Adam & Eve Cosmetics, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1317 (N.L.R.B. 1975)

ADAM & EVE COSMETICS 1317
Adam & Eve Cosmetics, Inc. and Teamsters Local
Union No. 193 , a/w International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Help-
ers of America . Case 25-CA-6522
June 30, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On January 31, 1975, Administrative Law Judge
Walter H. Maloney, Jr., issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed limited exceptions and a brief in support of the
Decision, and Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge, as
modified herein.
Our dissenting colleague would find that Oscar
Schwartz was a supervisor and would therefore
dismiss the complaint herein. He points out that
Schwartz received no diminution in pay when he was
transferred from production supervisor to the ware-
house and that he continued to be paid when other
employees were laid off. This reflects, however, only
that Schwartz was an experienced senior employee
who had responsibilities in addition to those of
general warehouseman. The question is whether the
additional responsibilities were indicative of supervi-
sory status. We find they are not.
Schwartz did not hire or fire, effectively recom-
mend hiring and firing, grant time off, assign
overtime, or even move people in and out of the
warehouse from the assembly line (a common
occurrence in the plant). The dissent would find that
Schwartz responsibly directed warehouse employees.
We find, however, that any direction exercised by
Schwartz was routine, involving work which required
minimal direction for its execution. His direction
consisted of telling fellow employees that a truck
needed loading, what was to go into the truck, and
telling employees where inventory should be put.
Schwartz performed much of the work himself. As
found by the Administrative Law Judge, Schwartz
did the above in response to shipping orders received
from the office, which he routinely transmitted to
employees who were assigned by the plant manager
to the warehouse. Thus, Schwartz asked fellow
employees to assist in what he was advised or knew
from experience needed doing. (Schwartz was a
senior, experienced employee knowledgeable about
Respondent's entire operation and had previously
been a shipping and receiving clerk in the ware-
house.) These activities are those of a senior
employee or leadman. They required no independent
judgment by Schwartz and involved only routine
warehouse work. Other duties of Schwartz do not
indicate supervisor status. He was one of the persons
who kept inventory records, a clerical not a supervi-
sory task. In sum, Schwartz' instructions to fellow
employees involved routine matters related to his
skill as an experienced employee. For these reasons,
as well as those stated by the Administrative Law
Judge, we find that Schwartz was not a supervisor.
As we fmd that Schwartz was an employee and as
such was entitled to the protection of the Act, we
conclude for the reasons set forth by the Administra-
tive Law Judge that Schwartz was discriminatorily
discharged in violation of Section 8(a)(3) and (1) of
the Act. We also fmd that the Administrative Law
Judge correctly held that Respondent violated
Section 8(a)(1) of the Act by its coercive interroga-
tion, its threat to close the plant, and its promises of
substantial benefit.
In view of the serious nature of the foregoing unfair
labor practices, we shall grant the General Counsel's
request for a broad remedial order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent
Adam & Eve Cosmetics, Inc., Indianapolis , Indiana,
its officers , agents , successors, and assigns , shall take
the action set forth in the said recommended Order,
as so modified:
1. Add the following as new paragraph 1(e):
"In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER KENNEDY, dissenting:
The issues in this case turn in principal part on
whether Oscar L. Schwartz was a statutory supervi-
218 NLRB No. 201
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sor at the time he was discharged on September 9,
1974.1 If he was then Respondent did not violate
Section 8 (a)(3) in discharging him and alleged
incidents of interrogation and threats of plant closure
did not violate Section 8(a)(1). The majority has
adopted the Administrative Law Judge's finding that
Schwartz was not a supervisor. I disagree and
therefore dissent from the majority's decision.
Respondent operates a small factory in Indianapo-
lis where it manufactures, boxes, and ships wind-
shield washer solvents. The plant consists of a
production or assembly line, a warehouse, and an
office. During the relevant period, the plant had 10
or 12 employees. Schwartz was hired in September
1973 as a truck loader and unloader. In March 1974,
he was promoted to the position of production line
supervisor and placed in charge of the seven or eight
employees who were engaged in operating the
assembly line. The parties conceded, and the Admin-
istrative Law Judge found, that in this position
Schwartz was a statutory supervisor. About the end
of July or the beginning of August, Respondent's
president, Charles T. Clark, Jr., told Schwartz that he
was dissatisfied with the way Schwartz was perform-
ing his duties and that he would have to let Schwartz
go. Schwartz pleaded that he needed his job and so
Clark asked him what he preferred doing. Schwartz
replied, according to his account, that he "would
rather have the warehouse than anything they had
around there." 2 Clark said he would consider it.
Early in August, Danny Smith was hired as a
replacement for the incumbent plant manager,
Russel G. Roush . Smith reported for work on August
14. Roush continued working until August 16. When
Smith reported for work, Clark transferred Schwartz
to the warehouse telling him that he would be "in
charge of the warehouse." As warehouse manager,
Schwartz had under him one to four employees
whose work he directed. According to Schwartz, his
direction of the work of his subordinates consisted of
the following:
.. . if they were back there with me working, a
truck came in to be loaded, I would tell them who
I wanted up in the truck, from there we would
figure out what we was going to move into the
truck. If there wasn't no truck there,just working
in the warehouse , moving stuff, I would instruct
i All dates specified hereinafter are for 1974 unless otherwise indicated
2 According to Clark , Schwartz replied, "I know I can do a good job if
you would put me in charge of the warehouse facilities "
3 Smith testified that Schwartz spent only 30 percent of his time in
physical labor as did Snuth
Roush was a disinterested witness since he was no longer an employee
of Respondent ; he was also a personal friend of Schwartz The Administra-
tive Law Judge does not discredit this testimony, but finds it "largely
irrelevant" in evaluating Schwartz ' responsibilities in his new position under
Smith 's control because it took place before Roush left and before Smith
them as to what I wanted moved and how I
wanted it placed back, the spot where we was
moving it to.
