Burlington Homes, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1979

246 N.L.R.B. 1029 (N.L.R.B. 1979)

BURLINGTON HOMES. INC.
Burlington Homes, Inc. and United Brotherhood of
Carpenters and Joiners of America, AFL-CIO
a/k/a Carpenters Industrial Council of Eastern
Pennsylvania. Case 4-CA 9276
December 14, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On March 30, 1979, Administrative Law Judge
Norman Zankel issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a support brief. Respondent filed a
memorandum in answer to the General Counsel's ex-
ceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, brief, and
memorandum and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The complaint alleged, inter alia. that Respondent
violated Section 8(a)(l) of the Act by various acts of
interference, restraint, and coercion; that Respondent
violated Section 8(a)(1), (3), and (5) of the Act by
offering striker replacements a higher starting salary
than it had offered the Union in negotiations; and
that Respondent violated Section 8(a)(5) and (1) of
the Act by refusing to recognize and bargain with the
Union. The Administrative Law Judge found, and we
agree for the reasons stated by him, that the General
Counsel failed to establish that Respondent com-
mitted the alleged independent violations of Section
8(a)(l) of the Act. The Administrative Law Judge
also found that Respondent had not unlawfully
changed the starting wage rate or refused to bargain
with the Union. For the reasons stated below, we find
merit in the General Counsel's exceptions to both of
these latter findings.
I The General Counsel 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 are incorrect. Standard Dry Wall Products, Inc, 91
NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings. However,
we note that in crediting the testimony of Respondent's witness. Albert Pe-
trozino, the Administrative Law Judge replied, in part. on Petrozino's asser-
tions that Respondent instructed supervisory personnel regarding employee
rights. We do not regard such instruction as an appropnate basis for deter-
mining credibility, but find no sufficient basis for overturning the Adminis-
trative Law Judge's credibility findings as to Petrozino.
Facts
In July 1977, Respondent and the Union began ne-
gotiations for a collective-bargaining agreement and
held five or six bargaining sessions prior to September
28, 1977. These sessions were attended by Respon-
dent's attorney, Shawe, Union Representative Far-
rone, and certain employees who constituted the
union bargaining team. Periodically, Respondent in-
formed its employees of the progress of these negotia-
tions.
When, by October 1977. no complete agreement
had been reached, Shawe began to meet alone with
Union Representative Decker. At the conclusion of
their last meeting in December, Shawe and Decker
had apparently reached complete agreement on all
terms of a contract except inclusion of a union-secu-
rity provision. On several occasions in December,
Decker reiterated the Union's insistence on the inclu-
sion in the contract of a union-security clause and on
each occasion Shawe rejected the Union's demand.
The next bargaining session between Respondent
and the full union negotiating committee was held on
February 1, 1978,2 and was attended by a Federal
mediator. The Union set out the issues that it consid-
ered unresolved; i.e., wages, vacation pay. and the
union-security provision.3 On February 13, another
session was held where the issues were clarified but no
complete agreement reached. On March 16, a final
bargaining session was held. The Company presented
its final offer, which included an across-the-board
wage increase of 50 cents per hour. The offer of the
wage increase was accepted. The union-security issue,
however, was not resolved.
On March 17, Farrone held a meeting with em-
ployees outside the plant at which the employees
voted to strike immediately. Thereafter, on March 20,
Respondent began advertising in a local newspaper
for striker replacements at a starting rate of $3.25 per
hour. On April 26, a revised advertisement soliciting
striker replacements was published, offering a rate of
$3.25 per hour after a 30-day probationary period.
After this second advertisement appeared, Respon-
dent began hiring some employees at the rate of $3.15
per hour, continuing, however, to hire others at the
$3.25 per hour rate.
On June 8, the Union made an unconditional offer
to return to work on behalf of 42 strikers. On June 9,
Respondent informed the Union by telegram that it
no longer considered the Union as majority repre-
sentative of its employees. There is no evidence that
the parties ever held any negotiating sessions after
March 6.
2 All dates hereinafter are 1978. unless otherwise indicated.
I The record does not indicate why certain matters apparenly considered
resolved by Shawe and Decker in December 1977 were considered by both
parties to be in issue in February
246 NLRB No. 165
1029
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Offer of Higher Starting Salary to Striker
Replacements
The General Counsel alleges, inter alia, that Re-
spondent violated Section 8(a)(l), (3), and (5) of the
Act by offering striker replacements a higher starting
salary than it had offered the Union in negotiations.
In this regard, it is uncontroverted that, at the time
the strike commenced, the lowest starting salary of a
new employee was $2.65 per hour. At the last negoti-
ating session, Respondent offered the Union a 50-cent
across-the-board wage increase which would make
the new lowest starting rate $3.15 per hour. Accord-
ing to the agreement on a wage increase reached at
the March 16 session, it is clear that an employee
would be eligible to earn the rate of $3.25 an hour
following the completion of a probationary period of
30 days of employment. In considering this issue, the
Administrative Law Judge dealt with it in terms of
whether the parties negotiated for a starting rate and,
concluding that the failure of the proposed contract
language to refer to a starting rate supported Respon-
dent's denial that the starting rate was a negotiated
subject, found no basis for the allegation. We dis-
agree.
While it is true that the proposed contract does not
refer specifically to a starting wage rate, it is clear that
the language of the contract contemplates that new
employees will not reach the rate of $3.25 per hour
until completion of their probationary period. Fur-
thermore, although Shawe denied that the issue of a
starting rate was raised at any bargaining session dur-
ing February or March, it is evident that the issue
was discussed earlier in the meetings between Shawe
and Decker in December 1977. Thus, Shawe testified
that he discussed with Decker whether or not a start-
ing rate should be included with the contract and that
he told Decker that he thought the starting rate
should be left unspecified and undetermined as long
as employees who completed their probationary pe-
riod then earned the rate established in the contract
for the period. The clear inference, then, is that new
employees would start at a rate lower than the rate
for employees who had completed their 30-day pro-
bationary period.
Thus, by offering striker replacements a starting
rate of $3.25 per hour, Respondent not only offered
them a rate higher than that proposed to the Union
during negotiations, but in the process unilaterally ef-
fected a change in the starting wage rate at a time
when there was no impasse as to this issue.4 Respon-
dent thereby clearly instituted a unilateral change in
4 Indeed, on March 16, the parties had reached agreement as to wages and
under that agreement new employees would not be eligible to earn the $3.25-
per-hour wage until the completion of 30 days of employment.
the terms and conditions of employment in violation
of Section 8(a)(1) and (5) of the Act.' Additionally,
we find that Respondent's conduct in offering a
higher starting wage to striker replacements had a
potentially devastating impact upon the right of em-
ployees to strike. N.L.R.B. v. Erie Resistor Corp., 373
U.S. 221 (1963). We therefore conclude that Respon-
dent's conduct was inherently destructive of em-
ployee rights protected by Section 7 and Section 13 of
the Act and hence also violated Section 8(a)(3) of the
Act.6
Respondent's Refusal To Bargain
As noted above, Respondent sent a telegram to the
Union on June 9, informing the Union that it no
longer considered the Union the majority representa-
tive of its employees. The General Counsel contends
that this telegram constituted an unlawful withdrawal
of recognition from the Union and refusal to bargain.
The Administrative Law Judge considered the
statement in the telegram that Respondent no longer
considered the Union as the majority representative
of its employees only from the perspective of whether
it constituted an unlawful withdrawal of recognition
from the Union. The Administrative Law Judge con-
cluded that the telegram merely expressed doubt as to
the Union's majority status and thus, in effect, was
not tantamount to either an unlawful withdrawal of
recognition or a refusal to bargain. We disagree.
Paragraph 23(c) of the amended complaint alleges
that:
Since on or about June 9. 1978, Respondent
has failed and refused, and continues to fail and
refuse, to recognize and bargain collectively with
the Union notwithstanding that the Union was
the duly designated representative of all the em-
ployees ....
Respondent's answer to this complaint allegation de-
nies only that the Union was the duly designated ex-
clusive bargaining representative of its employees.
Thus, it is clear that Respondent was not contesting,
and did not intend to contest, the allegation that Re-
spondent was refusing to recognize or bargain with
the Union as of June 9, but only that it was legally
required to do so since it had reason to doubt the
Union's majority status. Furthermore, there is no ba-
sis for construing Respondent's telegram as anything
I Glazers Wholesale Drug (ornparn, Inc.. 211 Nl.RB 1063. 1066 (1974).
enfd. 523 F.2d 1053 (Sth Cir. 1975).
b Member Murphy finds it unnecessary to pass upon the question whether
the offer o the higher starting wage to striker replacements violated Sec.
8(aX3) as well as Sec. 8(aX5) and (I) of the Act, inasmuch as such additional
finding does not affect the remedy herein. Accordingly. she neither affirms
the Administrative Law Judge's dismissal of this allegation nor joins in the
reversal thereof.
1030
BURLINGTON HOMES. INC.
other than a withdrawal of recognition in the circum-
stances of this case. since Respondent failed to meet
or bargain with the Union until it indicated it would
do so at the hearing herein, as discussed infra. In any
event, by its failure to deny specifically that portion
of the complaint alleging that Respondent failed and
refused to recognize and bargain with the Union, Re-
spondent is deemed to have admitted its refusal to
recognize and bargain.7 That admission removes any
basis for arguing or concluding that Respondent's
telegram should be construed as a mere expression of
doubt about the Union's status, and requires instead
a finding that by this telegram Respondent was refus-
ing to recognize and bargain further with the Union.
We, therefore, find that on June 9 Respondent with-
drew recognition from the Union as the representa-
tive of its employees.
Having erroneously concluded that the telegram
merely expressed doubt as to the Union's majority
status, the Administrative Law Judge, relying on Ter-
rell Machine Company, 173 NLRB 1480 (1969), pro-
ceeded to find that there existed reasonable grounds
for such doubt. We disagree with the Administrative
Law Judge's analysis and find his reliance on Terrell
misplaced.
In Terrell the Board held that, upon expiration of
the first year following its certification, a union enjoys
a rebuttable presumption that its majority representa-
tive status continues. This presumption establishes a
primafacie case that an employer is obligated to bar-
gain. The primafacie case may be rebutted if the em-
ployer affirmatively establishes (1) that at the time of
the refusal the union in fact no longer enjoyed major-
ity representative status, or (2) a good-faith and rea-
sonably grounded doubt of the union's continued ma-
jority status, predicted on objective considerations. In
the instant case, the Administrative Law Judge found
such reasonable grounds to doubt the Union's major-
ity status in view of Respondent's assertion that a
majority of unit employees were strike replacements.
However, the Board has adhered to the general rule
that new employees, including striker replacements,
are presumed to support the union in the same ratio
as those whom they have replaced. 8 Other than the
fact that the striker replacements crossed the picket
line to work, there is no evidence here to indicate
whether or not these employees were in favor of the
Union. We conclude, therefore, that the evidence is
insufficient to rebut the presumption that the Union
7 Sec. 102.20 of the Board's Rules and Regulations. Series 8. as amended.
states, in pertinent part, that "[aIny allegation in the complaint not specifi-
cally denied or explained . . shall be deemed to be admitted to be true
'National Car Rental Sstem, Inc. (car Rental Divi.sion, 237 NLRB 172
(1978): James W4'hitfild d/h/a (Culien Supermarket. 220 NLRB 507, 509
(1975); Surtlae Industries Inc. 224 NLRB 155. 163 (1976)
continued to represent a majority of employees at all
times.9 Consequently, since, as a matter of law, Re-
spondent did not have reasonable grounds to doubt
the Union's majority status," ° Respondent's with-
drawal of recognition from the Union was unlawful,
and we so find.
