Central Bio-Analytical Laboratories, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1969

177 N.L.R.B. 36 (N.L.R.B. 1969)

36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central Bio-Analytical Laboratories, Inc. and Local
1199 , Drug and Hospital Employees Union , Retail,
Wholesale and Department Store Workers Union,
AFL-CIO. Case 29-CA-1191
June 26, 1969
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On January 22, 1968, Trial Examiner William W.
Kapell issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint,
and recommended dismissal of such allegations.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision and a supporting
brief, the Charging Party filed exceptions to part of
the Trial Examiner's Decision, and the Respondent
filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings, conclusions, and
recommendations, as modified herein.'
The Trial Examiner found, and we agree, that the
Respondent violated Section 8(a)(1) of the Act by
its premature announcement of its health insurance
policy. However, we find, contrary to the Trial
Examiner, that remedial action is required for this
violation, as hereinafter set forth.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
'The Trial Examiner correctly recited McQuade's testimony on direct
examination that Pachter advised him that he fired Shepard for union
activity He also recited his testimony on cross-examination that Pachter
denied firing Shepard for that reason . These inconsistencies are resolved in
fn 23 of his Decision . We therefore find without merit the Respondent's
claim that the Trial Examiner committed serious error in omitting
McQuade' s testimony on cross-examination
modified below, and hereby orders that Respondent
Central Bio-Analytical Laboratories, Inc., Brooklyn,
New York, its officers, agents, successors, and
assigns , shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified.
Insert the following in the first indented
paragraph of the notice, after the word "increases":
"or bonuses or make advance announcements of
employee benefits"
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE'
WILLIAM W. KAPELL, Trial Examiner. This matter a
proceeding under Section 10(b) of the National Labor
Relations Act, as amended, herein called the Act, was
heard at Brooklyn, New York, on June 24-25, July 9-10,
and October 7 and 28, 1968, with all parties participating
pursuant to due notice on a complaint issued by the
General Counsel on April 9, 1968.2 The complaint, in
substance , alleges that Central Bio-Analytical
Laboratories, Inc., hereinafter referred to as Central Bio
or Respondent , engaged in unfair labor practices
proscribed by Section 8(a)(1) and (3) of the Act by
specified acts of unlawful interrogation of their employees,
promises of economic benefits to them and threats of
economic reprisals against them to discourage their union
support, and the discharge of Robert Shepard because of
his union activities . Respondent in its answer denied the
commission of any unfair labor practices.
All parties were represented and afforded opportunity
to adduce evidence , to examine and cross-examine
witnesses , and to file briefs. Able and comprehensive
briefs were received from General Counsel and
Respondent and have been carefully considered. Upon the
entire record in the case, and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. COMMERCE
At all times material herein , Respondent has
maintained its principal office and place of business in the
village of Levittown, county of Nassau, State of New
York, where it has been engaged in performing medical
laboratory tests and related services. During the past year
in the course and conduct of its operations, it derived
revenues in excess of $500,000, and purchased and caused
to be transported and delivered to its plant laboratory
glassware, chemicals, supplies, and other goods and
materials valued in excess of $50,000, of which goods and
materials valued in excess of $50,000 were transported and
delivered to its principal place of business directly from
States other than New York State.
At all times material herein, Patcher's Medical
Laboratory, Inc., a New York corporation, herein called
'Pursuant to unopposed motions during the hearing , the complaint was
amended to correct the name of the Charing Union as it appears herein.
Pursuant to the stipulation filed by all parties on January 15, 1969, the
transcript is corrected as stipulated.
'Based upon charges filed on December 27, 1967, and January 16, 1968,
respectively , by Local 1199, Drug and Hospital Union, Retail, Wholesale
and Department Store Workers Union , AFL-CIO, hereinafter referred to
as the Union or Local 1199.
177 NLRB No. 9
CENTRAL 1310-ANALYTICAL 37
Patcher's with places of business in the village of
Uniondale, county of Nassau, State of New York, and at
the Levittown plant, and Dr. Gerald Finkel an individual
proprietor doing business under the trade name and style
of Laboratories of Gerald C. Finkel, M.D., with his
principal place of business at the Levittown plant have
been engaged in performing medical laboratory tests and
related services.
Respondent admits, and I find, at all times material
herein, that Respondent, Patcher's and Finkel have been
affiliated businesses with common ownership and
operators and constitute a single-integrated business
enterprise with a common labor policy, and that said
companies have been employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
It was stipulated and I find that at all times material
herein Local 1199 has been a labor organization within
the meaning of Section 2(5) of the Act.