Further, Schwartz testified that he spent 50 percent
of his time in physical labor.3 The rest of the time he
would "instruct the boys what I wanted them to do,
and I would just walk back and forth between the
two spots to make sure they went into the spots
where we wanted it. Where it was to go." In addition,
Schwartz was given a significant role together with
Smith in a newly inaugurated inventory control
system.
On August 15, according to Roush, he heard Clark
angrily tell Schwartz that if Schwartz could not
handle the men in the warehouse (apparently some
men were standing around doing nothing), he was
going to get somebody else. Clark also asked
Schwartz if he thought he could handle it and
Schwartz replied affirmatively.4
When Schwartz was transferred from the position
of production line supervisor to warehouse manag-
er,5 he suffered no diminution of pay. As a
production line supervisor Schwartz was permitted to
put in a full day's work for a full day's pay even
though production workers were laid off because of a
shortage of methanol. When he was placed in charge
of the warehouse, he similarly was permitted to work
and receive pay although his subordinates were laid
off for lack of work. This was true for all supervi-
sors.6
The Administrative Law Judge found that
Schwartz was not a statutory supervisor, but acted as
a team leader in the loading and unloading of trucks
and moving skids of finished products about the
warehouse, exercised no independent judgment in
the performance of these menial and manual tasks,
and did much of the work himself. The Administra-
tive Law Judge was also influenced by his reasoning
that if Schwartz were found to be a supervisor, there
would be two supervisors for a work force which
never reached more than 12.
I cannot agree with this evaluation of the testimony
by the Administrative Law Judge. It seems clear to
me that Schwartz was expected to have the same
standing as warehouse manager as he had as
production line supervisor. He was placed in charge
of the warehouse without a reduction in pay and with
took over. The Administrative Law Judge's statement is wrong in its facts
and in its inference The incident took place on the day after Schwartz was
transferred to the warehouse and the day after Smith started working for
Respondent Roush remained for 3 days after Smith reported for work in
order to help break him in There is absolutely no basis for inferring that
Clark expected less of Schwartz after Roush left
5 Schwartz referred to himself as "warehouse manager "
6 In addition to the plant manager and Schwartz there was a supervisor
in charge of production employees on the night shift.
ADAM & EVE COSMETICS 1319
the important perquisite of a supervisor, the right to
work and receive pay even though subordinates were
laid off for lack of work.? Moreover, his own
testimony indicates to me that he had the authority
responsibly to direct other employees working in the
warehouse. Roush's credited testimony of the repri-
mand delivered to Schwartz by Clark for failing to
keep his subordinates working further shows that this
authority with respect to his subordinates was
substantial and more than routine. Finally, the
Administrative Law Judge's reliance on the fact that
if Schwartz were found to be a supervisor there
would be two supervisors-Schwartz and Smith-for
no more than 12 employees ignores the fact that this
was precisely the ratio when Schwartz was admitted-
ly statutory supervisor as production line supervisor
and the other supervisor was the plant manager.
Accordingly, I would find, contrary to the Adminis-
trative Law Judge and my colleagues, that Schwartz
as warehouse manager was a statutory supervisor. I
would therefore dismiss the complaint allegation that
Respondent discriminatorily discharged Schwartz
since supervisors are not employees within the
meaning of Section 2(3) of the Act.
The Administrative Law Judge also found that
Respondent violated Section 8(a)(1) of the Act by
interrogating Schwartz as to union activities and
telling him that the plant would close down before it
would raise the employees' hourly wage rate. As
these incidents were directed to Schwartz, a supervi-
sor, they did not "interfere with, restrain or coerce
employees in the exercise of the rights guaranteed by
Section 7 of the Act" and therefore are not violative
of Section 8(a)(1).
Finally, the Administrative Law Judge found that
Respondent made unlawful promises of benefit
before the election by: (1) telling employees that he
had found a source of supply for methanol, thus
clearly implying that the assembly line would not be
periodically shut down for lack of supplies as in the
past; and (2) telling employee Judy Davis that he
would "guarantee" employees a 40-hour week and all
the methanol needed to sustain that much pro-
duction. As to (1), I cannot perceive anything
unlawful in an employer truthfully telling employees
that a material shortage which has caused work
shutdown is in the process of rectification. Moreover,
Respondent cautioned employees that he believed he
could obtain the additional supplies, but did not
guarantee it. As to (2), it seems improbable that
Respondent would tell employees in a group meeting
that he could not guarantee additional supplies and a
40-hour week and then tell one employee on the
following day that he would make such a guarantee.
In any event, the statement to Davis was isolated. I
would find neither of the above statements violative
of Section 8(a)(1).
Inasmuch as I would not adopt any of the
Administrative Law Judge's findings of violations, I
would dismiss the complaint in its entirety.
7 The Administrative Law Judge plainly misread the evidence in
concluding that Schwartz did not work on 7 days between August 14 and
September 9. Schwartz' own testimony is that , as a supervisor before and
after his switch from production line supervisor to warehouse manager, he
was provided daily work without interruption and without loss of pay even
when production and other workers were laid off because of lack of
supplies
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees concern-
ing their union sympathies, activities, and affilia-
tions.
WE WILL NOT promise employees any benefits
to induce them to refrain from engaging in union
activities or from supporting a labor organization.
VIE WILL NOT threaten to close the plant or to
engage in any other reprisal against employees
because they participated in union activities.
WE WILL NOT discharge or otherwise discriim-
nate; against employees because they have en-
gaged in union activities.
VIE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed in Section 7 of
the Act.
