranted under the particular cir-
cumstances of this case.
B: Respondent's Operation-Supervisory-Hierarchy
Respondent's operation in the last half of October 1983
consisted of 28 persons engaged in direct mail marketing
services and other related services on-the second and
third floor of a building located in Philadelphia. The op-
eration is also known as a "letter shop service." Clients
include,. inter alia, RCA and, Campbell's Soup. Pursuant
to contract on per order basis, Respondent obtains the
composed copy. from its clients for' letters, brochures,
news media releases, etc., to be inserted 'hi envelopes, ad-
dressed, postage metered, 'and forwarded by'it to its cli-
ents' designated addressees. On limited- occasions Re-
spondentprovides basic offset printing • services, but oth- •
erwise the client will supply its own printed material.
Respondent is owned in ^ part by Walter Parson Jr.,
and in part by Louise Garson his mother. They are the
sole owners.' Their status as supervisors and agents
within the Act's meaning is admitted. Walter Garson Jr.
exercises ultimate' responsibility for the management of
the operation, and he also engage's in direct sales solicita- _
Lion. The supervision of employees is shared with him by
Louise -Garson. Printing and storage is performed on the
upper floor, but most-work, i.e., mailing and, shipping, is
done on the lower floor where also' are located the of-
fices of the Garsons,. and. Thomas Lydon and Ronald
Centanni (whose alleged supervisory status is denied)'but
who were designated in payroll information, subpoenaed
by the General Counsel for the last half of October 1973,
as mailing room and printing I supervisor, 'and as mailing
room supervisor, respectively. They were also designat-
ed respectively as salesman -and mailing machine-opera-
tor.-They in fact also engaged in production and mainte '
nance duties.
The work done'•by employees is performed manually
and with inserting machines labeling machines, etc. It is
highly repetitive and routine. The job orders submitted
' Walter Garson , Jr. will be referred to herein sometimes simply as
Garson. .
1228 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the customer are self-descriptive and allow for no in-
dividual discretion . An employee 's work performance is
geared to the effectuation of a simple task within a pre-
scribed time period . Walter Garson , who solicits sales
out of the shop and performs billing work at home,
spends about 80 percent of his time in the shop . He holds
production meetings with Louise Garson , Lydon, Cen-
tanni , and Joseph Lydon , the shipper and receiver, each
morning when the status of each job is discussed and any
production, problems are conveyed by Lydon or Cen-
tanni to Walter Gar son for resolution . Walter Garson
then distributes the job orders . Lydon and Centanni
present employees with the job orders they are to proc-
ess. -
The work is assigned , not on a discretionary basis, but
pursuant to the function to which each employee is regu-
larly assigned. Lydon and Centanni are available to train,
assist , and instruct employees in the resolution of rather
minor processing - problems or questions where they uti-
lize their greater experience and expertise .' Walter
Garson is aware each day of the status of each job, i.e.,
where it is, who is doing it, and whether it is progressing
expeditiously based on . the_ production meeting. Thus he
depends on reports of Lydon and Centanni. However,
Walter Garson is - aware of the functioning of each
worker by his knowledge of their performance based on
the review of documents - necessary for the billing work
he performs himself and thus has independent knowlege
of their performance: and attendance . There • is no evi-
dence of any past employee misconduct and thus no evi-
dence about how discipline is maintained.
For all material times herein , hiring and firing deci-
sions remain with Walter Garson . The assignment of em-
ployees to job tasks , or. the changing of job tasks, is
made by Louise Garson . The results of the decisions to
hire , fire, etc., are conveyed by Lydon and Centanni.
Although the evidence in the record indicates that
Lydon and Centanni occupy a status higher than a rank-
and-file employee , that they have been given the title of
"supervisor ," that their work has been described by
Walter Garson himself in testimony as supervisory, it is
not clear that they have exercised that degree of inde-
pendent judgment and discretion normally required to
classify a . person as a supervisor within the meaning of
the -Act ., They are two-way conduits of information be-
tween Walter and Louise Garson and the small group of
employees engaged ' in routine , repetitive job, functions.
They have , however, been held out to the employees by
the Respondent whereby some independent authority
must necessarily be seen by the employees to be vested
in them.
On October 7, 1983 , Respondent advised its employees
by letter that it was initiating a new "clear policy for re-
viewing employees ," i.e., with respect to pay raises. A
schedule was set forth -for raises . All employees were to
be reviewed every 9 months and raises would be based
on these reviews to be made by. "the employees Supervi-
sor, Walt Garson and Louise Garson." The employees
were informed that - the reviews would take into consid-
eration the quality of work performance , punctuality, at-
tendance , attitude , cooperation , and "ability to get along
with co-workers ." Employees were informed as to
which persons would be reviewing them . Lydon and
Centanni were both indicated as sole reviewers for cer-
tain employees In their testimony Walter Garson,
Lydon , and Centanni all tended to mitigate the language
of that letter , which impliedly informs the employees
that Lydon and Centanni would be utilizing . their judg-
ment and discretion in- evaluating the employees with re-
spect to eligibility for pay raises . Lydon testified that he
was never involved in the granting of a wage increase in
the past , and there is no evidence he was involved in ac-
tually making an independent evaluation and recommen-
dation with respect to raises before or after October 7,
1983. However , he admitted in cross-examination that
the October 7 policy letter was complied with by the-
employees with respect to the instruction- therein that
they ask their supervisors if they have any . questions
about the wage review policy. Centanni testified that no
reviews have yet taken place for employees iii his area
since October 7 and he participated in no wage reviews
before then . He conceded, however , that it ' is - still Re-
spondent 's policy that the supervisors will participate in
the wage reviews pursuant to that October 7 letter,
when the time comes for a review for an employee in his
department , and that he has periodically given --casual
evaluations of employees ' work performance.
Walter Garson testified that the decisions about wage
increases for employees are made solely by his mother
and himself. Although clearly Respondent does have in-
formational reports from Lydon and Centanni , the deci-
sion about wage increase is based on independent infor-
mation , i.e., objective documentation , and observations,
of Walter Garson and Louise Garson , according to
Walter Garson . Centanni testified, however , that, prior to
October 7, 1983, Respondent invariably followed his rec-
ommendations for wage reviews. - -
In addition to the Respondent 's on notification to
employees of October 7, Lydon and Centanni also pos-
sessed other indicia - of apparent authority . Prior to Octo-
ber 7 , according to Walter Garson, Lydon and Centanni
were physically present at employee , wage reviews-held
in interviews between the individual employee and
Walter and Louise Garson . Lydon and Centanni initialed
employee timecards as a verification of the accuracy of
an employee 's corrections based on their direct observa-
tions , on which -Walter Garson relied . Lydon warned an
employee to improve his attendance or he would be ter-
minated. Lydon assisted in the interviewing of job appli-
cants . He and Ron Centanni shared office space with
Louise Garson . He and Centanni were paid on a differ-
ent basis from other employees. -
Centanni warned an employee that he would be dis-
charged if he did not improve his attendance . He recom-
mended discharge for that employee but Walter Garson
rejected that recommendation and for 7 months tolerated
the employee 's poor attendance based on his own infor-
mation as to the probable cause of the employee 's prob-
lems, i . e, domestic trouble . Centanni has on occasion
substituted for Walter Garson and changed a machine
operator 's assignment . Employees have notified Centanni
of their early departure from work.
WALTER GARSON, JR & ASSOCIATES
Although Walter Garson testified to his presence in
the actual work area, Lydon testified that, with respect
to Garson's presence, "there is not much of it." On redi-
rect examination-he testified that "it is not unusual" to
.see Walter Garson in the production area. He was asked
if Garson observes the performance of employees and
answered, "Not to my knowledge. I don't know what he
:does." Thus apart from the- actual, meaningful, exercise
of authoritative judgment and discretion, Lydon and
Centanni constitute the most visible presence of authority
in-the shop, in addition to being the management spokes-
persons of personnel information and policy, and con-
duits of assignments and directions from Walter Garson
to the employees.
The conduct of Lydon and Centanni during the orga-
nizing attempt of Respondent's -employees -further en-
hances their authoritative posture vis-a-vis the -employ-
ees. As we shall see, they utilized their own discretion in
deciding to hold group and individual meetings with em-
ployees' to discuss the matter of union representation
where they espoused views hostile to union representa-
tion. In those encounters during worktime, the employ-
ees compliantly ceased work, pursuant to the instructions
of Lydon and Centanni, to engage in these confronta-
tions. Moreover, concerning the first such group encoun-
ter, Louise Garson explicitly approved of the meeting
and participated in it by her presence and silently acqui-
esced with what they said
I 'therefore conclude that although the evidence is.in-
conclusive about the actual supervisory status of Lydon
and Centanni, during the time of the organizing activities
of the Union during late October 1983 as before, they
were the Respondent's conduit for information, policy,
and orders. They were clothed by Respondent with the
apparent authority of its agents, and so positioned by the
• Respondent to be recognized by the employees as its
agents in personnel matters and particularly with respect
to the union organizing efforts . River Manor Health-Re-
lated Facility, 224 NLRB 227,'230-231 (1976); Clevenger
Logging Inc., 220 NLRB 768, 778 (1975); Hanover Con-
crete Co., 241 NLRB 936 (1979); Propellex Corp., 254
NLRB 839, 843 ( 1981); Bohemia, Inc., 266 NLRB 761,
763 (1983).
C. The Union Organizing Campaign
1. Alleged coercion by Centanni, Lydon, and
Louise Girson
In mid-October 1983, Union Business Agent Robert
Henninger received a telephone call -from one of Re-
spondent's employees who inquired about union repre-
sentation. Subsequently, a meeting was scheduled to be
held between employees and Henninger at a location
away from Respondent's facility on the evening of
Monday, October 24. Walter Garson was in Bermuda on
vacation since the preceding Friday and did not return
until the evening of October 24 According to, Centanni,
during the morning of October 24, an employee dis-
closed to Centanni that employees were interested in ob-
taining union representation and that a meeting was to be
held that night. Centanni testified that he discussed it
with Lydon and they jointly decided to conduct ameet-
1229
ing with employees during working hours. They asked
Louise Garson for her approval and she gave it. Prior to
summoning the employees to their meeting, Centanni tes-
tified that' he attempted to confirm the union organizing
disclosure by interrogating employee Elizabeth (Ellen)
DiGiovannantonio repeatedly whether she was aware of
a union meeting , first in the doorway to his and Louise
Garson's office and then, again, in the office in the pres-
ence of Louis Garson. He admitted persisting in a third
interrogation of her later that day, despite her denials of
knowledge. He did not contradict her testimony that she
was summoned by him from her work area for the ques-
tioning , nor did he contradict her more detailed and
credible testimony that he insisted on knowing how she
felt about union representation, whether she was loyal to
the Company, and whether she knew anything about the
Union, alone and in the presence of Louise Garson.
