Dart Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 9, 1974

215 N.L.R.B. 424 (N.L.R.B. 1974)

424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tupco, Division of Dart Industries , Inc. and Arthur
Gonyea. Case 1-CA-9297
December 9, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On May 24, 1974, Administrative Law Judge John
F. Corbley issued the attached Decision in this pro-
ceeding. Thereafter, General Counsel and Respondent
each filed exceptions and a supporting brief.
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 and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.
1. The Administrative Law Judge failed to find a
violation of the Act in a statement by Respondent's
agent, Hagan , to all employees at Respondent's Au-
burn plant on May 2, 1973, to the effect that Tupper-
ware had made molds at plants other than Respondent
in the past and that if necessary such work would be
sent elsewhere again . Hagan stated at the same meet-
ing, which occurred on the same day as the first union
organizational meeting, that he was aware of the up-
coming union meeting and that Plant Manager Per-
reault would get tougher if the Union got in.2 We find
that, within the context of these remarks, Hagan's
statement that work could be taken out of the facility
was calculated as a threat to reduce the work level in
the plant , if the union organizational campaign were
continued, and that the employees so understood Ha-
gan's remark. Consequently, unlike the Administrative
Law Judge, we find that Hagan's statement amounted
to a threat violative of Section 8(a)(1) of the Act.
2. Respondent excepted to the Administrative Law
Judge's finding that it has violated Section 8(a)(1) in
creating the impression of surveillance in Foreman Lo-
vec's statement that Respondent had gone through its
records for the preceding years which showed that
union adherents had gotten more money and raises
' i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule 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 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 We adopt the findings of the Administrative Law Judge that these
statements violated Sec. 8(a)(1) of the Act.
than other employees. Unlike the Administrative Law
Judge we find no violation in this comment. Rather, Re-
spondent thereby indicated only that it had reviewed its
records and had observed what was apparent on casual
reflection, that certain of its employees, who happened
to be union adherents, were earning more money than
others. Such a remark to employees in the course of a
hotly contested union campaign would not be reasona-
bly calculated to suggest that Respondent was watch-
ing the activities of union supporters, nor could it be
understood as implying that Respondent had previ-
ously done so, since the campaign was conducted
openly and the union supporters were well known.
Rather, this remark appears to have been no more than
an apparently truthful reporting of information.
3. In excepting to the Administrative Law Judge's
findings that Respondent violated the Act by reducing
overtime for employees at the commencement of a
union organization campaign at the Respondent's
facility, Respondent argued that it was economical-
ly justified in reducing such overtime based on an
appraisal of the potential costs of the Union's eco-
nomic demands, relying on G. W. Murphy Indus-
tries, Inc., Portable Electric Tools Division, 184
NLRB 62(1970). We agree with the Administra-
tive Law Judge that Murphy is inapposite
because here, unlike in Murphy, the Union had not
been established as the bargaining representative by
recognition or otherwise, and no specific demands had
been presented to Respondent. Consequently, Re-
spondent was in no position, on the facts of record, to
make an appraisal of potential costs of the Union's
economic demands, nor was there any evidence that
such an appraisal was attempted. Furthermore, we find
Murphy inapplicable because there is no credible evi-
dence in the record to support Respondent's suggestion
that it reduced overtime to meet speculative increases
in costs due to a possibly successful union campaign.
Finally, Murphy is inapplicable because there the Ad-
ministrative Law Judge concluded that in fact the em-
ployer had an economic motive, whereas here we find,
in agreement with the attached Decision, that Respon-
dent's reduction in overtime for all employees had
nothing to do with any economic demands by the
Union but was aimed instead at the union cam-
paign itself. Consequently, we find that Respondent
by such conduct discriminated against the em-
ployees in regard to conditions of employment to
discourage membership in a labor organization in
violation of Section 8(a)(1) and (3) of the Act.