WE WILL offer to Oscar Schwartz full and
immediate reinstatement to his former job or, if
such job no longer exists, to substantially equiva-
lent employment, without prejudice to his seniori-
ty or other rights and privileges, and make him
whole for any loss which he has suffered, with
interest thereon at 6 percent per annum.
All our employees are free to become or remain
members of Teamsters Local Union No. 193,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization.
ADAM & EVE COSMETICS,
INC.
DECISION
FINDINGS OF FACT
WALTER H. MALONEY, JR., Administrative Law Judge:
This case came on for hearing before me at Indianapolis,
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Indiana, upon a complaint, amended at the hearing, which
was issued by the Regional Director for Region 25,1 and
which alleges that the Respondent Adam & Eve Cosmetics,
Inc.,2 violated Section 8(a)(I) and (3) of the Act. More
particularly, the complaint alleges that the Respondent
unlawfully promised employees benefits to gain their
support during an election campaign; that it unlawfully
interrogated employees concerning their union activities
and affiliations; that it warned employees of reprisals
should they engage in union activities; and that on
September 9, 1974, it discharged employee Oscar Schwartz
because of his union activities. The Respondent denies the
allegations of unlawful activity contravening Section
8(a)(I) of the Act, asserts that Schwartz was a supervisor
and hence not entitled to the protection of the Act, and
argues that, in any event, Schwartz was not terminated for
union activities but for an accumulation of work deficien-
cies . Upon these contentions, the issues herein were
joined.3
A. The Events in Question
The Respondent operates a small factory in an outlying
section of Indianapolis where it manufactures, boxes, and
ships two brands of liquid windshield washer solvent which
carry the trade names of Evrclear and Traveller. The plant
in question is located in a building containing some 7,000
square feet of space, and consists of a small assembly line,
a warehouse, and office space. The president of the
Company is Charles T. Clark, Jr., who was a stockholder
before January 1974, and since that time has taken over in
the active management of the concern as its principal
executive officer. Clark maintains his home in Jackson,
Tennessee. He is in Indianapolis an average of 3 days a
week, but maintains frequent telephone communication
with the operation during his absence. The day-to-day
operations have been conducted by a series of full-time
plant managers, the most recent of whom is Danny Smith.
The plant has been in production for slightly more than a
year. It has experienced serious production problems
because . of the inability of the Respondent to obtain
sufficient quantities of methanol, an ingredient essential to
the manufacturing of windshield washer solvents. Accord-
ingly, its employees, who number about 10 or 12,
frequently work less than a full week, although, on
occasion, when sufficient methanol is on hand, a night shift
is called in to work.4 Moreover, Respondent has experi-
enced a considerable turnover, both of supervisory and
nonsupervisory personnel. In March, discnminatee Oscar
Schwartz, who was then a rank-and-file production
employee, was promoted to production supervisor, work-
i The principal docket entries in this case are as follows- Charge filed by
Teamsters Local Union No 193, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
(herein called Union), on September 9, 1974, complaint issued on October
31, 1974, Respondent's answer filed on November 7, 1974 Hearing held in
Indianapolis, Indiana, on December I1 and 12, 1974
2 The Respondent admits, and I find, that it is a corporation organized
under the laws of the State of Indiana and that it maintains its principal
place of business at Indianapolis, Indiana, where it is engaged in the
manufacture and sale of windshield washer solvent and related products
During the preceding 12 months, a representative period, it purchased and
received at its Indianapolis location, from points and places outside the
State of Indiana, goods and materials valued in excess of $50,000
ing under the immediate supervision of former Plant
Manager Russel G. Roush. In that capacity, Schwartz was
responsible for setting up the production line before
production was scheduled to begin at 7:30, for supervising
the seven or eight employees who were engaged in
operating the assembly line, and for other jobs as they
arose. There seems to be little dispute that, during his
employment in this capacity, he was a supervisor within
the meaning of the Act, although he also performed many
tasks which were nonsupervisory in nature.
At the end of July, Roush gave the Respondent 2 weeks'
notice that he was leaving to take other employment.
About the same time, Clark called Schwartz into his office
for a conference, expressed dissatisfaction with him as a
supervisor, and suggested that he might let him go. One
specific objection voiced by Clark was Schwartz' failure to
prepare a daily written "itinerary," or rotation schedule,
which assembly line employees should follow in filling the
various positions on the line. Schwartz told Clark that he
needed his job and suggested that he might work out better
in the warehouse. Without making any commitment at that
time, Clark took this request under consideration.
Clark advertised in the newspapers for a new plant
manager and hired Danny Smith. Smith came to work
about August 15, was oriented in his duties for a couple of
days by departing Plant Manager Roush, and took over
full time on August 19. During the first week of his tenure,
he was given the title of production supervisor, but was
then given the title of plant manager. Schwartz was placed
under Smith's immediate supervision and was assigned by
Clark to be in charge of the warehouse. These duties
included shipping and receiving, assistance with a process
of inventory control which was being inaugurated, and the
requirement that he continue to come in before the regular
shift began to set up the production line.5 He was also
responsible for mixing the various ingredients which went
into the final product. Between August 19 and Schwartz'
termination on September 9, the plant operated in full
production only 7 out of a normal 14 working days. There
was no assembly line production at all in the short
workweek following Labor Day, which was also the week
before Schwartz' discharge. Schwartz and some others
came to work on days in which there was no operation of
the assembly line, working in the warehouse or doing
cleanup work and odd jobs which did not involve the
immediate use of methanol, which was still in short supply.
About August 22 Schwartz began to solicit signatures on
authorization cards for Teamsters Local 193. He went with
fellow employee Judy Davis and others to Glen's Cabaret
and met there with Union Agent Day. Day gave him about
Accordingly, the Respondent is an employer engaged in commerce within
the meaning of Sec 2(2), (6), and (7) of the Act The Union is a labor
organization within the meaning of Section 2(5) of the Act.