Louise Garson did not testify. From both accounts she
did nothing to disavow Centanni's conduct nor to in-
struct him not to engage in such activity. Rather, by her
silence and presence she acquiesced in and authorized
this and, therefore, subsequent conduct by Centanni with
respect to the union organizing effort, but she did not
overtly join in it . Later Centanni interrogated DiGiovan-
nantonio a third time, alone in her work area in shipping,
insisting that he had heard further information from
three or four witnesses about union organizing. He of-
fered her a "chance to clear herself' and asked her
whether she was certain about not knowing anything
about the Union. According to DiGiovannantonio, Cen-
tanni further asked her whether she liked to smoke while
working, and he told her when she answered affirmative-
- ly that Respondent would eliminate not only smoking
privileges but beverage drinking at the work area as well
and would reduce the hours of work. She asked why he
was "picking" on her, and he responded that he thought
she would be honest. Centanni denied only that he
threatened her with the loss of the aforementioned privi-
leges and work hours. I credit DiGiovannantonio who
was more certain, detailed, and responsive. The persist-
ent, repeated, unwarranted interrogation of DiGiovan-
nantonio by Respondent's agent Centanni, particularly
coupled with an implication that it was necessary that
she "clear" herself and coupled by threats, was patently
coercive and violative of Section 8(a)(1) of the Act.
Subsequent to the interrogation of DiGiovannantonio,
Lydon and Centanni summoned all the employees to a
meeting in the hallway in front .of the office they shared
with Louise Garson who was present at the meeting.
Only four employees were called upon by the General
Counsel to testify as to the October 24 meeting-Joanne
Mangino, Mary Lang, Kim Bara, and Evelyn Adams.
Employees Sharon Smith and Marie Ryan were called
by the General Counsel to testify for the limited purpose
of authenticating union authorization cards, but were
permitted by me to testify in cross-examinations over the
General Counsel's objection. The testimony of all of
these witnesses was given without context and was skele-
tal and as Respondent argues, selective, and not mutually
corroborated and 'in some areas inconsistent. Lang,
Adams, and Ryan testified cryptically that Lydon and
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Centanni said that if they decided to, be represented by a
union that . "they" would take away employee tables and
chairs where they perform work functions . Clearly tables
at, least , if not also chairs , are patently essential to work
performance . They also testified that "they" would take
away such employee privileges as smoking and. drinking
at the work area, that restroom visitations would be lim-
ited to fixed; break periods, and that .part-time work op-
portunity would be reduced . Bara added that Centanni
had stated that he heard from five employees of a plan to
obtain union representation and that if the employees de-
sired it that they should . go ahead with it but that they
would , regret it because "they" would eliminate the
aforementioned benefits and that it will be ."miserable."
,.Mangino added that he stated that some employees
would be laid off in- order to make up for the increased
pay of the remaining employees . In cross-examination
Mangino testified that Lydon stated that he could not
tell them what to do but if they want a union to go
ahead with 'it but that it' is not going to be what they
expect , i.e., it would not be "spectacular ," and that it
would "not change things much ." She ` had no recollection
of Centanni 's reference to his own work experience. In
cross-examination Lang testified that Centanni , without
stating a basis , merely blurted out to them the other con-
sequences of choosing union representation . Then she
conceded that- he may have ' talked about his own past
work experiences . Adams had no recollection that
Lydon spoke at all. ' Sharon Smith testified:
[Centanni ]= said 'that if • we did that [try to bring a
union ' in] that they would take the tables away, and
there would be no more part time work, and that
there, would be no more smoking at the tables, or
eating - '. the 'whole bit about how this - and that
would be taken away from us.
When asked by Respondent counsel whether Centanni
had mentioned .his past union membership , she testified:
Yes, he said that , and that they are no'good, and
all this , that we-don't know what we'are getting
into ,. you know.
Marie Ryan's testimony was as follows as to
what Centanni stated: ' '
'They-just got everybody together in work and
they said they heard talk of a Union , and-that if
the union came in , they could make it a lot
harder on us, and he said they could take away
our chairs . They could . take away your smoking
privileges ., Right now, you are allowed to get up
and go to the bathroom whenever you want, he
said they could stop that - and he said the Union is
not really as great ' as .you might think it is and he
was just saying a lot of stuff, ' we • just stood there
and listened to him and.then walked away.
As. the General Counsel points out, Smith and Ryan's
testimony-.was adduced by Respondent over the vigorous
objections of the General Counsel . In the interest of jus-
tice , I permitted Respondent to make the witness its own
and adduce testimony- beyond the scope of direct exami-
nation .2 The witnesses' responses apparently were not
prepared and they appeared to be spontaneous and they
corroborated the essence of_ the testimony of the other
General Counsel -witnesses. The testimony of Lydon, and
more_ particularly Centanni, in part consists of elicited
categorical denials but also contain more context and
detail. According to that testimony, which was.not effec-
tively and explicitly contradicted or rebutted, Centanni
and Lydon, to a minor degree, spoke of their past work
experience in unionized plants and the-lack of specified
work privileges and work availability at those -places,
and told the employees that they were giving them their
own opinion. •
Although I believe that Ryan and Smith were attempt-
ing to ' give candid recollections, of what • was said at the
meeting , it is clear that they, like the other witnesses,
had only a fragmentary recollection of a larger conversa-
tion. Each postured an unspecified "they" as the subject
of the action. It is 'not clear whether the subject. is Re-
spondent, the-Union, or both as negotiators of different
working conditions. One General Counsel' witness
phrased the event as one which would happen.. The
other phrased it as an event that "could" happen. From
the testimony of the General Counsel' s witness, although
-it appears likely that Centanni referred to a possible con-
sequence of loss of work privileges and work opportuni-
ties, it is impossible for me to determine whether they
were told that union representation would inevitably
cause the retaliatory imposition of more onerous working
conditions, or whether they.were told that their working
conditions compared more favorably to other unionized
employers which . enjoyed -lesser specified benefits and
• that as, a result of negotiations some privileges might be
lost. Without some context in the testimony of the Gen-
eral Counsel's witnesses as to what was clearly, a more
extensive conversation, I am unable to find that employ-
ees were threatened with more onerous working condi-
tions as alleged in the complaint, on October 24 with re-
spect to the group meeting.
Although not testified to by the General Counsel's
witnesses, the subject of "lay-offs" may havebeen raised
at the October 24 meeting. Lydon testified that -"prob-
ably" at the October 24 meeting he told the employees
that if they became unionized and if the Respondent and
the Union negotiate higher labor-costs, and if Respond-
ent, which obtains jobs in competitive bidding, suffers a
loss of work, then employees might be laid off. Clearly
this was not a prediction of an inevitable event under
Respondent's control but rather was merely a reminder
of economic facts of life, i.e., negotiated wage and bene-
fit increases sometimes have a debilitating effect on the
ability to compete and may ultimately be counterproduc-
tive to job security. I find such statement to be noncoer-
cive.
On the evening of October. 24,. 13 employees who. had
been subjected to the foregoing, attempted- discourage-
ment by Centanni and Lydon forged ahead and met with
Union Agent Henninger who discussed. with then the
2 The General Counsel took a standing bbjection • to examination of his
witnesses beyond the scope of their narrow direct etammatton and thus
sought to present only a selected group of witnesses this incident
WALTER GARSON, JR. & ASSOCIATES
benefits of unionization . At the meeting, 11 of them exe-
cuted valid union representation authorization and mem-
bership application cards, i.e., Pat Tighe , Gino Sea-
wright , Mary Lang , Cheryl Lang , Pat Hesser, Marie
Ryan , Evelyn Adams , Maureen McSorley , Kim Bara,
Joanne Mangino, and Elizabeth DiGiovannantonio. Two
of them who had left the' meeting prior to the distribu-
tion of cards signed cards the next day at Respondent's
facility , Regina Glovacy and Sharon Smith.
Walter Garson testified that he was first informed of
the employees ' organizing efforts on Tuesday, October
25, prior to the daily production meeting when Louise
Garson informed him. `She also told him that in conse-
quence it was she who had assembled the employees and
that Lydon and Centanni had spoken to them . Louise
Garson 's alacrity in giving her son the news is under-
standable as Centanni testified that at the October 24
meeting she was "very upset and excited ." Incredibly,
Garson testified that his mother did not tell him what
was stated at that meeting and that the subject was not
even raised at the production meeting . In light of Walter
Garson 's subsequently expressed concern over the pros-
pect of unionization , and particularly Lydon's subse-
quently expressed anguish , such testimony is highly sus-
pect. -
On October 26, Henninger visited with Walter Garson
at the facility, demanded recognition by submission of a
written demand and agreement for "regular production
and maintenance employees," and presented to him the
13 cards for his inspection. Garson accepted the cards.
Henninger testified that Garson inspected each card sev-
eral times . Garson testified that he merely • fanned
through them .. In any event, recognition was declined.
Walter Garson testified that he responded that he had
"no idea" that a majority of his employees desired union
representation , - and that he must obtain legal advice
before responding . Garson made no attempt to verify the
authenticity of the cards but rather immediately returned
-them to Henninger who somewhat later - in the day sub-
mitted them to the Regional Office of the Board with a
representation petition in Case 4-RC-15480.
On October 28 in the morning , according to Centan-
ni's own testimony , in the plant he engaged -in a conver-
sation with Marie Ryan alone which led from work
topics to that of union representation by his statement to
her, "I really hope you people may have realized what
you are doing [and] that the possibility exist[s ] that if the
Union would come in here , and we can 't cope with-not
we, or Walt .can't cope with Union prices , the place may
have to close ." Ryan tartly responded , "That's his prob-
lem:"
The General Counsel argues that Centanni 's comment
constituted a prediction of closure . I conclude that it
constitutes a statement of possibility premised on a con-
dition that may or may not come to pass, i.e, the ability
to cope financially with higher negotiated labor costs
and as such a rhetorical query and not a prediction. It
clearly did not tend to coerce Ryan who rejected it flip-
pantly.
According to' Kim Bara 's uncontradicted and credible
testimony , she engaged in a conversation with Lydon on
October 28. It preceded a late group meeting that was
1231
held after lunch , but it is not clear whether the Bara-
Lydon conversation occurred before or after noontime.
Bara was in,a room 'adjoining the work area where she
performs envelope inserting duties and where DiGiovan-
nantonio performs shipping duties . She and Lydon were
alone when Lydon approached and asked , "Kim, what is
going on as . far as you and the Union?" She protested
that she did not wish to talk about it. Lydon , persisted
and told her , "Kim; if you go ahead with the Union,
Walt will have to go out of business ." He told her that
he "swore on his baby's head that that was true," and
that he had informed his wife that he would have to
search for a new job. I find that such unwarranted inter-
rogation of Bara 's knowledge of other employees '. union
activities , coupled with a categorical threat of plant clo-
sure by Respondent 's department supervisor and agent
Lydon, constituted a violation of Section 8(a)(1) of the
-Act.
Sometime prior to early afternoon , apparently during
the noontime lunch period , an open meeting was held be-
tween the employees and Union Agent Henninger in the
"Super Fresh ", parking lot located across the street from
Respondent 's plant . Henninger explained to the employ-
ees the initiation fees , dues , 'and also cautioned them not
to discuss union representation at work except during
breaks and lunch periods . Mangino and another employ-
ee debated among -themselves whether they could afford
the union dues and a $200 initiation fee. There is no evi-
dence of any chilling effect of Centanni and Lydon's op-
position, nor even that it was a topic of discussion.