4. The Administrative Law Judge failed to find a
violation of the Act in the reduction by Respondent of
overtime opportunities of employee Dees on grounds
that such reduction was imposed because of her poor
215 NLRB No. 90
TUPCO, DIVISION OF DART INDUSTRIES, INC.
job performance, rather than because of her union
activities. We disagree.'
Respondent was well aware of Dees' union activities
as was evidenced by Plant Manager Perreault's state-
ment to employee Gonyea that he had a list of union
supporters which included Dees' name and by Fore-
man Lovec's admission that he knew that Dees had
signed a card. Shortly after the election Foreman Lovec
told Dees that other union supporters had said they
would quit their jobs if the Union lost the election, "so,
why don't you get the f-k out?"' This remark, at-
tributable to Respondent, revealed that Respondent
wanted to get rid of Dees because of her union activi-
ties, and supports the inference that it was disposed to
taking action which would encourage Dees to leave
Respondent's employment. Furthermore, Dees' over-
time was reduced without any warning that her perfor-
mance was below par,' which strongly suggests that
Respondent was not interested in taking corrective ac-
tion with respect to her work but acted to get rid of a
known union adherent. See North Shore Publishing Co.,
206 NLRB 42 (1973).
We find Respondent's reliance on a "lack of work"
to justify the reduction of Dees' overtime unworthy of
belief, since there is no indication in the record that
overtime was reduced for anyone else in her depart-
ment or that any lack of work had occurred in such
department. The Administrative Law Judge also
found, which finding we adopt, that Respondent un-
lawfully reduced the overtime of two other leaders of
the Union's organizational campaign, Bezdegian and
Gonyea, in retaliation for their union activities. Dees,
Bezdegian, and Gonyea, all leaders in the campaign,
were the only employees to have their overtime reduced
after the election. We find, therefore, that Respondent's
treatment of these employees constitutes a pattern of
activity by Respondent directed at union organizers to
punish and discourage them and other employees from
supporting the Union.
3 Chairman Miller is of the opinion that the Administrative Law Judge
correctly decided that the reduction in overtime opportunities for Dees was
for cause. Consequently, for the reasons relied on by the Administrative
Law Judge, he would find there was no violation of the Act involved in such
reduction, and therefore he would dismiss this allegation of the complaint.
° The Administrative Law Judge found, and we agree, that Perreault's
statement to Gonyea violated Sec. 8(a)(1) of the Act. We also agree with
the Administrative Law Judge that Levec's statement to Dees to "get the
f-k out" violated the same section of the Act. Padre Dodge, 205 NLRB 252
(1973); RamarDress Corp., et. al., 175 NLRB 320, 327 (1969) Gem Knits,
Inc., 174 NLRB 449, 452-453 (1969).
5 Although the Administrative Law Judge found that Perreault informed
Dees that her overtime was reduced because of poor job performance, we
note that this conversation did not take place until sometime after the
election when she inquired why she was not being allowed to work more
overtime. Consequently, it is apparent that Dees was neither informed that
her work was faulty nor offered an opportunity to improve her poor job
performance before being disciplined.
425
For the above reasons we find, unlike the Adminis-
trative Law Judge, that the reasons given for the reduc-
tion of Dees' overtime, viz, poor performance and lack
of work, were pretexts to cloak the true reason for
Respondent's conduct, which was to retaliate against
her for union activities and to discourage such activities
in the future, in violation of Section 8(a)(3) and (1) of
the Act.
5. We agree with the Administrative Law Judge that
the written warning system was, in effect, adopted
when the organizational effort began. However, he
inadvertently failed to direct the abolition of that dis-
criminatorily established and applied written warning
system in his recommended Order and notice, although
he indicated in the "Remedy" section that he would do
so. Accordingly, we shall make appropriate corrections
to the Order and notice.' We deem it inappropriate to
permit the maintenance of an improperly established
rule; however, our order does not preclude the nondis-
criminatory adoption in the future of a written warning
system as a valid disciplinary procedure.