111. THE ALLEGED VIOLATIONS
A. Background
In March 1964, Robert Shepard, the alleged
discriminatee herein, while serving a prison term in Attica
State Prison as a convicted felon for the crime of arson
wrote to Bernard Patcher, the president of Central Bio
requesting a job, stating that he had been granted
conditional parole subject to his finding suitable
employment. In his letter Shepard also related that during
his term in prison he worked in the medical lab of the
prison hospital, received extensive psychiatric treatment as
a result of which he became aware that the cause of his
crime was the excessive use of alcohol, and with the help
of Alcoholics Anonymous gained control of his drinking
problem. Following further correspondence with Shepard,
the recommendation of his prison supervisor, and a
discussion with his parole officer, Pachter offered him a
job as an apprentice in the Company's laboratory and
Shepard was paroled from prison. He began working at a
salary of $65 per week and within a year his salary was
raised to $140 a week and then to $200 as a technician. In
addition, he also earned about $70 per week as a driver,
picking up lab specimens from doctors for analysis and
thereafter delivering reports of the findings. Pachter also
hired Shepard's wife and two of his daughters, one of
whom with Mrs. Shepard presently continues in the
employ of the Company.
During the course of his employment, Pachter loaned
him money, cosigned notes to help him purchase a home,
and helped him personally in other ways. At the end of
1965 or early 1966, Shepard was promoted to night
supervisor. However, in or about May 1967,' he failed to
pass a test which would qualify him to work in the
laboratory as a supervisor for Medicare. As a result, the
State inspector required Shepard's dismissal as night
supervisor in order for the lab to obtain Medicare
approval. The next day Shepard was removed as night
supervisor and continued his work as a technician without
reduction in his salary. In early June, soon after his
removal as night supervisor and following admonitions
from Pachter concerning his resumption of drinking which
allegedly adversely affected his work, Shepard got angry
while at work and abruptly walked out of the lab after
informing one of his coworkers that he was quitting. The
following workday Shepard reported for work and upon
being questioned by Pachter as to whether he had quit,
replied he had but did not mean it. Pachter then discussed
the situation with him, during which Shepard stated that
he had been upset and nervous and was under a lot of
pressure. Pachter, however, refused to permit him to
return to work and discharged him.
About 2 months later in August, Shepard approached
Pachter and requested reinstatement to his former job.
Pachter agreed to rehire him on a temporary basis but
imposed certain conditions, including assurances from
Shepard that he would stop drinking and join Alcoholics
Anonymous, and would agree to have the company
bookkeeper deposit his weekly paycheck and apply part of
it to pay his debts, including notes that Pachter previously
had cosigned for him. In the meantime Shepard had fallen
behind in payments on one of the notes, for which Pachter
cosigned a new note and loaned him additional money.
His salary, however, was reduced to $150 per week.
Within a short time thereafter Shepard received two
$25-a-week increases and again began earning $200 per
week as a technician. One of these increases was to
compensate him for work on urine microscopics done
after 2 a.m., following the completion of his regular work.
In September or October a company driver quit and
Shepard requested and received permission to undertake
that job, which previously used to be his run.' In October,
Shepard confided to Pachter that he was faced with
several family problems, involving a girlfriend, his wife's
drinking, and money problems, and expressed a desire to
quit and return to prison. Pachter prevailed upon him to
consult his (Pachter's) attorney, which he did in an effort
to get himself straightened out, and he remained on the
job.'
B. The Union Campaign
Soon after Shepard was informed of the reduction in
his salary, he contacted a union representative on
December 12 for the purpose of unionizing the company
employees. On Sunday, December 17, a union meeting
was held at the Chaston Lounge, a bar located a few
doors from the laboratory. About 20 employees attended
this meeting and according to Shepard he received signed
authorization cards from a number of employees. During
that afternoon Pachter received a telephone call from
William Panzella, the night supervisor, to come to the lab
because of a mixup in tests performed the preceding night.
Upon his arrival, Panzella informed him that they were
having union trouble and suggested thay go to his
(Panzella 's) home to discuss the matter.' At their meeting
in Panzella ' s home Pachter was informed that union cards
had been distributed to the employees during the week.'
'All dates hereafter refer to the year 1967 unless otherwise noted.
'Drivers had specific routes assigned to them for picking up specimens to
be tested and delivering the test findings.
'There is also conflicting testimony that during November and December
Shepard was blamed in connection with missing urines, making incorrect
autoanalyzer results, and writing illegible IBM cards, and accused of
performing urine microscopics before 2 a in., during the time he was
supposed to do his regular work As a result he was taken off the Auto
Analyzer , and the $25 increase in salary given to him to perform that work
was withdrawn.
'Before they left the lab other events occurred at the Chaston Lounge
and lab , which are related infra.