After lunch DiGiovannantonio was summoned to the
backroom of the -shop area by Lydon where he initiated
a conversation with her regarding the Union . She testi-
fied that he asked her why she wanted union representa-
tion . When she responded that it was not "just money"
but for "principle ," "respect ," and security , and that
other employees also wanted union representation, he
told her that Walt Garson ' had- talked to his lawyers and
that he could not afford a union'and that he would close.
He requested that she - talk to the "other women." He
told her to "think of what Walt [Garson] has built up
over the years," and that he, Lydon, had bills to pay.
She responded that she also had bills, but he ended by
urging her again to "talk to the women ." She agreed to
do so. With respect to this incident Lydon was confused,
hesitant , uncertain , evasive , and internally inconsistent.
He conceded that he requested that she talk to other em-
ployees but that he told, her he was not sure Garson
could afford a union, because for one thing Garson will
incur legal fees in contract negotiations. First he denied
that he said anything about closure but then testified that
he said to her that closure was a possibility if Garson
could not . afford a union . I' find the more certain and
more spontaneous testimony of DiGiovannantonio more
persuasive . I credit her . I find that the questioning of her
motivation for joining the Union was unwarranted and,
coupled with a threat of closure , clearly coercive. I find
that his prediction of closure due to higher negotiated
labor costs was postured as an inevitable result of recog-
nition and bargaining unsupported in his statement to her
with any allusion to objective bases . Indeed , Lydon had
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no idea of what the Union would demand in negotia-
tions, nor did he have any evidence that Respondent
would not be able ' to afford those demands. Indeed,
Walter Garson testified' to a decision- to - grant certain
benefits,, to be-more fully discussed below, that Respond-
ent's. business was flourishing -and had just experienced
"a very good year." Thus Lydon's prediction of the
effect of unionization was not "carefully phrased on the
basis of objective fact to convey an employer's belief as
to demonstrably probable consequences-beyond his con-
trol," but rather was an implication that Respondent
would take action unrelated to economic necessities and
thus it lost its status as a "reasonable prediction based
upon available facts" and constituted 'a "threat -of retalia-
tion based upon misrepresentation and coercion," unpro-
tected by. the first amendment. NLRB v. Gissel Packing
Co.; 395 U.S. 575, 618-620 (1969). - • -
I find that Respondent violated Section 8(a)(1) of the
Act by its department supervisor and agent Lydon's co-
ercive interrogation of an employee, which, coupled
with a coercive prediction of closure on October 28,
constituted each a violation of Section 8(a)(1) of the Act.
According to Centanni, on October 28 he engaged in a
second conversation with Ryan at Ryan's worktable
about 2 p.m. Centanni testified that he told her that she
should have come to him with her problem whatever it
was and that" they could have discussed it and that he
"could have went to Walt [Garson] and come, to some
kind of agreement on terms." Ryan retorted that the em-
ployees had not come.to him because they did not trust
him and that he "turned Company" because of a reputed
pay raise that he had received. He immediately denied
receiving a pay raise. Ryan, however, insisted that the
employees needed union representation. -
Centanni further testified that he summoned Mary
Lang to "join himself and Ryan, and that he asked her
whether it was true that she did not trust him, which she
confirmed. Centanni testified that he again denied receipt
of a raise and told her, "If you people had a problem
you could have, talked to me, and I possibly could have
went in and spoke to, Walt [Garson]," at which point
Tom Lydon had, joined them', and other employees in
that department approached and the group' included,
inter alia,, Bara, Mangano, Lang, Adams, DiGiovannan-
tonio, and Maureen McSorley. Bara had led others to the
meeting by stating to Centanni that if the'subject being
discussed was union representation then they all wanted
to participate. Centanni permitted them -to partake in the
.discussion and both he' and Lydon proceeded to discuss
with them during -worktime the issue of union represen-
tation.3
Centanni testified that both he and Lydon stated to the
employees in that confrontation that they should have
come to either'Ceiintanni or Lydon with their problems
and' that they would have explained the problem to
Walter Garson, but the employees insisted that they
needed representation -whereupon each employee vigor-
ously proceeded to voice her own individual complaint,
e.g., Adams complained that. she did not like the job as-
a Mangmo testified that all the card signers joined the group discus-
sion
signed to her. Centanni testified that he explained' the
basis of the assignment. Centanni admitted that he could
.not recall all of the conversation but did recall that the
employees insisted on the need for "representation. Cen-
tanni recalled that the employees stated that having pro-
ceeded so far with organizing efforts they'were afraid of
being discharged whereupon both he and Lydon assured
them that "knowing Walt, that, nothing like this would
happen to you people," but that if it did both Lydon and
he "would walk out with them."
Lydon recalled that encounter but, strangely, he re-
calls that the. encounter started first with his conversa-
tion with Ryan at the back worktable alone. In that con-
versation he testified that he started out, as he invariably
started all, conversation with employees,.':including. Di-
Giovannantonio, by emphasizing that he was talking for
himself and "not talking for Walt." He- testified to the
following statements: He told-her that he was in posses-
sion of a newspaper article recounting how certain other
employers, whose employees were represented by the
Union, had closed down and that an officer of the Union
was quoted as saying, "If these companies can't afford
me then they ought to move down South." He told her
that he was worried about his job and- wished that the
employees would' reconsider- their decision, and that they
ought to "go in and talk to Walt, -and maybe we could
get this solved without going any further than it had."
Ryan responded that she also had read the news article
but she was concerned that if the employees did not per-
severe with the attempt to- obtain unionization, they
would be left exposed to Respondent's -retaliation by dis-
charge. Lydon then told her that 'he knew Walter
Garson "a lot better than she did," and that if she got
fired he would quit, because that is how certain he was
that Respondent would not discharge•her. He recalled no
further conversation and-testified, contrary to -Centanni,
that it was at this` point that Centanni and Mary Lang
joined them "and then all the girls came back" and asked
to join the conversation. He could not recall specific ele-
ments of the conversation but, like Centanni, he recalled
that the employees voiced individual complaints, includ-
ing a work assignment complaint by Evelyn Adams.
Lydon testified that he explained to them the basis of the
assignment.-
As noted above, Marie Ryan, a General `Counsel wit-
ness, testified in direct examination only about the au-
thentication of a union card. She was not examined about
the October 28 incident, and not recalled to contradict
either Lydon or Centanni who are "mutually .inconsistent
as to which one of the two had been talking to Ryan
alone immediately preceding the confrontation with
Mary Lang and thereafter all other employees that after-
noon: Mary Lang testified in the case-in-chief for the
General Counsel that Centanni was with Ryan in the
backroom and it was he who had motioned her to join
him. She then testified, "And then all the girls came,
Tom [Lydon] was there, and then the girls all walked
back," and at that point Bara insisted on all the employ-
ees joining the conversation if it related, to the Union at
which point they all talked "about different things" and
Lydon stated, '"if the Union came in, that they would
WALTER GARSON, JR & ASSOCIATES . 1233
have to close, and [Lydon] swore on his baby's head." In
cross-examination she denied that Lydon prefaced his
statement as his personal opinion, but she recalled that he
said something about being' worried about his job al-
though she could not recall his other statements: She
forcefully insisted that the closure threat, as recited
above, were his actual words Evelyn Adams' recollec-
tion was even more cryptic. She recalled with a halting,
uncertain 'demeanor, only Centanni's threatened closure
and that Lydon swore on his baby's head "that, he was
telling .the truth." She did not explicitly relate Lydon's
remark to Centanni's threat. Cardsigners Hesser, Glo-
vacy, Smith-and Tighe testified but were silent about the
October 28 afternoon confrontation at the back workta-
ble. Bara testified only that after she insisted on joining
the conversation, Lydon stated:
You have Walt where you want him. If it is -more
money that you want, you know, whatever your
problems are, you can talk to him, and within
reason Walt will be fair about things, that he was a
real fair guy. That he would go out of business, and
he swore on his baby's head again.
She testified that at that point Mary Lang asked if they
could return to work which ended the meeting.
DiGiovannantonio testified only that she recalled that
both Lydon and Centanni stated that "they couldn't
afford the Union, that we would have to close." On my
direct questioning whether they spoke simultaneously,
the witness testified that they each made the threat
throughout a conversation during which they were
"saying other stuff' but which she "just can't recall." Fi-
nally, Mangino testified that when the group of employ-
ees approached, Lydon, Centanni, Ryan, and Lang were
engaged in conversation. She testified as follows:
[Lydon] was explaining that Walt [Garson] was
really a nice guy . . . that we should talk to him,
and that he couldn't afford a union and would close
the place down if a Union came in, and he swore
on his baby's head, and everyone was kind of talk-
ing at once, and Ron said that we could put every-
one out of work in the place, and then they were
talking about money, and how we were being treat-
ed and things like that .. . general things that made
them unhappy.'
Centanni denied that he'made any statement regarding
shop -closure at the group encounter of October 28, but
only mentioned his earlier'encounter with Ryan, i.e., the
one to which the General Counsel adduced no testimo-
ny. He did not deny- that Lydon made a statement to
that effect. Lydon testified in a halting, strained demean-
or that he used the phrase, "I swear on my'baby's head"
during the conversation he had with Ryan alone and
which led up'to the group discussion, but that it was not
related to a statement predicting closure but rather it was
made in relation to his statement to her that he was con-
cerned -about his job security, i.e., he was swearing that
he was truly worried because of what he read in the
news -article and not swearing that the plant would be
closed. He denied that he told her anything to the effect
that Garson would close nor that Garson could not
afford a union and would close the shop. In cross-exami-
nation, however, upon persistent examination, he flus-
tered, hesitated, and then admitted that he also told Ryan
that in his opinion the plant would close if the Union
came in. At one point during cross-examination as to the
October 28 encounter he paused at length and stated on
the witness stand that his mind went "blank." Lydon's
demeanor was attended by such confusion and uncertain-
ty, so as to have seriously impaired his credibility How-
ever, Centanni, of all the witnesses to this incident, ap-
peared to be the most fluent, responsive, and certain in
demeanor. His' testimony was supported by detail and
context. Lang's, testimony' seems to suggest that it was
Centanni who talked to Ryan alone up to the time that
Lydon and Lang appeared to join them. I credit his testi-
mony as to what he stated at the -group meeting on the
afternoon of October 28, and his denial of uttering a ref-
erence to plant closure.
With respect to the alleged statement of closure by
Lydon, he admitted that he did make the prediction pri-
vately to Ryan.that, in his opinion, the plant would close
if the Union came in. I credit the testimony of General
Counsel witnesses, cryptic as it is, over that of the un-
corroborated denial of Lydon that he also told employ-
ees in the group encounter, as he had minutes earlier told
Ryan, and, earlier yet, Bara, that if the Union came in,
i.e., were designated bargaining agent, Respondent
would go out of business because it could not afford it.