3 Certain errors in the transcript are hereby noted and corrected
4 In a representation election , conducted by the Board on October 30,
1974, some I I employees voted , I of whom voted subject to challenge The
election was conducted pursuant to a petition filed by the Union on
September 24, and a certification for stipulation upon consent agreement
signed on October 9 The Union lost the election by a vote of 10 to 0 (Case
25-RC-5827)
S Schwartz began his employment with Adam & Eve as a shipping and
receiving clerk in the warehouse
ADAM & EVE COSMETICS 1321
20 cards to be signed and told Schwartz he would pick
them up . Schwartz signed one himself, solicited cards on
company premises from almost every employee, and
returned them to the Union within a day or so of receiving
them . During middle or late August , Schwartz expressed
his sentiments concerning unionization to departing Plant
Manager Roush , telling Roush in the course of an informal
conversation that the best thing for the employees to do
was to unionize because otherwise they would not get
anywhere. Roush confirms that, on the day before he left
the Respondent , Schwartz expressed to him the opinion
that wages would improve if the Company were organized.
In a phone call made by Schwartz to Roush , after Roush's
departure , Schwartz asked Roush to check on what wages
were being paid at various unionized -plants.
Shortly after Smith took over, Schwartz had a conversa-
tion with him concerning unionization . Smith confirms
that Schwartz expressed to him the opinion that the
Company had brought the Union on itself by treating
employees like dogs . Smith also testified that he answered
this objection by saying that the Company did not treat
employees like dogs and that there were reasons for the
manner in which the Company treated its employees.
Schwartz asserts , and Smith denies, that during this
conversation , Smith stated that a union was of no benefit
to employees and that he knew of an instance when it hurt
the people who had contacted it. Smith also reportedly said
that, if the Union came in, they would ask for $3 an hour
and the Company will close its doors. I credit Schwartz'
version.
On August 28, Union Secretary-Treasurer Green visited
the plant and served a demand letter on the Company. As
Clark was not in town , he left the letter with clerical
employee June Taylor, who is variously described as office
manager and as a housekeeper . The letter , which is in
evidence, was addressed to Clark . It stated that the Union
represented a majority of production and warehouse
employees , requested a meeting for purposes of collective
bargaining , and offered to prove its majority status by a
mutually agreeable method . Green orally brought to Mrs.
Taylor' s attention what the contents of the letter were
about and asked for a reply from Clark by the following
Friday. Mrs. Taylor said she would be talking to Clark by
phone that day. Green told her that, if the Union did not
receive a reply by Friday, it would take whatever action it
deemed necessary. Mrs. Taylor placed the letter on Clark's
desk with his other mail. Clark admits that he called in
frequently between this time and September 9, when
Schwartz was terminated , but denies that this letter was
brought to his attention until the afternoon of September 9
after he had discharged Schwartz. I believe this to be
highly unlikely and I discredit Clark's denial that he did
not know of the demand letter until September 9. On or
shortly after September 9, he brought the letter to the
attention of corporate counsel, who then turned the matter
over to labor counsel for reply.
Daily production records in evidence indicate that
Schwartz did not work on August 20, 22 , and 29 and
September 4. No records were produced for August 24 and
25 and September 6, in response to the General Counsel's
subpena, so I assume that there was no production on
those days. The record for August 16 indicates that
Schwartz supervised warehouse work, and that two
employees , Harsco and Weaver , were assigned to clean the
warehouse . The record for August 19 indicates the same,
except that Prather , rather than Weaver, worked with
Harsco and Schwartz in the warehouse . The record for
August 20 shows that Weaver and Prather worked in the
warehouse or in cleaning up other areas but that Schwartz
was not present . On August 21, Schwartz is listed as
supervisor , with the names of Doughty and Weaver listed
as working in the warehouse . On August 22, Schwartz did
not work, but Doughty, Weaver, and Prather did cleanup
work or loaded trucks. On August 23, Schwartz is listed
simply as "warehouse" without any supervisory notation
beside his name , while Doughty , Weaver , and Prather were
listed with him as loading trucks and doing other work. On
August 26 and 27, Schwartz and Prather are simply listed
as "warehouse" without any notation of supervision. On
August 28 , Schwartz , Doughty, and Weaver were listed as
"warehouse" without any notation regarding supervision.
On August 29, four male employees were listed as loading
trucks , but Schwartz was not listed . On August 30,
Schwartz , Weaver , and Prather were listed as "clean-up"
without any notation of supervision. On September 3,
Schwartz, Prather, Doughty , and Weaver were listed as
"warehouse" without any notation of supervision. On
September 4, three individuals , other than Schwartz, were
listed as "warehouse ." On September 5, Weaver , Prather,
Schwartz, and Doughty were listed as "warehouse" and
various odd jobs, without any notation of supervision.
There is no record for September 6. The September 9
record indicates "none working" because of no product.
On September 6, a contaminated supply of methanol was
discovered so a contractor was brought in immediately to
scrape the residue of the contamination out of the holding
tanks. Work had to be suspended while this repair was in
progress.
A few days after Green's visit to the plant on August 28,
Dee Kruger , vice president and secretary-treasurer of the
Respondent , and Edward Whitmer , the Respondent's
chairman of the board , met Schwartz somewhere in the
plant and chatted with him . Mrs. Kruger mentioned
Schwartz' vacation and said that she "saw the letter that
(Schwartz) had submitted to Mr . Clark." She asked if he
thought that he really deserved a vacation . Schwartz said
he did, inasmuch as he had been there a year . Mrs. Kruger
then stated that she did not think he would have any
problem in that regard and Whitmer agreed . Whitmer
asked Schwartz if he had seen any union officials around
the Company, and Schwartz replied that he had not.
