Ben Venue Laboratories

National Labor Relations Board - Board Decisions

Jun 22, 1995

317 N.L.R.B. 900 (N.L.R.B. 1995)

900
317 NLRB No. 129
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On September 14, 1994, Administrative Law Judge David L.
Evans issued the attached decision. The Respondent and the Union
each filed exceptions and supporting briefs. The General Counsel
and the Union each filed briefs in opposition to the Respondent’s ex-
ceptions. The Respondent filed a brief in opposition to the Union’s
exceptions. The Union filed a reply brief and first and second no-
tices of additional authority.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 We deny the Respondent’s motion to introduce exhibits R–3 and
R–24 into the record.
3 The Respondent and the Union have excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us
that they are incorrect. Standard Dry Wall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully exam-
ined the record and find no basis for reversing the findings.
4 In accord with the Union’s exceptions, we shall modify the
judge’s recommended Order and notice language to include appro-
priate provisions relating to the Respondent’s unlawful grant of the
benefit of free prescription safety glasses.
5 Specifically, the judge found that Russillo stated at one employee
meeting that ‘‘if the Union did get in, that we would not have that
open-door policy that we have with the company now . . . we
would lose that because the Union would have to do the negotiation
for us.’’ Russillo also stated at a second meeting that if the Union
came in ‘‘there would no longer be an open-door policy.’’
6 Accordingly, our colleague would overrule that case.
7 See fn. 4 above.
Ben Venue Laboratories, Inc. and International
Chemical Workers Union. Cases 8–CA–25920
and 8–RC–14955
June 22, 1995
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The judge in this case1 has found that the Respond-
ent violated Section 8(a)(1) of the Act by interrogating
employees about union activities, by threatening to
withdraw an existing benefit, by promising benefits to
induce employee opposition to the Union, and by im-
posing discriminatory no-solicitation rules. He further
found those unfair labor practices that occurred during
the critical preelection period interfered with employee
free choice in the election. He therefore recommended
sustaining the Union’s objections to such conduct and
setting aside the results of the election held on October
29, 1994. The Board has considered the decision in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings,2 findings3 and conclusions,
except as discussed below, and to adopt the rec-
ommended Order, as modified.4
The judge found that the Respondent’s president and
chief operating officer, Thomas Russillo, violated Sec-
tion 8(a)(1) of the Act by telling employees that the
Respondent’s ‘‘open-door policy’’ would no longer
exist if the employees voted to unionize.5 ‘‘The Board
has held that an employer does not violate the Act by
informing employees that unionization will bring about
‘a change in the manner in which employer and em-
ployee deal with each other,’ Tri-Cast, Inc., 274
NLRB 377 (1985), or by statements informing employ-
ees of a ‘loss of access to management.’ Koons Ford
of Annapolis, 282 NLRB 506 (1986).’’ SMI Steel, Inc.,
286 NLRB 274 (1987). KGI Fibers, 280 NLRB 473
(1986) (No violation when the Employer told employ-
ees that ‘‘there would not be any more open door pol-
icy if the Union was voted in because they’d have to
go through union procedures, like grievances.’’) As-
sessing Russillo’s statement in light of these cases, we
conclude that it did not constitute an unlawful threat.
Accordingly, we dismiss the complaint allegation and
overrule the election objection relating to this conduct.
Our dissenting colleague seeks to draw a distinction
between statements concerning a change in Respond-
ent’s ‘‘open-door’’ policy, and statements concerning
the elimination of it. We disagree. The distinction is
not made in the cited cases. Indeed, in SMI Steel, the
facts would not even support such a distinction.6 In
any event, we do not agree that Respondent’s conduct
would establish a violation in this case. Respondent’s
extant policy permits an employee to discuss a griev-
ance with various representatives of the Respondent.
There is no requirement for third-party intrusion and
there is no need to conform a grievance adjustment to
a collective-bargaining agreement. The existence of a
Section 9 representative would impose those require-
ments and, to this extent, would alter the current sys-
tem. In our view it was not objectionable for Respond-
ent to point this out. In this regard, we note that Re-
spondent told employees that the extant policy could
not continue because it fails to give the Union its ap-
propriate role.7 On a second occasion, the Respondent
informed employees that if the Union came in, there
would no longer be an open-door policy. That state-
ment is to be understood in the context of the first one.
In any event, both statements were lawful and accu-
rately reflected the effect that 9(a) representation
would have on the Respondent’s policy. SMI Steel,
above; FGI Fibers, above. Our dissenting colleague
would require that Respondent say more. She would
apparently require that Respondent give employees a
detailed and precise explanation of the change wrought
by Section 9 representation. We believe that FGI Fi-
bers clearly rejects this argument.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Ben
Venue Laboratories, Inc., Bedford, Ohio, its officers,
901BEN VENUE LABORATORIES
1 Tri-Cast, Inc., 274 NLRB 377 (1985); Koons Ford of Annapolis,
282 NLRB 506 (1986), enfd. mem. 833 F.2d 310 (4th Cir. 1987).
2 The general manager stated that ‘‘[y]ou would not be permitted
to take advantage of an opportunity to come all the way to my front
office and sit down and talk to me, because you would be prevented
from doing that under the contract that you would be [sic] a partici-
pating member with the Union. You would be locked into the acts
and the decisions of an executive committee of a Union.’’ 286
NLRB 274 at fn. 3.