For reasons set forth above, I conclude that this state-
ment constitutes a coercive prediction "violative of Sec-
tion 8(a)(1). I find it immaterial whether or not Lydon
prefaced his remark with the statement that it was his
personal opinion because his special status of confidential
representative of Walt Garson would necessarily lead
employees to believe that his "opinion" was in actuality
an accurate reflection of Garson's intentions and disposi-
tion. In any event, I find Lydon so unreliable a witness
that I cannot accept as probable that he prefaced every
conversation with such a disclaimer , and I find the dis-
claimer further diluted by Lydon's persistent repeated
oaths on his baby's head. I credit the employees' testimo-
ny inconsistent with it . The complaint neither alleges,
nor does, the General Counsel argue, that Lydon or Cen-
tanni was guilty of coercive conduct other than acts of
interrogation and threats on October 28.
The General Counsel: adduced the testimony of press
operator Patrick Tighe who signed a union card Coun-
sel for.the General Counsel was frustrated in his attempt
to elicit from Tighe recollections of allegedly coercive
conversations with Lydon about October 28 until he-re-
sorted to a- purported' refreshing of Tighe's recollection
by use of his pretrial affidavit. I found, contrary to the
counsel for the General Counsel's assertion, that Tighe
was not a hostile witness. Also, I found him not to have
exhibited-any state of anxiety or fear. His answers, prior,
to resort to his' affidavit, were given with spontaneity.
He simply did not recall the statements sought to be elic-
ited. Having read the affidavit, he testified affirmatively
that his recollection was refreshed but, from his demean-
or, I conclude that he merely recited what had been set
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth in the affidavit he had just read. The affidavit was
not offered as substantive evidence.
I am constrained to credit the testimony of Lydon
when inconsistent with that of Tighe, and which reveals
the following.two encounters: In the first encounter of
about 10 seco-ids duration on a date probably at the end
of October, Lydon approached Tighe at the latter's work
station in the printing department upstairs and asked,
"Pat, how come, what is the problem, why do you
people want to join the Union?" Tighe responded "Yes,
for health and welfare and job security." The second en-
counter occurred, according to Lydon, on the lower
floor about 1 p.m when the female employees had gath-
ered in the back area to discuss "whether they should
stay with this Union or not," and Tighe had come in
late, most certainly after October 28. Lydon testified:
I went up to him, and I said, Pat, I am not talking
for Walt, and I am not talking for you, I am talking
for me, that I-you know, they are back there dis-
cussing trying to get out of this, and I am worrying
about my job, so I wish you would go back and,
you know, talk with them. . . . He answered some-
thing like "well I understand you have kids and
all," and you know, that was it.
Tighe then joined the other employees.
Counsel for the General Counsel recognizes that inter-
rogations are-not coercive per se, as he summarizes the
Board's position in his brief as follows:
In evaluating whether interrogations violate the
Act, the Board seeks to examine whether, under all
the circumstances, the interrogation reasonably
tends to restrain, coerce, or interfere with rights
guaranteed by the Acf Rossmore House,- 269 NLRB
1176, 1177 (1984). Some of the factois which may
be considered in such an analysis are (1) the rele-
vant background; (2) the nature of the information
sought; (3) the identity of the questioner, and (4) the
place and method of interrogation. Ibid. at fn. 20, p.
6. In addition, the Board has traditionally indicated
that an interrogation may be lawful if accompanied
by an assurance against reprisal. See, e.g., Hanover
Concrete Co., 241 NLRB 939 (1979); Engineered
Steel Products, Inc., 188 NLRB 298 (1971).
I conclude that the evidence fails to establish that the
brief interrogation of Tighe occurred in a coercive con-
text. Rather, the evidence suggests that it was subsequent
to the voluntary confrontation of all card signers during
the October 28 episode when they freely enumerated the
complaints which caused them to seek outside represen-
tation and where they were assured that Walt Garson
was reasonable, fair, and receptive to their complaints
and most unlikely to retaliate against an individual em-
ployee for the employee's individual support for the
Union. Accordingly) do not find that the Tighe interro-
gation .was coercive. With respect to the-second encoun-
.ter, it is quite clear that Lydon implied to Tighe that, in
his opinion, unionization of the-Respondent could neces-
sarily be of such an adverse economic impact that-even
Lydon's job would be jeopardized . Lydon's position of did you get the Union)"
spokesperson and operational confidant of Walter Garson
must necessarily have raised an inference to employees
that his opinion reflected that of Walter Garson and
must have been premised on inside information of Re-
spondent's precarious economic position. I find such im-
plied prediction of economic adversity violative of Sec-
tion 8(a)(1) of the Act, particularly since it had been pre-
ceded by earlier explicit coercive predictions.
Mangino testified that the employees met, discussed,
and decided on October 28, and again on October 30, to
reaffirm their consensus support for union representation.
2. Conduct of Walter Garson Jr
Mangino testified that on October 31 an employee
meeting was held between all employees and Walter
Garson in the general work area, i.e., the lower floor,
pursuant to an announcement by Louise Garson. Bara
testified that the meeting was the result of a group em-
ployee request made to Garson that he meet and discuss
with.them "his side of the story" whereupon Garson ap-
peared, announced that he "really did not know what to
say," asked whether the employees wanted to "air any
problems" and stated, "Why did you get the Union; I
don't understand, I thought everything was going really
fine; as a matter of fact, I thought this was the best crew
we ever had" and said that he thought a lack of commu-
nication existed between himself and the employees. Di-
Giovannantonio testified as to this meeting- but does not
indicate how it was initiated or how it commenced.
Mangino's testimony about how it commenced is similar
to Bara's testimony except that Garson did not ask the
question, "Why did you get the Union," nor did he ask
them to "air problems" but rather stated that he wanted
to give "his side of the story," that he thought that there
had been a lack of communication between himself and
the employees, at which point the employees com-
menced to raise the subjects of: "money and medical
benefits, and [paid] sick days.4 Adams' testimony.did not
indicate how it was arranged but varies as to how it
started. She testified that there were actually two phases
to the meeting. According to her, Garson opened the
first phrase by indicating a lack of awareness of employ-
ees' problems and he asked them whether they desired to
talk about it. He then left and , in a group discussion, the
employees who had signed union cards decided to talk to
him further, whereupon he returned. She testified about
fragments of a purported conversation thereafter con-
cerning employees benefits. Walter Garson testified with-
out contradiction that the meeting was held pursuant to
a request by Pat Tighe that the employees, in accordance
with a group discussion, had desired that he meet with
them and have a general discussion "about Union prob-
lems." Therefore he called a meeting with them and his
mother. Marie Ryan, in cross-examination, corroborated
Garson how the meeting was initiated but recalled little
else. Garson, similarly testified that he stated that he did
not realize that there was "an awful lot of problems,"
and that he thought he had a good crew and-that every-
* No other employee testified that Garson asked the employees "Why
WALTER GARSON, JR & ASSOCIATES
body was getting along, and that the existence of prob-
lems was probably due to a lack of one-to-one communi-
cation between himself and the employees. He also testi-
fied, without contradiction and credibly, that he told the
employees that "the Company had been profitable, and
there was no reason why it couldn't continue to be prof-
-itable." Speculating silently to himself what may, have
been the cause of employee discontent, he explained to
the employees the reason for installation of a coffee ma-
chine that dispensed only on payment; not credit, and he
explained the motivation for the October 7 pay raise
review schedule, i.e., to set an objective, minimum
schedule for wage increases. Garson testified that he told
the employees that he was in receipt of a newspaper arti-
cle which dealt with the subject of the Union and that he
would provide copies of it for their perusal on the table
in the work, area . This was Respondent's sole literature
distribution. The article, from the Philadelphia Inquirer
Magazine, dated September 4, 1983, was entitled "The
Toughest, Meanest Union Boss In Town," and subtitled
in bold lettering as follows: -
John Morris [secretary-treasurer of Respondent and
president of the Area Joint Council of Teamsters],
the grandson of a Molly Maguire, says local compa-
nies that don't treat their employees right are better
off out of business-or down South.
The substance and theme of that lengthy article reflects
the subtitle and- contains, inter alia, a reference to the
subject's "reputation for going after small companies and
putting them out of business," but it also refers to
Morris' purported rebuttal to that reputation, i.e.,, that
there are reasons other than union contracts that cause
plant closures, i.e., undercapitalization, mismanagement,
etc: The article purports to quote Morris, however, as
having stated, "If some company has to be union-free to
exist, then who needs that kind of company?" It is not
alleged nor argued that the distribution of that article or
that the substance of-it was coercive, or for that matter
that the article was false and misleading. Garson testified
that the meeting lasted only 15 or 20 'minutes and that
the employees said nothing at all.
It is Garson's recollection that on November 2 at 10:30
a.m. three employees, Hesser, Ryan, and Mary Lang,
cane to his office and informed him of the employees'
desire to meet again, whereupon he convened another
meeting of employees. Louise Garson was again present.
He testified that it was at the November, 2 meeting that
the subject of employee benefits arose as a result of an
employee who "asked about medical benefits." Neither
Lang, Hesser, nor Mary Ryan explicitly contradicted
him. However, other General Counsel's witnesses place
the employee discussion of work benefits at the October
31 meeting. Mangino testified that, as they had on-Octo-
ber 28 with Lydon and Centanni, on October 31 the em-
ployees "again" raised the subjects of "money, medical
benefits and [paid] sick days" by stating that they desired
these benefits and that they were were unhappy over not
having those benefits,-and that in response Garson said
to them that "he-was kicking over in his head" the deci-
sion to-grant employees paid sick'days but stated "he-
1235
couldn't give away the store." Mangino, without'cor-
roboration, testified that at one point Centanni' entered
the conversation and suggested that the employees who
had signed cards- ought to b., given an opportunity to
"think it over" and were given opportunity on worktime
to debate alone their commitment to union represenation.
She was uncertain whether that occurred at this or a
subsequent meeting. '
Mangino testified that at the November 2 meeting
Garson announced the granting of 3 paid" sick days and 1
paid personal day off to each employee commencing
with 1 such day 'for the balance of 1983; and also an-
nounced that he would "look into medical benefits" but
could make no promise because of the expense and time
involved; and that he would "look -into" arrangements
for bank deposits of payroll _ deductions for individual
employee savings accounts; and that he' on- October 31
"stressed a grievance committee"; and on November 2
announced pay raises "to the people [who] were due
.raises." She also recalled that, on October 31 when he
made reference to the newspaper article which he held
in-hand, he referred to the Union as a "tough union" that
had closed down 'businesses, and that 'he could not deal
with "that particular union ." She testified that with re-
spect to the grievance committee Garson said that he
would like to see it initiated as soon as possible,. and that
the employees could select alternating or permanent
spokespersons as they wished .5
DiGiovannantonio testified more cryptically that at
the meeting of October 31, Garson referred to the Union
as a "tough-union" that had put out of business several
companies, that the employees asked about health insur-
ance and paid sick days, to which Garson promised to
"see what he could do," that.someone asked about paid
sick days, and that he would "work things" so that the
employees could have a 'grievance committee She testi-
fied that at the November 2meeting Garson announced
the granting of 3 paid sick days and 1 personal holiday,
and employees "who were up for raises" pursuant to' a
list of names he read, of which her name was absent, al-
though she did get a raise 3 weeks later. She also testi-
fied that an employee asked if they, would. be fired if
they "dropped the Union," and Garson assured the em-
ployees that he would not do that and also that he could
not' do it "because the - Labor Board wouldn't permit
him" to do it.