Whitmer then told Schwartz that the Union had submitted
a notice asking for recognition . Whitmer then told him that
if the people want a union, there was nothing the Company
would do to prevent the union from coming in , but he did
say that it would slow up a lot of benefits which had been
planned, such as insurance. He agreed that the employees
needed an upgrading.
Clark was away from Indianapolis during the week of
September 2. He was summoned back to town because of
the discovery, made on Friday, September 6, of some
contamination in the methanol supply. Clark arrived in
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Indianapolis on Sunday afternoon, September 8, and
conferred with Smith and the contractor relative to
cleaning the methanol tanks. Clark and Smith also
discussed Schwartz. Smith confirmed an earlier telephone
report that had been made by secretary Patricia Parson to
Clark by phone, to the effect that there had been a
difficulty with the inventory and that a truck had arrived to
pick up a scheduled shipment but that there was insuffi-
cient product in the warehouse to make the shipment. They
ascribed this shortcoming to Schwartz.6 Clark indicated an
intention that afternoon to discharge Schwartz, and told
Smith to send him to the office the following morning
when he reported to work. When Schwartz came to work
the following morning, he was referred to Clark, who told
him that they were letting him go because the inventory
was messed up. Schwartz complained that he was being
made the "fall guy" for this shortage. Clark said: "Are you
calling me a liar?" Schwartz replied: "Take it any way you
want."
After the Union filed a petition for an election, the
Respondent conducted a campaign urging a "No" vote. It
held a meeting of all employees the day before the election.
The meeting lasted more than an hour. Clark gave a
prepared talk and then opened the meeting for questions.
In his speech, Clark said that the Company could not
promise the employees a raise at the present time , but later
on, in 3 or 4 months, if the Company were making progress
and selling the product, there would not be any reason why
the employees could not have a raise. He said that there
simply was no money available for a raise. He did say that
he found a place where the Company could get a supply of
methanol , so that the employees could be working a full
workweek.? Clark did not say that he could guarantee
anything. Clark denies making any promise or promises to
the assembled employees. I credit the version, recited
above, by employee Mercedes Harsin.
On the following day, which was the day of the election,
Clark met employee Judy Davis in the plant. Mrs. Davis
had been absent from the meeting held on the preceding
day and Clark said he wanted to fill her in on what had
transpired. He told her that he would guarantee a 5-day,
40-hour workweek and enough methanol to keep the line
going . Clark denies making such a promise. I credit Mrs.
Davis.
B. Analysis and Conclusions
1. The supervisory status of Oscar Schwartz
Respondent's first line of defense is that Oscar Schwartz,
at the time of his termination on September 9, was in fact a
supervisor within the meaning of Section 2(11) of the Act
and thus not protected by the provisions of Section 8(a)(3).
Schwartz was one of the most senior, if not the most senior,
of the Respondent's employees and one of the most
versatile, being able, by all accounts, to perform most of
the nonsupervisory tasks necessary to keep the operation
going. Between early March and mid-August, Schwartz
functioned as production supervisor, in which capacity he
was in immediate charge of seven or eight individuals who
worked on the assembly line. In this capacity, he
performed a variety of nonsupervisory manual tasks, both
in and out of the production area, but it is generally
conceded that, while employed as production supervisor,
he had and exercised sufficient responsibility to meet the
minimum statutory requirements of Section 2(11). Both
from Clark and Roush, Schwartz received high marks as a
rank-and-file employee, but there is no disagreement in the
record that Schwartz was not management material. It is
precisely because Schwartz was an able employee but a
deficient overseer that Clark determined in August to
relieve him from his position as production supervisor and
to transfer him to warehouse work, where the demands of
the job would be better suited to his talents . Clark admits
that, while this transfer was being discussed, he gave no
indication to Schwartz as to what his authority would be in
the warehouse vis-a-vis other employees. His instruction to
Schwartz and others was merely that he would be "in
charge" of the warehouse, an ambiguous phrase which
could fit a shipping and receiving clerk (which Schwartz
used to be) as well as a full-blown managerial position.
The ancillary tasks which were assigned to Schwartz-
setting up the production line in the morning, mixing
ingredients to be used in the windshield washer solvent,
and participating in inventory control-carry with them no
indicia of supervisory responsibility. These jobs were
largely solitary and manual in character, involving no
relationship at all between Schwartz and any asserted
subordinate. Respondent admits that while back in the
warehouse, Schwartz did not hire or fire, effectively
recommend hiring or firing, grant time off, assign overtime,
or even move people in and out of the warehouse from the
assembly line. In fact, Smith told Schwartz that, if more
people were needed in the warehouse at a given moment in
order to load or unload or for any other purpose, he should
request additional assistance from Smith rather than
directly ask any person engaged in production activities for
assistance.
In an operation as small and as fluid as the Respondent's
factory, it would be inaccurate to regard the warehouse as
a department. Rather, it was just another room in the same
building where finished items were stored before shipment.
On some days, three or four people were working there,
and on other days none. Male employees, who did the
heavier work of loading and unloading, worked on the
assembly line or did odd jobs when warehouse work was
caught up. Schwartz was among them. In the 14 possible
working days between Schwartz' transfer and his termina-
tion, Schwartz was not even present at the plant on 7 days,
including some days on which other employees were listed
as working in the warehouse. During this period of time,
Respondent was in full production only 7 days, at which
time it had a maximum of 12 (and usually fewer)
employees at work in the whole plant. There is no doubt
that Smith was, during this time, in full command of the
whole operation. If Schwartz were also a supervisor this
would mean that there would be 2 supervisors for a work
force which, on some occasions, numbered only 3 or 4
persons and never reached a figure of more than 12. At no
6 A full shipment of windshield washer solvent normally amounts to 7 At that time, assembly line employees normally worked 2 or 3 days a
about 800 cases . The Respondent frequently ships less than a full truckload. week and worked a full week only occasionally
ADAM & EVE COSMETICS 1323
time during this 3-week period were more than four
persons , including Schwartz, at work in the warehouse, and
usually this figure was smaller. If, during this period, Smith
exercised a sufficient degree of control that he even
approved the movement , on a temporary basis, of
employees from one room of the building to another, it is
clear that any supervision left to Schwartz as the man "in
charge" of the warehouse was nominal.