'According to Shephard he had advised Panzella on the previous day,
December 16 , that he was soliciting union cards and displayed a few signed
cards to him
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Alleged 8(a)(l) Violations
The complaint alleges that Respondent through its
agents and/or supervisors, Pachter, Panzella, and John
Todaro, interrogated its employees concerning their union
membership and support of the Union, threatened them
with discharge and other reprisals if they became or
remained union members or supported the Union,
promised and granted wage increases, and offered
contracts quaranteeing their employment if they abstained
from supporting or assisting the Union. General Counsel
also contends that Respondent announced the existence of
a health insurance policy to the employees prior to
Christmas, although initially planned to be announced at
Christmas as a bonus, in order to adversely affect the
Union's organizing campaign, and thereby also violated
Section 8(a)(1). Respondent denied committing any of
these violations but in its answer and/or admissions at the
hearing denied only the agency or supervisory status of
Todaro' or its responsibility for his activities at times
material herein. It, accordingly, first becomes necessary to
determine the status of Todaro with respect to the
violative incidents attributed to him.
1. The alleged agency and/or supervisory status of
Todaro
The parties entered into the following stipulations
concerning Todaro's activities: Todaro's job was to sell
lab services to physicians, to confer with physicians
regarding arrears in their accounts, and to substitute for
absent technicians or drivers when so assigned by Pachter
or Gardner T. Jefferies.' His salary was $17,500 plus
expenses and a $20 commission for each new account
which he or his salesmen-trainees brought in. Prior to the
hiring of Jefferies as general manager in October, Todaro
interviewed and hired prospective employees and assigned
work to office worker Beatrice Shepard by advising her
which drivers were to be sent out first. In October Pachter
introduced a prospective employee (a Mr. Nimfo) to
Todaro and thereafter asked Todaro' s opinion about
employing him. On January 22, 1968, in a conversation
with employee Beatrice Shepard in which she complained
about being saddled with too much work, Todaro advised
her that he would recommend a raise for her, and shortly
thereafter she received a weekly increase of $4.38 in her
take-home pay. Pursuant to Pachter's instructions in
December, Todaro trained three new salesmen by having
them accompany him on his calls, and thereafter reported
their progress weekly to Pachter. In January 1968,
pursuant to Todaro's recommendation, one of his trainees
(Nimfo) received additional technical training and
thereafter was permitted to sell on his own.
Panzella testified without contradiction that when he
assumed the position of supervisor on the night shift in
October, he questioned Pachter as to the chain of
command and was told that he was responsible first to
Pachter, then to Todaro, and thirdly to Jefferies.
Employee Gary Albert testified that in December he
asked Todaro for a raise which had originally been
promised to him by Todaro. Following Todaro's
assurances, he received a raise of 25 cents to $2.75 an
hour . It also appears that during July 1968, Beatrice
Shepard received paychecks signed by Todaro.
'Respondent also questioned the agency of Panzella but admitted his
supervisory status.
'Jefferies became general manager of the lab in October.
Pachter testified that Todaro had no right to hire or
fire employees during December and was only a salesman,
and that from May to October, when Jeffries became
general manager, Todaro was used to interview people.
2. Conclusions as to Todaro's status
I find no merit in Respondent's contention that
Todaro's agency came to an end in October. There is no
evidence indicating that the employees whom Todaro had
previously interviewed and hired were informed of any
change in his status, and, apparently, they continued to
regard him as part of management. In fact, as appears
infra, Todaro, in questioning employees concerning the
Union, gave the impression that he was speaking for
management in attempting to persuade them that they
would not derive any benefits by the advent of the Union,
because a recently obtained health insurance policy
satisfied their most important demand. It also appears
that Pachter advised Panzella that Todaro was number 2
in the chain of command, thereby rating him even above
General Manager Jefferies. Todaro was also called to a
management meeting on December 17, to discuss the
union problem with Pachter and Policastro, a supervisor.
Also, after October he continued to make effective
recommendations for salary increases to, and training of,
employees. Viewing the evidence in its totality, I find that
Todaro attempted to adjust employee grievances,
effectively recommended raises for employees, represented
management in dealing with employees, and gave the
impression to employees that he was a spokesman for
management . I, therefore, conclude that, at all times
material herein, Todaro's activities carried on in behalf of
Respondent and with its approval made him its agent
and/or supervisor, and also warranted the employees in
regarding him as such. It, accordingly, follows that
Respondent bears the responsibility for his conduct.
3. The alleged interrogation, threats of economic
reprisal , and promises of economic benefits
As related above, Pachter was summoned to the lab by
Panzella during the afternoon of December 17. Later that
day at or about 6 p.m., Todaro appeared pursuant to a
call from Pachter who informed him that he had heard of a
meeting of employees to organize a union at the lab.
Shortly thereafter, Todaro went to the nearby Chaston
Lounge to purchase some cokes . There, he met employees
Ronald Johnson, Carl Vinciguerra, Paul Sequeira, and
Gail Haller. He asked what they were doing at the bar,
and was told by either Johnson or Sequeira that they had
attended a union meeting . Todaro thereupon questioned
them as to what they wanted, and was informed that there
was no medical or retirement plan covering the employees.