Adams".testimony was fragmentary. She testified that
she could only recall that after the employees decided to
hear further of Garson's position, that he returned and
granted the employees a paid sick day and told them he
would "look into medical benefits" and "mentioned that
some people were up for raises at that time " Pursuant to
a leading question she testified, "Yes . '. . he wanted us
to form a grievance committee." On cross-examination
she testified that she had no recollection who, i e.,
Garson or an employee, suggested the idea of a griev-
S Mangmo's testimony about the commencement of raises came after
her recollection was exhausted and pursuant to a leading question Her
testimony alternated back and-forth about the 31st and 2d meetings. She
obviously was uncertain what was said at which meetings and appeared
to blur distinction between them
1236 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
ance, committee, nor how or with what words Garson
expressed a desire for a grievance committee. She re-
called that Louise Garson- was present but-that she only
talked about a coffee mac"ine. She did not elaborate. She
also admitted that in a suusequent,meeting Garson told
the employees that he could not grant medical benefits
because of the pendency of the "Union thing." She was
silent about any meeting of November 2. -
As noted above, Bara testified that, after Garson's
opening remarks, the'employees voiced their complaints,
e.g., lack of paid sick-days, lack of paid health insurance,
and the lack of respect. She testified that Garson replied
that he would check to see who was due for raises, that
he would see what could be done, about ,paid sick leave,
and that he would look into health insurance -coverage.
She then testified that Garson told the employees that-if
they desired to do so he would allow them to have a pri-
vate group discussion. Her testimony fails to reflect what
purpose, if any, was, stated. However, she testified that
the employees met among themselves and further testi-
fied that "we decided that we didn't want to lose our
jobs, you know, because of the threat to go out of busi-
ness , so we decided to drop the Union, and somebody
asked Walt to come back out again."-No context , details,
or foundation were elicited for this testimony, and it is
unclear -whether it is nothing more than cbnclusionary
speculation on the. part of the witness or whether such
was actually stated at the meeting.
Bara testified further -than when Garson returned to
meet • with the group they told him of their decision to
"drop the Union," and that he was asked how the em-
ployees could go about it, but that Garson said that "he
couldn't come right out and tell us,' but if somebody
wanted to come in his office, that he would tell this per-
son's name to contact." No other employees testified to
this aspect of Bara's testimony. Concerning the fear of
plant closure, if anything, the testimony of DiGiovannan-
tonio suggests that the employees entertained the idea
that their job security lay with persisting with union rep-
resentation. Furthermore , if Bara is to be credited that
fear of closure seized the employees, it is curious that of
these employees who actively sought confrontation with
Garson, no one questioned him about the possibility of
business closure, unless they accepted at face value Gar-
son's assurances about the present and future profitabil-
ity.
Bara further testified that, apparently subsequent to the
employees' decision to drop the Union, Garson at that
point told them that, commencing with 1983, the em-
ployees would receive 1 paid personal leave day and, in
1984, .3 paid sick days and 1 -paid personal leave day, and
"that if we wanted to we could start a grievance com-
mittee, and that he would look into health insurance."
He further told the employees that it was "up to the em-
ployees to get together and decide" who would repre-
sent them on this committee. She also recalled, without
fixing it in sequence, that he referred to a newspaper ar-
ticle in his possession "about the Union, that they put a
e Her testimony suggests that the sequence of events all occurred on
October 31, but it does not,preclude the possibility that there was a lapse
until November 2 for that second encounter
lot of people out of business," and that he would provide
copies for them to read. She is silent about whether a
separate meeting occurred on November- 2. Rather, her
testimony was directed to events in December relating to
the'grievance committee, which will be discussed later.
Walter Garson testified that at the second meeting of
employees on November 2, the employees expressed
their desires for paid medical benefits and he responded
that he would "look into it" but would not make any
"guarantees," and that he thought it was "too expen-
sive." When asked about paid sick days, he told them
that was something that he and his mother "have been
kicking around" and that he would "consider." He testi-
fied, without explict contradiction, that it was Tighe
who asked "about having a grievance committee," and
had explained that his past employer had such a mecha-
nism , and that he, Garson, responded that it was "an ex-
cellent idea," and that it would open the "lines-of com-
munication" between himself and -the employees. He also
testified, without contradiction, that he told them that he
felt that he should have "nothing to do with it, that it
should be an employee type of thing, that they should
decide who was to be on it . . . when it would [meet]
and all that type of thing." He testified in detail about an
employee's question about why it was necessary to count
pieces of work processed. He explained that it was for
billing purposes and not,- as the employee suggested, a
device to "compete one employee against another." He
testified that the employees asked for some time to meet
privately among themselves, but could not recall with
certainty whether they told him the purpose. He permit-
ted them to meet for 10 or 15 minutes after which they
were to return to work. The meeting thus ended.
With respect to the substance of the meeting or meet-
ings on October 31 and/or November 2,.Tighe, Lang,
and Ryan are silent . Sharon Smith testified that she was
present but has no recollection of what was said. Virgin-
ia Glovacy recalled only that Walter Garson read a list
of employees who were due for raises. She was among
those listed, and she testified that she was due a raise.
Lang testified, without contradiction, that on October
31, at her work station, she was observed by Centanni
who asked her what she was smiling about and the fol-
lowing comments were made. She responded that she
felt good because the employees were "going to settle
things" with Walter Garson. Centanni then stated, "if
you really want to settle things [or] do you really want
to settle things?" She said yes and he said, "Well go into
,the office and ask Walt how- to resolve the Union, and
Walt will tell you what to do." I find no allegation of
the complaint covering this incident, and it is not argued
to be an individual act of coercion or interference by
Centanni as Respondent's agent.
According to the uncontradicted testimony of Garson,
after lunch on November 2 Lang, Hesser, and Ryan en-
tered his office and stated that they "wanted to know if
there was a way they could get out of the cards they
had signed", to be recognized by the Union. He told
them that he did not know but that -he would contact his
attorney, whereupon he did so and, was told that they
could attempt writing to the NLRB but that it might be
WALTER GARSON, JR & ASSOCIATES 1237
futile as "it is really in the NLRB's hands at this point."
Garson testified that this is exactly what he told the em-
ployees. The testimony of Hesser and Lang essentially
tracks that of Garson. Lang added that Garson gave
Hesser the name of a Board agent to contact, which
ironically turned out to be the investigator of these sub-
sequent charges. Ryan's testimony is silent about this in-
cident. During work hours Hesser composed a letter dis-
avowing union representation and subsequently obtained
the signatures of nearly all the card signers. She testified
that it was after that letter was circulated and signed that
Garson conducted a meeting and announced the imple-
mentation of paid sick days and a paid personal day, and
stated that the "employees should try to get together a
grievance committee," and that he would "look into
medical benefits," and that employees "who were due
raises could get them." In cross-examination she was
questioned whether there was any discussion that "Walt
was going to give you sick days or anything like that,"
prior to the execution of the union disavowal letter. She
answered hesitantly and uncertainly, "There was men-
tion of it, but I can't remember if it was at a 'meeting or
what." When pressed further she, in what appeared to
me as speculation, testified that the subject arose in the
encounter between Ryan, Lang, and Garson, where
Garson intimated that he would await acting on any ben-
efits until the employees decided what course they were
going to take with respect to pursuing union representa-
tion. As she was so openly uncertain in her demeanor,
and uncorroborated by Ryan and Lang, I conclude that
in accord with Garson's testimony there was no such ref-
erence in that small group encounter. Thus Hesser could
not place the discussion of employee benefits prior to her
visit to Garson's office with Lang and-.Ryan. Lang and
Ryan failed also to refer to a group meeting preceding
that visit where employee benefits were discussed. Thus
the three General Counsel witnesses privy to the union
disavowal letter failed to clear up the confusion and in-
consistency in the testimony of General Counsel's wit-
nesses as to the sequence and substance of these critical
events.
Walter Garson testified that after the employees had
executed a union representation disavowal letter, Hesser,
during worktime, came to-his office and presented him
with an unsolicited copy, and asked permission, which
he gave, to telephone an absent employee in order to so-
licit her signature as the only missing signature of all
cardsigners. Garson testified, without contradiction, that
employees in the past have-been permitted to use the
plant telephone for personal calls, and have engaged in
other solicitations during worktime. Garson -esentially
corroborated Hesser's testimony that Garson gave per-
mission for an employee to drive Hesser to the NLRB
offices to deliver the letter in either Walter Garson's or
Louise Garson's car. Upon her return to work from the
NLRB office, she gave the NLRB receipt for the letter
to Garson, and he provided her with a copy.
Garson testified that thereafter on the same day, No-
vember 2, he informed his mother of the employees' at-
tempt to reject union representation and stated to, her,
"You know it `just seems like we are getting back to
communicating with the employees again." He then sug-
gested to her that inasmuch as they had in the past dis-
cussed and considered the granting of paid sick days to
be effective as of January 1 , 1984, "and whatnot" and,
inasmuch as it was one of the voiced employee com-
plaints, and because it had been a very profitable year,
perhaps it should be granted and that , for the balance of
1983, 1 paid personal day be effecutated . Apparently she
agreed , because Walter Garson immediately convened a
second employee meeting and announced the granting of
paid sick days in .1984 , i.e., 3 sick days and 1 personal
day, and 1 paid day leave in 1983.7 Garson is silent
with respect to the announcement of wage increases. Re-
spondent's payroll records reveal wage increases to cer-
tain employees effective as of November 1.
When directed in examination to the date of Novem-
ber 1, Glovacy testified , without contradiction, about the
following occurrence on that date:
Well, that day Louise [Garcon ] called me into
Walt's office about 11:30 and I went in , and Walt
told me that my salary would be increased to $3.50
an hour , and he asked me how I felt about the
Union , and what I thought about it, and I just said I
had no complaints about it , and it lasted less than
five minutes, if that . That was about all that hap-
pened.
On cross-examination her attention was directed to the
date of October 31 and she was asked if she recalled a
discussion between Garson and the employees. Her re-
sponse was that Garson spoke to the employees and said
that employees who were due to receive raises would re-
ceive them pursuant to a "list," rather than "guessing."
She testified that she was due to receive a raise pursuant
to that list of names which Garson read to the employ-
ees.
On direct examination. Mary Lang's attention was di-
rected to a date "on or about November 1" and she
asked whether she had any conversation with Louise
Garson. She responded that she was sitting in the back
area sorting with Ryan, and that Louise approached and
stated without explanation, "I have good news Ron,
[Centanni] is not going to.be your supervisor anymore."