Clark points to one instance where he reprimanded
Schwartz for failing to keep subordinate employees busy.
This event took place before Roush left and hence before
Smith took over , so is largely irrelevant to evaluating
Schwartz' responsibilities in his new position under Smith's
control . While Schwartz was not cut in salary from the
$2.50 per hour he was receiving as production supervisor
when he was transferred , this fact indicates little, if
anything , about his new and diminished responsibilities,
and is better explained by his longevity as an employee and
by the wider range of job skills which he exercised in
comparison with other employees . Before Schwartz went
back to the warehouse, there never was a warehouse
supervisor at the Respondent 's plant , so the attempt now to
designate such a position requires more than routine
scrutiny . During the 7 days he was at work in his new
position , the most that Schwartz did in exercising authority
over others was to act as a team leader in the loading and
unloading of trucks and in the moving of skids of finished
product about the warehouse area. He did so in response to
shipping orders received from the office , which he
routinely transmitted to those who , from time to time, were
assigned by Smith to assist him . He exercised no independ-
ent judgment in the performance of these menial and
manual tasks , and did much of the work himself . In light of
these considerations , it is clear to me that , in the period
running from August 19 until the time of his termination,
Schwartz was an employee and not a supervisor within the
meaning of the Act , and thus enjoyed the coverage
provided by Section 8 thereof. Salinas Manufacturing
Corporation, 211 NLRB 573 ( 1974); Carter Lumber
Company, Inc., 209 NLRB 929 (1974); Frank Founderies
Corporation 213 NLRB No . 65 (1974); Massachusetts
Mohair Plush Company, 115 NLRB 1516, 1521-22 (1956)
(Fortin); Evans Orchard Supply Company, 166 NLRB 243
(1967).
2. The independent violations of Section 8(a)(1)
The General Counsel alleges that the Respondent is
guilty of three independent violations of Section 8(a)(1) of
the Act . First , he asserts that the Respondent , by coercively
interrogating Schwartz late in August or during the first
week in September, interfered with Schwartz ' rights under
Section 7 of the Act . This incident occurred at the plant a
few days after Green served on the Respondent the
Union 's August 28 demand for recognition . Respondent
Secretary-treasurer Kruger and Chairman of the Board
Whitmer approached Schwartz and began a conversation.
Kruger asked Schwartz why he thought he deserved a
vacation which he had asked for and voiced the opinion
that she did not think he would have any problem. This
latter remark relating to a vacation could well have been an
ambiguous and sarcastic meaning , in light of the perma-
nent "vacation" which Schwartz received a few days later.
In any event , Whitmer went on to ask Schwartz if he had
seen any union officials in the area , a question which
indicated on Whrtmer 's part an awareness of Green 's visit
and necessarily contained a suggestion that Schwartz
would know Green 's identity . By these remarks , Whitmer
exhibited company knowledge both of union activity
generally and of Schwartz' participation in it . The question
called for an admission on Schwartz ' part of his position as
well as information about matters which Whitmer, who
had just visited the office and who initiated the conversa-
tion on this topic, must have already been aware . Whitmer
went on to argue with Schwartz about the disadvantages of
unionization , while at the same time telling him that the
Company could not stop unionization if the employees
really wanted it. I conclude that the question propounded
by Whmtrner to Schwartz , in the circumstances of this case,
constitutes coercive interrogation of an employee, and is
therefore a violation of Section 8(a)(1) of the Act. G.RI.
Corporation, 216 NLRB No. 14 (1974).
Schwartz also testified that the new plant manager,
Danny Smith , spoke with him on the back dock relating to
the Union . Schwartz' testimony, which I credit, indicates
that Smith brought up the subject and told him that he
knew of an instance where a union local had hurt the
people that had contacted them. He further stated that the
Union , if nit came in , would ask for $3 an hour or more and
that the Company would close its doors before it would
pay it . Smith admits that a conversation took place at this
time with Schwartz relating to the Union in which he
expressed opposition to unionization of the plant, but he
denies the remarks relating to the closing of the plant. The
version recited above by Schwartz , which I credit, contains
a threat to close the plant in the event of unionization.
While , as the Respondent pointed out , it may be a
conditional threat , it is nonetheless a threat, and as such is
a violation of Section 8(a)(1) of the Act.
Lastly, the General Counsel alleges that the Respondent
promised employees benefits just before the election in
order to influence them to reject the Union . One of the
principal causes of employee dissatisfaction at the Respon-
dent's pliant was the short and often sporadic workweeks
which were available to production employees because of
recurring shortages of methanol , a necessary component of
its product . At a meeting of employees concerning the
forthconung representation election , Clark told them that
he had found a source of supply of methanol , the clear
implication of which was that the assembly line would not
be shut down for lack of supplies in the future as it had
been in the past . While Clark did not "guarantee" a full
workweek in the future by use of that specific word,
according to evidence which I credit he said that
employees would be working full weeks in the future
because the Respondent would have all the methanol that
it needed. This information was communicated to employ-
ees in the context of a talk aimed at convincing them to
vote against unionization . The following day, to make sure
that his message reached every prospective voter, Clark
spoke with employee Judy Davis, in the presence of two
other employees . Mrs. Davis had been absent the preced-
ing day. He told Mrs. Davis that he would guarantee
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees a 40-hour week and all the methanol that was
needed to sustain that much production. These promises,
made by Clark to employees just before the election,
constitute a promise of a substantial benefit. As such, they
violate Section 8(a)(1) of the Act.