6. Although we agree with the Administrative Law
Judge's determination of the periods of time over which
employees were unlawfully deprived of backpay as
stated in the "Remedy" section of his Decision, the
specific formula and method of backpay are more ap-
propriately left to the compliance stage of this proceed-
ing; consequently, we do not adopt that portion of the
"Remedy" in his Decision.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge, as modified below, and
hereby orders that the Respondent, Tupco, Division of
Dart Industries, Inc., its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Add the following paragraph as 2(b) and reletter
the remaining paragraphs accordingly:
"(b) Discontinue the use of and abolish the dis-
criminatorily established and applied written warning
system put into effect in June 1973 to harass employees
engaging in union or protected concerted activities."
2. Substitute the attached notice for that of the Ad-
ministrative Law Judge.
6 Chairman Miller would limit the remedy in this connection to an order
to cease and desist from discriminatorily applying or implementing the
warning system. In his view, a written warning system is a permissible and
equitable disciplinary procedure and need not, like the proverbial baby, be
thrown out with the tainted bath water.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B DECISION
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had the chance to give
evidence it has been decided that we , Tupco, Division
of Dart Industries , Inc., have violated the National
Labor Relations Act and we have been ordered to post
this notice.
The National Labor Relations Act gives you, as em-
ployees , certain rights , including the right to self-
organization , to form, join or help unions, and to bar-
gain through a representative of your own choosing.
Accordingly, we give you these assurances:
WE WILL NOT interrogate you concerning the un-
ion membership , activities , or sympathies of your
fellow employees.
WE WILL NOT try to make you, our employees,
believe that we have ways of finding out whether
you participated in union activities or what those
activities were.
WE WILL NOT hold out to you the possibility you
might continue to have virtually unlimited over-
time opportunities if the Union were not seeking
to organize you.
WE WILL NOT threaten to shut down or phase out
our plant or take any other reprisal against you if
you organize a union.
WE WILL NOT ask you to resign because you have
joined a union.
WE WILL NOT do anything which interferes with
your rights above.
WE WILL NOT implement a written warning sys-
tem to discipline you, as the Board has found we
started this system to discourage your union acti-
vites.
WE WILL NOT reduce your overtime opportuni-
ties , close down our business or phase it out be-
cause you join , support, or engage in organiza-
tional activities on behalf of Laborers
International Union of North America, Local 243,
or any other union.
WE WILL make up all overtime pay you lost as
the result of our reduction of overtime opportuni-
ties with 6-percent interest as the Board has found
that we made such reductions because of the or-
ganizational campaign of the above-named Union.
WE WILL abolish our written warning system
which was established and applied to harass our
employees engaging in union or protected con-
certed activities.
WE WILL expunge all written warnings from the
records of our employees:
STATEMENT OF THE CASE
JOHN F. CORBLEY, Administrative Law Judge : A hearing
was held in this case of January 29, 30, and 31 , 1974, at
Worcester , Massachusetts , pursuant to a charge filed by Ar-
thur Gonyea , an individual, on August 28, 1973, a copy
thereof being served on Respondent the same day, on an
amended charge filed by the same individual on October 18,
1973, a copy thereof also being served on Respondent that
same day and a complaint and notice of hearing dated Octo-
ber 29, 1973, issued by the Regional Director for Region 1 of
the National Labor Relations Board , which was likewise duly
served on Respondent. The complaint was amended on
December 5, 1973, and the amendment was served on Re-
spondent . The complaint , alleges that Respondent violated
Section 8(a)(1) of the Act, variously, by interrogating its
employees about their union activities , threatening that it
would take reprisals against its employees for engaging in
such activities and creating the impression of surveillance of
its employees in their concerted activities . The complaint
further alleges that Respondent violated Section 8(a)(3) and
(1) of the Act by: initiating a written warning system and
issuing warnings to certain employees because they had en-
gaged in union activities ; reducing the hours of overtime for
all production and maintenance employees from May 30 to
July 15, 1973; continuing that reduction of overtime for some
of its employees until August 5, 1973, and by further continu-
ing this reduction for three employees including the Charging
Party until as late as August 26, 1973. ' In its answer, which
was also amended , Respondent denied the commission of any
unfair labor practices.