Her testimony was not contradicted. However, no evi-
dence was adduced to demonstrate that employees had
complained to Respondent prior to this time about the
functioning by Centanni in the duties of department su-
pervisor. Thus there is no context within which to evalu-
ate such cryptic, ambiguous announcement. There is no
evidence what actual impact,.if any, was made on Lang's
supervision and whether it was temporary or permanent.
Garson testified that on the morning of the first Friday
of December, three employees, Bara, Gino Seawright,
and Sharon Smith, came to his office and announced that
they constituted the grievance committeee. He agreed to
talk with them later in the morning, which he did. Em-
ployees' personal problems were discussed. Bara ex-
' Garson testified that he and Louise Garson discussed the possibility
of granting paid sick days to the employees from July 1983 "off and on "
He is not clear whether it was in the "on" or "off" stage at the time of
the union organizing effort Clearly no decision had yet been made
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presed a dislike for Centanni. Bara testified that she
joined the committee pursuant to the request of an em-
ployee. She testified that she complained to Garson as
follows:
I discussed about Ron, you know, about his attitude
towards people and everyhing, you know, he
thought- he was , you know, to tell people what to
do and that you had to move out of your way for
him.
She further explained his undesirable attitude as follows:
He tries to find, you know, if you make a mistake,
he never lets you forget it.
When questioned further by the court what she objected
about Centanni, her supervisor, telling employees "what
to do," she first confusingly and vaguely testified that it
concerned "personal" matters, but then she denied that
she had just testified that she complained "about Ron
telling people what to do." Bara clearly and unwittingly
revealed that the employees were resistant to the unques-
tioned assertion of authority by Centanni, their "supervi-
sor," and then bungled an attempt to mitigate such un-
guarded testimony. Her testimony in cross-examination
about the duties of Centanni was subdued, hesitant, and
evasive. On 'cross-examination she testified that com-
plaints raised by the, grievance committee with Garson
were -personal and • "petty," despite her. testimony on
direct examination that Smith inquired about health in-
surance. With respect to her own complaint she testified,
when questioned by the court, that Garson responded to
her as follows:
He told me that he couldn't' fire Ron, and that it
was up to me to tell Ron how I felt, like if he did
'something to me personally, to just tell him.
She then hastily added that before this she had always
considered Centanni her supervisor and that she could
not "talk back to him.". Neither Smith nor Bara testified
about the grievance meeting.
Garson's further testimony reflects Bara 's cross-exami-
_nation testimony that the complaints raised related to
personal matters, i.e., problems, employees had in relating
to other employees. Some work-related matters were
raised, as inquiry was made about accelerating the issu-
ance of paychecks by a few hours. Garson, however,
merely explained the basis of Respondent's mode of op-
eration and made no promise to correct anything, and
made no changes to accommodate any complaint. The
participants agreed to meet again on the first Friday of
each month, .but on the following first Friday of January
Garson was told by a committee member that there were
no further complaints, and thereafter no subsequent
meetings were ever held and the committee appears to
have dissolved.,
-No action was ever taken relative to employee medical
insurance.
3. Analysis of Walter Garson Jr.'s conduct
Paragraph 14 of the consolidated complaint alleges
that Respondent, through Walt Garson, engaged in the
following conduct:
(a) In or about the period of October 31, 1983, to
November 2, 1983, a more precise date being pres-
ently unknown to the General Counsel (i) solicited
employee complaints and grievances, thereby prom-
ising its employees increased benefits and improved
terms and conditions of employment in order to dis-
courage them from supporting the Union; (ii) prom-
ised employees improved medical benefits in order
to discourage employes from supporting the Union;
(iii) granted improved sick and holiday benefits in
order to discourage employees from supporting the.
Union; (iv) granted improved working conditions
by temporarily removing a supervisor of its' female
employees in the Unit in order to discourage em-
ployees form supporting the Union; (v) granted pay
increases to certain of its employees in the Unit in
order to discourage employees from supporting the
Union.
a. Solicitation of grievances and promises
With respect to the foregoing testimony regarding
Walter Garson's group employee meetings , I credit the
testimony of Garson inasmuch as it was far more coher-
ent, fluent, detailed, contextual, sequentially integrated,
certain, and spontaneous, and, in large part, not explicitly
contradicted or rebutted. I discredit any inconsistent
and/or contradictory testimony of General Counsel's
witnesses which was by large cryptic, fragmentary, con-
clusionary, sequentially disoriented, mutually and inter-
nally inconsistent and noncorroborated and, in part, con-
tradictory, and uncertain, hesitant, evasive, confused, and
confusing.
However; I accept the testimony of General Counsel's
witnesses about the fact that at one of the employee
meetings on or after November 1, Garson announced the
implementation of ^ wage increases pursuant to a list of
employees who 'were "due" wage increases.8 However,
it is impossible to fix the precise time of that-announce-
ment.
With respect to the allegation of solicitation of griev-
ances and promises to rectify them, I make the following
findings: The meetings of employees were arranged pur-
suant to their requests. The issues raised were issues of
work benefits which were raised by them in the form of
requests for those benefits which they made to Garson
whom they had asked to be present and arose with
Garson only after the second such meeting. The griev-
ance committee was suggested to him by an employee in
open meeting, and he encouraged its formation by ex-
pressing wholehearted approval of it as a means of com-
munication. In answer to the requests for paid sick days
8 Garson testified , without contradiction about the past practice of Re-
spondent conducting employee meetings to explain Respondent 's' deci-
sions respecting their work conditions There is no evidence of a past
practice of discussing and remedying , thereafter , employee grievances
WALTER GARSON, JR & ASSOCIATES 1239
and medical benefits, Garson made no promises and con-
ditioned his statements that he would make no guaran-
tees. Thereafter, he granted only the request for paid
sick days, to which he added a paid personal day off, but
he did nothing with respect to medical insurance, and
merely stated Respondent's basis for its decisions in the
only grievance committee meeting held. I find that there
is insufficient clear, credible, probative evidence that it
was Garson who solicited or encouraged the employees
to state their grievances at the .October-November meet-
ings. His encouragement of the formation of a grievance
committee does constitute an encouragement of employ-
ees to bring their complaints to him thereafter through
that mechanism and thus solicitation of grievances.
When during a union organizational ' campaign an em-
ployer conducted, in the absence of past practice, em-
ployee meetings , and when the employee tacitly encour-
aged the expressing of employee complaints, it was held
by the Board that the employer thereby impliedly solicit-
ed' grievances from its employees, Uarco Inc., 216 NLRB
1 (1974). In that case the Board, citing inter alia, Reliance
Electric Co., 191 NLRB 44 (1971), noted that the solicita-
tion of employees' grievances during an organizational
campaign constitutes interference with employees' rights
even though the employer merely states that it would
look into or review the problems raised without commit-
ting itself to specific corrective action. The Board stated,
however, that it is not the solicitation of grievances per
se that is coercive but the promise of corrective action
that can be inferred therein. In that case the Board found
that the respondent sufficiently rebutted such inference
by repeatedly and explicitly telling employees that it was
making no such promises. Such was not the total evi-
dence' in this case. Although Garson did state that he
could make no promises relative to medical insurance
and paid sick leave, he made no such disclaimer with re-
spect to the grievance committee Moreover, after the
employees attempted to disavow their union cards, he
quickly acceded to one of those employee requests.. Also,
with respect to the granting of wage increases, to be
more fully discussed below, at least some employees,
whose pay raises were a few days behind the schedule as
announced on October 7, received pay raises about the
same time . Respondent's conduct in suddenly tending to
the matter of pay raises, albeit not one of the specific
complaints raised by the employees; in conjunction with
the granting of sick leave, constitutes conduct whereby
the employees reasonably would infer that when it pre-
sented grievances to the grievance committee that the
Respondent would remedy them or at least some of
them 9
Respondent herein, by instituting the grievance com-
mittee in the face of -a union recognitional demand,
overtly changed its practice of dealing with employee
dissatisfaction with working conditions.10 I conclude
9 Compare Atlas Microfilming, 267 NLRB 682, 688 (1984), where the
employer's statement to an employee that he intended to set up a griev-
ance committee constituted conduct that gave rise to an enhancement of
the inference that the employer intended to remedy the employee com-
plaints.
10 Compare . Montgomery Ward & Co, 225 NLRB 112 (1976), where
8(a)(1) violations were found where, although the employer had a past
that the Board's observation in Stride Rite Corp., 228
NLRB 224, 225 (1977), is apt herein:
These changes in practice, coupled with the imme-
diate remedy of several complaints raised at the
meetings , undoubtedly conveyed to the employees
the message that Respondent, in its effort to defeat
the Union, was now willing to look much more fa-
vorably on any request they might make.
Accordingly, I conclude that the Respondent by its con-
duct in encouraging employees to form a grievance com-
mittee through which they could present grievances to
it, within the context herein, interfered ,with their rights
to engage freely in union activities, and thus violated
Section 8(a)(1) of the Act.
b. Granting benefits
The Board in Lake Development Management Co., 259
NLRB 791, 792 (1981), stated:
Absent an affirmative showing of some legitimate
business reason for the timing, an inference of im-
proper motivation and improper interference with
employee rights may be drawn from a grant of ben-
efits which coincides with employee union activity.
J. P. Stevens and Company, Inc., 247 NLRB 420,
431-433 (1980); The May Department Stores Compa-
ny, 191 NLRB 928 (1971).11
There is uncontradicted testimony from certain Gener-
al Counsel's witnesses to the effect that employees com-
plained about "money," i.e., wages, at the October 28
meeting with Lydon and Centanni, and at the meeting
with Garson where they first raised their complaints, and
that Garson stated that he would check to see who was
"due" for raises, and that he thereafter 'announced a list
of employees who were "due" raises and who therefore
would receive them. I credit this testimony as it is not
inconsistent with that of Garson, or with that of Lydon
and Centanni concerning the October 28 confrontation.
However, it is not clear just what the employees' com-
plaint was with respect to wages, i.e., was it over the
general, level of wages, or was it over the tardiness in re-
viewing wages, or was it over the policy of 9-month re-
views set forth in the October 7 announcement. In any
event, clearly_the complaint was that the employees
were dissatisfied over pay, and what was stated prompt-
ed Garson to "look into" who was due for a raise, and
thereupon with alacrity employees "due" for raises re-
ceived them. Most of the employees who testified about
the receipt of raises simply testified without explanation
that they were "due" the raise that was given. One em-
ployee explained that she knew that she was due for a
raise by virtue of Garson's announcement at the meeting.
Other employees who did not receive a raise testified,
without explanation, that they were not due a raise.
practice of conducting employee meetings , there was no evidence that it
had ever solicited grievances at those meetings
ii See also Fisher-Haynes Corp of Georgia, 262 NLRB 1274 (1982)
1240 DECISIONS,OF NATIONAL LABOR RELATIONS BOARD
Respondent argues that, based on the documentary
evidence reflecting the October 7 pay review policy and
the foregoing testimony, the General Counsel has not
sustained the burden of proof. No testimonial explanation
by Walter Garson was adduced about the timing of the
raises. He testified generally that raises given were based
on merit reviews.