3. The discharge of Oscar Schwartz
Schwartz was one of the oldest, if not the oldest,
employees in point of service at the Respondent's plant. He
had gained the praise of his supervisors for the perfor-
mance of his regular employee duties, despite his short-
comings as a production supervisor. He was also the
instigator and leader of the effort to organize the plant, the
only individual who actually solicited union designation
cards, and an employee whose union sympathies were
directly acknowledged by him to at least two management
representatives and were obviously known to a third.
Within 3 weeks after Schwartz began the union campaign,
and on the first day on which Clark, the company
president, was present at the plant in Indianapolis after the
Union had served its demand letter, Schwartz was
discharged. Respondent would have us believe that none of
these events played any part in its decision to terminate
him, but that he was discharged instead for an accumula-
tion of work deficiencies, the "crowning blow" being the
inability of the Respondent to fill a shipping order because
of inventory errors which it ascribes to Schwartz. I do not
accept this explanation.
In mid-August, when Smith was first hired, the Respon-
dent, at the suggestion of its newly retained accountant,
inaugurated a system of inventory control. No formal
orientation or training was given to those responsible for
this undertaking. Clark simply called Smith, Schwartz, and
his secretary, Pat Parson, into his office and told them to
prepare and to keep daily accounts of what was being
produced and shipped out. Contrary to the suggestion in
Respondent's brief, I do not believe that Schwartz was
assigned to be principally responsible for this task.
Respondent's witness Parson testified that it was to be a
shared responsibility. Indeed, as plant manager in a very
small plant, it is inescapable that Smith, who was to
participate daily in the reporting of inventory figures, was
principally responsible. On this daily production report, a
form which contained notations of various matters relating
to the day's work, Smith was to turn into Mrs. Parson the
figure which represented the number of cases of windshield
washer solvent which came off the assembly line during the
day shift.8 Smith did not personally count these cartons but
relied on a figure supplied to him by Delores Yattaw, an
employee who worked at the terminal point of the
assembly line.
8 Witnesses differ as to whether Schwartz was instructed to turn in his
daily figure orally or in writing No form or papers were provided to him for
this purpose . Sometimes Schwartz reported the figure to Mrs Parson orally
and sometimes he put it on a scrap of paper There is no indication that
Mrs. Parson , who was assigned to take the information and transcribe it on
the inventory card, ever complained about the method by which Schwartz
transmitted the information to her
9 No account was taken , or even contemplated , in the Respondent's
continuing difficulty over taking of inventory of the possibility of pilferage,
an occurrence which could explain discrepancies between production and
As a double check on production figures, Schwartz was
also to report daily to Mrs. Parson the number of cases
which, when piled on skids, had been removed from the
production area to the warehouse area. Theoretically, these
two figures should have coincided. In fact they did not. On
the night shift, the production report was the responsibility
of the night supervisor. In turn, Mrs. Parson was supposed
to write the daily production figures on an inventory card,
enter on the same card the number of cases shipped out
which appeared on shipping orders which were prepared in
the office, and then compute a balance which should
indicate goods actually on hand.9 The newly installed
system never got off the ground. In fact, it still is not
working, months after Schwartz left the Company.
When Mrs. Parson was confronted by conflicting reports
regarding a given day's production, she testified that she
"would dust ... work at it to see what we would come out
with, like I would go back to recheck the records. I would
confront them again and we tried to work it out from
there." The original inventory card which she began to
keep had so many errors on it that she tore it up and
started a new card. Ultimately, when faced with differences
between Smith's reported figure and Schwartz' figure, she
took to relying on Smith's figures. On the new card which
she began to use early in September, she reconstructed
daily production figures from the daily reports from the
previous month turned in by Smith, rather than from the
figures which she had currently entered from day to day on
the discarded record. The new card contains an entry of
1,925 cases of Evrclear on hand as of August 30. This
figure was not arrived at by reference to daily reports in
August either by Smith or Schwartz. Had Mrs. Parson used
Smith's daily figure in computing goods on hand as of that
date, the figure would have worked out to 1,842. In fact,
about September 3 an actual count of the Evrclear boxes
on hand was made. The result, which did not jibe with
what should have been obtained from either Smith's
reports or from Schwartz' reports, was the above-noted
figure of 1,925, which was placed on the card with a
backdated entry as having been made on August 30.
When this physical count was made early in September,
Mrs. Parson originally asked Schwartz to make it in terms
of gallons of product on hand. After he reported the
gallonage, she realized the error so she and Smith made a
second actual count which was conducted on the basis of
cases on hand, there being six 1-gallon containers in each
case.i° An inventory by physical count was also taken of
cases of Traveller on hand in the warehouse. This count
also resulted in a figure which differed from what should
have appeared from computations based upon daily
production and shipping reports for August, but the
disparity was not so pronounced as in the case of Evrclear.
In any event, by early in the week on September 2, the
shipping figures and goods actually on hand
is Contrary to the Respondent 's contention, Schwartz did not report an
erroneous figure upon completing his physical inventory count on or about
September 3 The disparity which existed was a disparity between the actual
physical count, made by Smith , and what should have existed from making
the talkies on the discarded inventory card based upon both Schwartz' daily
figures and Smith 's daily figures. Mrs. Parson threw away the figures
reported to her by Schwartz when he made his physical count of the
warehouse on September 3
ADAM & EVE COSMETICS 1325
Respondent had an actual count of goods on hand in its
warehouse, a figure which did not vary during that week
because of any continuing disparities between Smith's
production reports and Schwartz' warehouse transfer
reports, because, during that week, there was no pro-
duction at all at the Respondent's plant.