Vinciguerra then inquired as to whether Pachter was at
the lab, and upon being told that he was, he left the
lounge . Vinciguerra went to the lab where he met Pachter
who told him that he understood that he (Vinciguerra)
was at the union meeting , and asked why he wanted to
join the Union after having given 2 weeks' notice of
leaving . When Vinciguerra replied that he was concerned
about job security and working conditions, Pachter
revealed the existence of a new health insurance policy'"
and told him that he had intended to announce it to the
employees at Christmas as a bonus . Upon hearing this,
"It was stipulated that the insurance had been obtained by Respondent
on December 12, and became effective on that day upon payment of the
initial premium.
CENTRAL BIO-ANALYTICAL
Vinciguerra suggested that Pachter inform the employees
at a meeting about the insurance plan and, in effect,
stated that had the employees known of the changes a lot
of "this" could have been avoided. Becoming somewhat
remorseful about the whole matter, he then asked
Anthony Policastro" what he would like him to do in
connection with it, and it was proposed that following the
employee meeting at which an insurance representative
would explain the insurance plan, he (Vinciguerra) would
ask the employees what their grievances were and would
report back to Panzella.
On the following morning , December 18, Todaro
observed employee Catherine Miller crying in the
outpatient department of the lab and inquired as to the
reason. She replied that on the preceding day she and
Lynn Miller had attended the union meeting and had
signed union cards and now regretted it because Pachter
had treated them so well. Todaro then asked what people
hoped to gain by bringing in a union , but did not recall
whether she made any reply.
According to Shepard, Pachter approached him about
noon of that day (December 18) and asked whether he
was the union "ringleader ," to which he replied that he
was for the Union and doing all he could to bring it
about. Pachter allegedly then berated him for his
ingratitude after having done so much for him and told
him that he would have to go out of business if the Union
came in. He stated further that he could fire him, and
then instructed him to return to work. Pachter denied ever
having spoken to Shepard on that day or making the
alleged threats, and explained that he was out of the lab
most of the day at meetings. Based on the demeanor of
the witnesses and in view of Shepard's other
misstatements," Patcher's testimony is credited.
Employee Ronald Johnson testified that in a
conversation with Todaro on Monday night, December 18,
he was asked why he signed a union card, and after
replying that it was to help the employees, they discussed
what benefits the employees would derive from a union,
including the health insurance plan which already was in
effect. When questioned as to whether Todaro had said
anything to him about getting rid of union supporters,
Johnson replied that he could not remember it. His
prehearing affidavit in which he stated that Todaro told
him he had ways of getting rid of union supporters was
then shown to him but it failed to refresh his recollection
concerning this point." Although Todaro did not
controvert this statement in his testimony, his affidavit
which was admitted in evidence and stipulated to be true
in its contents states that he did not tell Johnson that he
had ways of getting rid of union supporters by finding
their work faulty. Johnson also testified that he told
Todaro that the employees did not want the Union if they
could obtain certain benefits , such as health and
retirement plans , better working conditions, and more
money. In view of Todaros affidavit and Johnson's
testimony on cross-examination which reflected his
uncertainty and hesitancy about having made the
statement, I find that Todaro did not tell Johnson that he
had ways of getting rid of union supporters.
Following his conversation with Johnson, Todaro
approached Shepard at or about 7:30 p.m. According to
Shepard, Todaro questioned him as to why he wanted the
Union. When he replied that he wanted a union for
"A supervisor who also attended part of the meeting at the lab
"Related hereafter
"The statement was admitted in evidence as past recollection recorded.
39
protection and retirement, Todaro asked him whether he
would try to keep the Union out if he were promised a
contract which would secure his job and give him a
retirement policy, to which Shepard responded that he
would let him know. Todaro's affidavit, however, states
that he only mentioned to Shepard what Johnson had told
him in his earlier conversation with him, and denies
having asked Shepard whether he would stop supporting
the Union if he were given a hospitalization and
retirement plan or that Pachter would give him a contract
guaranteeing his job. These statements appearing in
Todaro's affidavit are credited, and I find that no offer of
a job guarantee and retirement pay was made to Shepard
to oppose the Union.
It was stipulated that on December 19, Panzella was
instructed by Pachter to inquire of the employees why
they wanted the Union," and that he, in fact, thereafter
questioned several employees including Krashes,"
Griemsman, Fitzgerald, Welsh, and Spiegelman as to why
they wanted the Union and their replies indicated whether
they signed union cards or attended the union meeting.
Employee Paul Sequeira testified without contradiction
that he had a conversation with Todaro on December 18
or 19, in which he was asked why he joined the Union.
Sequeira replied that it was because he was interested in a
health plan. Todaro then asked whether he had any other
grievances, he was told that he had none.
Pachter testified that on December 19 at or about
noontime he had a conversation with Shepard in which he
deplored his poor and inaccurate work, and stated that he
was considering firing him. Shepard begged him to
reconsider, promising that he would stop drinking.