The General Counsel argues that the October 7 wage
review policy states that employees are to receive "a
review within every 9 months," and that in fact many
employees who received wage increases on November 1
were actually due them in October, i.e., Seawright,
Tighe, Gallagher, Hesser, M Lang, and Ryan. Further,
it is argued that Tighe received two raises on November
1, and C. Lang and. Glovacy who had been :hired in May
and June were not due a raise but received raises on No-
vember 1. The General Counsel thus argues that the
raises of November 1 were not effectuated pursuant to
the policy announced on October 7.
The October 7 wage review policy announcement,
however, provides also that all new employees, including
those hired in the 3 months preceding the announcement,
will' be reviewed for pay raises within 3 months of em-
ployment. Respondent's payroll history reveals that the
following employees received pay raises on September
27, 1983: David. Batchelor, John Bowman, Joseph
Lydon, William Matonis, and James Smith, after a varie-
ty of durations between their preceding raises. Some had
much less than 9-month 'intervals. On October 7, Re-
spondent instituted its new policy which entailed 9-
month wage reviews. This explains Garson's speculation
that employees were upset about the 9-month duration
and that constituted one of their complaints that motivat-
ed them to seek union representation. However, six em-
ployees, including Tighe, received raises on November 1,
all of whom received their last raise on Tuesday, January
25, 1983. The 9-month date would have been Tuesday,
'October 25, the date on which Walter Garson returned
from an absenced of several days.
Glovacy was hired on June 22, 1983, and her 3-month
date was September 22 C. Lang was hired on May 23
and her 3-month date was August 23. Both employees
received their first raise on November 1, somewhat over-
due for new employees if the new criteria applies to em-
ployees hired more than 3 months prior to October.
Both, however, occupied clearly unusual transitional
status. Adams and DiGiovannantonio' both received a
pay raise in mid-November, virtually 9 months after their
last raise, give or take a day or two. Ten employees who
'had not reached the specified lapse from their last raise
did not receive a pay raise.
I conclude that Respondent's granting of pay, raises
was in substantial accord with its preannounced policy to
such an extent to negate any reasonable inference that it
was motivated by antiunion considerations. Indeed, 'the
employees' own testimony, although ambiguous, seems
'to suggest their recognition that the raises were due pur-
suant to the October 7 policy announcement. I therefore
find that Respondent did not violate Section 8(a)(1) of
the Act by actually granting pay raises to its employees
in November 1983.
c. Interrogation of Glovacy
The General Counsel argues that the November 1
questioning of Glovacy by Garson after announcing her
pay raise to her disclosed the relationship between the
raise and the' union campaign , and further constituted un-
lawful coercion. However, Glovacy was but one of a
group of employees who received raises on November 1,
in a context where the inference was that raises were
given to employees who were due them pursuant to the
preannounced wage review policy. Garson's brief query
about what she felt and thought about the Union came
after the announcement; thus revealing to her that it was
granted before she disclosed her feeling's. Moreover, the
testimony of General Counsel's 'witnesses about the
group encounters they had with Garson, and.the open
group discussions they had among themselves, lead me
to believe that union loyalties of the employees were
openly proffered. There is no indication by Glovacy
when this interrogation occurred in the sequence of
those events, including those open confrontations., In ab-
sence of such contextual evidence, I cannot conclude
that Garson's brief inquiry was coercive and violative of
Section 8(a)(1) or calculated to be, nor in fact was a
signal to Glovacy that her raise was related to the union
campaign. The General Counsel argues no further acts of
interrogation by Walter Garson but, in any event, I find
insufficient credible evidence that Garson interrogated
employees at any of the group meetings by asking them
why they supported the Union.
d. Removal of Centanni as supervisor
The General Counsel argues that the announcement of
Louise Garson of the removal of 'Centanni as the super-
visor of Lang and Ryan constituted an 'attempt to
remedy grievances that motivated the employees to `seek
union representation. In view-of my factual' findings, I
conclude that' such argument is unsupported by • any
meaningful record evidence. -
e. Granting of sick leave benefits
With respect to the granting of paid sick days and per-
sonal holidays, Respondent merely asserts that the possi-
bility of such had been discussed by Walter Garson and
Louise Garson "on and off' from about July 1983, and
that Respondent lawfully continued to "consider and
reached a determination as to their implementation." The
testimony of Walter Garson about the deliberations of
granting sick days is, uncorroborated, undocumented,
self-serving, and unconvincing. But even if I accept his
testimony, it is clear that no final decision had been made
with respect to granting paid sick days benefits until
after the employees decided to resolve their attempts to
seek unionization and alternatively open the lines of
direct communication again between themselves and
management Thus his testimony is virtually an admission
that the final decision to grant the benefit was_ motivated
as a reward and encouragement for the cessation of
union activities. In any event, Respondent has failed to
adduce cogent, convincing evidence of some legitimate
business reason to rebut an inference of improper motiva-
WALTER GARSON, JR & ASSOCIATES 1241
tion arising from the timing and context of its conduct. I
therefore find that Respondent violated Section 8(a)(1) of
the Act by granting its employees paid sick leave and a
paid personal holiday about November 2, 1983.
f. Assistance and support of an employee petition -
The General Counsel argues that Centanni first sug-
gested to Lang that she speak to Garson about "resoly-
ing" the union issue. However, it was Lang who raised
the issue by an ambiguous reference to an apparent
group employee decision to "settle things with Walt " It
was only at that point that he told her that if they did
want to "settle things" then they should see Garson and
ask him "how to resolve the Union," and then he would
tell them what to do. Lang did -not independently recall
the conversation as having occurred on October- 31.
Rather, counsel for the General Counsel directed her at- •
tention to the date. It is not clear how that conversation
relates to an employee consensus decision to "settle
things" with the Respondent. It suggests an employee
decision already arrived at to abandon their efforts to
obtain union representation. The fact that she, Hesser,
and Ryan did confront Garson and announce to him an
already-arrived-at employee consensus decision to seek
information on, in his words, "how to dissolve the
Union," reinforces the inference that such decision was
made even prior to the Centanni conversations. In any
event, Centanni's statement to her falls short of a sugges-
tion that employees should disavow the Union. -
Hesser's testimony reflects that the employees entered
the office and asked Garson "how we could revoke the
Union." Thus Garson was faced with a statement which
raises an inference that the employees had already decid-
ed to revoke their representation authorization. This is in
accord with the testimony of other General Counsel wit-
nesses to the effect that the card signers met, discussed,
and adopted that decision. Garson therefore did not initi-
ate the disavowal movement. Rather, he responded to
employees' request for information. He told them, in
effect, that they, might try to. communicate with the
NLRB by letter. Nothing in the testimony of Hesser and
Lang suggests that he told them what to state in that
letter. I must rely on Garson's uncontradicted testimony
as it is more detailed as to what was stated. He merely
informed them that they .could, write a letter to the
NLRB, but that it might be futile as the matter was then
"in the hands of the NLRB.
There is some General Counsel-adduced testimony
concerning the granting of opportunity to employees to
hold a separate discussion during one of the earlier meet-
ings. However, that testimony was inconsistent about
who suggested the private meeting , and inconsistent
about the stated purpose of such meeting I credit
Garson who testified that he had merely responded to
the employee request to meet privately.
Thus I conclude that the employees initiated group
discussions among themselves when they arrived at their
own consensus of opinion to abandon efforts to obtain
union representation. With respect to the effort to re-
nounce their union representation authorization, there is
no credible evidence of Respondent-encouragement or
assistance in the formulation of the NLRB letter or its
distribution. Time-was afforded to employees to deliber-
ate during work hours and to prepare the NLRB letter.
Respondent, however, did not advise or instruct that the
letter be in the form of a petition signed by all card sign-
ers. Respondent admittedly allowed time during work
hours for these efforts, and it did provide the address of
the NLRB and the name of a Board agent. It did request
legal advice from its attorney about the source of-infor-
mation for the employees. It did provide use of a plant
telephone, and allowed Hesser to telephone one of the
absent card signers, and provided that card signer's tele-
phone number, and-it did provide the use'of its automo-
bile for two employees, i.e', the driver, a production em-
ployee, and Hesser, to deliver the letter to the NLRB
Regional Office. However, the General Counsel adduced
no evidence to demonstrate that Respondent acted con-
trary to past practice in affording its employees the use
of worktime and facilities for nonwork matters. Walter
Garson's testimony remains unrefuted and therefore
credited that the use of worktime for personal activities,
such as solicitations and use of work facilities for person-
al business, was in'fact in accordance with past practice.
The General Counsel relies on Board precedent which
deals with factual situations involving much more blatant
employer conduct. In Texaco, Inc., 264 NLRB 1132
(1982), members of the incumbent union's bargaining
committee became disaffected with higher dues and cer-
tain other matters and asked the employer if it were pos-
sible to revoke the dues-checkoff contract proviso and
leave the union. The employer therein responded by ex-
plicitly suggesting a detailed course of action relative to
terminating provisions of the collective-bargaining agree-
ment and supplied a prepared termination memorandum.
Further overt actions were taken by the employer's
agents relative to union membership withdrawal, includ-
ing the precise suggestion' of an employee petition to
revoke dues-checkoff authorizations and a respondent-
composed and drafted petition. The petition 'solicitor
took an entire afternoon off with pay, but this was noted
as -an uncommon privilege. The -petition was posted on
plant bulletin boards. Supervisors assisted significantly in
the solicitations, and answered'employee questions. Some
employees signed the petition in the supervisors' and
managers' offices. The Board agreed with the administra-
tive law judge that the employer went beyond "simply
answering inquiries of employees," in that it initiated and
stimulated withdrawal from the union. Similarly, in Shen-
ango Steel Buildings, 231 NLRB 586, 589 (1977), the em-
ployer initiated, prepared, and supplied the decertifica-
tion petition. Finally, in Cardinal Systems, 259 NLRB
456, 460 (1981), which also'involved an incumbent union,
the employer's agent engaged' in overt, affirmative con-
duct in initiating and processing a decertification peti-
tion. The administrative law judge whose decision was
adopted by the Board relied also on the fact that the em-
ployer paid for telephone communication and postage for
the petition, but he explicitly did not rely upon the "min-
isterial aid" of providing the Board's telephone number,
nor in giving assistance to an employee in correctly fill-
ing out the NLRB decertification petition form. Ministe-
rial assistance is not unlawful when it runs to providing
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such information as the Regional Office address. R. L.
White Co., 262 NLRB 575, 576 ( 1982); nor when it runs
to limited clerical assistance . Mobile Home Estates, 259
NLRB 1384, 1395 ( 1982).
.It is therefore necessary to analyze the facts about
whether Respondent went beyond ministerial assistance
In this case the employees asked Respondent for infor-
mation . Respondent advised them to communicate with
the NLRB. The Respondent did not suggest , advise, or
instruct that a petition be submitted to the Board , nor did
it assist in any way in the formulation of -that petition.
The facts of this case do not demonstrate that Respond-
ent afforded the •employees ,any more worktime for this
effort than it has ,in the past for other solicitations. Based
on the facts adduced herein , it may very well be the case
that a prohibition on-such solicitation might have consti-
tuted disparate treatment . A similar conclusion must be
reached with respect to the use of the plant telephone.