Clark testified that the "crowning blow" came toward
the end of the week when a truck arrived to pick up a
shipment and no goods were on hand to be shipped. In
fact, the inventory records show that, throughout the week
in question, some 2,009 cases of Traveller were on hand,
based upon a physical count. They also show that, at the
beginning of the week, some 1,925 cases of Evrclear were
on hand, that 100 cases were shipped on Thursday,
September 5, that 1,350 cases were shipped on Friday,
September 6, and that at the end of the week the
Respondent had on hand, by a count based not on daily
reports but on Smith's September 3 first-hand inventory
and shipments taking place thereafter, some 495 cases of
Evrclear. Smith was vague as to the facts and circum-
stances surrounding the arrival of the truck which went
away empty. He does not recall the date of the event or the
identity of the customer, facts which would normally stand
out in the mind of a supervisor who regarded them as being
of sufficient gravity to warrant the discharge of a
delinquent employee. Clark, whose information of the
event was strictly hearsay, had fewer details. Schwartz said
it never occurred.
In light of the Respondent's records and the vagueness of
its evidence relative to the "crowning blow" which
assertedly prompted Schwartz' removal, I also conclude
that the event relied on-namely sending away empty a
truck because of lack of product on hand during the week
of September 2-never occurred. Indeed, if it did occur,
there is no way that responsibility for the event could be
laid at Schwartz' doorstep. When, on September 9, he was
told by Clark that he was being discharged because of
difficulties noted relative to inventory control, Schwartz
replied that he was being made the "fall guy." He was only
one of three persons involved in the inventory control. The
evidence in the record indicates that the disparities
between actual warehouse counts of goods and what
should be present, as reflected in daily production and
shipping reports, were much worse after Schwartz left than
before his discharge. The computations found on the
inventory cards at the end of September and October,
respectively, missed the mark by larger amounts than they
did at the end of August, so it is obvious that the fault in
the operation of the newly instituted inventory control
system could not be attributed to Schwartz. However, since
there was no assembly line production between the time of
the physical count by Smith, resulting in the entries on the
control cards dated August 30, and the time the alleged
truck came and went away without its required load, there
is no way that any fault could be attributed to Schwartz
based upon errors or discrepancies in daily production
reports, since there was no daily production between the
time of the warehouse count and the time the Respondent
assertedly found itself in a position of being unable to meet
a shipping requirement.
The "crowning blow" with regard to Schwartz had
nothing to do with inventory control, which was and
remains in a state of disarray at the Respondent's plant.
What emerges from this record here is the story of a
respondent, who gives independent evidence of union
animus, moving swiftly to remove from its payroll the
leading organizer of a union movement among its
employees. Accordingly, I find and conclude that, by
discharging Oscar Schwartz, the Respondent herein violat-
ed Section 8(a)(1) and (3) of the National Labor Relations
Act.
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following:
CONCLUSIONS OF LAW
1. Respondent Adam & Eve Cosmetics, Inc., is an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Teamsters Local Union No. 193, affiliated with the
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. By discharging Oscar Schwartz for engaging in union
activities, as found above, the Respondent violated Section
8(a)(3) of the Act.
4. By the acts and conduct set forth in Conclusion of
Law 3; by coercively interrogating employees concerning
their union sympathies and activities; by promising
benefits to employees to influence their vote in a
representation election; and by threatening to close the
plant in the event the employees became unionized, the
Respondent herein violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices have a close,
intimate , and substantial effect of interstate commerce
within the meaning of Section 2(6) of the Act.
THE REMEDY
Having found that the Respondent herein has engaged in
certain unfair labor practices, I will recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative actions designed to effectuate the purposes and
the policies of the Act. The recommended order shall
provide that the Respondent be required to offer to Oscar
Schwartz reinstatement to his former or substantially
equivalent position and to make him whole for loss of
earnings in accordance with the Woolworth formula ii, with
interest thereon computed at 6 percent per annum. I will
also recommend that the Respondent be ordered to cease
and desist from engaging in a repetition of the conduct
found herein to be illegal and to post a notice advising its
employees to this effect.
Upon the foregoing findings of fact, conclusions of law,
the entire record herein considered as a whole, and
pursuant to Section 10(c) of the Act, I make the following
recommended:
11 F W Woolworth Company, 90 NLRB 289 (1950).
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER12
The Respondent, Adam & Eve Cosmetics, Inc., Indian-
apolis, Indiana, and its officers, agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union
sympathies, affiliations, and activities.
(b) Threatening to close the plant or to engage in any
other reprisals against employees because they have
participated in union activities.
(c) Promising benefits to employees to induce them to
refrain from engaging in umon activities or from support-
ing a labor organization.
(d) Discouraging membership in Teamsters Local Union
No. 193, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Helpers of
America, or any other labor organization, by discharging
employees or otherwise discriminating against them in
regard to their hire or tenure of employment or any term or
condition of employment.
2. Take the following affirmative action designed to
effectuate the purposes and policies of the Act:
(a) Offer Oscar Schwartz immediate and full reinstate-
ment to his former position or, in the event his former
12 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herem shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes
position no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other rights
he previously enjoyed, and make him whole for any loss of
pay suffered by reason of the discrimination found in the
manner described above in the section entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board, or its agents , for examination and copying, all
payroll and other records necessary to analyze the amount
of backpay due under the terms of this Order.
(c) Post at the Respondent's place of business in
Indianapolis, Indiana, copies of the attached notice
marked "Appendix." 13 Copies of said notice, on forms
provided by the Regional Director for Region 25, after
being duly signed by a representative of the Respondent,
shall be posted immediately upon receipt thereof, and shall
be maintained by the Respondent for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices
are not altered , defaced, or covered by any other material.
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
13 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "