Autoprod, Inc.

National Labor Relations Board - Board Decisions

Feb 2, 1973

201 N.L.R.B. 597 (N.L.R.B. 1973)

AU,TOPROD, INC. 597
Autoprod, Inc. and Shopmens Local Union No. 455,
International Association of Bridge , Structural and
Ornamental Iron Workers AFL-CIO. Cases
29-CA-2778 and 29-CA-2806
February 2, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On November 21, 1972, Administrative Law Judge
Milton Janus issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief. The General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
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 conclusions2 of the Administrative
Law Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Autoprod, Inc., New
Hyde Park, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
said recommended Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd 188 F 2d 362 (C A 3). We have carefully
examined the record and find no basis for reversing his findings.
Y While Chairman Miller agrees that a bargaining order is appropriate
herein , he would, for reasons stated in his separate concurrence in United
Packing Company of Iowa, Inc, (87 NLRB No. 132, predicate this remedy
solely on the extensive 8(a)(1) and (3) violations found herein.
DECISION
STATEMENT OF THE CASE
MILTON JANUS, Administrative Law Judge: This case
was tried July 31 through August 2 , 1972, in Brooklyn,
New York. Charges were filed by the Union on March 2,
1972, in Case 29-CA-2778, and on March 20, in Case
29-CA-2806 . A consolidated complaint based thereon was
issued on April 28 , 1972. Unless specifically stated
otherwise , all dates and events set out here occurred in
1972.
The complaint alleges that agents of Respondent
interrogated and threatened employees concerning their
membership in, and activities on behalf of, the Union; that
it discharged two employees , Walter Audersch and Jose
Ares, for joining the Union ; and that it thereafter refused
to recognize the Union as the collective-bargaining
representative of its employees , despite the designation of
the Union by a majority of its employees as their
representative.
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs received from the General Counsel and the
Respondent , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent maintains its principal office and place of
business in New Hyde Park , Long Island , New York,
where it is engaged in the manufacture and distribution of
machinery for the food processing industry. In 1971, in the
operation of its business , Respondent purchased and
caused to be delivered metal and other goods and materials
valued in excess of $50,000 from States other than New
York . I find that Respondent is an employer engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that the Charging Union is a labor organization
within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Issues
The operative events in this case occurred during a short
period spanning late February and early March. At the
beginning of the period , there were 14 production workers
in the plant. Two of them, Audersch and Ares, were
discharged on March 1, and a third , Hoffman , resigned on
March 7 . None of these had been replaced by the time of
the hearing.
After some preliminary discussion among themselves as
to the need and desirability of unionization , generated
principally by the fact that Respondent had no pension
plan, four employees, Audersch, Ares, Hoffmann, and
Meller, went to talk to the president of Local 455, William
Colavito, on Friday afternoon, February 25. Colavito gave
them union literature and authorization cards to distribute
to the employees. After the normal quitting time on
Monday, February 28, 11 employees met at a bar and grill
near the plant and signed authorization cards for the
Union . The other three employees were required to work
overtime that afternoon and did not attend the meeting.
On Wednesday morning, March 1 , before work was
scheduled to begin , Audersch and Ares were discharged.
The same morning , Plant Manager Nardozza spoke to the
remaining employees individually in his office , explaining
why he had discharged Audersch and Ares, and making
201 NLRB No. 97
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain inquiries and statements, which will be gone into
later. The same day. after receiving the II signed cards
from Ares, the Union sent the Company a telegram which AUTHORIZATION FOR REPRESENTATION
was delivered the next day, in which it claimed to represent
a majority of the plant employees, demanded recognition,
and offered to demonstrate its majority to an impartial
third party.' Wednesday afternoon, after work, Colavito
met with some of the employees at the bar and grill where
the cards had been signed 2 days before. They discussed
the discharges, and the conversations Nardozza had had
with them earlier that day.
The issues are whether some of the 11 employees who
had signed cards had been induced to do so by false
Shopmen's Local Union No. 455 of the
International Ass'n of Bridge, Struc-
tural and Ornamental Iron Workers
I, the undersigned, employee of the
(Name of Company)
(City)
(State)
representations as to their purpose; whether Audersch and employed as
Ares had been discharged because of their participation in (Job Title)
the Union's organizing campaign; whether Nardozza's Shift No.
inquiries and statements made to the employees were Badge or Clock No.
coercive; and finally, if violations of Section 8(a)(1) and (3) Telephone No.
l
occurred, whether a bargaining order should be issued. residing at
(Street Address)
B. The Authorization Cards
The General Counsel introduced II authorization cards
to establish the Union's majority as of March 1. The
following nine employees each identified his signature on a
card: DaSilva, Zehetner, Simone, Meller, Parducci, Vier-
heller, Maurer, Audersch, and Ares. I received two
additional cards over Respondent's objections that they
had not been personally identified. One of these, Yameji's
card, was identified by Audersch, while the other,
Hoffmann's card, was identified by Ares.