What is left is that Respondent provided ministerial as-
sistance to the solicitor with respect to an attempt to
communicate with an absent employees (which in fact
aborted) and provided transportation to the NLRB Re-
gional Office for the solicitor after it had been presented
with an unrequested d -copy of the petition letter , and then
after it had become aware of exactly what it was that the
employees had signed . Absent credible, cogent evidence
of other more direct assistance and aid , I cannot con-
clude that the Respondent 's assistance was more than
ministerial aid to an employee effort. Accordingly, I find
that it did not violate Section 8 (a)(1) of the Act by assist-
ing and supporting an employee petition to revoke union
membership.
g. The. December 1983 grievance meeting
The complaint alleges that Respondent solicited em-
ployee grievances and promised increased benefits and
improved employment conditions in December 1983.
This is an apparent reference to the grievance committee
meeting held on the first Friday in December
I have already concluded that the first encouragement
of a grievance committee constituted an unlawful inter-
ference . However , the facts reveal that , at the only meet-
ing ever conducted by that committee , the Respondent
merely set forth its explanation for the status quo. No in-
timation was given .that it would remedy any of the com-
plaints raised . Rather , it gave every indication of not
being amenable to change . No meeting was held thereaf-
ter. I conclude that Respondent 's conduct in soliciting
grievances by virtue of its compliance with an earlier so-
licitation of grievances does , not constitute a new and
separate violation , - that in fact no grievance was reme-
died and , by its conduct at that meeting , it clearly rebut-
ted any inference that it was promising to remedy any
more employee complaints . After that meeting the com-
mittee became defunct . The complaint allegation as to
December 2 is therefore without ment.
D. Obligation to Recognize and Bargain
The General Counsel contends that the Union made a
demand for recognition -as bargaining agent for an appro-
priate unit of employees and that because of serious
unfair labor practices committed by the Respondent a
bargaining order ought to issue.
Respondent contends that the unit properly consists of
26 persons and thus the Union failed to obtain majority
designation having obtained only 13 cards. Contrary to
the- General Counsel , Respondent includes within the
unit Tom Lydon , Centanni , bookkeeper Storme, recep-
tionist Checchia, receptionist Fallon , driver Matonis, and
shipper-receiver Joseph Lydon.
The question about the Union 's majority status is not
resolved by the determination that a unit of, all employ-
ees is an appropriate unit , but rather whether the unit
sought by the Union was an appropriate unit regardless
of whether a broader unit was also appropriate. Pilot
Freight Carriers, 223 NLRB 286, 304 (1976). Clearly the
interests of Centanni and Thomas Lydon are so identified
with that of management that they do not share such
community of interests with the production and mainte-
nance employees to necessitate their inclusion in the unit,
regardless of their status as supervisors. It is therefore
apparent that the Union had indeed obtained majority
designation in an appropriate unit , without resolution of
the unit placement of the clerical employees , bookkeep-
er, driver , and shipper-receiver . Because of my ultimate
disposition of this case , it is not necessary to make a de-
finitive finding of the appropriate unit.
The Supreme Court has held in -NLRB v. Gissel Pack-
ing Co.; 395 U . S. 579 (1969), that an employer violates
Section 8 (a)(5) of the Act when it refuses to recognize
and bargain on demand with a union , for which a major-
ity status is established by valid authorization cards,
when the contemporaneous unfair labor -practices of the
employer are likely to destroy the union 's majority and
impede the election process. It has also noted its approv-
al of the issuance of a bargaining order without evidence
of a majority status in those "exceptional cases marked
by outrageous and pervasive unfair labor practices" of
"such a nature that their coercive effects cannot be elimi-
nated by the application of traditional remedies with the
result that a fair and reliable election cannot be held."
With respect to the less extraordinary cases marked by
less pervasive practices , the Court held that a bargaining
order is appropriate where the Board can "properly take
into consideration the extensiveness of the employer's
unfair practices in terms of their past effect on election
conditions , and the likelihood of their recurrence in the
future " The Court stated: "If the Board finds that the
possibility of erasing the effects of past practice and en-
suring a fair election (or a fair rerun) by the use of tradi-
tional remedies , though present , is slight and that em-
ployee sentiment once expressed through cards would,
on balance , be better protected by a bargaining order,
then such an order should issue ." Id., 395 U : S._at 614-
615.
The General Counsel argues that the threats of closure
preclude the feasibility of a traditional remedial order.
The General Counsel quotes the following language of
the Board in Ludwig Motor Corp., 222 NLRB 635, 636
(1976):
. We have long recognized that threats .of closing
or moving are among those to which employees are
WALTER GARSON, JR. & ASSOCIATES - - 1243
acutely sensitive. Indeed, as with the fabled princess
and the pea, the possibility. of such a reprisal can be
felt by employees even after- assurances are piled
upon assurances that an apparent threat was not in-
tended as such.
Having observed- the demeanor of the employee wit-
nesses and having considered the conduct of the employ-
ees in this case, I cannot presume that they possess the
fragility and vulnerability of the fabled princess. The em-
ployees herein acted•openly and forthrightly in asserting
their interest in union representation even. after they
were exposed to the coercive discouragement of Cen-
tanni and Lydon. The nature of the threats to close made
by Lydon who, like Centanni, occupied a position of
borderline authority, was not of the kind indicating per-
sonal, deliberate vindictiveness but was rather the kind
of "brinksmanship" condemned ' by' the. Supreme Court,
i.e., economic-predictions made without factual premise.
The employees subsequently were assured that Garson
was not vindictive but was "fair" and "reasonable.". Thus
the conduct of Respondent's, agents, Centanni and
Lydon, had little impact on the employees as they there-
after signed union cards on the October 28, and reaf-
firmed that commitment on October 30. Moreover, it
was the employees who asserted themselves and initiated
and sought group confrontations' with Walt Garson, just
as they insisted on group confrontations with Centanni
and Lydon when they suspected union talk. It was the
employees who insisted on telling Lydon and Centanni
and then Garson what their complaints were and why
they wanted a union. This is not the-conduct of cowed
and coerced persons.
In the confrontations with Garson, there is no allega-
tion or argument that he threatened them with retribu-
tion either directly or by reference to that Philadelphia
Inquirer Magazine article. Rather, Garson assured them
that the business was profitable and he saw no reason it
would not continue to be profitable. Thus any inferences
drawn from Lydon's earlier comments about the precar-
iousness of the business were rebutted by Garson. _
The General Counsel argues that the employees' at-
tempted disavowal of union representation is evidence of
the effectiveness of Respondent's coercion on and after
October 31. Based on the foregoing findings, Garson's
violations of Section 8(a)(1) were not outrageous, retalia-
tory acts calculated to threaten the employment status or
working conditions.' 2 ' Rather, they appear to have been
spontaneous acts prompted by the own conduct in seek-
ing confrontation and in expressing their objectives in
unionizing. I have concluded that Garson crossed the
bounds of proper conduct with respect to the solicitation
of grievances, and the granting of paid sick days, but it is
not necessarily to be inferred that this conduct was the
cause of the employee group decision- to abandon the
Union. The decision to abandon unionization appears to
have been in consequence of the employees' own delib-
erations. It may have been caused -by Respondent's con-
12 Compare L M. Berry & Co., 266 NLRB 47 ( 1983), where a bargain-
ing order was deemed not necessary to remedy unlawful, serious viola-
tions consisting of-threats and solicitations of grievances.
-duct, or it may have been caused by the Philadelphia In-
• quirer article containing purported quotations' of the
Union's highly placed • officer, ,or- it may . have been
caused by the employees' own desire for direct group
confrontations and bartering, or it may have been the
result of the amount of initiation fees and dues described
at the October .28 parking lot meeting. If it had been
caused by Garson's conduct found violative herein, I see
no reason why the Board's usual remedy would not be
effective. "I find this conclusion enhanced by Respond-
ent's own curative conduct which made clear to the em-
ployees that little else in the nature of grievances,
beyond' paid' sick days,' would be guaranteed a remedy.
The grievance committee was aborted quickly ' and
hardly stands as an attractive alternative'to union repre-
sentation. Furthermore, the unlawful conduct of Cen-
tanni and'Lydon was brief, spontaneous, and not'repeat-
ed by - Garson on' his return from an absence from the
plant. Garson also engaged in limited, spontaneous and
short-lived interference of a nature different from that of
his low level department supervisors, and not of a retali-
atory 'nature. I do not see in this set of facts a danger of
repetitive acts of interference in defiance of an outstand-
ing Board order. I do not find under the facts a lingering
effect that would make a fair election unlikely. Accord-
ingly, I find the allegations of the complaint relative to
Section 8(a)(5) as nonmeritorious.' a
CONCLUSIONS OF LAW
1. Respondent Walter Garson, Jr. and Associates, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Teamsters Union Local No. 115 a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act:
- 3. Respondent, by its department supervisors and
agents Ronald Centanni and Thomas Lydon, violated
Section 8(a)(1) of the Act by coercively interrogating
-employees concerning their union activities and sympa-
thies, and by threats of plant closure, reduction in work
hours, and loss of work privileges. '
4. Respondent, by its officer and agent Walter Garson
Jr., violated Section` 8(a)(1) of the Act by soliciting em-
ployee grievances. thereby promising to remedy those
grievances and by granting employees paid sick leave
and a personal' holiday in order to discourage their sup-
port for union representation.
5. By the aforedescribed 'conduct the Respondent en-
gaged in unfair labor practices affecting commerce
within the meaning of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I recommend that it be required to cease and
is In light of my disposition of this case, it is unnecessary to rule on
Respondent 's motion of September 4, 1984,' to receive into evidence an
affidavit of Walter Garson concerning the subsequent termination of Cen-
tanni and its impact on the propriety of a remedial bargaining orderr.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed14
ORDER
The Respondent, Walter Garson, Jr. and Associates,
Philadelphia, Pennsylavania, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees concerning
their union activities and sympathies.
(b) Threatening employees with business closure, re-
duction in work hours, and loss of work privileges in the
event they achieve union representation.
(c) Soliciting its employees' grievances or complaints
and in connection therewith promising to correct and, in
fact, correcting those grievances or complaints, and
granting employee benefits in order to discourage its em-
ployees' support for Teamsters Union Local No. 115 a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Post at Philadelphia, Pennsylvania place of business
the attached notice marked "Appendix." 1 s Copies of the
notice, on forms provided by the Regional Director for
Region 13, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately on receipt and maintained for 60 consec-
utive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall-be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for in writing within
20 days from the date of this Order what steps Respond-
ent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT coercively interrogate our employees
concerning their union activities or sympathies.
WE WILL NOT threaten our employees with business
closure, reduction in work hours, and loss of work privi-
leges in the event that they achieve union representation.
WE WILL NOT solicit our employees' grievances or
complaints and in connection therewith, correct or
promise to correct their grievances or complaints, nor
grant employee benefits in order to interfere with our
employees' support for Teamsters Local Union No. 115
a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WALTER GARSON, JR. AND ASSOCIATES
14 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
is If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."