For reasons which will appear hereinafter I find and con-
clude that Respondent has violated Section 8(a)(3) and (1) of
the Act by reducing the overtime of production and mainte-
nance employees at the times stated with one exception and
has committed certain independent violations of Section
8(a)(1) as alleged in the complaint . I further conclude that
Respondent has not violated Section 8 (a)(3) and (1) of the
Act by reducing the overtime of employee Dees during a
certain period in August 1973 and did not commit ;ertain
other independent violations of Section 8(a)(1), as alleged in
the complaint.
At the hearing the General Counsel and Respondent were
represented by counsel . All parties were given full oppor-
tunity to examine and cross-examine witnesses , to introduce
evidence , and to file briefs. The parties waived oral argument
at the conclusion of the hearing. Briefs have subsequently
been filed by General Counsel and Respondent and have been
considered.
Upon the entire record' in this case and from my obser-
vation of the witnesses , I make the following:
' At the hearing I granted the General Counsel 's unopposed motion to
strike the 8(a)(4) and (5) allegations of the complaint.
2 The transcript of the record in this proceeding is hereb corrected wY
Tupco , DIVISION OF DART INDUSTRIES , INC. follows : At p. 66 , line 14, "Build" is deleted and "Billed" substituted.
TUPCO, DIVISION OF DART INDUSTRIES, INC 427
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent is and has been at all times material herein a
corporation duly organized under and existing by virtue of
the laws of the State of Delaware
At all times matenal herein Respondent has maintained an
office and place of business at 303 Washington Street, Au-
burn , Massachusetts , and is now and continuously has been
engaged at said plant in the manufacture , sale, and distribu-
tion of molds and related products
Respondent in the course and conduct of its business
causes, and continually has caused at all times matenal
herein , large quantities of steel used by it in the manufacture
of molds to be purchased and transported in interstate com-
merce from and through various States of the United States
other than the Commonwealth of Massachusetts, and causes,
and continuously has caused at all times material herein,
substantial quantities of molds to be sold and transported
from its said Auburn , Massachusetts , place of business in
interstate commerce to States of the United States other than
the Commonwealth of Massachusetts.
Respondent annually ships from its Auburn, Massa-
chusetts , place of business goods valued in excess of $50,000
directly to points outside the Commonwealth of Massa-
chusetts.
The complaint alleges, the answer admits , and I find that
Respondent is, and has been , engaged in commerce within the
meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Laborers International Union of North America, Local 243,
hereinafter sometimes referred to as the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III BACKGROUND AND SEQUENCE OF EVENTS
'. The Relationship of Respondent to Certain Other
Companies
Respondent is a wholly owned subsidiary of Dart Indus-
tries Respondent's president is John Ansley who is also the
president of 13 other companies of Dart Industries including
Tupperware.' Respondent makes molds for Tupperware
and Tupperware is Respondent's largest customer. Tupper-
ware is also wholly owned by Dart Industries. -
Richard Anterni is in charge of Tupperware's engineering
department and visits Respondent 's plant in Auburn once a
week to check on the progress of Tupperware molds Anterni
was the acting plant manager of Respondent for 3-1/2
months in 1969 and then transferred back to Tupperware.
Anternt was examined by the General Counsel at the hearing
under the provisions of Section 43(b) of the Federal Rules
without objection from Respondent.