Yameji is a deaf-mute who communicates with other
employees in the plant by rudimentary sign language and
gestures. He can read English. According to Audersch, he
gave Yameji an authorization card to read at the meeting
on February 28. Yameji read it, made a gesture of
approval, and then signed and returned the card to
Audersch, who witnessed it on its back. Yameji was still
employed at the plant at the time of this hearing, and could
have been called by the General Counsel to identify his
signature , or by Respondent, if it doubted its authenticity,
but in view of the difficulties in communicating with him, I
draw no inferences from the reluctance of either party to
call him.
Hoffmann was no longer employed by Respondent at
the time of this hearing. Ares testified that Hoffmann
signed a card in his presence, and then gave it to Ares, who
witnessed it on the back.
The Board has uniformly held that an authorization card
may be 'authenticated by the person who solicited its
signer, and who saw him sign it in his presence.2 Moreover,
there can be no doubt in this case that the card solicitors
knew the signers personally. I therefore confirm my ruling
receiving in evidence the cards of Yameji and Hoffmann.
The cards read as follows:
i The Union filed a petition for a Board election on March 12, and an
agreement for a consent election was approved by the Regional Director on
March 14 . After the issuance of the complaint in the instant case, the
Regional Director canceled the scheduled election, pending disposition of
the charges in this case.
2 Ship Shape Maintenance Co, Inc 189 NLRB No 58 , and cases cited in
its in 6
(City) (State) (Zip)
hereby authorize and designate Shop-
men's Local Union No. 455 of the
International Association of Bridge,
Structural and Ornamental Iron
Workers (affiliated with the A. F.
of L.) to act as may sole and exclu-
sive agent and representative for
all purposes of collective bargain-
ing, whether under the operation of
the National Labor Relations Act or
otherwise.
Date
Signature
(Employee)
(This card is not an application for
Union membership)
It is evident that these are single-purpose cards-de-
signed to authorize the Union to act as the collective-
bargaining representative of the signer. Respondent con-
tends, however , that what the card says it means was
effectively negated by representations as to other purposes,
made by Audersch, Ares, and Meller.
I shall first consider what Colavito told the four
employees who came to see him at the union office on
February 25, since it is reasonable to assume that they
would pass on to the other employees what Colavito had
told them. Colavito testified that he told them, when they
came to inquire about the Union , that if they wanted it to
represent them they should get the cards filled out, signed,
and witnessed . He denied that he told the four that if the
employees signed cards it would not mean that they were
signing for the Union, or that it was only preliminary to
other action which might be taken later . On rebuttal, after
Respondent 's witnesses testified as to what Audersch,
Ares, or Meller had told them at the meeting on February
28, Colavito specifically denied that he had told the four
that he wanted the cards signed just for information, that
the cards did not mean anything, or that he only wanted to
AUTOPROD, INC. 599
learn if there was any interest shown by the men so that he
might talk to them later.
Colavito was corroborated by Ares, who testified that
Colavito had explained the Union's pension plan, had
given them some union literature to distribute , and had
told them that if the people in the shop wanted to be
represented by the Union, the only thing necessary was to
get a majority to sign the cards.
Meller, the only one of the four still employed by
Respondent by the time of the hearing, said that Colavito
had told them he needed to have signed cards to know how
many employees were interested in the Union, so he could
meet with them to tell them about the Union's program,
but that signing a card did not mean that the employee was
in the Union.
The critical question concerning possible misrepresenta-
tion of what the cards meant does not, of course, depend
on what Colavito told Ares and the others on February 25,
but on what they told the other employees on February 28.
According to Audersch, most of the explaining was done
by Meller and Ares. The employees in attendance already
knew that they were there to learn more about the Union
and to decide what they wanted to do about it. No one
made a formal report on the meeting with Colavito;
employees asked questions and were answered by whomev-
er the question had been directed to. Meller says he told
the employees who asked him about signing a card that it
didn't mean they would be in the Union, but only to show
that they were willing to listen to what the Union had to
offer them. He also testified that he had tried earlier that
day to get some of the employees to sign cards, and had
given some of them union literature , but that no one would
sign a card then.
Ares testified that he had told the employees to whom he
spoke on February 28 that if they wanted the Union to
represent them they should sign a card. He denied that he
had told anyone that he would not be under any obligation
by signing, or that the purpose in signing was to show the
Union that there was sufficient interest among the
employees to make it worthwhile for a union representative
to meet with them later to explain its program. Audersch
said he had told employees to sign a card if they wanted to
join the Union or to have it represent them, that no one
would be forced to do so, and that the government would
protect them against discrimination if they did sign.
Two of the card signers, Yameji and Hoffmann, did not
testify, while Maurer, who did, said nothing about any
representations made to him to induce him to sign. The
remaining signers, Meller, Vierheller, Simone, DaSilva,
Zehetner, and Parducci, testified in varying terms but with
essentially similar meaning that they had been told by
Ares, Meller, or Audersch that their signing was merely to
show their interest in hearing more about the Union, but
that it did not mean that they were "in" the Union.
As the employees' meeting on February 28 had no
formal structure, there was no single spokesman for the
Union whose representations as to the purpose of the cards
would bind it. Meller, Ares, and Audersch answered
whatever they were asked, in the light of their understand-
ing of what Colavito had told them. Those who signed had
the opportunity to read the cards, which unequivocally
stated their only purpose as the designation of the Union
as their representative for collective bargaining. All the
employees could read and understand English, although it
is true that for most of them, it was their second language.
Their attendance at the meeting was voluntary, and they
understood that they had come to consider a matter of
importance to them. DaSilva, one of the signers, had been
the one to suggest Local 455 as a union possibly suited to
their needs, while Meller, on his own initiative, had been
one of those who had gone to meet with Colavito to learn
what the Union could do for them. Union literature had
been made available to them both before and at the
meeting, and there was no attempt to cut off discussion
about what they had to do to enlist the Union on their
behalf. If some of them did not read the cards, as they
testified they hadn't, it must have been because they were
otherwise satisfied as to their purpose.
Colavito was an experienced union official who had no
reason to mislead employees who had come to him on their
own initiative for advice on organizing the shop. I credit
his testimony that he told Meller, Ares, Audersch, and
Hoffmann that, if a majority of the employees signed the
cards, the Union would represent them, and that he did not
tell them that their signing was preliminary to further
discussions about the Union. Meller's recollection that
Colavito told them anything else is, I find, erroneous, being
colored by his natural inclination, as the only remaining
member of the organizing group still employed by the
Company, to disentangle himself from a campaign that
had turned sour. And for the same reason , I do not credit
his testimony that he told any of the employees that signing
the cards would have no binding effect on them. I do credit
Audersch and Ares that, in their answers to questions, they
did not tell anyone that the signing of a card had a purpose
other than what the card itself so plainly stated.
I therefore find that the cards were valid authorizations,
and that the Union represented a majority of the
employees as of the date of the Union's demand, whether
or not Audersch and Ares are to be included in the count.3
C. The Discharges
On Tuesday, February 29, the day after the card signing,
Ares was not at work, having previously been excused to
take his daughter to the hospital. Audersch testified that he
observed Nardozza, the plant manager, and one of the
other principals in the firm meeting in a private office that
morning, and that Nardozza then left the plant around 10
a.m. for the rest of the day. Both the meeting and
Nardozza's absence for most of the day were unusual
occurrences, according to Audersch.
On Wednesday, March 1, when Audersch and Ares
reported for work at 7:30 a.m., they found their timecards
missing from the rack. When they asked Nardozza about
it, he took them into his office and told them he was laying
3 N L R B v. Gissel Packing Co, Inc, 395 U S. 575; Levi Straws & Co,
172 NLRB 732
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them off for lack of work. They were both very upset and
asked him why he was laying them off so suddenly without
warning , and preferring less experienced employees.
Nardozza refused them any further explanation . Ares then
asked him about getting their unemployment compensa-
tion forms filled out, and Nardozza told them to come
back at 10 o'clock but to leave the plant immediately. As
they were leaving, Audersch again asked why they were
being laid off, since Nardozza could have no complaint
about his work. Nardozza then replied, according to
Audersch, that the layoff had nothing to do with his work,
but that his decision was final.
They returned to the plant about 10 a.m., and a
disturbance occurred then when Audersch asked the three
men who had not attended the meeting on February 28, if
they had signed the cards which Ares had previously given
them. Nardozza came out of his office, shouting at them to
get away from his men. Audersch and Ares then went into
an office with Nardozza, where a secretary completed the
unemployment compensation forms. They then left the
plant.
Later that morning , Nardozza called each of the
employees into his office to explain why he had laid
Audersch and Ares off. He also asked each employee if he
wanted a union , because as he said , he had heard one of
the employees tell Audersch and Ares, during the earlier
disturbance, to get out, they didn't want a Union in the
plant . According to Nardozza , this was his first indication
that there might have been union activity in the plant.
After work that day, Colavito met with 8 to 10
employees, including Audersch and Ares, at the bar and
grill where the cards had been signed on Monday. Some of
the men told of their conversations with Nardozza in his
office that morning, while Audersch and Ares described
the circumstances of their discharge. Colavito told them
that the Union would file charges against the Company,
and urged the men to stay with the Union and that it
would eventually win.
The reasons asserted by the Company at the hearing,
through the testimony of Nardozza and Tropp, its
president, for discharging Audersch and Ares at the
beginning of the work shift on March 1, are that its
business prospects necessitated a reduction in employment,
and that the two employees selected for layoff were the
least deserving of retention. It denies that it knew of any
activities on behalf of the Union on the part of any of its
employees until after it had discharged Audersch and Ares.
As for the Company's business prospects, Tropp testified
that before August 1971, the firm had a backlog of orders
of between $300,000 to $500,000 in value, but that by the
end of 1971, it had fallen below $300,000. Between January
and March 1972, the backlog was again reduced to below
$200,000. Then, on February 15, the three principals in the
Company, including Tropp and Nardozza, met and
decided that they would have to let at least two employees
go if they did not receive any substantial orders by the end
of the month. No such orders came in, so they met again
I This is how the transcript of the hearing reads, but Tropp may have
actually testified that it was their decision to lay off Audersch and Ares on
the last day of the month The last Friday in February was the 25th, while
the last day was the 29th, a Tuesday
on February 25, and on Nardozza's recommendation,
decided to lay off Audersch and Ares as of the last Friday
of the month which, according to Tropp, coincided with
the end of the pay penod.4
Even if Tropp meant that they were to be laid off on the
29th, the fact is they were not informed in advance of that
decision, but were told of it only when they reported for
work on March 1. Although Ares was not at work on the
29th, Nardozza knew that he would be away on an excused
absence and could have informed him and Audersch on
Monday, the 28th, if in fact the decision to discharge them
had been made on the 25th. It is also worth noting, in
evaluating Tropp's testimony that the decision was to lay
them off on the 29th, because it also coincided with the end
of the pay period, that the Company's pay period began on
Thursday, and that in this week it began on March 2. Thus,
by discharging them before work began on March 1,
Audersch and Ares were laid off one day short of the close
of the pay period.
As to his reasons for selecting Audersch and Ares for
layoff, Nardozza testified that Audersch constantly made
mistakes in his work, had a poor tardiness record, and had
personal problems which affected his work; while Ares was
also tardy quite often, drank on the job, and had not
fulfilled the expectations he had when he appointed Ares
as one of his two assistants in July 1971. Nardozza said
that Ares was his first choice for a possible layoff, while
Audersch was his second.
Ares had been employed 7 years by the Company, and
had the second longest seniority in the plant. The previous
July, Nardozza had designated him and Zehetner as his
two nonsupervisory assistants , and had then given the two
of them substantial raises. At the end of 1971, Ares had
also been given a bonus of 2 weeks pay, and another wage
increase of 15 cents per hour. Ares could work as a
machinist, welder and assembler, and for the past few
months had worked mainly in assembling the Company's
vaned machinery products with the help of one or two
other employees.
As for the charge that Ares drank on thejob, the credible
testimony is that Ares had an occasional beer at lunchtime,
and might bring a bottle of wine with him when he worked
on Saturdays and Sundays on the so-called side jobs which
the Company gave employees to work on in their free time.
Nardozza knew of the practice, which other employees also
indulged in, and had never raised any objection to it
before. As for Ares' alleged excessive tardiness, that also
seems to have been accepted and condoned, as it was in the
case of other employees, including Zehetner, Meller and
DaSilva all of whom had worse tardiness records than
Ares in the 6 months preceding his discharge .5
Audersch had worked 3 years for the Company, and had
received Christmas bonuses and wage increases as had
other employees, although his increases were smaller than
those of some other employees. There is testimony by
Nardozza and by some of Audersch's fellow workers that
5 In any event, the Company produced no records as to Ares' tardiness
as it did for Audersch Even Audersch's record was not as poor as those of
the three employees named above
AUTOPROD , INC. 601
he was less proficient in his work than some others, but my
impression from all the testimony on the point is that
Audersch was neither the worst nor the best employee in
the plant. Nardozza did not refer to anything occurring in
the past few months to convince me that there was any
deterioration in Audersch 's work in that period. He was
tardy occasionally, but so were many others, while his
personal problems , cited by Nardozza as a reason for
discharging him, had been of long duration.
On the whole, the reasons given by Nardozza for
selecting Ares and Audersch as the two employees to be
laid off strike me as contrived. By every objective standard,
Ares stands out as one of the most valuable employees in
the plant . He had received two substantial raises in less
than a year, was a versatile employee with extensive
experience in all the Company's production processes, and
had recently been selected by Nardozza as one of his two
assistants . Nor was Nardozza's testimony that Ares was
not fulfilling his expectations supported by any examples
of failure to perform to so vague a standard. Thus,
Nardozza 's failure to reconcile his statement that Ares was
the employee least worthy of retention with Ares ' previous
status as a highly valued employee, leads me to conclude
that Nardozza 's true reason for discharging him was
something other than what he testified to.
As for Audersch , although there is somewhat more
justification for selecting him for discharge , it is hardly
overwhelming. He had performed adequately for 3 years,
there was no sudden change in his work performance, and
his tardiness record was no worse than that of other
employees.
No substantiation through business records which could
be checked was offered for Tropp 's conclusion that the
Company was suffering a serious decline in its business
prospects . Even granting that its backlog of orders was
dropping, it is nevertheless true that current orders were
being processed , and that there were times when it was
necessary for employees to work overtime to complete such
orders on schedule. There are only the unsubstantiated
assertions of Tropp and Nardozza that they decided on
February 15 to lay off employees if new orders were not
received in the next 2 weeks. No estimate was given as to
the time lag between receipt of an order for machinery and
its shipment, and in the absence of such information, it is
difficult for me to understand why the Company thought it
necessary to lay anyone off while it still had a backlog of
orders amounting to at least $200,000. It is not my
intention to dispute .he Company's business judgment as
to when to reduc.; its working force, but I must still
determine whether the discharges were prompted entirely
by business considerations, as it claims they were, or
whether they were motivated in whole or in part by a desire
to rid itself of two Union adherents.
Proof of such illegal motivation must depend on
evidence that Nardozza knew as early as the beginning of
the work shift on March 1, that the Union was engaged in
organizing the employees. Nardozza denied that he learned
of such activities until the disturbance in the plant after he
had discharged Audersch and Ares, but the circumstances
surrounding the discharges lead me to infer otherwise.
Nardozza had the opportunity to learn of it, since some
union literature had been distributed to the employees at
the plant before the Union meeting on February 28. Also,
Ares testified credibly that he had given cards at the end of
the workday to the three employees who had to work
overtime on February 28, Montes, Sinagara and Bergami,
and that Nardozza saw him talking to them. Nardozza also
had other opportunities to observe since he spent much of
his time on the plant floor, in direct contact with the plant's
total complement of 14 production workers. Principally,
however, it is the precipitate discharge of two of the four
employees who had actively organized the employees on
behalf of the Union, in the middle of a pay period and at
the beginning of a shift, for reasons which I do not believe,
which lead me to conclude that Nardozza had learned no
later than the preceding day that most of his employees
had already taken steps which could lead to their
representation by the Union.6
I find, based on the foregoing, that Nardozza discharged
Audersch and Ares on March 1 because he knew or
suspected that they had been directly involved in the
Union's campaign to organize the employees. Discrimina-
tion in employment for union activities is, of course, a
violation of Section 8(a)(3) of the Act.
D. The 8(a)(1) Allegations
The discharges of Audersch and Ares caught the other
employees by surprise. As Sinagara put it, they were
stupefied by it because Audersch and Ares had been there
so many years. Nardozza immediately set about justifying
his action, calling each employee individually into his
office to tell them his version of why he had laid them off.
He also used the occasion to inquire into the reasons for
their disaffection and their interest in the Union.
Thus, DaSilva testified that Nardozza had told him that
morning that he had laid off Ares because he hadn't been
performing his duties well, and Audersch because of
absenteeism, tardiness, and inefficiency. He then asked
him if he wanted the Union, insisting at the same time that
it wasn't because of the Union that he had laid off Ares
and Audersch. DaSilva would not give him a direct answer.
Nardozza also told him that if the Union got in, the side
jobs would probably be cut because he did not think the
Union would allow the Company to continue with them.
Zehetner said that Nardozza asked him in their private
conversation that morning what he thought about the
Union, and that he had told Nardozza that he would like a
pension plan. He said that Nardozza had also told him that
the men could have a union if they wanted it, and that
6 Wiese Plow Welding Co., Inc., 123 NLRB 616, 618; N.L.R.B. v. Malone
Knitting Company (consolidated with N. L.RB. v. Joseph Antell, Inc.), 358
F.2d 880 (C.A. 1); and Long Island Airport Limousine Service Corp., 191
NLRB No. 16.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maybe he couldn't afford to give the men a bonus and
overtime. Zehetner's difficulty with English was com-
pounded by what appeared to be a general reluctance to
commit himself in any way, but at one point in his direct
examination by the General Counsel, after reading his
affidavit , Zehetner admitted that Nardozza had tied in his
inability to pay bonuses and overtime, with the Union
coming in . On examination by Respondent, Zehetner said
that Nardozza had not told him that he would take
anything away from him if he joined the Union.
Simone 's testimony is to the same effect , that Nardozza
had told him that if the men wanted to go into a union they
could , but they might lose their overtime , side jobs, and
Christmas bonus. Nardozza did not say, according to
Simone, that this might occur as a result of negotiations
with the Union.
Meller testified that Nardozza had asked him why he
wanted a union , that it was his privilege to join one, but
that if a Union came in, he did not have to give the
employees overtime work or bonuses. Nardozza did not
say flatly that he would withdraw overtime or bonuses, and
it was Meller's understanding that Nardozza meant they
would have to be negotiated with the Union.
Maurer's testimony as to his private conversation with
Nardozza is much to the same effect-an inquiry as to
whether he wanted a Union, and that if a Union got in, it
would start from scratch and everything would have to be
negotiated.
Montes' recollection was that after Nardozza 's usual
preliminary question as to whether he wanted a Union, and
his right to select one , Nardozza had said that if there was
a union in the plant and they could not agree on a contract,
the employees would have to go on strike.
Sinagara testified that Nardozza, after explaining why he
had discharged Audersch and Ares, told him that whoever
wanted a union could have it, but that one did not need to
join it in order to get ahead with the Company.
Nardozza admitted that in his individual conversations
with the employees on March 1, after explaining why he
had laid Audersch and Ares off, he told them that he had
heard something mentioned about a union , and that he
then asked each one specifically if he wanted a union, and
then told them he was within his rights if he did. He denied
telling anyone that he would withdraw any benefits on
account of the Union.
A few days later , the Company posted a notice listing the
fringe benefits it gave its employees . Nardozza first showed
it to the men , discussed it with them, and told them , if they
asked whether those benefits would stand up, that they
would have to come from negotiations with the Union if it
succeeded in getting into the plant. Nardozza said that he
did not recall telling any employees that they might not get
r Many, if not all the indicia of coercive interrogation set out in Bourne
v. N L R B, 332 F.2d 47, 48 (C A. 2), are present here - The discharge of
Audersch and Ares reveals the Employer 's hostility to the Union; the
question asked , whether he wanted a union , was information which could be
used as a basis for taking action against him, whether or not Nardozza had
that in mind at the time ; Nardozza was one of the Employer's three top
those benefits, side jobs, or the bonuses they had been
getting up to then.
Nardozza testified that he spoke to the shop employees
individually on March 1 to explain why he had discharged
Audersch and Ares, because it was his normal practice to
do so when important changes were to be made in the
shop.
I think Nardozza realized that the abrupt discharges of
Audersch and Ares would be understood by the employees
as an extraordinary event, particularly as it happened so
soon after their efforts on behalf of the Union. It was for
that reason that Nardozza found it necessary to try to
justify the discharges, and he did so by denying that it was
because of the Union. At the same time, however, his
inquiry of each employee whether he wanted a union
would serve to impress on them, with the firing of
Audersch and Ares fresh in their minds, that continued
adherence to the Union might have the same unpleasant
consequences for them too. I have already discredited
Nardozza's testimony that he did not learn of any union
activity until after Audersch and Ares had been dis-
charged, and I also do not believe his explanation that he
asked each man if he wanted a union because he had just
heard about it by chance during the disturbance in the
shop.
The true reasons for these inquiries were , I find, that
Nardozza wanted to learn what he could about the effect
of the Union's organizing campaign so far , and to impress
on the men , despite his verbal disclaimer, that there was a
connection between the discharges of Audersch and Ares
and their activities on behalf of the Union. He could then
leave it to them to interpret what he said about their right
to join a union, in the light of what had just happened to
two of the men who had already exercised that right. I
therefore find that Nardozza's inquiry of each man as to
whether he wanted a union to represent him, just after the
discharges of two men for union activities , was coercive
interrogation , in violation of Section 8(axl).7
Nardozza also told employees DaSilva, Zehetner, Si-
mone , and Meller, all of whom I credit , that if the Union
came in they would probably lose some of their existing
benefits and working conditions , such as side jobs,
overtime , and bonuses . Again , as was the situation above,
when Nardozza discharged two known union adherents
while telling other employees that they had a right to join a
union , he coupled his specific threats of loss of benefits
with generalities about the Company's inability to continue
to pay such benefits , and the assumed opposition of the
Union to some of the existing conditions of employment.
The reasonable tendency, I find, of what Nardozza was
both saying and doing , was to impress on the employees
the probability that side jobs , overtime, and bonuses would
be lost if the employees chose to be represented by the
Union.
officials and the man directly in charge of their work , each was called
individually into Nardozza 's office, a very uncommon event ; and at least
one of the employees , DaSilva , would not give him a direct answer, nor did
any of the other employees who had signed cards admit that he wanted the
Union to represent him.
AUTOPROD, INC.
E. The Refusal To Bargain
On March 1, in a telegram delivered to the Company the
next day, the Union requested recognition on the basis of
the I I signed cards in its possession. I have already found
that these cards were valid authorizations by the employees
to have the Union represent them in collective bargaining,
and that the Union was in fact their exclusive representa-
tive, since a majority of them, in an appropriate unit, had
designated the Union as such .8 As I have already noted, an
agreement for a consent election, based on the Union's
petition for an election, filed on March 12, was withdrawn
by the Regional Director after the issuance of the
complaint in this case.
Under the Supreme Court's opinion in the Gissel Packing
case, an employer's good or bad faith in refusing to
recognize a union on the basis of signed cards is no longer
determinative of whether there has been an illegal refusal
to recognize the majority representative. It is now incum-
bent on the Board to appraise the reliability of the cards,
on the one hand, and the election process, on the other, as
a gauge of employee sentiment. In making such an
appraisal, the Board is required to consider the impact on
the employees of employer unfair labor practices. In
setting forth the general principles applicable to the
issuance of bargaining orders, the Supreme Court held that
the Board has authority to issue such orders to remedy
unfair labor practices "so coercive that, even in the absence
of a Section 8(a)(5) violation, a bargaining order would
have been necessary to repair the unlawful effect of those
unfair labor practices." The Court also approved the
Board's authority to issue a bargaining order, "in less
extraordinary cases marked by less pervasive practices
which nevertheless still have the tendency to undermine
majority strength and impede the election processes." In
such a situation, the Board must examine the nature and
extent of the employer's unlawful conduct and ascertain
the likelihood that the use of traditional remedies would
ensure a fair election. The Court instructed the Board to
decide whether "even though traditional remedies might be
able to ensure a fair election there was insufficient
indication that an election . . . would definitely be a more
reliable test of the employees' desires than the card count
taken before the unfair labor practices occurred."9
Concluding Findings
As of March 2, the date on which the Union's demand
for recognition was received by the Company, the Union
represented 11 employees (including Audersch and Ares
who had been discriminatorily discharged the day before),
a majority of the 14 employees in the appropriate unit. In
rejecting this demand, after engaging in violations of
Section 8(a)(1) and (3), the Company unlawfully refused to
bargain with the Union in violation of Section 8(a)(5) of
the Act.
8 The parties agreed that a production and maintenance unit with the
customary exclusions is an appropriate unit.
9 N.L.R.B. v. Gissel Packing Company, 395 U.S. 575, 614-616.
10 Medley Distilling Company, Inc., 187 NLRB No. 12; Lexington
Convalescent & Nursing Home, Inc., 190 NLRB No. 30; Midwest Hanger Co.,
603
The sole remaining issue is whether an order to bargain
with the Union should be issued here. I am satisfied that it
should, under the applicable Gissel criteria. Immediately
on the advent of the Union, the Company discharged two
of the four employees who had solicited the signing of
authorization cards, under circumstances that clearly
indicated its opposition to the Union and its intention to
thwart the Union's efforts to represent them. The same
day, it coercively interrogated the employees, by asking
each of them whether he wanted a union, while at the same
time threatening them with the loss of substantial fringe
benefits.
The effect of such actions is not soon overcome. The
abrupt discharge of union adherents in a plant of this size
flagrantly coerces the other employees into abandoning or
concealing their former desire to have the Union represent
them. Any future campaign in the plant for an election
would be seriously hampered by the fear of the union
proponents that the same fate could await them. Thus, the
free exchange of arguments among employees for and
against the Union during an election campaign would be
restricted by the example already given them as to what the
Company might do to discourage all talk about the Union.
Nor is it likely that such a drying up of the Union's
possible support in the plant can be restored by a posted
notice that the Employer would not repeat his past
violations. "Once burned, twice shy," is an adage particu-
larly applicable to a campaign on behalf of a union in a
small plant where employees have been cut down as soon
as the Union showed its head.10
Further, the violations of Section 8(a)(1) committed here
by the Employer would also have a lingenng and pervasive
effect. To be asked by the plant's general manager, in a
private interview in his office, whether one wants a union
while also being told that substantial benefits may be lost is
hardly conducive to a future exercise of the privilege to
select a union through an election.1'
To summarize and conclude, I find that a bargaining
order should be entered here as the Company's unfair
labor practices so undermined the Union and impeded the
election process as to make a fair election impossible. In
the situation present here, employee sentiment once fairly
expressed through cards would be better protected by a
bargaining order than through an election.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
3. All production and maintenance employees at
Respondent's New Hyde Park plant , excluding office
clericals, professional employees , salesmen, guards and
193 NLRB No. 85; Short Stop, Inc., 193 NLRB No. 107; Cornelius
American, Inc., 194 NLRB No. 154.
11 In addition to the cases cited in In . 10, above, see also Scoler's
Incorporated 192 NLRB No. 49, enfd. 466 F.2d 1289 (C.A. 2); and General
Stencils, Inc., 195 NLRB No. 173, on remand 438 F.2d 894 (C.A. 2).
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Shopmens Local Union No. 455, International
Association of Bridge , Structural and Ornamental Iron
Workers , AFL-CIO, was on March 1, 1972, and has been
at all times thereafter, the exclusive collective-bargaining
representative of Respondent's employees in the appropri-
ate unit , within the meaning of Section 9(a) of the Act.
5. By discharging Jose Ares and Walter Audersch for
engaging in concerted protected activities , Respondent has
interfered with , restrained , and coerced its employees in
the exercise of rights guaranteed by Section 7 of the Act,
and has thereby engaged in unfair labor practices pro-
scribed by Section 8(a)(3).
6. By refusing to bargain with the above -named labor
organization in good faith , Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(5).
7. By the foregoing conduct , by interrogating its
employees in a coercive manner as to whether they wanted
the Union to represent them, and by threatening them with
the loss of side jobs, overtime , and bonuses if the Union
became their collective-bargaining representative , Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(axl).
8. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in an
unlawful refusal to bargain with the Union in good faith, I
shall recommend that it be ordered to do so upon request
and to cease and desist from other such unfair labor
practices . Respondent must also be ordered to offer full
reinstatement and backpay to Audersch and Ares, both of
whom were discharged because of their union activity, in
violation of the Act. Backpay is to be computed on a
quarterly basis from the date of their discharges to the date
on which the Company offers them reinstatement, as
prescribed in F. W. Woolworth Company, 90 NLRB 289,
plus interest at 6 percent per annum.
In view of the nature and extent of the unfair labor
practices found , I shall also order that Respondent cease
and desist from interfering in any other manner , with the
rights of its employees to enjoy the statutory guarantees of
self-organization.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 12
ORDER
Respondent , Autoprod, Inc., its officers , agents , succes-
sors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees in a coercive manner as to
whether they want the Union to represent them.
(b) Threatening employees with loss of benefits if they
choose to be represented by the Union.
(c) Discharging or otherwise discriminating against
employees because of their union activities.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization , to form, join , or assist any labor organiza-
tion , to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive bargaining representative of all employees in
the appropriate unit described above, with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment and, if an understanding is
reached , embody such understanding in a signed agree-
ment.
(b) Offer Walter Audersch and Jose Ares immediate and
full reinstatement to their former jobs at Respondent's
plant or, if those jobs no longer exist, to substantially
equivalent positions , without prejudice to their seniority or
other rights and privileges , and make each of them whole
for any loss of earnings suffered by reason of Respondent's
discrimination against him, in the manner set forth in "The
Remedy."
(c) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports , and all other reports
necessary to analyze the amount of backpay due, and the
right to reinstatement.
(d) Post at its plant at New Hyde Park, New York, copies
of the attached notice marked "Appendix." 13 Copies of the
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by an authorized
representative of the Respondent , shall be posted immedi-
ately upon receipt thereof , and be maintained for 60
consecutive days thereafter , in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
12 In the event no exceptions are filed as provided by Sec . 102.46 of the 73 In the event the Board 's Order is enforced by a Judgment of the
Rules and Regulations of the National Labor Relations Board , the findings , United States Court of Appeals, the words in the notice reading "Posted by
conclusions , and recommended Order herein shall, as provided in Sec . Order of the National Labor Relations Board " shall read "Posted Pursuant
102.48 of the Rules and Regulations . be adopted by the Board and become to a Judgment of the United States Court of Appeals Enforcing an Order of
its findings , conclusions , and Order , and all objections thereto shall be the National Labor Relations Board."
AUTOPROD, INC. 605
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL recognize and bargain collectively with
Shopmens Local Union No. 455 , International Associ-
ation of Bridge , Structural and Ornamental Iron
Workers , AFL-CIO, as the exclusive bargaining
representative of our production and maintenance
employees , excluding office clericals, professional
employees, salesmen , guards and supervisors.
WE WILL NOT question our employees in a coercive
manner as to whether they want a Union to represent
them.
WE WILL NOT threaten our employees with the loss
of benefits if they choose to be represented by a Union.
WE WILL NOT discharge or otherwise discriminate
against our employees because of their union activities.
WE WILL offer Walter Audersch and Jose Ares
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist , to substantially
equivalent jobs, without prejudice to their seniority, or
other rights and privileges, and we will also make them
whole for any loss of earnings they may have suffered
because of our discrimination against them.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to self-organization, to form, join, or assist any
labor organization , to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
and all such activities.
Dated By
AUTOPROD, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 16 Court Street, Fourth
Floor, Brooklyn, New York 11241, Telephone
212-596-3750.