Pachter also questioned him about the Union and Shepard
denied having signed a union card or that he could derive
any possible benefits from the Union, and stated that he
had tried to talk several employees out of joining the
Union."
Employee Gary Albert testified that in a conversation
with Pachter about December 20, he was asked what he
thought about the Union and whether the relationship
between management and the employees was strained.
Albert replied that b-. would ascertain how the other
employees felt about the Union and would then make up
his mind. Pachter placed this conversation in January or
February, and asserted that Albert claimed to be
indifferent about the Union because he intended to go to
medical school, and that they discussed Shepard's criminal
record and what Pachter had done for him. Albert also
testified without contradiction that about a week after his
conversation with Pachter, Panzella asked how he felt
about the Union and whether he was in favor or opposed
to it, and was told that he favored the Union.
It was stipulated that in the middle of January 1968,
Pachter had a conversation with employee Alfred
Carraturo in which he asked how Carraturo felt about the
Union and why he was in favor of it. When Carraturo
replied that he was in favor of unions, Pachter told him
that employees Joe Brocone and Paul Sequeira had
changed their minds about the Union, and were now
"Any contention by Respondent that Panzella acted outside the scope of
his employment and contrary to Respondent ' s instructions in this matter is
obviously without merit.
"Krashes also testified that Todaro asked him whether he understood
the full implications of having signed the union card , and told him not to
sign things so quickly in the future
"Shepard's testimony that in this conversation he readily admitted his
union support is not credited.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opposed to it , and that if he (Carraturo) spoke to
Sequeira he also would oppose the Union."
4. Conclusions as to the alleged interrogations,
threats of reprisals , and promises of benefits
As related and found above, it clearly appears that
Pachter, Todaro, and Panzella interrogated employees as
to their union sympathies, attendance at union meetings,
and benefits which they expected to obtain from the
advent of the Union . As soon as they learned of the union
campaign they began interrogating the employees in a
concerted effort to persuade them to withdraw their
support from , and oppose , the Union, thereby clearly
demonstrating their union opposition . At no time did they
explain the purpose of the interrogations to the employees
or give them any assurances that no reprisals would be
taken against them . Under these circumstances I find that
the aforesaid interrogations tended to interfere with the
exercise of the statutory rights of employees, and thereby
constituted violations of Section 8(a)(1) of the Act. See
Struksnes Construction Co., 165 NLRB No. 102.
In view of my findings that Pachter did not threaten
Shepard that he would go out of business if the Union
came in , and that Todaro did not tell Johnson he had
ways of getting rid of union supporters or offer Shepard a
contract guaranteeing his job and providing a retirement
policy if he would oppose the Union , I conclude that the
General Counsel has failed to establish by the
preponderance of the evidence that Respondent threatened
economic reprisals against, or made offers or promises of
economic benefits to, employees to withdraw from and/or
oppose the Union . I, therefore , shall recommend that such
allegations in the complaint be dismissed.
5. The health insurance policy
As related above, the health insurance policy was
obtained and became effective on December 12, but was
not disclosed to the employees because Pachter intended
to announce it just before Christmas as a bonus. In the
course of Pachter' s conversation with Vinciguerra
concerning the Union on the night of December 17, he
asked why the employees were dissatisfied. When
Vinciguerra replied that they wanted a health insurance
plan, Pachter revealed the existence of the health policy.
Vinciguerra thereupon suggested that the employees be
informed about it, and stated that a lot of "this" could
have been avoided had the employees known about the
policy." An employee meeting was thereafter held on
December 19 at which an insurance company
representative explained the benefits of the policy.
"With respect to Brocone's and Sequeira 's alleged disaffection from the
Union , referred to by Pachter , the record shows that on Tuesday,
December 19 , Joe Brocone informed Jeffenes that he was resigning.
Jefferies then attempted to dissuade him from doing so but Brocone
insisted , stating that he had been very active in the Union , and had been
misled into believing that the employees favored the Union, which he
subsequently learned was untrue . Later that day, Paul Sequeira approached
Pachter and said he wished to resign because he felt badly about having
been active in the Union ' s campaign after Pachter had been so good to
him Pachter told him that he was doing a good job and asked him to stay
on, expressing his indifference as to whether or not he had signed up with
the Union. He also advised Sequeira that if he had been around earlier in
the day he would not have accepted Brocone ' s resignation and would have
attempted to persuade him to stay on, and asked Sequeira to tell Brocone
he could have his job back if he wished.
"Vinciguerra als% stated that he thought the employees would not have
signed up with the Union had they known about the policy
The General Counsel contends that , although
obtainment of the policy on December 12, before the
union organizing campaign began did not violate the Act,
the acceleration of the notice of its existence to the
employees was intended to dissuade them from further
support of the Union and constituted a violation of
Section 8(a)(1).
6. Conclusions as to the health policy
It is obvious that the advancement of the notification of
the policy' s existence from Christmas, as originally
planned , to December 17, 18, and 19, did not in effect
grant any greater benefits to the employees than
previously existed . It did , however, serve to placate the
employees concerning one of their chief grievances while a
union organizing campaign was in progress , and it was
intended to and undoubtedly did affect their desire for a
union . However, the circumstances leading up to its
accelerated announcement show that it was induced by
Vinciguerra' s statement that the lack of such a policy was
the main cause of employee dissatisfaction and motivated
them to join the Union . Had Pachter refrained from
mentioning the existence of the policy until Christmas, as
originally planned , he would not have violated the Act. As
it turned out, the timing of its existence was advanced less
than a week . At most , it constituted a technical violation
of minimal effect , which would require no relief.
7. The alleged wage increases and bonuses
The General Counsel contends that the Respondent
promised and/or granted wage increases to employees at
times material herein in violation of Section 8(a)(1) of the
Act. Pachter testified that he gave wage increases
pursuant to an established policy based primarily on merit
and also on the length of service of the employee, and that
bonuses were given at Christmastime depending upon the
amount of money available for that purpose, the length of
service, the salary of the employee, and how friendly they
were. The record shows that bonuses from $5 to $100
were given to employees during December , that varying
wage increases were given to some employees within 2
weeks after they were hired whereas other employees
received no increases despite employment of as many as 8
or 9 months , and that several employees received wage
increases for the payroll weeks ending in late December,
while others received such increases in February 1968. It
also appears that new night employees hired in February
1968 received salaries in excess of the minimum wage
requirements then in effect, ostensibly to compensate them
for a night differential which was inaugurated at that
time , and that other employees also received salary
increases which included minimum wage increases as well
as the night differential. Pachter, however, denied that any
of the aforementioned increases were related in any way
to the union campaign , and, it was stipulated that in-the
ordinary course of business , a wage increase may have
been given in every month of the year to some employee.
8. Conclusions as to the wage increases
I find that there was no objective standard governing
wage increases , including Christmas bonuses , and that
varying wage increases and bonuses were given to
employees during the Union ' s organizing campaign solely
at the discretion of Pachter . Because of the potential
effect that such increases may have on employees
CENTRAL BIO-ANALYTICAL 41
regarding their support or lack of support during an
organizing campaign , the Board has consistently held that
such increases constitute benefits in violation of Section
8(a)(1) of the Act , and I so find.
D. The Alleged Constructive Discharge of Shepard
As related above, Pachter had a conversation with
Shepard about noon on December 19, in which he
criticized his work and stated that he was considering
firing him . Later that evening about 6 p . m., following an
employee meeting at which an insurance representative
explained the new health insurance policy , Pachter
summoned Shepard and accused him of having previously
lied to him about his union support . When Shepard denied
it, Pachter replied that "this whole thing makes me sick"
and walked away . That night while at work , Shepard
asked John Carney, a fellow employee why he did not
support the Union . Carney replied by relating his
unfortunate experiences on a former job at Kings County
Laboratory where after working hard and successfully
organizing the employees for Local 1199 , a bargaining
contract was signed . Thereafter , however , the Union failed
to support or represent him in an altercation with a
supervisor , required him to do picket duty on behalf of the
Union , refused to permit him to work overtime, and
caused him a lot of trouble concerning the payment of
dues . As a result , Carney stated that he was opposed to
Local 1199 but might have become interested if it were
any other Union . After hearing this , Shepard told him "It
looks like everybody is pulling out on me also. I am
standing all by myself, also. I'm all alone."
Carney testified further that the following morning,
Shepard told him that he wanted to quit because he
couldn't "take it any more," nobody was talking to him,
everybody was leaving him, and he was unable to "take
the pressure any more ." He then asked Carney to tell
Pachter that he quit but that he should fire him in order
to enable him to collect unemployment insurance. After
unsuccessfully attempting to talk Shepard out of quitting,
and pursuant to Shepard ' s insistence , Carney approached
Pachter and Jefferies and related Shepard ' s request,
adding that Shepard was waiting for an answer at the
Chaston Lounge . Pachter refused to fire him and Carney
was directed to so inform Shepard. After Carney returned
to Shepard and advised him to that effect , Shepard
volunteered to sign any paper in order to get fired and
stated that he would continue to sit and drink at the
lounge and refuse to make his regular assigned truck run
to compel them to fire him. Carney again reported to
Pachter and Jefferies what he had been told by Shepard,
and he was instructed to return to work . In about 15
minutes, Shepard called Carney on the phone to ascertain
what they were going to do. Carney replied that he did
not know and that they were making arrangements to get
a substitute driver to make his run . Shepard then stated
that he would quit like a man and to tell them to draw up
a letter which he would sign . Carney thereupon again
approached Pachter and related his last conversation with
Shepard . A resignation was then drawn up by Pachter and
Jefferies and given to Carney for Shepard ' s signature.
Carney then returned to the lounge with Ed Corsi, a
salesman , after being instructed to make sure that
Shepard read the resignation and to witness his signature.
When presented with the resignation Shepard, however,
refused to sign unless he was paid what was owed to him,
and Carney conveyed his refusal to Pachter and Jefferies.
Pachter and Jefferies then discussed what should be paid
to Shepard , and over Jefferies' objections , Pachter decided
to draw up a check for a week and a half salary to be
given to Shepard . 19 Carney , again accompanied by Corsi,
then returned to the lounge and gave the check to Shepard
who signed the resignation" which was witnessed by
Carney and Corsi."
Shepard ' s wife testified that her husband told her at the
time his employment was terminated that he quit his job
at the lab because there was too much pressure . He made
no mention at that time that Pachter had threatened to
expose his criminal background unless he quit . It was only
several months later that he informed her about Pachter's
threats.
Anthony McQuade, Shepard ' s parole supervisor,
testified that Shepard informed him shortly after his
termination that he had been fired by Pachter because of
his union activities . It was not until the hearing that
McQuade learned for the first time that Shepard claimed
he was forced to resign to avoid exposure of his criminal
background. No explanation was offered by Shepard as to
why he failed to inform McQuade about the signing of his
resignation and the circumstances surrounding it.22
McQuade testified further that he came to see Pachter
upon his request in April 1968 , at which time Pachter
informed him about the proceedings before the Labor
Board involving Shepard. Pachter also advised him that
he had fired Shepard because of his union activities, his
solicitation of union memberships , and his drinking, and
that in view of what he had previously done for Shepard
he felt his trust in him had been violated . Following the
original closing of the hearing , Respondent moved to
reopen the hearing in order to cross -examine McQuade
further , claiming that he had revised his previous
testimony after Respondent ' s counsel interviewed him and
"According to Pachter he actually owed Shepard for half a week but
decided to give him an additional week ' s salary in lieu of a Christmas
bonus which he would have received had he remained in the employ of the
Company.
"The resignation read as follows
I hereby tender my resignation as of this date , December 20 , 1967 from
Central Bio-Analytical Laboratories, Inc.
There has been no coersion [sic] on the part of the Management of
Central Bio-Analytical Laboratories , Inc to bring about this decision
and I am signing this of my own free will.
Robert V Shepard
John F . Carney
Edward A Corsi
"The above findings are based upon the testimony of Carney, which was
corroborated by Pachter to the extent that he directly participated in the
events. Shepard's version of the matter differs substantially. He testified
that he met Pachter on the parking lot on December 20, and in the ensuing
conversation Pachter threatened to expose his criminal record to his
friends, relatives, his newly acquired son-in -law, and his parole officer
unless he quit, and also offered to give him a week and a half salary and to
pay off the note on which he cosigned with Shepard. The conversation then
became so heated that he (Shepard) was unable to talk to Pachter and
walked away . He then met and told Carney that he could not take any
more with Pachter and requested him to tell Pachter that he would resign
under the conditions set by him and would await Pachter 's answer at the
Chaston Lounge . Carney left to see Pachter and returned shortly
accompanied ' )y an unidentified man, and requested him to sign a
resignation . Shepard refused because no paycheck was offered to him.
Carney and his companion thereupon left, but soon returned with a
paycheck which Shepard took and then signed the resignation Patchier
denied ever thieatemng to expose Shepard's criminal record unless he quit
or offered him any inducements to quit.
"It is pertinent to note that Shepard made other inconsistent statements
to McQuade. 'thus, although Shepard testified that he was responsible for
initiating the Union 's organizing campaign and was its chief instigator, he
advised McQuade that other employees were more involved than he in the
Union.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had an opportunity to refer to his notes which he
customarily made and kept concerning contacts involving
the parolees whom he supervised. The hearing was
reopened and McQuade , upon consulting his notes, when
examined revised his previous testimony by admitting that
there was no mention of Shepard' s drinking as one of the
causes for his discharge in his conversation with Pachter
in April 1968. He also admitted that his notes reflected
that Shepard ' s drinking was discussed in his conversations
with Pachter in June 1967 after Shepard had quit his job,
at which time Pachter had stated that Shepard ' s drinking
was a reason for refusing to reinstate him. McQuade
further admitted on cross-examination that during his
April 1968 conversation Pachter denied firing him because
of his union activities."
Viewing all the evidence concerning Shepard ' s alleged
constructive discharge and considering the demeanor of
the witnesses , I find it more plausible and persuasive to
credit the version offered by Carney and Pachter, and to
discredit Shepard ' s version.
Conclusions Regarding the Constructive Discharge of
Shepard
The resolution of the issue as to whether Shepard was
pressured into resigning by Pachter ' s alleged threats to
expose him depends upon whose version of the
circumstances attending the termination of his services is
credited. Conceivably, some doubt or suspicion can be
conjured up as to whether the resignation was "voluntary"
because of its timing , inasmuch as it occurred in the midst
of a union campaign . However , if Respondent ' s version of
the attendant circumstances is credited , as related above,
it would indicate that Shepard, himself, picked the time.
It also appears that at first Shepard informed his wife that
he quit because he was unable to tolerate the tensions of
the job, which would be consistent with Respondent's
defense. It was several months later before he advised her
that he was forced to quit in order to avoid having his
criminal record exposed. Another unexplained facet in the
resignation was the failure of Shepard to advise McQuade
that he was pressured into signing a resignation by
Pachter's threat to expose his criminal record, a matter
which obviously should have impressed Shepard as being
of paramount interest to his parole officer . I conclude that
the General Counsel has failed to establish by the
preponderance of evidence that Shepard was pressured
into resigning in order to avoid exposure of his criminal
record in violation of Section 8(a)(3) of the Act. I,
therefore, recommend that the complaint be dismissed
insofar as it alleges that Shepard was constructively
discharged in violation of Section 8(a)(3).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above , occurring in connection with Respondent's
operations described in section I, above, have a close,
"These inconsistent and conflicting positions allegedly expressed by
Pachter to McQuade , if credited , would defy any logical explanation. I
find that McQuade's recollection of these events was confused . In fact, he
admitted that he had difficulty in remembering what occurred in his
frequent contacts involving the parolees whom he supervised because there
were at least 60 of them . It would be both plausible and reasonable to
surmise that Pachter told him in his April 1968 conversation that he was
being charged in the pending Board proceeding with firing Shepard because
of his union activities , and that he denied it
intimate , and substantial relationship to trade , traffic,
and commerce among the several States and constitute
unfair labor practices which tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
Upon the foregoing findings of fact and upon the entire
record in the case , I make the following:
CONCLUSIONS OF LAW
1. At all times material herein the Union has been a
labor organization within the meaning of Section 2(5) of
the Act.
2. At all times material herein, Respondent, Pachter's
and Finkel constituted a single-integrated business, which
has been engaged in commerce as an employer within the
meaning of Section 2(6) and (7) of the Act.
3. By interrogating its employees , granting wage
increases, and advancing the time of its announcement of
its health insurance policy, Respondent interfered with,
restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7 of the Act, within the
meaning of and in violation of Section 8(a)(1) of the Act.
4. All allegations of the complaint as to which specific
findings of violation have not been made have not been
sustained by the preponderance of the evidence.
THE REMEDY
Having found that Respondent violated Section 8(a)(1)
of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action, including
the posting of appropriate notices, designed to effectuate
the policies of the Act. Although Respondent's premature
announcement of its health insurance policy was a
technical violation, I find that the nature of the violation
and the attendant circumstances indicate that no relief is
required therein, and none will be recommended.
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I make the following:
RECOMMENDED ORDER
Central Bio-Analytical Laboratories , Inc., its officers,
agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining , or coercing its
employees in the exercise of their statutory rights within
the meaning of Section 8(a)(1) of the Act , by interrogating
them about union matters or granting wage increases or
bonuses to influence their union sympathies . However, this
order shall not be construed to require the rescission of
any wage increases or bonuses heretofore granted.
(b) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its laboratories located in Nassau County,
New York, copies of the attached notice marked
"Appendix ."" Copies of said notice , on forms provided by
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
CENTRAL BIO-ANALYTICAL 43
the Regional Director for Region 29, after being duly
signed by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 29, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith. r'
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein.
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE TO ALI EMPLOYEES
THIS NOTICE IS POSTED BY ORDER OF THE NATIONAL
LABOR RELATIONS BOARD
After a trial in which all parties had a chance to give
evidence, a Trial Examiner of the National Labor
Relations Board found that we, Central Bio-Analytical
Laboratories, Inc., violated the National Labor Relations
Act, and ordered us to post this notice to inform our
employees of their rights.
The Trial Examiner's Recommended Order has directed
us to assure our employees that:
WE WILL NOT question you about your union
activities or grant wage increases for the purpose of
influencing your union sympathies;
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of your
rights to self-organization or to form, join, or assist any
labor organization, or to bargain collectively with us
concerning terms or conditions of employment through
the representative you select, or to refrain from any of
these activities if you so choose, except as these rights
may be affected by a contract validly made under the
National Labor Relations Act, whereby membership in
a labor organization is a condition of employment after
the 30th day following the date of the contract or the
beginning of a person's employment, whichever is later.
All our employees are free to become or remain or to
refrain from becoming members of or withdrawing
membership in any labor organization.
Dated By
CENTRAL BIO-ANALYTICAL
LABORATORIES, INC.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice may be directed to
the Board's Regional Office, Fourth Floor, 16 Court
Street, Brooklyn, New York 11201, Telephone
212-596-3535.