3 The complaint alleges , the answer admits, and I find that Ansley is an
agent of Respondent and a supervisor within the meaning of Sec 2(11) of
the Act
James Hagan, vice president of personnel and public rela-
tions for Tupperware,' has visited Respondent's plant in
Auburn to explain to the employees the nature of their bene-
iits as personnel of a Dart Industries subsidiary . Ansley ad-
mitted in connection with certain allegations of the complaint
that Respondent should have a written warning system be-
cause such a system "is in all Tupperware [sic] plants." Ans-
ley also admitted there should also be a set of work rules in
operation at Respondent 's plant because that "would be a
normal Tupperware [sic] policy" and that Hagan, Tupper-
ware's vice president for personnel , would handle such mat-
ters with George Perreault , Respondent 's plant manager.
I conclude on the basis of the foregoing that Respondent
and Tupperware have a common labor relations policy and
are a single employer within the meaning of the Act.'
B Relevant Hierarchy of Respondent and Tupperware
John Ansley is the president of Tupperware and Respond-
ent, as previously noted. James Hagan is vice president of
personnel and public relations for Tupperware. Ansley and
Hagan are admitted agents and supervisors of Respondent
and I have so found. The complaint also alleges , the answer
admits, and I find that each of the following carries the title
opposite his name and is an agent of Respondent and a super-
visor within the meaning of Section 2(11) of the Act:
Josef Lovec, foreman
Richard Morris , personnel manager
Harry Penniman, general foreman
George Perreault , plant manager
Charles Witkus, foreman
The complaint further alleges, inter aha, but the answer
denies, that Richard Anternt is an agent of Respondent. An-
terni, as noted, is in charge of Tupperware's engineering de-
partment , visits Respondent 's plant once a week to check on
the progress of Tupperware 's molds there and was acting
plant manager of Respondent for 3-1/2 months in 1969 after
which he transferred back to Tupperware. Anternt is also
responsible , at least, to make recommendations to Ansley in
respect to placement of contracts for production of molds
including those contracted to Respondent.
I find on the basis of the foregoing that Anternt is an agent
of Tupperware within the meaning of the Act, and since
Tupperware and Respondent are a single employer within the
meaning of the Act, it follows that Anterni is an agent of the
same employing entity which includes Respondent
C Background and Sequence of Events--An Overview
Respondent is in the business of manufacturing molds. It
operates with a normal work force of some 50 to 60 em-
ployees who have frequently worked as much as 55 to 60
hours per week or longer since the plant began operations in
4 The complaint alleges , and the answer admits, and I find that Hagan is
an agent of Respondent and a supervisor within the meaning of Sec 2(11)
of the Act Hershel Phillips who was served with a copy of the complaint
and entered an appearance for Respondent at the hearing , is, as Respon-
dent 's Plant Manager Perreault admitted, labor counselor for Dart Indus-
tries, serving all Dart companies
5 See, e g , Manitowoc Shipbuilding Inc, 191 NLRB 786 (1971)
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1966. Until the events in question here there has never been
an across -the-board reduction of employees ' overtime.
Arthur Gonyea, the Charging Party, initially contacted the
Union at the end of April 1973 in connection with the organi-
zation of Respondent 's employees . The first union meeting
was held on the evening of May 2, 1973.
Prior to this union meeting but on the same day, or the day
before, Hagan, the vice president for personnel and public
relations of Tupperware, came to Respondent 's plant in Au-
burn , Massachusetts , and addressed Respondent's em-
ployees Hagan discussed the Union and various employee
benefits at this meeting.
Further union meetings were held on May 10 and 16 and
an organizing committee of plant employees was established.
Serving on the committee were Carole Dees, Arthur Gonyea,
Walter Micolites, and Victor Skalubinski.
On May 21, 1973, Massachusetts Laborers District Coun-
cil of the Laborers ' International Union of North America,
AFL-CIO , sent a letter to Respondent demanding recogni-
tion in a unit of its production and maintenance employees
on behalf of Laborers Local Union 243. On May 23, 1973, the
same District Council on behalf of Local Union 243 filed a
petition for a Board conducted election in this unit at the
office of Board Region 1 in Boston , Massachusetts (Case
1-RC-12773).
On May 23, 1973, after the Union's demand for recogni-
tion, Ansley, Respondent 's president , addressed a mass meet-
ing of Respondent's employees. This was the first time he had
ever done so . In his brief speech to them on this occasion,
which was made primarily from a prepared text, Ansley told
the employees that he was opposed to having Respondent
unionized and that he had instructed Perreault, the plant
manager, to advise Respondent 's outside customers that a
union organizing campaign was going on and that Respond-
ent could not guarantee production on schedule . After stating
in the speech that it was the customer's decision whether or
not to continue giving orders to Respondent in these circum-
stances Ansley told employees that they, the employees, were
probably tired of working overtime anyway.6
In late May 1973 Perreault did in fact advise several of
Respondent 's customers of the Union 's organizing campaign
and at least one decided not to give an order to Respondent
at that time.
Also on May 30, 1973, Perreault posted a bulletin to all
employees announcing that the normal workday would con-
sist of 9 hours until further notice. On a weekly basis of 45
hours (5 days at 9 hours per day) this would represent an
average reduction of about 5 hours or more below the number
of hours employees had been working since at least January
1973.
During the week ending June 3, 1973, job No. 1391-a
mold to be made for Tupperware-was removed from Re-
spondent 's plant and sent to Diecraft , another moldrraking
company owned by Dart Industries but located in Australia.
No 1391 is a duplicate of another mold being made by Re-
spondent for Tupperware and originally ordered by the latter
at the same time as 1391. No. 1391 would have taken over
3,000 man-hours for Respondent to have completed.
6 The findings as to this speech are based on the admissions of Ansley in
this regard
Also during the period May 22 through July 20, 1973,
Tupperware placed no molds with Respondent for manufac-
ture but instead gave Diecraft in Australia orders for 28
molds.
In June 1973 Perreault started issuing written disciplinary
warnings to his employees . In Perreault 's 4-1/2 years as plant
manager he had never previously issued written warnings.
On or about June 19, 1973, a conference was held at the
office of Board Region 1 in Boston , Massachusetts , in connec-
tion with the election petition in Case 1-RC-12773. Repre-
senting the Union at this meeting, inter aka, were Gonyea
(the Charging Party), Victor Skalubinski, and Carole Dees.
On or about July 15, 1973, some employees began working
again in excess of 45 hours per week to complete "rush"
orders while others continued to work within the 45-hour
limit.
On July 30, 1973, Tupperware placed four molds with
Respondent-the first so placed since Tupperware sent a
series of molds to Diecraft in Australia beginning on May 22,
1973.
On August 3, 1973, the election was held in Case
1-RC-12773, in the following unit which the Respondent
(Employer) and the Petitioner stipulated to be appropriate:
All full time and regular part time production and
maintenance employees employed by the Employer at its
Auburn, Massachusetts plant, but excluding all other
employees, office clerical employees , draftsmen, engi-
neering employees, guards and supervisors as defined in
the Act.
The Board's Tally of Ballots after the election in that pro-
ceeding, which was held on August 3, 1973, indicated the
following-
Votes cast for Petitioner,
Votes cast against participating
Labor Organization(s),
22
32
Challenged Ballots, 1
No objections were filed to the conduct of this election.
Beginning the following week after the union lost this elec-
tion the limitations on the overtime opportunities of plant
employees were withdrawn except for three well-known
union adherents , Dees, Gonyea, and Bezdegian.
On August 13, 1973, the Board issued a Certification of
Results of Election reflecting the foregoing outcome of the
election.7
In mid-August 1973, the Charging Party spoke to Per-
reault in the latter's office at the plant. Gonyea expressed the
hope that things would return to normal at the plant with the
election over. Perreault admittedly told Gonyea something to
the effect that he, Perreault , would hate to go through such
an experience again.