3 In Tri-Cast, the employer distributed a letter to employees stat-
ing, ‘‘We have been able to work on an informal and person-to-per-
son basis. If the union comes in this will change. We will have to
run things by the book, with a stranger, and will not be able to han-
dle personal requests as we have been doing.’’ 274 NLRB at 377.
4 Koons Ford applied Tri-Cast and found that a general manager’s
statement to employees that ‘‘if the Union got in he would not be
able to talk directly to the employees as he had been doing but
would have to go to the Union’’ did not constitute unlawful conduct.
5 My colleagues note that the existence of a Sec. 9 representative
would alter the Respondent’s current system. Had the Respondent’s
statement clearly set forth the modifications required by law I would
agree with my colleagues that under Tri-Cast the statements would
not be lawful or objectionable. The Respondent’s statement at issue,
however, was not so limited.
Although my colleagues contend that ‘‘the Respondent told em-
ployees that the extant policy could not continue because it fails to
give the Union its appropriate role,’’ I note that the employee testi-
mony credited by the judge and relied on by my colleagues indicates
Continued
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Delete paragraph 1(a) and reletter the following
paragraphs accordingly.
2. Insert the following as paragraphs 1(d) and (e).
‘‘(d) Granting employees prescription safety glasses
or any other benefits in order to dissuade employees
from becoming or remaining members of the Union or
from giving any assistance or support to it.
‘‘(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
[Direction of Second Election omitted from publica-
tion.]
MEMBER BROWNING, dissenting in part.
Contrary to my colleagues, I would find that the Re-
spondent violated Section 8(a)(1) of the Act and en-
gaged in objectionable conduct by telling employees
that the Respondent’s open-door policy would no
longer be available to them if they selected the Union
as their collective-bargaining representative. In all
other respects, I join my colleagues’ decision.
As found by the judge, the Respondent’s employee
handbook contained a grievance resolution procedure
whereby employees were told to address problems to
their immediate supervisor. If a satisfactory resolution
is not reached the employee may contact the next level
of supervision, then the personnel department, and then
the Respondent’s president. An employee may skip in-
termediate steps and contact any management member
in ‘‘unusual circumstances.’’ The judge credited em-
ployee testimony that the Respondent’s president told
employees that ‘‘if the Union would come in there
would no longer be an open door policy.’’
My colleagues rely on FGI Fibers, 280 NLRB 473
(1986), and SMI Steel, 286 NLRB 274 (1987), and
cases cited therein,1 in support of their conclusion that
this did not constitute an unlawful threat. I find these
cases distinguishable.
In SMI Steel, the Board found that the employer’s
general manager’s speech to employees2 did not vio-
late Section 8(a)(1) of the Act. In so finding, the Board
stated that it assessed the statement in light of Tri-
Cast3 and Koons Ford,4 but did not explain why its
holding followed from those cases.
In Tri-Cast, the Board found that it was lawful for
an employer to explain to employees that ‘‘when they
select a union to represent them, the relationship that
existed between the employees and the employer will
not be as before’’ because Section 9(a) ‘‘contemplates
a change in the manner in which employer and em-
ployee deal with each other.’’ The Board found that
the employer’s statement ‘‘simply explicates one of the
changes which occur between employers and employ-
ees when a statutory representative is selected.’’ 274
NLRB at 377.
Although I agree with the rationale underlying Tri-
Cast, I construe that case narrowly. I do not agree that
Tri-Cast compels us to sanction statements such as the
one at issue in the instant case that go beyond merely
explicating a change in the relationship between em-
ployer and employee, and threaten a total elimination
of an employer’s established open-door policy. Al-
though Section 9(a) would require a change in an em-
ployer’s open-door policy, it would not require a ter-
mination or suspension of the entire policy. The provi-
sos to Section 9(a) explicitly provide that individual
employees or groups of employees would continue to
have the right to present grievances to their employer
and to have their grievances adjusted. Those provisos
require only that any grievance adjustment not be in-
consistent with the terms of a collective-bargaining
agreement in effect and that the bargaining representa-
tive be given the opportunity to be present at the griev-
ance adjustment.