We note finally that Respondent orally amended its
answer at the hearing to concede the Union's major-
ity status. Thus, Respondent contends that as of that
time it was willing to recognize and bargain with the
Union, and argues, in effect, that its earlier refusal to
do so was thus cured. We find no merit to Respon-
dent's contention and conclude that Respondent's
amended answer at the hearing was not sufficient to
remedy its unlawful refusal to recognize and bargain
with the Union. From the date of Respondent's tele-
gram to the Union to the date of the hearing, every
indication pointed to the conclusion that Respondent
refused to recognize and bargain with the Union as
the representative of its employees. Thus, Respondent
stated its alleged doubt of the Union's majority status
and no bargaining sessions were arranged or con-
ducted. Consequently, Respondent's expression, at
the hearing, of its willingness to meet and bargain
with the Union is irrelevant in determining the bar-
gaining issue raised by the complaint. Respondent's
position for more than 5 months was that it did not
consider the Union as the majority representative and
its statement at the hearing was insufficient to remedy
its previous refusal to bargain. We, therefore, find
that by refusing to recognize and bargain with the
Union from June 9 to November 27 Respondent vio-
lated Section 8(a)(5) and (I) of the Act.
The Alleged Unfair Labor Practice Strike
We note. finally, the General Counsel's contention
that the strike which commenced on March 17 was an
unfair labor practice strike, caused, at least in part, by
Respondent's alleged unfair labor practices during
the period of collective bargaining. The Administra-
tive Law Judge found no merit to any of the allega-
tions of violation of Section 8(a)( I) of the Act. Inas-
much as we adopt his findings in this regard, we
further adopt his conclusion that the strike was
caused solely by the failure of the parties to reach a
' Additionall. the mere fact that employees chxose not to support a strike
does not give rise to a presumption that they no longer desire union represen-
tation. Surflie Industries. Inc.. supra.
1o In this regard. an examination of the record establishes that on June 9
there were 54 striker replacements working n unit positions, plus an uniden-
tified number of employees who had not joined the strike The 42 riker,
who made an unconditional offer to return 1to work on June 5 must be added
to this number, inasmuch as permanently replaced economic strikers who
make an unconditional offer to return to work within a year of the strike are
part of the appropriate unit fir determining the l inion's majorit status See
( H (;lutnrher Son. ds'hy Pioneer Flour Mtils. 174 NRB 1202 (1969),
enild 427 1:2d 983 5h ( r 1970)
1031
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complete and final agreement on a number of eco-
nomic issues. We find, therefore, that the strike was
purely economic in nature and was not precipitated
in whole or in part by Respondent's alleged unfair
labor practices.
Our dissenting colleague contends that Respon-
dent's offer to striker replacements of a higher start-
ing wage rate, which we have found above violated
Section 8(a)(5) and (3) of the Act, converted the strike
to an unfair labor practice strike. In so contending,
the dissent asserts that "[ilt must be presumed that
the strikers' resolve to continue the strike was
strengthened by what they perceived as another un-
fair labor practice committed by Respondent." How-
ever, there is no testimony whatsoever that the strik-
ers were even aware of the higher wage offer."
Further, there is no suggestion in the record before us
that this conduct by Respondent "unnecessarily
broadened" the economic controversy leading to the
strike, or in any way prolonged the strike. In these
circumstances, contrary to our dissenting colleague,
we find that the General Counsel has not established
the requisite causal connection between the single un-
fair labor practice found to have occurred during the
course of the strike and any alleged prolongation of
the strike." Accordingly, we find that the offer of a
higher wage rate to strike replacements did not con-
vert the strike, economic in nature from its inception,
to an unfair labor practice strike.
CONCI.USIONS OF LAW
1. The Respondent, Burlington Homes, Inc., is,
and at all times material herein has been, an em-
ployer engaged in commerce and a business affecting
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. United Brotherhood of Carpenters and Joiners
of America, AFL-CIO a/k/a Carpenters Industrial
Council of Eastern Pennsylvania, is, and at all times
material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
3. By offering striker replacements a higher start-
ing salary than it had offered the Union in negotia-
tions, thereby unilaterally effecting a change in terms
and conditions of employment and discriminating
against employees because of their union activity, Re-
spondent violated Section 8(a)(l), (3), and (5) of the
Act.
1I Indeed, while the original complaint alleged the violations, and it was
litigated at the hearing, it appears that the General Counsel learned of this
conduct during the investigation of the Union's original charge, for it oc-
curred after the filing of that charge and, although that charge was amended
following issuance of the original complaint, no amendment was filed alleg-
ing that the wage offer to strike replacements was unlawful.
12 Robbins Companv, 233 NLRB 549 (1977).
4. By failing and refusing to recognize and bargain
with the Union as the bargaining representative of
employees in the appropriate unit, the Respondent
has, as of on or about June 9, 1978, violated Section
8(a)(5) and (I) of the Act.
5. Respondent has not engaged in other conduct
alleged in the complaint to be unfair labor practices
in violation of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
TilE REMEDY
Having found that Respondent has engaged in cer-
tain unfair labor practices, we shall order that it cease
and desist therefrom, and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
As we have found that Respondent unilaterally
granted an increase in the starting rate of wages with-
out bargaining with the Union as the exclusive repre-
sentative of the employees in the appropriate unit,
and that such conduct unlawfully discriminated
against striking employees, we shall order Respon-
dent to cease and desist from any further such prac-
tices. We shall also order that Respondent, to the ex-
tent it has not already done so, upon request, revoke
all unilateral changes in the terms and conditions of
employment of the aforesaid unit.
As we have further found that Respondent violated
Section 8(a)(5) of the Act by refusing to recognize and
bargain with the Union, we shall order it to cease and
desist therefrom. We shall further order that Respon-
dent, upon request, recognize and bargain with the
Union as the collective-bargaining representative of
the employees in the appropriate unit.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Bur-
lington Homes, Inc., St. Clair, Pennsylvania, its offi-
cers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Unilaterally granting an increase in the starting
rate of wages without bargaining with United Broth-
erhood of Carpenters and Joiners of America, AFL-
CIO, a/k/a Carpenters Industrial Council of Eastern
Pennsylvania, as the exclusive collective-bargaining
representative of the employees in the following ap-
propriate unit:
All production and maintenance employees in-
cluding leadmen, truckdrivers, and servicemen of
Burlington Homes, Inc., at its St. Clair. Pennsyl-
1032
BURL.INGTON HOMES, INC('.
vania, facility; but excluding salesmen. profes-
sional employees, office clerical employees, and
supervisors as defined in the Act.
(b) Refusing to recognize and bargain collectively
with the above-named Union as the exclusive collec-
tive-bargaining representative of its employees in the
above-mentioned unit.
(c) Discriminating against employees because of
their union activity by offering a higher starting wage
rate to striker replacements.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request from the Union, revoke all uni-
lateral changes in the terms and conditions of em-
ployment of the employees in the aforesaid unit made
on or about March 20, 1978.
(b) Upon request, bargain collectively with United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, a/k/a Carpenters Industrial Council of
Eastern Pennsylvania, as the exclusive representative
of the employees in the appropriate unit, and, if an
understanding is reached, embody such understand-
ing in a signed agreement.
(c) Post at its facilities in St. Clair, Pennsylvania,
copies of the attached notice marked "Appendix."' 3
Copies of said notice, on forms provided by the Re-
gional Director for Region 4, after being duly signed
by Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
MEMBER JENKINS, concurring and dissenting:
I agree with my colleagues that Respondent vio-
lated Section 8(a)(1) and (5) of the Act by refusing to
bargain with the Union and by offering striker re-
placements a higher starting wage than that proposed
to the Union, and that said conduct had a potentially
devastating impact upon the employees' right to
strike, thereby violating Section 8(a)(3) of the Act as
well. However, contrary to my colleagues, I would
1 In the event that 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board.
find that Respondent's unilateral change in the start-
ing wage was a factor in prolonging the strike and
that the strike was thereupon converted into an unfair
labor practice strike. This is clearly an Erie Resistor
type of case'4 where the violation goes directly to the
heart of the collective-bargaining system. The Court
in Erie Resistor said that "to excuse such conduct
would greatly diminish, if not destroy, the right to
strike guaranteed by the Act, and runs directly
counter to the guarantees of Sections 8(a)(1) and (3)
that employees shall not be discriminated against for
engaging in protected concerted activities."'" It is well
settled that, if unfair labor practices occur during and
prolong an economic strike, from that point on the
strike is treated as an unfair labor practice strike.'
On March 17, 1978, 42 of Respondent's production
employees went out on strike. The Administrative
Law Judge found, and we agree, that the strike in its
inception was economic in nature. However, without
prior notice to or consultation with the Union or the
strikers, Respondent, on March 20, placed advertise-
ments in the local newspapers seeking permanent re-
placements at a rate of $3.25.'7 Through reading the
newspapers and possibly other means the strikers
learned that not only had they been replaced, but also
that the replacement employees were to be hired at a
starting rate higher than that offered to the Union by
Respondent. On March 17, the Union had filed
charges alleging 8(a)(1) violations against Respon-
dent. Subsequently, the original complaint alleged the
unilateral change as a violation of the Act. It must be
presumed that the strikers' resolve to continue the
strike was strengthened by what they perceived as an-
other unfair labor practice committed by Respon-
dent. On April 26, 1978, Respondent published a re-
vised advertisement reducing the starting wage to
$3.15. However, Respondent continued to hire and
pay replacements at $3.25 as well as $3.15 for the
duration of the strike which lasted for 3-1/2 months.'"
While the paying of 10 cents more than what was
negotiated and agreed upon with the Union may be
de minimis to some individuals, it was undoubtedly a
very serious matter to the striking employees who had
earned a wage that was barely above the Federal
minimum. The starting rate had been an issue be-
tween the parties in December 1977, only 3 months
4 N L. R.B. v. Erie Resistor Corp., 373 U.S. 221 (1963)
" d at 226.
I* Pecheur Lozenge Co. Inc.. 98 NLRB 496 (1953), enfd. 209 F.2d 393 (2d
Cir. 1953). cert. denied 347 U.S. 953 (1954): Waukesha imne and Stone Co.
Incorporated, 145 NLRB 973 (1964). enfd. 343 F.2d 504, 508 (7th Cir. 1975)
7 As set forth in the majority opinion. Respondent had offered the Union
a SO-cent across-the-hoard wage increase. which would make the starting
rate S3.15 per hour.
' It is significant to note that 42 empluyees went out on strke and re-
mained on strike up until the time of the nion's unconditional offer to
return on June 8, 1978.
1033
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before the strike, as my colleagues concede. It may be
uncertain when or on what terms the parties might
have resolved their differences and reached an agree-
ment terminating the strike had Respondent not en-
gaged in its misconduct. But it is clear that, after the
commission of this unlawful conduct, Respondent
created a situation in which the issues were unneces-
sarily broadened and the strike prolonged because of
the unique and discriminatory benefit conferred upon
the replacements,"9 coupled with Respondent's refusal
to make an equivalent offer to the Union. The unilat-
eral wage increase of March 20 exposed the striking
employees to the attitude of contempt which Respon-
dent entertained towards the Union with the intent of
undermining the collective-bargaining relationship.
That this was Respondent's purpose is shown by Re-
spondent's subsequent unlawful withdrawal of recog-
nition and refusal to bargain in response to the
Union's unconditional offer to return to work. Thus,
it can and I think must be inferred that the higher
starting wage for replacements exacerbated the rela-
tions between the parties to the point that the strike
was prolonged. I would find, therefore, that Respon-
dent's unfair labor practices, commencing 3 days af-
ter the inception of the strike, effectively prolonged
the strike. It follows that as of March 20 the strike
was converted to an unfair labor practice strike. I
would, therefore, extend to the strikers our normal
remedy with respect to unfair labor practice strikers.
I9 Trinity Valley Iron and Steel Company, etc., 127 NLRB 417 (1960), enfd.
290 F.2d (5th Cir. 1961); Kohler Co., 128 NLRB 1062, 1077 (1960); Glazers
Wholesale Drug Co., Inc., 211 NLRB 1063, 1066 (1974); Larand Leisurelies,
Inc., 213 NLRB 197, 198 (1974), enfd. 523 F.2d 814 (6th Cir 1975).
°St. Clair Lime Company, 133 NLRB 1301, 1309 (1961) enfd. 315 F.2d
244 (10th Cir. 1962).
terms and conditions of employment with the
aforesaid Union as the exclusive representative
of all employees in the bargaining unit described
below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed by Sec-
tion 7 of the National Labor Relations Act, as
amended.
WE WILL, upon request. bargain collectively in
good faith with the above-named Union as the
exclusive representative of all employees in the
appropriate unit, defined below, for the purpose
of collective bargaining 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 under-
standing in a signed agreement. The appropriate
unit is:
All production and maintenance employees
including leadmen, truckdrivers, and service-
men of Burlington Homes, Inc., at its St. Clair,
Pennsylvania, facility: but excluding salesmen,
professional employees, office clerical employ-
ees, guards, and supervisors as defined in the
Act.
WE WILL, upon request, rescind all unilateral
changes in the terms and conditions of employ-
ment of employees in the aforesaid unit made on
March 20, 1978, and make no further changes
without consulting the aforesaid Union.
BURLINGTON HOMES, INC.
DECISION
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT institute changes with respect to
the terms and conditions of employment of our
employees in the appropriate bargaining unit,
defined below, without prior consultation and
bargaining with United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO a/k/a
Carpenters Industrial Council of Eastern Penn-
sylvania, as the exclusive collective-bargaining
representative.
WE WILL NOT discriminate against employees
because of their union activity by offering a
higher starting wage rate to striker replacements.
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge: This case
was heard before me on November 27-29, 1978,' in Potts-
ville, Pennsylvania.
Upon a charge filed on March 16 by United Brotherhood
of Carpenters and Joiners of America, AFL-CIO a/k/a
Carpenters Industrial Council of Eastern Pennsylvania
(hereinafter called the Union), and amended on June 26, a
complaint and notice of hearing was issued on June 23 by
the Regional Director for Region 4 of the National Labor
Relations Board (hereinafter called the Board). An
amended complaint issued on August 29.2
In essence, the complaint alleges that Burlington Homes,
Inc. (hereinafter called the Employer), violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act, as
i All dates hereinafter are in 1978 unless otherwise stated.
2The complaint was further amended orally at the heanng. Before the
hearing closed I granted the General Counsel's motion to withdraw the alle-
gation contained in par. 15. The content of that allegation will be discussed
no further.
1034
BURLINGTON HOMES, INC.
amended (hereinafter called the Act), by engaging in a vari- Homes.
ety of conduct which interfered with, restrained, and co- excludit
erced employees: discriminated against them by failing to clerical
reinstate employees alleged as unfair labor practice strikers: in the /
and by refusing to recognize and bargain with the Union
since June 9. After som
The Employer filed a timely answer to the complaint and actually beg
its amendments, admitting certain allegations but denying ing sessions
the substantive allegations that it committed any unfair la- ployer Attor
bor practice. during these
All issues were fully litigated at the hearing: all parties Joseph Farr
were represented by counsel and were afforded full oppor- negotiations
tunity to examine and cross-examine witnesses, to introduce union barga
evidence pertinent to the issues, and to engage in oral argu- By Octob
ment. Post-hearing briefs have been received from the Shawe met
Board's counsel for the General Counsel and counsel for once in Oct
the Employer. No brief has been received from the Union's Farrone nor
counsel. The briefs have been carefully considered. present. At
reached con'Upon the entire record, and from my observation of the reached cor
witnesses3 and their demeanor in the witness chair, and the exceptio
upon substantial, reliable evidence, "considered along with
the consistency and inherent probability of testimony" vision.
(Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, On Dece
496 (1951)), 1 make the following: rangements
taining all
Shawe. On
FINDINGS AND CONCLUSIONS Shawe. Onheld betweel
employee c(
I. THE EMPLOYER'S BUSINESS employee cpresent due
for a union-
The Employer, a Pennsylvania corporation, is engaged in Meanwhil
the manufacture of mobile homes at its facility on Route had been ar
62 1, St. Clair, Pennsylvania. During the year immediately bargaining
preceding the issuance of the complaint, the Employer pur- would have
chased goods valued in excess of $50,000 directly from enti- Union cont
ties outside Pennsylvania. ratification
The Employer admits, the record reflects, and I find it is grant the un
an employer engaged in commerce within the meaning of ship meetin
Section 2(2), (6), and (7) of the Act. The next
1. Shawe w;
II. THE LABOR ORGANIZATION INI.V ED employee bD
eral mediate
The parties agree, the record reflects, and I find the rone read of
Union is a labor organization within the meaning of Section tract issues
2(5) of the Act. economic at
among thos
III. THE ALLEGED UNFAIR LABOR PRACTICES rated vacati,
the Union r
A. Background be the Empl
ject of 8(a)(
The allegations herein emanate from the Union's efforts On Febrt
to obtain its first collective-bargaining agreement with the Farrone wa
Employer. On May 23, 1977, the Union was certified by the concerning
Board's Regional Director for Region 4 as the exclusive the alleged I
collective-bargaining representative of the employees in the A final ba
following unit which I find appropriate for collective bar- and Farron
gaining purposes within the meaning of Section 9(b) of the tended. The
Act: pute. The c(
All production and maintenance employees including
leadmen, truckdrivers. and servicemen of Burlington 'The Union
I Upon the Employer's motion, all .witnesses were sequestered.
onset of negotui
ject matter of tl
1035
Inc. at its St. Clair. Pennsylvania. facility: but
ring salesmen, professional employees, office
employees, guards and supervisors as defined
Act.
e difficulty' in arranging meetings.' negotiations
an sometime in July 1977. Five or six bargain-
were conducted until September 28. 1977. Em-
rney Shawe was principal employer spokesman
negotiations. The Union was represented by
one, its business agent. Farrone attended the
with some employees who constituted the
ining team.
er, no complete agreement had been reached.
separately with Union Representative Decker
ober, November, and December 1977. Neither
any employee member of the union team was
their last meeting. Shaw and Decker apparently
iplete agreement upon terms for a contract with
in of a union-shop clause. The Employer was
its opposition to granting a union-security pro-
nber 15, 1977, in accordance with earlier ar-
Decker obtained from Shawe a document con-
the language agreed upon between him and
December 19, another negotiating session was
n Shawe and Decker. Additionally, two or three
)mmittee members attended. Farrone was not
to illness. Decker reiterated the Union's request
shop clause. Shawe rejected it.
le, a general meeting of the union membership
ranged to follow shortly after the December 19
session. The Union had hoped the Employer
acceded to its union-shop request. Thus, the
emplated that membership meeting to be for
of a contract. Because the Employer did not
iion shop on December 19. the union member-
gwas canceled.
negotiating session was conducted on February
is present. Farrone attended, together with the
argaining committee. Also present was a Fed-
or. Preceding negotiations were reviewed. Far-
Tff a list containing a variety of substantive con-
still in dispute. They were a combination of
id noneconomic matters. The relevant matters
e issues were wages, union security, and pro-
on pay. Throughout the session on February 1.
aised no issue regarding what it considered to
oyer's unfair labor practices which are the sub-
I) allegations in the instant complaint.
iary 13, another negotiating session was held.
s not present. There was not much discussion
the contract issues. No one raised the matter of
8(a)X) activities.
irgaining session was held on March 16. Shawe
e, together with the employee committee. at-
details of discussion which ensued are in dis-
onflicts will be discussed hereinafter.
filed charges at the Board alleging the Emploier delayed the
ations and thereby violated Sec 8(a)X5) of the Act. The sub-
hose charges is not before me.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 17, the Union initiated a strike among the unit
employees. The strike continued without interruption until
June 5. Unit employees picketed carrying signs bearing the
legend "Burlington Employees on Strike Due to Company's
Unfair Labor Practices. Carpenters Industrial Council,
United Brotherhood of Carpenters and Joiners of America,
AFL CIO."
The Employer's relevant managerial hierarchy consists of
Albert Lyman, president; Joseph Beechay, production
manager; and Supervisors Patrick A. Direnzo and Albert
Petrozino. Also relevant to consideration of the 8(a)(1) alle-
gations is Richard Ryon, treasurer and member of the Em-
ployer's board of directors. Ryon is alleged to be a supervi-
sor within the meaning of the Act. The Employer's answer
denies this. At the hearing the Employer's counsel conceded
"there is no question that we [the Employer] are responsible
for what he [Ryon] does." Ryon testified he is an officer and
director of the Employer. Also, Ryon owns approximately
28 percent of the Employer's stock. Ryon does not partici-
pate in the day-to-day operations of the Employer. He op-
erates a full-time real estate business. Based upon the rec-
ord as a whole, including the above-quoted concession of
the Employer's attorney and the fact Ryon is a director and
stockholder of the Employer, I find he is its agent for pur-
poses of imputing to the Employer any activities engaged in
by him. Hribar Trucking, Inc., 166 NLRB 745, 746 (1967).
Additionally, the Employer's counsel conceded Ryon pos-
sesses the authority to discharge employees. Accordingly, I
find Ryon possesses at least one of the supervisory powers
and responsibilities described in the Act. Thus, I find Ryon
also is a supervisor. N.L.R.B. v. Metropolitan Life Insurance
Company, 405 F.2d 1169 (2d Cir. 1968); Great Central In-
surance Company, 176 NLRB 474, 475 (1969).
B. Credibilityv
Credibility of the respective witnesses for the opposing
litigants is the crucial issue herein. Resolution of that issue
determines whether the General Counsel's or the Employ-
er's version of the facts should be adopted. The credibility
determination is the key to establishing the 8(a)(l) viola-
tions of the complaint.
The ultimate choice in making my findings of fact is
based upon my observation of the demeanor of the wit-
nesses, the weight of the respective evidence provided by
them, established or admitted facts, inherent probabilities
and reasonable inferences which may be drawn from the
record as a whole. Northridge Knitting Mills Inc., 223
NLRB 230 (1976); Warren L. Rose Castings, Inc. d/b/a V
& W Castings, 231 NLRB 912, 913 (1977); also Gold Stan-
dard Enterprises, Inc., 234 NLRB 618 (1978).
Moreover, I have carefully weighed all of the testimony,
bearing in mind the tendency of witnesses in general to
testify as to their impressions or interpretations of what was
said rather than attempting to give verbatim accounts; and
also bearing in mind that even the person testifying about
his own remarks may well tend to elucidate or express what
he said or intended to say in language more explicit or clear
than he used in the actual speech or discussion.
The various testimony presented herein is replete with
instances of witnesses for each litigant providing testimony
in direct opposition to that presented by those of opposing
litigants. I shall discuss only those conflicts of testimony
which are relevant. On the other hand, I have not ignored
all such testimony, nor the arguments of counsel thereon.
In the credibility contest between the witnesses presented
by the General Counsel and those on behalf of the Em-
ployer, a fair assessment of the testimony presented by each
persuades me that the versions presented by the Employer's
witnesses are most reliable. While the truth may rest in the
testimony of one side in a given respect and of the other
side in another, the overall impression of credibility with
respect to each witness does not allow for such fine distinc-
tion where, as herein, virtually every fact has been placed in
issue by contradictory testimony.
I am not unmindful that my credibility conclusions may
carry along with them items of credibility on which the
Employer should not prevail. Despite this problem and
such possibility, the totality of the record convinces me the
evidence sufficiently supports the Employer's version even
if witnesses whose testimony is credited did at times them-
selves either stray from or honestly omit the truth.
I find the following specific, but not exhaustive, elements
persuasive indicators of the respective reliability of the wit-
nesses. The following employer managerial officials testi-
fied: Albert D. Lyman, president; Richard Ryon, treasurer
and director: Stephen D. Shawe, its attorney; 5 and Supervi-
sors Albert Petrozino and Patrick Direnzo. Each of these
individuals testified in a direct, succinct, candid, forthright.
comprehensive, logical, and inherently plausible manner.
The narrations of each are inherently consistent with ex-
trinsic circumstances. In certain areas some of their testi-
mony is supported by documentary evidence. I credit each
of these witnesses in the description of critical events. Ac-
cordingly, I adopt the testimony of each wherever it is in
conflict with testimony of the General Counsel's witnesses
who testified upon the same subjects.
Employee Gary Haupt and Robert A. Krotine also testi-
fied for the Employer. Both of them presented their testi-
mony in generalities and demonstrated hazy or no recollec-
tion of events. I do not rely upon their testimony in
resolving the issues. As will be observed hereinbelow, the
subject matter of their testimony readily may be resolved
by recourse to the testimony of other witnesses.
Union Attorney Ira H. Weinstock testified on behalf of
the General Counsel. I fully credit Weinstock. His testi-
mony was forthright, candid, comprehensive, and direct.
In contrast, other witnesses presented by the General
Counsel offered testimony considerably less reliable.
Viewed in its totality, I consider the testimony presented by
these other witnesses displays a propensity to present a case
in the light most favorable to the General Counsel. Specifi-
cally, each witness impressed me with having been well re-
hearsed in the need to provide evidence which would en-
hance the possibility that the strike in which the employees
engaged would be found to be unfair labor practice in char-
acter. In this connection Farrone and former striker John
Klinger patently exaggerated their conclusions for strike
Testimony by counsel-of-record on behalf of his client is permitted in
Board proceedings. Local Union No. 9 of the International Union of Operating
Engineers (The Fountain Sand & Gravel Conpani), 210 NLRB 129. fn. 1
(1974).
1036
BURLINGION HOMES. INC.
causation. Thus, Farrone testified that "my biggest main
concern [in striking] was the Company's continuous unfair
labor practices and continuous harassment." As will be de-
veloped iicra, this declaration virtually ignores the relevant
collective-bargaining history between the parties. Thus, his
testimony distorted relevant facts. Farrone's testimony
must be viewed in its context. Apparently, during the inves-
tigation of the underlying charges, the Union had been in-
formed the evidence presented by the witnesses offered to
the Regional Director in support of the underlying charges
was insufficient to support the Union's contention that it
engaged in an unfair labor practice strike. That apparently
weak evidence was presented by the striker witnesses (who
also testified before me) to the Regional Director in affida-
vit form in March. In May, some of these witnesses, such as
Klinger and Leo Wiskirski, provided supplemental affida-
vits. The second affidavits were designed to provide more
positive evidence of the Employer's alleged prestrike unfair
labor practices. There is nothing improper in a charging
party submitting additional evidence in support of charges.
However, that action, considered in conjunction with the
nature of the witnesses' oral testimony at the instant hear-
ing, is instructive in assessing credibility. Careful examina-
tion of the record as a whole persuades me that Farrone
and the striker-witnesses produced by the General Counsel
engaged in a studied effort to assure the validity of the
unfair labor practice strike allegation.
As noted, Klinger, too, exaggerated the reason for the
strike. During his cross-examination, Klinger acknowledged
that the Union's demand for a union-shop clause was a
principal concern of the Union and remained unresolved at
the conclusion of the parties' final prestrike negotiating ses-
sion. Klinger then claimed the "main reason" for the strike
was the Employer's alleged unfair labor practices. Thus,
Klinger testified that Farrone told the Employer's negotia-
tors if the Employer would "curb the unfair labor prac-
tices" a strike could be averted. Later, Klinger altered his
testimony saying that Farrone told the Employer's repre-
sentatives that unfair labor practice charges had been filed.
Thus, when pressed, Klinger omitted his earlier testimofny
that the Union indicated there possibly would be no strike
if the Employer agreed to stop engaging in unfair labor
practices. I conclude that Klinger's retraction of this signif-
icant testimony reflects his anxiety to bolster the General
Counsel's cause and impacts adversely upon his reliability
in general. I simply cannot rely upon his testimony. When
describing an alleged threat by Petrozino, in December, to
close the plant in the event of a strike he was extremely
generalized and ambiguous.
There is another reason for my conclusion that the Gen-
eral Counsel's witnesses consciously attempted to provide
evidence supportive of the complaint allegations. A review
of the testimony provided by some of those witnesses re-
flects an uncanny coincidence in the use of the term "union
shop." Thomas Dodds testified that a prestrike issue was
"union shop." Wiskirski testified Petrozino told him the
plant would close before there would be a "union shop."
This technical terminology for a type of union securit 3 was
freely and correctly used by Attorney Weinstock and Far-
rone in their testimony.
The consistent use of the phrase "union shop" bh the
General Counsel's witnesses normally would be innocuous.
However, the testimony of other witnesses objectively
shows that phrase was not commonly used in the shop.
Thus. Haupt testified that the employees were seeking a
"closed shop." Also, Direnz.o attributed the phrase "closed
shop" to Gaul when describing the confrontation between
them during which Direnzo is alleged to have threatened
the plant would close. Moreover. Direnzo credibly testified
he believed the terms "closed" and "union shop" bear iden-
tical meaning. He also testified. without contradiction.
union supporters commonly used the term "closed shop" at
work. My careful observation of each witness, coupled with
Direnzo's unrefuted revelation, convinces me the consistent
use of the more sophisticated terminology by the General
Counsel's witnesses is more than mere coincidence. The
general demeanor of all employee witnesses who testified.
including Supervisors Direnzo and Petrozino. impressed me
with the fact that none possessed the degree of labor rela-
tions education necessary to make the distinction implicit in
the testimony of the General Counsel's witnesses.
If my analysis regarding the use of the words "union
shop" is imprudent, other bases vet exist which diminish
the reliability of Wiskirski, Dodds, and Gaul. For example:
Wiskirski was selective in his testimony when testifying
concerning Petrozino's alleged threat (identified above) to
close the plant. Wiskirski gave an imcomplete and ex-
tremely brief account of the incident. He pointedly narrated
only that portion of the conversation upon which the Gen-
eral Counsel relies as proof of a violation. I consider this
description unrealistic. Wiskirski's account leaves no room
for a dialogue to have occurred between Petrozino and him.
Petrozino. who candidly acknowledged a conversation oc-
curred, presented an explicit narration which indicates their
confrontation was attended by a conversation during which
both he and Wiskirski spoke. Additionally. Wiskirski's testi-
mony contains a contradiction from another General Coun-
sel witness. According to Wiskirski and Petrozino, em-
ployee Cletus P. Doyle was present when Petrozino is
supposed to have threatened them with discharge if they
went on strike. Doyle appeared as a witness for the General
Counsel. Wiskirski testified the threat of termination was
uttered by Petrozino who also said that if the employees
struck they could be replaced. When Doyle testified, he did
not even acknowledge he was together with Petrozino and
Wiskirski during the incident. Also Doyle gave no testi-
mony to the effect that Petrozino talked about replacement
of strikers. Doyle's version of the alleged threat is couched
in conclusionary terms, to wit: "If anyone would go on
picket line they'd be fired."
Gaul also was selective in his direct testimony, which was
very short. Gaul recalled having a "general conversation"
with Direnzo. According to Gaul, Direnzo threatened the
plant would close before the Employer would grant a union
shop. During cross-examination. Gaul claimed he had no
6 To the extent this finding is contrary to m earlier stated oserall cnclu
sion laupt is not a reliable witness, this finding is permissible. A trier oIf act
is "not required Io discount eers thing Iwitnessesi testified lt because he did
not believe all of it Nothing is more cmmion han to beliese some and not
all of what a ithness ass." Edard Truniporrlotin (ntlpotr, 187 N I.RB 3,
4 (19701 enfd. per curtam 437 F.2d 502 (5th (Cir 19711
1037
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recollection how the alleged threat arose. (Further details of
the Direnzo-Gaul conversation will be described hereinbe-
low). For purposes of credibility resolution, however, I con-
sider Gaul's rather stacatto description less reliable than
Direnzo's.
I find Dodds to have been similarly selective. Also, he
had a tendency to substitute conclusionary language in
place of words he actually may have heard. Dodds testified
pointedly that Petrozino told him the employees selected
the wrong union. According to Dodds, Petrozino said the
employees "married" the Union. As with Wiskirski and
Gaul, it was not until the Employer's witnesses testified that
the alleged unlawful remarks were given a context. Petro-
zino remembered speaking with Dodds about the Union.
Once again, Petrozino was totally explicit. He admitted
ending his conversation with Dodds by saying "you are
stuck with . . . [the Union]." Comparing Dodds and Petro-
zino's description of this event, I accept that of Petrozino to
be the most accurate. Petrozino admitted offering the obser-
vation that he was acquainted with people who selected the
Carpenters Union who reported to him that they did not
have good words to say about it. He offered the opinion
that, if it were his choice, Petrozino "would have tried to get
the Steelworkers Union." Dodds testified Petrozino said,
"You guys got the wrong union in here-you should have
got the Steelworkers, now you're married to this union."
Arguably, the conclusionary terms used by Dodds are tan-
tamount to the words Petrozino claims he used in the con-
versation. I do not wish to exalt form over substance. None-
theless, the General Counsel has argued that the words used
by Petrozino to Dodds constitute an unlawful disparage-
ment of the Union. To decide the issue then, it becomes
crucial to adopt one or the other of the versions presented.
Additionally, the context in which the words are said be-
comes important. On balance, and considering the consis-
tent clarity with which Petrozino testified, I am impelled to
base the findings which I shall make hereinbelow upon Pe-
trozino's account of his conversation with Dodds.
As to Doyle, there are a variety of reasons to find his
testimony unreliable. Not all will be discussed. Perhaps the
most glaring example is a blatant effort to embellish the
value of his testimony. During direct examination, Doyle
testified that at the final bargaining session between the
parties Farrone asked the Employer to "curb" the alleged
unfair labor practices. During cross-examination, Doyle al-
tered that testimony saying that Ferrone only advised the
employer representatives the Union had filed charges. He
later attempted to explain the discrepancy. In explanation,
Doyle testified, "I took it that he [Farrone] asked . . . the
Employer . . . to stop the unfair labor practices." This ad-
mitted interjection of his subjective perception impedes
Doyle's reliability. Additionally, I have already noted that
Doyle's testimony generally was punctuated by his own
claim of failure to recall events. This condition required the
counsel for the General Counsel to elicit testimony by using
leading questions.
Former striker Charles Jonathon presented generalized
testimony. His testimony was the most brief of all the Gen-
eral Counsel's witnesses. He was offered to prove the allega-
tions contained in complaint paragraph 12(b). Those allega-
tions allege unlawful interrogation. Jonathon testified that
Lyman "asked me my feelings toward the Union and would
I be willing to cross the picket line in the event of a strike."
Lyman unequivocally denied he had such a conversation
with Jonathon. Furthermore, Lyman was not cross-exam-
ined. Lyman presented an extensive account of his activities
during the Christmas party at which he is alleged to have
engaged Jonathon in the unlawful interrogation. In con-
trast, Jonathon's testimony was presented without context.
Lyman impressed me with his sincerity. I find his descrip-
tion of his activities during the party plausible. Specifically,
it is undisputed Lyman suffered a chronic heart condition.
Thus he disclaimed the locale identified by Jonathon where
the alleged conversation is supposed to have taken place.
Jonathon claimed the conversation occurred while Lyman
sat on a "planter near the men's room." Lyman credibly
explained, "There's no way I would sit on a planter [be-
cause] I was in a position where I wanted to be comfortable
at all times." Given Lyman's physical condition and his
unrefuted testimony that he had moved from table to table
to speak to all employees at the party, I consider Lyman's
explanation more reasonable.
Edward Whalen, another General Counsel witness, was
called to prove, inter alia, that at the Christmas party Ryon
threatened to shut down the plant before the Employer
would grant a union shop. On this issue. Whalen testified
Ryon spoke with him and said that "they'd be no, ah,
they'll never be a union in as long as he (Ryon] had any-
thing to say: they had too much money invested in it .... "
(Emphasis supplied.) The General Counsel urges Whalen's
omission to use the complete phrase "union shop" is an
inadvertence. I agree this is a distinct possibility. Thus, in
evaluating credibility, I have assumed such an inadvertence
occurred. This inadvertence has been balanced against the
quite specific and vastly more comprehensive description of
the incident presented by Ryon. This process leads me to
conclude that Whalen's testimony was imprecise and his
recollection vague.
Counsel for the General Counsel attempted to cure Wha-
len's omission by two methods. First, the General Counsel
asked "would I refresh your memory if I said to you that
the topic of union shop .... " I sustained an objection to
this leading question. Later, counsel for the General Coun-
sel sought to use Whalen's pretrial affidavit to refresh his
recollection. I sustained the Employer's objection to such
use.'
Rule 611(c), Federal Rules of Civil Procedure, cautions
against the use of leading questions during direct examina-
tion of a witness. Despite this, where a witness' recollection
is exhausted leading questions are permissible, but discre-
tionary with the trier of fact. Roberson v. United States, 249
F.2d 737, 742 (5th Cir. 1957), cert. denied 356 U.S. 919
(1958). In general, the application of Rule 1 I(c) "must rest
largely, if not entirely in the hands of the trial court."
United States v. Durham, 319 F.2d 590, 592 (4th Cir. 1963).
I consider the leading question quoted above of an aggra-
vated character. That is, it does more than simply suggest a
response. It literally feeds the desired answer, in haec verba,
' The General Counsel's brief does not argue the improprietr of either of
these rulings. They have in no way been raised as an issue in his brief No
motion has been filed for reconsideration of either ruling
1038
BURLINGTON
to the witness. Considered in the relevant context of Wha-
len's testimony, I concluded at the hearing (and hereby re-
affirm) that the leading question virtually substituted the
General Counsel in the witness' stead.
I rejected the General Counsel's use of Whalen's affidavit
because I was not satisfied Whalen actually demonstrated
such inadequate recall as warranted the attempted tech-
nique. He apparently fully responded to the request to nar-
rate the conversation with Ryon. Thereafter, counsel for the
General Counsel asked, "Do you remember anything else
. .[Ryon] . . . said?" Whalen then added another item
Ryon is supposed to have said. It was at this point that the
General Counsel asked whether Whalen's memory was ex-
hausted. Whalen responded, "No, that's about it; that's all
I remember."
Whalen did not say he could not recall any part of the
conversation. He described it; and later added to it. It was
counsel who suggested to Whalen his memory might be de-
ficient. Even then, Whalen maintained "that's about it."
In sum, I was not satisfied Whalen lacked such effective
present recollection as required memory stimulation.
"Where the recollection of a witness is clear, there is no
need for refreshing, and the use, in such case, of the prior
statement would serve only to corroborate or to contradict
the testimony of the witness based upon his present recol-
lection." N.L.R.B. v. Hudson Pulp & Paper Corporation, etc..
273 F.2d 660, 665 (5th Cir. 1960).
The attempted use of the pretrial affidavit occurred sub-
sequent to the time the leading question had been pro-
pounded. Also, lengthy colloquy among counsel and the
bench preceded the affidavit proffer. That colloquy was
conducted in Whalen's presence and clearly reflected its
purpose. A witness, "unless opposing counsel waives it.
should not refresh his recollection [with a written instru-
ment] until he has been examined without leading. if it is
direct examination .... " N.L.R.B. v. Federal Dair Co,-
pany, Inc., 297 F.2d 487, 489 (Ist Cir. 1962).
Donald M. Nolte testified in support of complaint para-
graphs 14(a) and (b). These allegations allege, respectively,
that Petrozino interrogated an employee (Nolte) on Febru-
ary 4, and on that date threatened that the Employer
"would get rid of the Union." Petrozino readily admitted
that he asked Nolte what Nolte thought of "this union
stuff." Thus, Nolte is corroborated as to his testimony re-
garding paragraph 14(a).
However, Petrozino unequivocally denied the threat to
eliminate the Union from the Employer's presence. I find
Nolte's account of the alleged threat generalized. Addition-
ally, Nolte exhibited a limited recollection. When he was
asked whether or not he attended a particular union meet-
ing he claimed he could not recall. In the totality of the
testimony herein I conclude Petrozino was more accurate in
his denial of the alleged threat than was Nolte. I do credit
Nolte's narration of the alleged interrogation because of
Petrozino's admission.
Martin Bowen. a rebuttal witness, was called to corrobo-
rate Gaul's assertion that Direnzo threatened to close the
8 Whether Petrozino's statement constillutes unlawful interrogation will he
discussed infra
HOMES. INC. 1039
plant. Bowen was self-contradictory. During direct exami-
nation he testified that Direnzo uttered the threat to close
during a conversation between Gaul and Direnzo who were
talking "mostl' about just personal things." (Emphasis sup-
plied.) During cross-examination. Bowen changed this pos-
ture and testified that Direnzo and Gaul talked "mostlv
about the Union." (Emphasis supplied.) I consider that this
self-contradiction diminishes Bowen's value as a witness.
Additionally. Bowen was a striker who has not yet been
reemployed. In the interim, Bowen performed personal car-
pentry work for Union Secretary-Treasurer Farrone. This is
an element I have considered in concluding that Bowen's
testimony is of little probative value.
Finally, in making credibility determinations I have con-
sidered the interest of most of the General Counsel's wit-
nesses in the outcome of this proceeding. All but Gaul and
Nolte are replaced strikers. Additionally. Dodds. Doyle.
and Whalen were members of the union bargaining com-
mittee: and Klinger was a bargaining committee alternate.
Although the personal interest of these witnesses has not
been considered dispositive of their credibility. it is a factor
which may be, and has been. considered. Local 38, Interna-
tional Brotherhood of' Electrical Workers. A FL CIO (Robert
R. Cutler d/h/a Bob Cut/er Signs), 155 NLRB 1147. 1150
(1965).
C. Interc'rence. Restraint, and Coercion
As already observed the complaint contains a variety of
8(a)(I) allegations. The various situations they represent
emanate from the Union's efforts to negotiate a first-time
collective-bargaining agreement with the Employer.
Those allegations. which have been described in depth
within my credibility discussion, will be set forth in capsule
form.
Complaint paragraph 9 alleges that Petrozino told an em-
ployee the wrong union had been selected and employees
would "never be able to get rid of it."
This allegation is based upon the testimony of Dodds
described supra in the credibility section. As noted. Petro-
zino gave a more extensive account which I accept. I'hus.
Petrozino indicated Dodds initiated their conversation.
Dodds asked Petrozino why Lyman would not grant a
"closed shop." Petrozino inquired why that issue was im-
portant. Dodds responded that the employees would re-
ceive better benefits, more money, and job security. Petro-
zino then remarked, as described hereinabove, he had heard
negative reports concerning the Union. Petrozino also said
if he had been in the employees' position he would have
preferred to be organized by the Steelworkers. Doyle re-
sponded that the employees would try the Carpenters and if
they were unsatisfactory the employees would rid them-
selves of the Union. The conversation ended by Petrozino
saying he did not know how such a thing could be accom-
plished and "once you bring them in 'you're stuck.' " This
conversation occurred many months after the Union was
certified. Both Dodds and Petrozino placed it near the end
of November. The parties then were in the midst of serious
collective-bargaining negotiations.
In arguing that Petrozino's remarks to Dodds iolated
the Act. the General Counsel principally relies upon l ehigh
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lumber Compan, 230 NLRB 1122, 1125 (1977). The Gen-
eral Counsel argues that "the facts in the instant case are
quite similar to those in Lehigh Lumber." I disagree.
In Lehigh Lumber the unlawful statement was positive
and direct. The supervisor uttering it explicitly told an em-
ployee his union was no good and it was "screwing" the
employees. Also, this remark was not isolated. The em-
ployer, shortly thereafter, presented the employees with
copies of the employer's final contract offer made to the
union. The employees were told they could not work unless
the employer's final offer was accepted. This latter activity
was found to comprise a threat of economic reprisal and an
attempt to undermine the union's representative status by
bargaining individually with employees, in violation of Sec-
tion 8(a)(1) and (5) of the Act.
Similarly, I find the other case cited by the General
Counsel in support of this allegation inapposite. Thus, in
.Daisy's Originals, Inc., of Miami, 187 NLRB 251, 255 256
(1970), the employer actively solicited employee repudi-
ation of the union. Additionally, it committed various other
unfair labor practices. The Board found the totality of Dai-
sy's activities established that the employer was engaged in
a campaign to increase dissension in the shop and sway the
employees from their allegiance to the Union.
As will be seen hereinafter by my disposition of the var-
ious other 8(a)(I) allegations, the instant case differs sub-
stantially from the context of both cases cited by the Gen-
eral Counsel. I find there is no credible evidence herein
which supports a conclusion that the instant Employer was
engaged in a campaign to decimate the Union. Even the
complaint contains no other allegations of statements de-
rogatory to the Union by any other supervisor. Accord-
ingly, I conclude disposition of the subject allegation is gov-
erned by the Employer's cited case, Television Wisconsin,
Inc., 224 NLRB 722, 764 (1976). In that case a supervisor
told an employee he could not understand how the employ-
ees could be so stupid as to allow union representatives
whom he named bargain on their behalf. Coupled with that
comment the supervisor used an expletive to describe the
union representatives. These remarks were made in the con-
text of other unfair labor practices. Nonetheless, the Board
adopted, pro forma, the Administrative Law Judge's recom-
mendation to dismiss the allegation which alleged unlawful
derogation of the union negotiators.
Upon the foregoing, I reject the General Counsel's con-
tention Petrozino's remarks to Dodds are violative of the
Act.
Complaint paragraphs 10(a)-(b) allege that in December
Petrozino threatened the plant would shut down before it
would have a union shop and threatened an employee with
discharge if he went on strike. These allegations are based
upon the testimony of Wiskirski and Doyle.
Wiskirski's fragmented testimony is to the effect that
sometime in mid or late December, in Doyle's presence,
Petrozino said he (Petrozino) spoke to Lyman who, in turn,
said "he'd close the place down before he gives the guys a
union shop." Wiskirski also testified Lyman told him if the
employees struck they would "be fired and be replaced by
other men . . . we [the Employer] could replace you."
As earlier indicated, Doyle's account was even more frag-
mented than Wiskirski. Also, Doyle did not state that Wis-
kirski was present when Petrozino allegedly told Doyle if
anyone would go on the picket line they would be fired.
Petrozino acknowledged he spoke with Doyle and Wis-
kirski in December about the Union. Petrozino comprehen-
sively related his conversation with Doyle as follows: Doyle
"hit" him about the closed shop. (The record is replete with
evidence that union security was a major issue at all times
during negotiations). Petrozino claimed Doyle opened the
conversation by saying the employees are going to strike
and shut the plant down. Petrozino responded that the em-
ployees could not accomplish this because Lyman intended
to keep the plant open. Petrozino told Doyle that the plant
would work by Lyman hiring replacements. Petrozino un-
equivocally denied explicitly telling Doyle that employees
would be discharged if they went on strike.
Petrozino testified he had previously been involved in
four union representative campaigns. Specifically, with re-
spect to the campaign from which the instant certification
evolved, he testified that he attended management meet-
ings. There, Attorney Shawe apprised managerial personnel
that the Act prohibited issuance of threats. Also, Shawe
explained the reinstatement rights of strikers. Petrozino
himself posted a notice containing a description of the
rights of economic strikers to reinstatement on the Employ-
er's bulletin board. Petrozino testified he read that notice.
Considering the status of negotiations, described supra, in
section III, A, I consider it probable that employees were
talking about strike possibilities at the time of the Petro-
zino-Doyle conversation. Noting Doyle was a member of
the Union's negotiating committee I consider it entirely rea-
sonable for him to have made the statements attributed to
him by Petrozino. Accordingly, I find that Petrozino merely
expressed his knowledge of an economic striker's reinstate-
ment rights to Doyle and did not threaten Doyle with dis-
charge in the event of a strike. Thus, I find the allegations
of complaint paragraph 10(b) without merit.
Turning to the alleged threat to close the plant, Petro-
zino's comprehensive narration of his conversation with
Wiskirski reveals that Wiskirski initiated conversation re-
garding the Union. Petrozino approached Wiskirski and
Doyle who were working together. They were talking. Pe-
trozino asked, "What's the matter?" Wiskirski explained
that "without a closed shop we're going to shut the factory
down. We're going on strike." According to Wiskirski, Pe-
trozino responded, "There's no way--you're going to go on
strike, you're going to be replaced because [Lyman] is going
to work the factory." Petrozino disclaimed he said anything
to Wiskirski regarding closing the plant before a union shop
was granted.
Here again I conclude Petrozino did no more than ex-
press. albeit in unsophisticated terms, his understanding of
reinstatement rights of economic strikers. This kind of ad-
vice is legally permitted. Decaturville Sportswear Co., Inc.,
et al., 205 NLRB 824 (1973), particularly at 827 and fn. 2.
In that case, the Board found it lawful for a supervisor to
have expressed an opinion that strikers could be replaced
because the employer intended to continue its operations
during a strike. This finding was independent of whether
the strike which ensued was characterized as economic or
unfair labor practice.
1040
BURILINGTON HOMES, IN(C.
With regard to the alleged plant closing remark, I credit
Petrozino's denial. Petrozino's assertions that the Employer
conducted supervisory education regarding employee rights
is unrebutted and supported by documentary evidence. It is
illogical to conclude that Petrozino disregarded the admoni-
tion against threatening employees. Even the testimony of
Wiskirski and Doyle indicates that Petrozino advised them
the Employer intended to continue its operations during the
strike. It does not logically follow that Petrozino also would
have said, in the same conversation, the plant would close.
Upon the foregoing, I find Petrozino did not tell emplo,-
ees that the Employer would shut down the plant before it
would have a union shop. Accordingly, I find no merit to
the allegations contained in complaint paragraph 10(a).
Complaint paragraph II alleges that in late December
Petrozino threatened employees with discharge if they went
on strike. This allegation is derived from the testimony of
Klinger. Klinger, in a very generalized fashion, testified he
had a conversation with Petrozino "about the time we were
talking about the Company closing the plant down and the
harassment charges against the men, and they were talking
about closing the plant down and opening up under new
management and firing all employees concerned if we went
on strike."
As noted. Klinger was an alternate member on the
Union's negotiating committee. Klinger's supervisor was
Direnzo. not Petrozino.
Petrozino unequivocally denied ever talking to Klinger
regarding the Union. Petrozino credibly asserted that he
knew Klinger to be a personal friend of Farrone. Thus.
Petrozino's denial is logical. Additionally, Petrozino specif-
ically denied that he issued any threat toward Klinger.
I have already noted some reasons I can place no proba-
tive value to Klinger's testimony. Additionally. I find his
testimony to be entirely confused and disjointed. This mars
whatever certainty appears in it. Moreover, Klinger's asser-
tion that Petrozino addressed him regarding the Union is
improbable. It was Direnzo, not Petrozino, who was Klin-
ger's supervisor. I recognize that this fact alone does not
preclude the possibility of a Klinger-Petrozino conversa-
tion. However, an additional factor has been considered, to
wit, Petrozino's uncontroverted testimony he was aware a
close relationship existed between Klinger and Farrone. I
consider it doubtful, in all the circumstances herein, that
Petrozino would have been so reckless as to make threaten-
ing comments to any employee where to do so would likely
incur the Union's immediate wrath and reaction. It is more
reasonable to presume a supervisor with Petrozino's experi-
ence and education in representation campaigns would
avoid such encounters. Thus, I credit Petrozino's denial he
had any conversation regarding the Union with Klinger.
Accordingly, I find Petrozino did not threaten any em-
ployee as alleged in complaint paragraph 1.
It is alleged in complaint paragraph 12(a) that at a De-
cember 21, 1977, Christmas party Ryon (I) threatened to
close the plant before a union shop were granted, and (2)
threatened to run down anyone on a picket line. This alle-
gation was based on Whalen's testimony. He was a member
of the Union's negotiating committee.
Whalen testified that at the Christmas part, Ryon en-
gaged him in a conversation by asking if Whalen was on the
Union's negotiating committee. Whalen testified he said
yes. Ryon is then supposed to have said, "They'll never be a
union in as long as" he has anything to say. Whalen also
claimed Ryon told him that if pickets got in his way. he
(Ryon) would run them down.
Whalen did not provide any testimony supporting the
allegation that Ryon threatened to close the plant. Wha-
len's testimony on this issue was selective and his memorN
vague (see extensive discussion regarding Whalen, supra,
sec. I111, B.
Ryon's comprehensive account of this incident follows.
Whalen approached him. At that time. Ryon was unaware
of Whalen's identity. According to Ryon. Whalent said he
(Whalen) would shut the Company down. Ryon retorted.
"I don't know about that, in what way? Whalen said,
"We'll picket and no one will get in." Ryon responded. "As
fair as I'm concerned, the Company is going to work." Wha-
len insisted, "No it won't, I'll shut it down." Ryon testified
he then asked how Whalen intended to keep people out of
the plant. According to Ryon, Whalen challenged Ryon
saying, "If you come through you'll find out." Ryon ended
the conversation saying. "Well. I'll do that."
Ryon also testified that he observed Whalen staggering.
This behavior was observed by some other employees who,
according to Ryon. cautioned him. No evidence was offered
to rebut Ryon's observation. In addition. Ryon testified
that Whalen challenged him to walk outside the party with
him.
Ryon unequivocally denied he told Whalen he would run
him down on a picket line, but admitted he said he intended
to drive into the plant. Ryon denied discussing the negotia-
tions or the union-security issue with Whalen. Finally.
Ryon denied saying that he would close the shop. Instead,
he attributed this remark to Whalen.
Whalen's reliability as a witness has already been exten-
sively discussed. Based upon that discussion. I find the rec-
ord is bare of evidence supporting the allegation Ron
threatened to close the plant before there would be a union
shop.
Even if my rulings regarding the attempts to refresh
Whalen's recollection by leading questions and his pretrial
affidavit are imprudent, I would give the testimony so elic-
ited little probative value, considering the general character
of Whalen's other testimony and his general demeanor. Ac-
cordingly, I find no evidence to support the allegations in
complaint paragraph 12(a)(l).
As to the threat to run employees down on the picket line
alleged in complaint paragraph 12(a)(2), I credit Ryon's
version based upon (I) my earlier discussion of relative
credibility and (2) upon the fact Whalen did not rebut
Ryon's testimony that he had been staggering and needed
assistance from other employees. It is interesting that no
other person who apparently witnessed the Ryon-Whalen
confrontation testified. In the peculiar circumstances exist-
ing herein, I consider the failure to corroborate Whalen's
account an element appropriately considered in the search
for truth.
Moreover, it is likely Whalen would have claimed the
Union would shut the plant down. The Christmas party
was conducted coincidental with widespread speculation
among the employees as to the outcome of negotiations. As
1041
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
observed above in the discussion of background events, the
party was held but a few days after the union ratification
meeting had been canceled. The record as a whole supports
an assumption that speculation included the possibility of a
strike. As already noted, Whalen's description of his con-
frontation with Ryon exhibits extremely selective recall.
Ryon's recount of his conversation with Whalen is more
comprehensive. In this context, I conclude Ryon's version is
more reliable and plausible than Whalen's. Accordingly, I
find the alleged threat to run down is not supported by a
preponderance of credible evidence.
In complaint paragraph 12(b)(l) it is alleged that at the
Christmas party Lyman interrogated an employee concern-
ing his union sympathies and in complaint paragraph
12(b)(2) that he asked an employee whether he would be
willing to cross a picket line. These allegations are based
upon Jonathon's testimony.
The testimony of Lyman and Jonathon on this issue al-
ready appears above in section III, B. Having accepted Ly-
man's unequivocal denial of these instances of alleged inter-
rogation, I now conclude that the allegations contained in
complaint paragraph 12(b)(1) and (2) lack merit.
Complaint 13 alleges that Direnzo threatened the Em-
ployer would close the plant before it would have a union
shop.
As already noted, Gaul testified in a highly selective
manner. He identified two conversations with Direnzo. The
first conversation, the subject of the instant allegation, was
in January. At that time, Gaul testified that Direnzo, during
a "general conversation," said "before they'd [the Em-
ployer] have a union shop. the plant would close." Gaul
was not asked to describe anything else during that conver-
sation.
Gaul further testified that the second conversation was
held between him and Lyman. Bowen was also supposed to
have been present. According to Gaul, Lyman said the
plant was not going to close and issued an invitation to
Gaul and Bowen to come to work, which they chose to do.
While Bowen appeared as a rebuttal witness and cor-
roborated Gaul as to the first conversation, he was not
asked to describe the second conversation. Significantly,
Gaul did not place Bowen present during the first conversa-
tion. Indeed, Gaul explicitly denied that anyone but he and
Direnzo were present during that conversation. I find the
testimony of these two General Counsel witnesses confusing
and contradictory.
In contrast, Direnzo was comprehensive and inherently
consistent with testimony of other employer witnesses. Dir-
enzo recalled talking about the Union with Gaul one day in
January when he went to discuss a work assignment. Ac-
cording to Direnzo, Gaul raised the union issue comment-
ing if the Union did not receive a closed shop there prob-
ably would be no contract and a strike. Direnzo responded,
"If there is a strike, the Company plans to keep the plant
open, and if we have to, we'll hire replacements for all the
strikers." Direnzo testified that ended the conversation. He
unequivocally denied saying the plant would close before
the Employer gave in to a union shop. Direnzo also testified
he attended the management education sessions where su-
pervisors were instructed concerning their conduct during a
representation campaign.
It requires no extensive analysis to resolve this issue. In
addition to my observations on the credibility of Direnzo,
Gaul, and Bowen, supra, the circumstances described im-
mediately above portray patent confusion. Gaul and Bow-
en contradict one another with respect to Bowen's presence
during the conversation when Direnzo is supposed to have
issued the alleged threat. Moreover, Gaul's testimony is in-
ternally inconsistent. He claimed that Direnzo threatened
to close the plant and also that Lyman positively said the
plant would not close.
In all the circumstances, I fully credit Direnzo's denial
that he issued the alleged threat. Accordingly, I find no
merit to the allegations in complaint paragraph 13.
Complaint paragraph 14 alleges Petrozino, on or about
February 4, engaged in unlawful interrogation and threat-
ened that the Employer would "get rid of the Union."
Nolte testified that on a Saturday morning early in Feb-
ruary (February 4 was a Saturday), he "was walking
through the plant; and Petrozino was there; and he said
How are you doing to me: I says, okay, I guess; and he said
what do you think of this union stuff: I said no comment
and his reply was there'll be no union in here with New-
burn and Ryon, as I hear it, they'll start all over again: and
I looked at him, and I said, well, I guess they can with their
money; and that's all I said." (Emphasis supplied.)
Petrozino candidly admitted asking Nolte what he
thought of the union stuff Petrozino confirmed Nolte re-
sponded "no comment." Petrozino, however, emphatically
denied that he made any reference to Newburn9 and Ryon
or that they would "start all over again."
As to the interrogation aspect, complaint paragraph
14(a), of this allegation, it is clear that interrogation of em-
ployees about union activities is not a per se violation of the
Act. Interrogation of employees about union activities is
violative of the Act if coercive or done otherwise in a man-
ner constituting interference, restraint, or coercion within
the meaning of Section 8(a)(1) of the Act.
All circumstances must be considered in determining
whether or not such interrogation is violative. Among the
factors for consideration are (I) where the union interroga-
tion occurred, (2) whether a legitimate need for such inter-
rogation existed, (3) whether the employee or employees
who were interrogated were advised of such legitimate need
for interrogation, (4) whether the employee was advised
that there would be no reprisal because of such interroga-
tion, and (5) any other matter indicative of coercion or lack
of coercion. Hanes Hosiey, Inc., 219 NLRB 338 (1975).
Whether employees are in fact coerced or not by interro-
gation is not the test of lawfulness. The tendency of effect of
such interrogation is controlling. El Rancho Market, 235
NLRB 468 (1978); Impact Die Casting Corporation, 199
NLRB 268, 271 (1972).
Applying the above principles, I conclude that Petro-
zino's admitted question concerning the "union stuff' does
not rise to the status of proscribed interrogation. (Emphasis
supplied.) The setting in which the comment was made has
been considered. Indisputedly, it came only 3 days after the
negotiations resumed. As already noted, supra, a bargaining
session was held on February I after a 6-week hiatus. At
' The record does not further identify Newburn.
1042
BURLINGTON HOMES, INC.
that meeting there appeared to have been a regression in
negotiations. Formerly, there was agreement between
Shawe and Decker upon all issues but union security on
December 19. Despite this, on February 1, Farrone enu-
merated a list of both economic and noneconomic matters
the Union still believed unresolved. In this posture. it is
reasonable to assume, as I do, there was an undercurrent of
prognostication regarding the outcome of negotiations.
Even if this assumption is unwarranted. I regard Petro-
zino's reference to union "stuff' is more an allusion to the
new union bargaining position than an inquiry into Nolte's
affiliation and sympathies. Cf. Twilight Haven, Incorporated,
235 NLRB 1337 (1978). where there existed a campaign of
systematic interrogation to determine the source and breadth
of employee support for a union. At best. Petrozino's com-
ment is ambiguous.
Recently, the Board had occasion to consider interroga-
tion dissimilar, but analogous, to the query of Petrozino. In
York Division, Borg-Warner Corporation. 229 NLRB 1149
(1977), the Board adopted the conclusion of Administrative
Law Judge Robert A. Giannasi that no unlawful interroga-
tion occurred when a supervisor asked an employee "how
(an imminent representation election) would come out"
(229 NLRB at 1152). It was concluded that the context of
the conversation "did not suggest coercion."
In essence, Petrozino asked a vague question. The mutu-
ally corroborative versions of Petrozino and Nolte make it
clear Petrozino used the phrase "union stuff" In my view
this reference is no less conjectural than asking the em-
ployee, in York Division, Borg-Warner, his feelings regard-
ing the election results. The use of the word "stuff" elimi-
nates an interpretation that Nolte was being asked to betray
his union sympathies or those of any other employee.
Moreover, Petrozino's remark was made in a noncoercive
context. Even Nolte's version reveals it was an impromptu
event. It occurred from a chance meeting with Petrozino as
Nolte was "walking through the plant."
Upon all the foregoing, considered against the backdrop
of what was the then current status of negotiations, I con-
clude the question posed by Petrozino to Nolte does not
reasonably tend to coerce or intimidate employees in the
exercise of their Section 7 rights. Accordingly, I find no
merit to the allegations of complaint paragraph 14(a).
With respect to the threat to get rid of the Union (com-
plaint par. 14(b)), I have found Petrozino more reliable
than the General Counsel's witnesses who testified on the
same subjects. Thus, I credit his denial that he suggested
the Employer might start "all over again."
Additional factors in reaching this conclusion have been
considered. They are (I) Petrozino's participation in earlier
campaigns, (2) the fact he was educated to avoid issuing
threats, (3) the fact the Union already was certified as bar-
gaining agent. (4) the existence of negotiations currently in
progress, and (5) the absence of an atmosphere of other
unfair labor practices. The sum of these elements renders it
implausible that Petrozino would have threatened Nolte as
alleged in complaint paragraph 14(b).
It is alleged in complaint paragraph 16 that the Employer
offered striker replacements a higher starting salary than it
had offered the Union in negotiations. This alleged higher
starting rate is alleged to have been effective March 21.
As noted, the strike began March 17. On March 20. the
Employer advertised in the local press for production work-
ers to replace its striking employees. Those advertisements
offered $3.25 as a starting rate for new employees (G.C.
Exh. 2 a).
Prior to the final March 16 negotiating session, the lowest
starting salary was $2.65. During that bargaining session
the Employer offered a 50-cent across-the-board wage in-
crease. The General Counsel contends the addition of the
Employer's final wage offer to the former starting rate
would make the new starting rate $3.15. Thus, the General
Counsel argues that the conceded $3.25 advertised rate ex-
ceeds by 10 cents what was offered the Union.
Superficially, the General Counsel's theory is appealing.
However, it ignores the context of negotiations. The ques-
tion presented by this allegation is whether the parties even
negotiated for a starting rate for unit employees. If so, the
General Counsel must prevail. It is well established that the
offer of a higher wage rate to striker replacements than that
offered to their union in negotiations is violative of the Act.
It is discriminatory against the union employees and is an
unlawful unilateral change in terms and conditions of em-
ployment. The Radio Officers' Union of the Commercial Te-
legraphers Union. A.F.L. Gavnor NVews Companyv, Inc.] v.
N.L.R.B., 347 U.S. 17, 46 (l1954); (Glazers Wholesale Drug
Company Inc., 211 NLRB 1063, 1066 (1974): St. Clair
Lime Company. 133 NLRB 1301. 1308 (1961). enfd. 315
F.2d 224 (10th Cir. 1963): 14 W. Wallwork Fargo, Inc.. 123
NLRB 91. 106 107. fn. 3(1959).
Farrone testified that at the March 16 bargaining session
Shawe increased the wage offer from 30 to 50 cents an hour
across-the-board. This is undisputed. Farrone said he asked
Shawe whether "that means the starting rate is $3.15 and
[Shawe] acknowledged by saying yes."
Shawe presented a more enlightening account of the his-
tory of wages and negotiations. Thus. Shawe recounted
substantial portions of the various agreements made be-
tween him and Decker in October. November, and Decem-
ber. As noted, Farrone was not present during those bar-
gaining sessions. In relevant part, Shawe testified:
Mr. Decker and I discussed whether or not a starting
rate should be inserted in the progression, and I said
that the Company thought that the starting rate ought
to be left unspecified and undetermined, to be deter-
mined by the Company as it saw fit so long as the
employees who completed their probationary period
earned at that time $3.05. Mr. Decker had no objection
to that.
As previously noted, Decker did not testify. Thus.
Shawe's testimony of what transpired between Decker and
him stands uncontroverted. Moreover. in the circumstances
herein. I conclude Decker's failure to testify justifies an in-
ference that had he appeared at the hearing his testimony
would have been adverse to the Union's (and the General
Counsel's position). Interstate Circuit, Inc. v. U.S., 306 U.S.
208 (1939): Monahan Ford Corporation of Flushing, 173
NLRB 204 (1968). No explanation was offered for Decker's
absence from the hearing. In these circumstances, I pre-
sume he was still in the Union's control. 2 Wigmore. Ei-
dem'e, §286(a).
1043
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shawe further testified the starting rate issue "never arose
again either in conversations between myself' and Mr.
Decker nor in conversations between myself and Mr. Far-
rone: the issue was not a substantial issue with Mr. Decker,
as it affected [no] employees then covered in the bargaining
unit or employed ... [by the Employer]."
Thus, Shawe specifically denied the issue of starting rate
was raised at any collective-bargaining sessions during Feb-
ruary or March, including the final meeting of March 16.
Shawe explained the only concerns discussed by the parties
involved the wage rates which would be paid to already
employed individuals in the bargaining unit.
Shawe's testimony was corroborated by notes which he
produced and testified that he read verbatim at the March
16 bargaining session. My analysis of that document reveals
no mention whatsoever was made concerning the starting
rate.
Moreover, my examination of the proposed contract lan-
guage leads me to conclude it supports Shawe's position.
Thus, article IXX, secs. I(a c), provide wage schedules
which establish wage rates for employees "following com-
pletion of' 30, 60, 120, 180, 270, and 365 "days of employ-
ment." No mention whatever is made of a starting rate.
I conclude the failure of the proposed contract language
to refer to a starting rate supports Shawe's denial the start-
ing rate was a negotiated subject.
In making the above conclusions I am not unmindful of
Farrone's testimony regarding the final March 16 negotia-
tions. In effect, that testimony suggests that whatever oc-
curred between Decker and Shawe is irrelevant. In other
circumstances, I might agree. However, herein I am re-
quired to collate all facts to evaluate credibility and also to
marshall the critical facts into a semblance of logical and
probable order.
In the totality of circumstances, I simply cannot accord
substantial probative value of Farrone's assertions that the
starting rate had been negotiated on March 16. First, the
collective-bargaining history does not make such discussion
a probable event. Second, neither Whalen nor Dodds, both
of whom were members of the union bargaining committee
present at the March 16 session, corroborated Farrone's
version of this conversation. Doyle, who also attended the
March 16 bargaining session, testified only that his under-
standing of the Employer's offer would mean that a new
employee would start at $3.15. Doyle neither confirmed nor
denied that the $3.15 actually was mentioned at the bar-
gaining table.
I have already concluded that Farrone's testimony on
this issue was exaggerated. If not, then clearly it resulted
from Farrone's misunderstanding of what occurred on
March 16.
Upon all the foregoing, I find that the Employer did not
unilaterally alter terms and conditions of employment as
alleged in complaint paragraphs 16 and 26 as violation of
Section 8(a)(l) and (5).
The General Counsel contends the Employer discrimi-
nated against employees in violation of Section 8(a)(3)-
complaint paragraph 25-by paying striker replacements
the $3.25 starting rate. He urges that action is inherently
destructive of employee rights, citing N.L.R.B. v. Erie Re-
.sistor Corp.., 373 U.S. 221 (1963).
Factually, the March 20 advertisements announced the
$3.25 starting rate. On April 26 a revised advertisement
soliciting striker replacements was published. Thereafter,
there is evideqce that several striker replacements were still
paid $3.25 as a starting rate.
The Employer's records in evidence show no striker re-
ceived wage rates below $2.90 when the strike started. (G.C'.
Exh. 7 c). The Employer's final 50-cent across-the-board
offer would have increased the wage rate of the lowest paid
striker to $3.40. Thus, under the terms of the Employer's
March 16 wage offer no striker would have received less
than 15 cents more than the $3.25 starting rate paid to
striker replacements. Accordingly. I find there is no evi-
dence which proves any striker replacement was accorded a
benefit not offered to the Union.
In the above framework, I further conclude there exists
herein no factual predicate supporting the General Coun-
sel's contention. His theory rests upon the erroneous as-
sumption that the striker replacements were offered and
paid a wage rate in excess of that offered the strikers. In
part, the theory requires that I would have found, but did
not, merit to the allegation that the starting rate was unlaw-
ful.
In sum, I conclude this is not a case where, as in Radio
Officers [Gaynor NVews Company, Inc.] v. N L. R.B., 347 U.S.
17, the discrimination found violative was "inherent in the
payment of disparate wages as between union and non-
union members." I conclude, therefore, there is no merit to
the 8(a)(3) allegations which evolved from payment of the
$3.25 starting rate to striker replacements.
At the hearing, the General Counsel orally moved to
amend the complaint by adding a new paragraph as fol-
lows:
16(a) On or about December 1977, Respondent
through its agent Albert Petrozino:
(I1) Threatened an employee that if the employees
went on strike, they would be replaced: and
(2) Informed an employee that if they went out on
strike, the Employer could shut down the plant.
Over the Employer's objection, I granted the motion. Aft
ter the General Counsel adduced his supporting evidence, it
became evident the information on which this allegation
was based was in the General Counsel's possession a full 3
months before the issuance of the original complaint and
notice of hearing. At that revelation, the Employer moved I
reconsider my ruling permitting the amendment. I did so,
and struck these newly added allegations from the com-
plaint. Thereafter, the Employer adduced no evidence in
defense of these allegations.
The General Counsel's brief refers to the evidence ad-
duced to support these allegations and argues that findings
of unfair labor practices should be made thereon. The Gen-
eral Counsel, however, does not move that paragraphs
16(a)(1) and (2) should be reinstated into the complaint.
I consider the subject complaint paragraphs do not at
this time comprise part of the complaint. No findings will
be made in that connection.
The granting of motions to amend is discretionary with
administrative law judges. The Board's Rules and Regula-
tions, Section 102.16; Milton Perel, et al., d/h/a Richmond
1044
BURLINGTON HOMES. INC.
Lumber and Building Supply Company, 158 NLRB 313, fn. I
(1966), and cases cited therein. At the hearing, upon the
Employer's reconsideration motion, I considered it was in-
equitable to admit the addition of the new allegations based
on information in the General Counsel's possession literally
for 3 months prior to issuance of the complaint and 8 full
months before the hearing convened. As earlier noted, the
original complaint was amended on August 29. Yet, the
information within the General Counsel's possession even
then had not been included in the complaint. In these cir-
cumstances, and in order to avert a request for adjournment
of the hearing, it was, and is, my judgment the General
Counsel's motion to amend should not be granted. Thus, I
reaffirm my rulings striking paragraphs 16(a)(1) and (2)
from the complaint. Cactus Petroleum, Inc., 134 NLRB
1254, fn. I (1961). In this connection, I note the subject
matter has not been fully litigated inasmuch as the Em-
ployer ceased interrogation on these issues after the allega-
tions struck. Pellegrini Bros. Wines, Inc., 239 NLRB 1220
fn. 2 (1979); cf. Rocky Mountain Natural Gas Company,
Inc., 140 NLRB 1191, 1192-93 (1963).
C. The Unfair Labor Practice Strike Issue
A plethora of evidence was adduced by the General
Counsel and the Union to show the strike was caused, at
least in part, by unfair labor practices of the Employer.
A fair summary of such evidence reveals (I) the Union
held at least two prestrike meetings during which, inter alia,
various employees expressed their belief the Employer had
engaged in the conduct alleged herein as 8(a)(l) violations,
(2) at those meetings Union Attorney Weinstock and Far-
rone opined that probably there was merit to the instant
charges, (3) the legend on picket signs protested unfair la-
bor practices, and (4) Farrone made a self-serving demand
of Shawe, at the final March 16 negotiating session, to
"curb" the alleged unfair labor practices.
In counterposition, the extensive evidence of the negoti-
ating history between the parties demonstrates that union
security was the most significant bargaining issue in the
dispute between the parties. Wage rates were resolved at
the final session. Additionally, the history reflects the par-
ties were concerned with a multitude of other economic
issues.
Evaluating all the relevant evidence, I conclude the strike
was caused solely by the failure of the Employer to accede
to all of the Union's outstanding demands, particularly a
union-security provision.
It is well established that "if an unfair labor practice had
anything to do with causing a strike, it is an unfair labor
practice strike. General Drivers and Helpers Union, Local
662, Affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of' America
[Rice Lake Creamer; Companv] v. N.L.R.B., 302 F.2d 908.
911 (D.C. Cir. 1962). cert. denied 371 U.S. 827. Essential to
such a conclusion, however, is the actual existence of a pre-
strike unfair labor practices. The Little Rock Downtowner.
Inc., 148 NLRB 717, 720 (1964); Tufis Brothers Incorpo-
rated, 235 NLRB 808 (1978).
Herein. I have found the Employer did not commit any
of the alleged unfair labor practices. Thus, no causal basis is
present warranting a finding the strike may be appropri-
ately characterized as unfair labor practice. I find the strike
was economic in nature.
D. Refusal To Reinstate Strikers
As noted, the strike ended on June 5. It is uncontested
that, by June 8, the Union made an unconditional offer to
return to work on behalf of 42 strikers. The name of each is
contained in the complaint'0 as individuals against whom it
is alleged the Employer discriminated by a failure to rein-
state.
Gaul was reinstated on June 19; John Halupa was rein-
stated on August 14. Additionally, Dan Mikilsavage and
John Zeith were offered reinstatement on August 9. There
is evidence that Mikilsavage apparently refused the offer.
None of the other strikers had received offers of reinstate-
ment.
The Employer's records in evidence show new employees
had been hired during the strike. The newspaper advertise-
ments explicitly sought "permanent replacements" for strik-
ers. That status of persons hired during the strike is not
contested. Instead, the General Counsel contends those re-
placements should be terminated to accord the strikers
rights as unfair labor practice strikers. Finally, the record
contains summaries of the Employer's payroll records of
bargaining unit employees. Those summaries reveal no new
employee was hired into a unit position since the strike
ended.
I have found the strike was economic in nature. Thus. the
strikers are to be treated as economic strikers. The Em-
ployer is not obliged to terminate the permanent replace-
ments in order to reinstate these strikers. N.L.R.B. v. Mac-
kay Radio & Telegraph Co., 304 U.S. 333 (1938). The rights
of the strikers herein to reinstatement are governed also by
the principles of The Laidlaw Corporation, 171 NLRB 1366
(1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397
U.S. 920 (1970), as refined by the Board in Brooks Research
& Manufacturing, Inc., 202 NLRB 634, 636-637 (1973)
Upon all the foregoing, I find no merit to the allegations
that the Employer discriminated against any striker by fail-
ing to offer reinstatement after the unconditional applica-
tions to return to work.
E. Refusal To Bargain
It is alleged in complaint paragraph 23(c) that since June
9 the Employer refused to recognize and bargain with the
Union, notwithstanding the Board's MaN 3. 1977. certifica-
tion and prior recognition and bargaining between the par-
ties which occurred between July 28, 1977. and June 9.
1978.
This allegation is based on a telegram dispatched bh the
Employer on June 9. In relevant part, the telegram states
that the Employer "can no longer consider" the Union as
majority representative of the concerned employees. he
telegram further observes the post-strike complement of
employees "exceeds the number of employees who had par-
ticipated in the strike": acknowledges the Union's request
'1 At the hearing. I granted the General Counsel's motion to delete the
name of Mike Donaldson.
1045
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to meet with a Federal mediator and the Employer on June
12: and states the Employer "will accommodate that re-
quest with the understanding that it is the Company's posi-
tion that your Union no longer represents a majority of the
Company's employees."
The General Counsel contends the Employer admitted in
its answer to the complaint that it refused to recognize and
bargain as alleged. I do not agree. I find the General Coun-
sel's formulation is out of context. It is true the Employer's
answer admits so much of complaint paragraph 23(c) as
alleges a refusal to recognize and bargain with the Union
since June 9. However, immediately upon convening the
hearing, the Employer orally amended its answer to con-
cede "the Union is as a matter of law the representative of
the employees." Additionally, the Employer's attorney oral-
ly represented the Employer "has been and is now willing
to meet and bargain with the Union . . . we have been so
willing, and are willing right now."
There is no evidence that the parties met on June 12 with
the mediator or that the Union thereafter requested any
other meetings.
Pleadings aside, I view the issue frames the question of
whether or not the June 9 telegram comprises an unlawful
withdrawal of recognition from the Union as bargaining
agent. The mere expression of doubts of a union's majority
is not tantamount to an unlawful refusal to bargain. The
applicable legal principle is enunciated in Terrell Machine
Company, 173 NLRB 1480, 1481 (1969), as follows:
It is well settled that a certified union, upon expira-
tion of the first year following its certification, enjoys a
rebuttable resumption that its majority representative
status continues. This presumption is designed to pro-
mote stablility in collective-bargaining relationships,
without impairing the free choice of employees. Ac-
cordingly, once the presumption is shown to be opera-
tive, a primafacie case is established that an employer
is obligated to bargain and that its refusal to do so
would be unlawful. The primafacie case may be rebut-
ted if the employer affirmatively establishes (I) that at
the time of the refusal the union in fact no longer en-
joyed majority representative status, or (2) that the em-
ployer's refusal was predicated on a good-faith and
reasonably grounded doubt of the union's continued
majority status. As to the second of these, i.e., "good
faith doubt," two prerequisites for sustaining the de-
fense are that the asserted doubt must be based on
objective considerations and it must not have been ad-
vanced for the purpose of gaining time in which to
undermine the union.
These rules were reaffirmed by the Board in Dalewood
Rehabilitation Hospital, Inc. d/b/a Golden State Habilita-
tion Convalescent Center, 224 NLRB 1618 (1976).
The Employer's records show 33 employees were hired
during the strike. I conclude this statistic satisfies the Terrell
requirement (2) that there existed reasonable grounds to
doubt the Union's majority status in view of the Employer's
June 9 telegraphic assertion that 65 employees were the unit
complement when the strike ended (see G.C. Exh. 5). These
statistics, coupled with the numbers of employees who went
on strike, supply the objective basis for the Employer's
doubt.
In view of my findings that the Employer did not commit
any of the pre- or post-strike unfair labor practices alleged,
I conclude the doubt was not expounded to gain time to
undermine the Union.
Upon all the foregoing, I find that the allegations that the
Employer refused to bargain in good faith are not sup-
ported by a preponderance of evidence.
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
CONCI.CSIONS OF LAW
1. Burlington Homes, Inc.. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. United Brotherhood of Carpenters and Joiners of
America, AFL CIO a/k/a Carpenters Industrial Council
of Eastern Pennsylvania, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees including
leadmen, truckdrivers, and servicemen of Burlington
Homes, Inc., at its St. Clair, Pennsylvania, facility, but ex-
cluding salesman, professional employees, office clerical
employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. The strike of March 17 June 5, 1978, engaged in by
the employees in the unit found appropriate herein was an
economic strike.
5. The Employer has not committed any of the unfair
labor practices alleged in the complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
1046