7 The facts as to the election in Case 1-RC-12,773 and its results are
found on the basis of administrative notice of the Board 's files and records
in that case On April 19 , 1973, I issued on all parties an Order to Show
Cause on or before May 2, 1974, why I should not take notice of these facts
No party responded to said notice in timely fashion On May 6, 1974,
Respondent sent a letter in which it stated that it and the General Counsel
stipulated that such administrative notice was properly taken
TUPCO, DIVISION OF DART INDUSTRIES, INC. 429
On August 28, 1973, the original charge herein was filed
by Gonyea as previously mentioned.
On October 25, 1973, Perreault sent a letter to all em-
ployees in which Perreault referred to the charge filed by
Gonyea in this case and the investigation of the case by the
Board. In the letter, Perreault stated that he did not think
that the Board's investigation of the case was fair and that the
investigators had concentrated their interviews on the "com-
plainers, gripers, antis and poor losers." The letter went on
to say that the man who filed the charge would not, however,
be fired if he continued to do his job. The letter concluded
with Perreault's expressed wish to "get things back to normal
as soon as possible" but stated that this would not be possible
as long as a minor number of poor losers and nonproductive
employees were trying to impose their will on the majority of
faithful and considerate employees.
At some time after the election and also after at least the
initial charge was filed, Gonyea met with Ansley, Perreault,
and Hagan at a restaurant to discuss what his future relation-
ship with the Respondent would be. In this meeting Gonyea
told Ansley that he had discussed with the Government the
possibility of withdrawing the charge filed by him, but that
they had refused. The meeting apparently was an amicable
one with Ansley paying for dinner.
During the late spring and summer of 1973 supervisors
discussed the Union with employees on a number of occa-
sions . As a result, as Perreault admitted at the hearing, it was
indeed "pretty well open who was and who wasn't" a union
supporter.
In the next section of this Decision I will, inter alia, deal
with the question whether the participation of Respondent's
supervisors in these discussions violated Section 8(a)(1) of the
Act.
D. The 8(a)(1) Allegations
1. The Hagan speech on May 2, 1973 (subparagraph 8(a),
(b), and (c) of the complaint)'
As noted Hagan spoke to all the employees at work at
Respondent 's Auburn plant on or about May 2, 1973. There
is a dispute in the testimony as to what Hagan said on this
occasion . Based on my resolution of credibility , I find that the
following occurred.
Hagan began by telling the employees about existing com-
pany personnel policies and benefits . He also told employees
he was aware that a union meeting was scheduled that night
and this was the reason that he was there.' Hagan suggested
8 Reference to these subparagraphs here and infra denotes the factual
allegations of the complaint . Legal conclusions as to these factual allegations
are set forth elsewhere in the complaint.
9 These findings are based on the credible testimony of Dees and Mico-
lites in this regard . I discredit Hagan's denial that he made this statement
and any of his testimony where it conflicts with that of other witnesses.
Hagan , according to his testimony , had difficulty remembering the details
of what happened at the meeting on May 2, 1973. At first he couldn't
remember mentioning the Union in the speech and then after extensive
cross-examination by the General Counsel he remembered a number of
statements he made in relation to the Union. He noticeably blushed on
cross-examination . His testimony as to what he said also conflicts with that
of Perreault , the plant manager . I also discredit Perreault 's denial that Hagan
said the Union was Hagan 's reason for being at the plant on May 2. On
that employees attend this union meeting but to be wary
about signing union authorization cards which he compared
to signing a blank check. Hagan went on to tell the employees
that, if they thought Perreault, the plant manager, was a
tough supervisor then they should wait and see what he
would be like if the Union got in. 10 Hagan also advised the
employees that Tupperware had made molds at plants other
than Tupco and that, if necessary, such work could be sent
elsewhere again."