In my view, the Respondent’s statement that the
open-door policy would be eliminated was not merely
a statement explicating the change in the relationship
between employee and employer required by Section
9(a), but instead constituted a threat to discontinue a
benefit that Section 9(a) would not require the em-
ployer to discontinue in its entirety.5 Accordingly, I
902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that at one of the meetings the Respondent’s president stated only
that if the Union came in ‘‘there would be no longer an open door
policy.’’ Thus, at least at one employee meeting there was no further
explanation given concerning the Union’s appropriate role. My col-
leagues suggest that I would require that Respondent give a ‘‘de-
tailed and precise explanation of the change wrought by Section 9
representation.’’ I need not attempt at this point to characterize the
type of explanation I would find sufficient, because I have no dif-
ficulty finding that here, when no explanation whatsoever was given
in at least one employee meeting, the Respondent went beyond the
lawful description of a change and suggested total elimination of the
policy.
6 I find FGI Fibers, relied on by the majority, to be distinguish-
able. In my view, the statement at issue in that case contemplated
a change, rather than a total elimination, of the open-door policy.
To the extent that SMI Steel can be read as sanctioning an em-
ployer threat to completely eliminate an open-door policy rather than
merely change it, I would overrule that case as an unwarranted ex-
tension of Tri-Cast.
1 All dates mentioned are in 1993 unless otherwise indicated.
2 Passages of the transcript have been electronically reproduced.
Proper punctuation of transcript quotations is supplied only where
necessary to avoid confusion.
find that by making this threat the Respondent has vio-
lated Section 8(a)(1) and has engaged in objectionable
conduct.6
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate you about your union
membership, activities, or desires.
WE WILL NOT promise you prescription safety glass-
es, or institution of a second work shift, or any other
benefits, in order to dissuade you from becoming or
remaining members of a union or from giving any as-
sistance or support to it.
WE WILL NOT grant you prescription safety glasses
or any other benefits in order to dissuade you from be-
coming or remaining members of a union or giving
any assistance or support to it.
WE WILL NOT impose discriminatory rules against
soliciting for a union on working time.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
BEN VENUE LABORATORIES, INC.
Nancy Butler, Esq., for the General Counsel.
Martin S. List, Esq., of Cleveland, Ohio, for the Respondent.
Randall Vehar, Esq., of Akron, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This case
under the National Labor Relations Act (the Act) was tried
before me in Cleveland, Ohio, on May 16–18, 1994. On Au-
gust 19, 1993,1 International Chemical Workers Union (the
Union, the Petitioner, or the Charging Party) filed a petition
in Case 8–RC–14955 seeking a Board election and certifi-
cation as the collective-bargaining representative of certain
employees of Ben Venue Laboratories, Inc. (the Employer or
the Respondent). An election was held on October 29; the
tally of ballots reflects:
Approx. No. of eligible voters 206
No. of void ballots 0
No. of votes cast for Petitioner 61
No. of votes cast against union 134
No. of valid votes counted 195
No. of challenged ballots 2
Votes counted plus challenged ballots 197
Challenges are not sufficient in number to affect the
results of the election. A majority of the valid votes
counted plus challenged ballots has not been cast for
Petitioner.
On November 4, the Union filed objections to conduct of the
employer affecting results of the election (the objections).
On November 5, the Union filed the charges in Case 8–
CA–25920 alleging that Respondent had violated Section
8(a)(1) of the Act by various acts and conduct. On December
30, the General Counsel issued a complaint based on those
charges. On January 26, 1994, the Regional Director issued
an order consolidating the representation and complaint cases
and directing a hearing on both. The objections are factually
coextensive with the 8(a)(1) allegations of the complaint.
On the entire record and my observation of the demeanor
of the witnesses, and after considering the briefs that have
been filed, I make the following findings of fact2 and conclu-
sions of law.
I. JURISDICTION
Respondent, a corporation, is engaged at Bedford, Ohio, in
the business of manufacturing pharmaceuticals. Annually,
Respondent ships goods valued in excess of $50,000 directly
to customers located at points outside the State of Ohio.
Therefore, Respondent is an employer engaged in commerce
903BEN VENUE LABORATORIES
3 Actually, the complaint uses the phrase ‘‘on company time’’
(without the quotation marks) which is vague. Limestone Apparel
Corp., 255 NLRB 722 (1981). Respondent did not object, however,
or move to strike.
within the meaning of Section 2(2), (6), and (7) of the Act.
As the Respondent further admits, the Union is a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The following individuals are admitted by Respondent to
be supervisors within the meaning of Section 2(11) of the
Act: Thomas Russillo is Respondent’s president; David Hen-
derson is the production manager; and Rick Lascala and
Frank Polisena are production supervisors.
1. Alleged interrogation by Lascala
The complaint, paragraph 6, alleges that Respondent, by
Lascala, interrogated an employee in violation of Section
8(a)(1). In support of this allegation, General Counsel called
Edward Rolko. Rolko is a sanitation department employee
who had been employed by Respondent for 7 years at time
of trial. Rolko testified that in August, a few days before the
petition in the representation case was filed, he was in
Lascala’s office when
[Lascala] asked me if I attended a meeting in the
park about a Union and if Kevin Hoisack was the one
who made the call. . . .
I told him I knew nothing. . . .
Well, he told me that, you know, since we were
friends, you know, I could—I could trust him, you
know, talk to him and tell him what I knew. . . .
I told him—I says, ‘‘I know nothing.’’
Lascala was not called by Respondent, so Rolko’s testimony
stands undenied, and I found Rolko credible as he gave the
testimony.
2. Alleged September discriminatory no-solicitation rule
It is undisputed that, until the events of this case, Re-
spondent’s employees were free to talk about anything dur-
ing working time. Moreover, it is undisputed that sales of
candy, Tupperware, and catalogue items are conducted on
working and nonworking time. As amended at trial, the com-
plaint, paragraph 8, alleges that in September Respondent by
Lascala imposed on employees a rule against talking about
the Union on working time3 while permitting discussions and
solicitations about other topics on working (and nonworking
time). The General Counsel called Rolko and Patricia Ste-
vens, who is also currently employed by Respondent, in sup-
port of this allegation.
Both Rolko and Stevens testified that in September, while
they were talking about how wet Rolko had gotten perform-
ing a task outdoors during a rainstorm, they were approached
by Lascala. As Rolko testified, ‘‘[Lascala] told me I was not
allowed to solicit people for the Union on Company time.’’
Rolko further testified that, after the confrontation with
Lascala, his immediate supervisor (who went unnamed) indi-
cated to him that she had heard about the incident and told
Rolko to ‘‘be careful.’’
Again, Lascala was not called to testify by Respondent. I
found the testimony of Rolko and Stevens to be credible.
3. Speeches by Russillo and grant of prescription
safety glasses
Beginning in late September and continuing until October
28, Thomas Russillo, Respondent’s president and chief oper-
ating officer, gave a series of speeches to the production and
maintenance employees. Russillo testified that he gave
speeches on four topics, which he described as: (1) ‘‘the cul-
ture of Ben Venue. And who we were, and why we were.
And what we were. And how Ben Venue felt about having
a Union’’; (2) the election processes and the ‘‘mechanics’’
of collective bargaining; (3) strikes and the impact of strikes
on companies; and (4) ‘‘we reviewed everything we had cov-
ered up until then.’’ The employees were divided into five
groups; therefore, 20 speeches were given. Russillo enter-
tained questions from employees during the speeches.
The complaint, paragraph 9, alleges that in Russillo’s
speeches Respondent: (1) promised employees that it would
institute a second shift (that would mitigate the burden of un-
wanted overtime on first-shift employees); (2) promised em-
ployees the benefit of free prescription safety glasses; (3)
threatened the employees with a loss of the right to confer
with Respondent about grievances; and (4) threatened the
employees with loss of wages and other benefits if they se-
lected the Union as their collective-bargaining representative.
The complaint further alleges that, in November, Respondent
granted to employees the benefit of prescription safety glass-
es. All of these things were done, the complaint and the ob-
jections allege, in order discourage employees from support-
ing the Union.
In support of these allegations, General Counsel called: (1)
Rolko, who is mentioned above, (2) David Roth, a technician
in the sterile room, (3) Velma Kara, an inspector and mate-
rial-handler in the packaging department, (4) Phyllis Vosar,
an inspector in packaging, (5) Laura Orosz, a line technician
in packaging, and (6) Dorothy Gatheright, a line technician
in packaging. (All of these witnesses are ‘‘current employ-
ees,’’ as I shall call them; they were employed by Respond-
ent at time of trial.) Respondent’s employees were usually
grouped by departments when scheduled to hear the Russillo
speeches, but there were exceptions, and, at certain points, it
cannot be told if any of the witnesses were testifying about
the same meetings when they testified that Russillo said one
thing or another on a given topic.
In defense of the 8(a)(1) allegations based on what
Russillo said in his speeches, Respondent called: (1) Gerald
Walker, a technician in the maintenance department; (2)
Mary Julien-Crew, a chemist; and (3) Russillo.
a. Promise of a second shift
Roth testified that before the Russillo speeches began, the
sterile room employees had been working a great deal of un-
wanted overtime and, several of them had asked members of
supervision that something be done to alleviate the situation.
Roth further testified that at the first campaign meeting con-
ducted by Russillo for the sterile room employees:
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Respondent did produce some testimony that unexpected orders
had been received during the summer, but this was at least a month
before the first series of Russillo meetings began.
[We] asked, as workers in my department, if there
would be any way that they could add a second shift
on to try to take some of the work load off of us. . . .
[Russillo] said at that time they couldn’t put on an-
other second shift in our department because it
wouldn’t be fair to hire people for later on [and] that
we would slow down again in work and they would
just have to lay those people off.
Roth further testified that at the second Russillo meeting that
he attended, Russillo told the employees:
That they would now be hiring a second shift. . . .
That he would take volunteers from anybody from first
shift who would be willing to go to second, because I
guess they wanted some experienced people to help
with the training a little bit, and there would be a fifty
cent an hour shift premium for those coming in now on
second shift.
Roth testified that, before this second meeting, no member
of management had indicated that a second shift might be in-
stituted to alleviate the overtime burden about which the ster-
ile room employees had complained.
Although Kara was a packaging department employee, the
first Russillo meeting that she attended was a meeting of the
sterile room employees. Kara testified that Russillo started
the meeting by asking the employees ‘‘why they were so un-
happy and why they wanted the Union.’’ The sterile room
employees, according to Kara, complained to Russillo that
they were working entirely too many hours. According to
Kara,
And he says we’ll solve that . . . because we will put
on a second shift with a fifty cent differential and we
will first ask for volunteers and if we can’t get any vol-
unteers we will hire people and train them.
Orosz testified that in the second meeting of the packaging
employees that Russillo conducted:
[Russillo] talked about putting on a second shift and
they were paid 50 cents more an hour. When the sec-
ond shift was put on, it would take away overtime
hours for those who wanted [sic] to work overtime
hours.
Russillo agreed with Roth that a possible second shift was
discussed at two meetings; however, his account of the first
meeting differs significantly; Russillo testified:
We, at that point in time [the first series of meet-
ings], were asked, were we going to hire more employ-
ees. And we said we were looking at it, as we always
did. And, when the workload, the volume of produc-
tion, justified it, we would go ahead and do that.
At the second (2nd) meeting, that same subject came
up again. We had just received some additional contract
work. And we advised the employees that, because of
the sustained volume we were seeing, we were antici-
pating hiring some more employees. To replace, basi-
cally, the temporary employees we were already hiring.
We had already hired.
Russillo did not deny that in his second series of meetings
he announced a 50-cent-per-hour premium for the new sec-
ond shift; nor did he deny announcing that current employees
would be given first opportunity to take benefit of that pre-
mium by volunteering before Respondent hired new employ-
ees.
Roth was credible in his testimony that when Russillo was
first asked if Respondent could add a second shift Russillo
replied that it could not (because it would be ‘‘unfair’’ to the
new hires who later would have to be laid off). Also, Re-
spondent produced no records to support Russillo’s state-
ments that after his first meeting with the employees, and be-
fore the second series of meetings, Respondent had ‘‘just re-
ceived’’ some new orders.4 I credit Roth, Kara, and Orosz.
b. Promise and grant of prescription safety glasses
Before the events of this case, Respondent provided pre-
scription safety glasses to some, but not all employees. It had
also provided goggles and nonprescription safety glasses for
all employees.
Roth testified that during the first Russillo speech that he
attended:
Topics was brought up about safety glasses, that we
were now going to receive. . . . That all employees
would be receiving free, no charge safety glasses. The
Company gave you four or five pairs to choose from
if you were not prescription glass wearer, which I am
not. So those are the ones I chose.
And if you did wear glasses that they would pay for
the prescription safety glasses but if wanted additional
frames, you know, that were more expensive then they
would be available at your cost.
Gatheright testified that ‘‘in the past we had been asking
for eye care.’’ Gatheright further testified that at the first
Russillo meeting that she attended, employee Linda Lenhart
spoke up and said that the employees needed prescription
safety glasses ‘‘because we use our eyes on our job.’’ Ac-
cording to Gatheright, ‘‘the president [Russillo] did say that
they had been talking about a new policy whereas we would
get prescription safety glasses . . . [H]e would look into it
because they were upgrading our health benefits.’’ Rolko,
Kara, and Orosz also testified that Russillo said at October
meetings that they attended that employees would be receiv-
ing free prescription safety glasses. Orosz further testified
that Russillo said that the prescription safety glasses would
be free if the employees provided their prescriptions. Each
of these employees testified that they did, in fact, receive
prescription safety glasses after the meetings (which ended
the day before the election).
On behalf of Respondent, maintenance employee Gerald
Walker testified that, before October 1993, employees in his
department had been provided prescription safety glasses.
Walker further denied that prescription safety glasses were
mentioned in the meetings that he attended. Chemist Julien-
Crew testified that she could not recall mention of prescrip-
tion safety glasses in the Russillo meetings that she attended.
905BEN VENUE LABORATORIES
5 Georgia Rug Mill, 131 NLRB 1304 (1961); Gold Standard En-
terprises, 234 NLRB 618 at 619 (1978). Unless otherwise indicated,
I afford this presumption to all witnesses who are current employees.
6 Kara credibly denied that Russillo told the employees at the
meeting that she attended that changes in the open-door policy
would have to be made because of the law.
Russillo flatly denied that prescription safety glasses were
discussed during the meetings. He further testified that some
employees had, before the organizational attempt by the
Union, received prescription safety glasses when they re-
quested them.
Julien-Crew’s lack of memory and Walker’s testimony that
prescription safety glasses were not mentioned in the meet-
ings that he attended are not probative denials of what Roth,
Rolko, Gatheright, Kara, and Orosz said that they did hear
in the meetings that they attended. Roth, Rolko, Gatheright,
Kara, and Orosz are current employees who are afforded a
presumption of credibility;5 also, and I do not believe the
testimony of Russillo that prescription safety glasses were
not mentioned at all in his meetings. I credit Roth, Rolko,
Gatheright, Kara, and Orosz on this issue.
c. Threatened loss of the right to confer about
grievances
Respondent’s employee handbook contains a grievance
resolution procedure. Employees are told that they should ad-
dress problems to their immediate supervisor; if a satisfac-
tory resolution is not reached, the employee can contact the
next level of supervision, then the personnel department, then
the company president (Russillo). The stated procedure con-
cludes that the employee may skip the intermediate steps and
contact any management member in ‘‘unusual cir-
cumstances.’’
Gatheright testified that at the first Russillo meeting that
she attended:
He also stressed throughout, if the Union did get in,
that we would not have that open door policy that we
have with the company now. . . . [H]e said that we
would lose that because the Union would have to do all
the negotiations for us.
Kara also testified that at the second Russillo meeting that
she attended, ‘‘Mr. Russillo stated that if the Union would
come in there would be no longer an open door policy.’’6
Russillo was asked on direct examination about his state-
ments about Respondent’s open-door policy, and he testified:
[M]y recollection is that, it came up as a result of a
question, rather than part of an organized speech.
But it, either way, I can tell you what we discussed.
We discussed the fact that it’s always been Ben
Venue’s culture. And that I had been hired by my pred-
ecessor, because we had an open door policy. And I
was sensitive to working with people directly.
And that, if a Union was in fact voted in, the Union
representative would be required at all meetings that
dealt with Company policy.
The testimony of Kara and Gatheright was simple enough;
they testified that Russillo told the packaging employees that
they would lose the benefit of the Respondent’s open-door
policy if the Union was selected as their collective-bargain-
ing representative. In reply to this simplistic testimony,
Russillo testified that he gave the vague answer quoted
above. To the extent that Russillo’s testimony was intended
to constitute a denial of the testimony by Kara and
Gatheright, I discredit it. I do credit the testimony of the em-
ployees on the topic.
d. Threatened loss of benefits
Roth testified on direct examination that during the first
Russillo speech that he attended: ‘‘Other topics were if a
Union did get elected our benefits, our hourly wage would
be up for grabs. That everything would have to start from
scratch.’’
On cross-examination, Roth was asked, and he testified:
Q. (Russillo) discussed that if the Union were voted
in, the Company and Union would have to negotiate,
try to negotiate a contract, correct?
A. He said something to that effect.
Q. Okay. And he also said that as a result of those
negotiations nobody can say, sitting there at the time he
was making the speech, whether the wages and benefits
would go up or down, correct?
A. Yeah, he quoted a lot, saying that other pharma-
ceutical companies might not want to deal with us be-
cause they don’t like to deal with the Union.
Q. That’s not my question, sir. My question is, did
he say that during those negotiations wages might go
up or down?
A. He said everything would be up for grabs.
Q. Okay.
JUDGE EVANS: Now, did he say wages and benefits
might go up or down, as well?
THE WITNESS: Both.
JUDGE EVANS: He said both. Next question.
It appeared to me that Roth was prepared to testify to noth-
ing other than the ‘‘up for grabs’’ phrase, even if he actually
remembered more. Roth attempted the ‘‘other pharmaceutical
companies’’ evasion when asked to complete his quotation of
Russillo, and he acknowledged what else Russillo said only
when pinned down. Roth was not credible in this portion of
his testimony.
Rolko testified that in a meeting that he attended:
I believe—know of one case where an employee
asked Mr. Russillo what would happen if the Union
was elected in today, would our benefits and wages re-
main the same. And Mr. Russillo replied that, you
know, Ben Venue could do anything they wanted to.
‘‘We could cut your wage to minimum wage if we
wanted to.’’ But he said, ‘‘we wouldn’t do that.’’
On cross-examination, Rolko was asked, and he testified:
Q. And what [Russillo] said about bargaining was
that if the Union won the Company would have to sit
down and bargain with the Union, correct?
A. Yes.
Q. And he also said that during those negotiations all
items of wages and benefits and conditions of employ-
ment were up for grabs, isn’t that what he said?
906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. Yes.
Q. And he also said that wages could be—and bene-
fits could be negotiated up or they might do down.
A. Correct.
Q. And he also said nobody knew what would hap-
pen. That would depend on the negotiations, correct?
A. Correct.
Q. And in fact, you received literature that confirmed
that to you from—that that was the—what the Com-
pany described the bargaining process as?
A. Yes.
Russillo’s testimony of what he said about bargaining is
almost precisely what Rolko admitted on cross-examination.
Gatheright was not asked by General Counsel what
Russillo said about bargaining during the meetings that she
attended. On cross-examination, Gatheright was asked and
she testified:
Q. Do you recall anything that was said there?
A. About the negotiations? Everything would be on
the table if the Union did come in and we would start
from scratch. . . .
Q. And do you recall Mr. Russillo saying at that
time that—to define what he meant by ‘‘scratch’’? He
meant that everything would be subject to negotiations
and nobody could tell what would happen in those ne-
gotiations?
A. Yes.
Q. And that was in response to clarifying what he
meant by ‘‘scratch’’? Is that what you’re testifying?
A. Scratch, yes.
Kara was emphatic on direct examination that Russillo
stated that the employees ‘‘stand to lose’’ different benefits
during bargaining, but she, too, acknowledged on cross-ex-
amination that: ‘‘[Russillo] said we would lose some things
and we would gain some things. . . . He said we could stand
to lose and we could stand to gain. That’s how he said it.’’
Orosz testified that in a Russillo meeting that she attended:
‘‘About if the Union was voted in, the first thing that would
happen, you would go out on strike and you’d have to start
from scratch to get your wages and benefits.’’
Orosz testified that she could not remember Russillo ex-
plaining what he meant by the last-quoted statement, al-
though she did acknowledge receiving Respondent’s lit-
erature that correctly described the bargaining processes.
Because of the quoted admissions of General Counsel’s
witnesses on cross-examination, I cannot, and do not, accept
as credible testimony only what they said on direct. I credit
Russillo’s denials of the relevant portions of those direct tes-
timonies. I recommend dismissal of the complaint allegations
and the objections in this regard.
4. Alleged October discriminatory no-solicitation rule
As amended at trial, the complaint, paragraph 11(b), al-
leges that Respondent, by Polisena, discriminatorily imposed
on employees a rule against talking about the Union during
working time while permitting talking and commercial solici-
tations during working time. Gatheright testified that in Octo-
ber, before the election, Supervisor Polisena called the 40
packaging department employees together and Polisena said:
Well, in that particular meeting we had, he asked
that the pro-union people would refrain from discussing
our concerns to the non-union protestors because we
were upsetting them.
Polisena testified that he and Lascala conducted such a meet-
ing. (Again, Lascala did not testify.) Polisena testified that
before the meeting employees, including specifically a
prounion employee, had complained to him that arguments
about the Union were causing distractions in the workplace.
Polisena testified that he did no more than tell the employees
that they should not argue while working. Polisena acknowl-
edged that he had witnessed no such arguments himself, even
though his work area is proximate to the employees’ work
area.
Respondent failed to produce any witness to corroborate
Polisena in his testimony that arguments on the job (about
the Union or anything else) had been conducted in the pack-
aging area. Additionally, although given several opportunities
to do so, Polisena did not deny that he told the group that
the ‘‘pro-union people’’ should stop ‘‘discussing’’ their posi-
tions with the antiunion employees (or ‘‘non-union protest-
ers,’’ as Gatheright coined the phrase). To the extent that
Polisena’s testimony can be argued to contain such a denial,
I discredit it. I credit Gatheright.
5. Production of ‘‘Vote-No’’ buttons
The complaint, paragraph 11(a), alleges that during Octo-
ber Respondent, in violation of Section 8(a)(1):
permitted an employee to manufacture and distribute
anti-union buttons in the production manager’s office
during the employee’s working time while enforcing its
no-solicitation, no-distribution policy against pro-union
employees.
Rolko testified that laminated ‘‘Vote No’’ buttons were worn
by some employees during the campaign, that employee
Donna Lantos works in an area in which laminating equip-
ment is maintained for business purposes, that Lantos’ work
area is just outside Production Manager Henderson’s office,
and that he saw Lantos passing out such laminated buttons
in her work area. Rolko did not testify that he ever saw Lan-
tos, or anyone else, produce the buttons; and Rolko certainly
did not testify that he witnessed a supervisor in the area
when such laminated buttons were being produced, by Lan-
tos or anyone else. Nor did Rolko testify that any supervisor
was present when Lantos passed out the laminated buttons.
No other testimony was offered in support of this allegation.
The General Counsel and the Union would have the Board
infer that Lantos produced the buttons; they would further
have the Board infer that Henderson (or some other super-
visor) knew that Lantos produced the buttons. This is at least
one inference too many on which to base the requested fac-
tual finding. I shall recommend dismissal of the complaint
allegations and objections on this topic.
B. Analysis and Conclusions
I have recommended dismissal of certain allegations of the
complaint and the objections on the basis of failures of evi-
dence. The remaining allegations will be dealt with in this
section of the decision.
907BEN VENUE LABORATORIES
7 See Atlas Metal Parts Co., 252 NLRB 205, 210 (1980).
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
A few days before the petition was filed, Lascala asked
employee Rolko if he had attended a certain meeting and if
employee Hoisack was the one who had contacted the Union
to get the organizational attempt started. Rolko demurred, but
Lascala was insistent: he badgered Rolko with the assurance
that he could be trusted because he and Rolko had been
friends. This persistent questioning was an interrogation in
violation of Section 8(a)(1), as I find and conclude; however,
as the interrogation occurred before the petition was filed on
August 19, it is not the basis for a valid objection to conduct
affecting the results of the October 29 election. Ideal Elec-
tric, 134 NLRB 1275 (1961).
Before the organizational attempt, the employees had com-
plained about two things that became subjects of Russillo’s
meetings, the amount of overtime that some employees were
working and the failure of Respondent to furnish some em-
ployees with prescription safety glasses. In his speeches,
Russillo promised to remedy both grievances. He told the
employees, for the first time, that there would be a second
shift. (And Russillo told the employees that those who volun-
teered for the new second shift would receive an hourly pre-
mium of 50 cents.) Russillo further announced that prescrip-
tion safety glasses would be available to those who had not,
theretofore, received them. Russillo had opened at least one
meeting by asking the employees why they wanted a union,
according to the undisputed testimony of Kara, so the infer-
ence could not be missed—Respondent was bartering for
votes with Russillo’s promises. Even without such testimony,
however, I would, and do, find that the employees would
reasonably conclude that Russillo’s promises were offered in
exchange for votes. An attempt to sway them with the exer-
cise of raw economic power. By Russillo’s promise of a new
second shift, and by his promise of prescription safety glass-
es for all employees, Respondent violated Section 8(a)(1), as
I find and conclude. I further conclude that this unlawful
conduct was likely to affect the results of the October 29
election.
Even Russillo admitted telling the employees that they
would no longer be free to talk to him (or other supervisors)
if the discussions ‘‘dealt with Company policy.’’ By includ-
ing all possible topics that affected ‘‘Company policy,’’
Russillo was including everything. That is, even by his own
testimony, Russillo threatened the employees that the pre-
existing open-door policy benefit would vanish if they se-
lected the Union as their collective-bargaining representative.
Moreover, I have credited the employee testimony that
Russillo told the employees that Respondent’s open-door pol-
icy would no longer be available to them if they selected the
Union as their collective-bargaining representative. This was
a threat in violation of Section 8(a)(1), and objectional con-
duct, as I find and conclude.
After the speeches were over, Respondent delivered on
Russillo’s promise of prescription safety glasses for every-
one. Several of the employees who had been denied prescrip-
tion safety glasses before the meetings, such as Gatheright,
received them after the speeches. (And, according to this
record, they received them without further requests.) As the
grants of prescription safety glasses were in conjunction with
the violative promise of the prescription safety glasses, they
also violated Section 8(a)(1), as I find and conclude. As pre-
scription safety glasses were apparently received after the
election of October 29, however, their grant cannot be con-
sidered to be conduct that would have tended to affect the
results of the election. See Ideal Electric, supra.
Finally, in September Lascala told Rolko and Stevens that
they could not talk about the Union on working time, and
in October Polisena told the entire packaging department the
same thing. As the employees had been free to talk about
anything else, including solicitations, on working time, this
conduct constituted impositions of discriminatory instructions
not to engage in union activities. By this conduct Respondent
violated Section 8(a)(1),7 and by this conduct Respondent en-
gaged in objectionable conduct, as I further find and con-
clude.
III. THE OBJECTIONS TO THE ELECTION
I find to be valid the objections based on the following of
Respondent’s conduct, all of which occurred during the pe-
riod between the filing of the petition on August 19 and the
election of October 29: (1) Respondent’s discriminatory in-
structions not to engage in union solicitations on working
time; (2) Respondent’s threat to withdraw the preexisting
benefit of the right to confer with management about griev-
ances; (3) Respondent’s promise of a second shift; and (4)
Respondent’s promise of prescription safety glasses for all
employees. All of this conduct reasonably would have inter-
fered with the free choice of the employees. I therefore con-
clude that the election held of October 29 must be set aside
and that a new election be held at such time as the effects
of the unfair labor practices found herein are dissipated to
the extent that a free and fair election may be held.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, Ben Venue Laboratories, Inc., Bedford,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with the loss of the right to
confer with management about grievances if they become or
remain members of International Chemical Workers Union
(the Union) or because they have given assistance or support
to that labor organization.
(b) Interrogating employees about their union member-
ships, activities, or desires.
(c) Promising employees prescription safety glasses, or the
institution of a second workshift, or any other benefits, in
order to dissuade employees from becoming or remaining
members of the Union or giving any assistance or support to
it.
(d) Imposing on employees discriminatory rules against
soliciting for the Union on working time.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
(a) Post at its facility in Bedford, Ohio, copies of the at-
tached notice marked ‘‘Appendix.’’9 Copies of the notice, on
forms provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the election conducted
on October 29, 1993, in Case 8–RC–14955 be set aside. A
new election shall be held at such time as the Regional Di-
rector decides that the circumstances permit the free choice
of a bargaining representative.