I conclude on the basis of the foregoing, that Hagan's
statement that he was there because of the union meeting that
night was calculated to, and did, convey to the employees the
impression that the union activities of Respondent's em-
ployees were a cause of concern to it and that Respondent was
maintaining surveillance of these activities. I find that by
creating this impression Respondent violated Section 8(a)(1)
of the Act.12 I also find that Hagan's remark suggesting that
Perreault would get tougher if the Union came in was a threat
to take reprisal against its employees in that eventuality and
that Respondent also thereby violated Section 8(a)(1) of the
Act.13 As to Hagan 's further comments about other places
where Tupperware could have mold work done, if necessary,
I find that these statements fall short of a threat to take such
action if the Union came in and I shall recommend that this
allegation of the complaint be dismissed.14
2. Alleged statement in mid-May 1973 of Foreman Lovec
to employee Micolites (subparagraph 8(d) of the
complaint)
In mid-May 1973 Lovec spoke to Micolites and told the
latter that another employee, Stanley June, was going "on
long hours" (apparently speaking of extended overtime). Lo-
ves went on to say that Perreault had found out that June had
signed a card the night of the union meeting and Lovec
commented "you do a guy a favor and this is what happens
to you."'5
examination by the General Counsel under Sec. 43(b) of the Federal rules,
Perreault denied that Hagan discussed the Union in his speech. Perreault
changed this testimony when called as a witness by Respondent. I will
comment further on the credibility of Dees, Perreault, and Micolites later
in this Decision.
to Dees credibly so testified and Perreault admitted that Hagan so stated.
I discredit Hagan's denial that he made this statement.
11 Dees credibly so testified and Hagan admitted mentioning other places
where Tupperware had sent work to be done. Dees' version is also essen-
tially corroborated by Perreault.
12 Hatteras Yachts, AMF Incorporated, 207 NLRB 1043 (1973).
13 I find no merit in Respondent's contention that this remark was a joke,
even if, as Perreault testified, the employees laughed when hearing it. The
statement is, in haec verba, a threat of reprisal in the event of unionization
of the plant. I am aware of no license in the Act for management to make
such a statement in the guise of humor.
14 Dees also testified on direct examination that Respondent would phase
out or close down if anyone other than Respondent tried to manage Re-
spondent. On cross, Dees stated she didn't think Hagan threatened a phase
out if the Union came in. Other witnesses including Hagan either denied or
could not recall any such threat. In these circumstances, I find no probative
evidence that a threat was then made to shut down or phase out in the event
of unionization.
15 Micolites credibly so testified. I found Micolites, who was subpenaed
to appear by both sides (and not as a hostile witness), to be a sincere witness
who testified in a conscientious manner . Lovec, whose denial here I dis-
credit, did not create a favorable impression as a witness . He looked away
when I gave him the oath and also when denying the testimony of the
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that Lovec's statement to Micolites also created the
impression that Respondent was keeping the union activities
of its employees under surveillance and that Respondent
thereby violated Section 8(a)(1) of the Act.
3. Ansley's speech to Respondent 's employees on or about
May 23, 1973 (subparagraph 8(e) of the complaint)
As previously noted Ansley gave a speech, primarily from
a prepared text , to Respondent 's employees on this date in
which he, admittedly, told them he was opposed to the
Union . He also, admittedly , told them in the fourth para-
graph of this speech that:
I've told George [Perreault, the plant manager] that we
cannot at this time take any risk of hurting our custom-
ers until this union thing is completely settled. George
has advised our outside customers that we are having a
union organizing drive and that he couldn 't guarantee
production on schedule. The decision is theirs based on
the urgency of their requirements. We felt that we might
tell them of the potential problems in order to maintain
good customer relations."
At this point in the speech Ansley then, admittedly, de-
parted from his prepared text and added:
But I imagine most of you are tired of working overtime
anyway.
Boiled down to its essentials , Ansley's open message in the
prepared text here was that Respondent through Perreault
was discouraging its customers from sending it work because
of the onset of the Union. The unmistakeable implications of
Ansley's ad lib were that customers would, in fact, curtail
their orders to Respondent for this reason and that overtime
work would be lost as the result."
The obvious impact of these remarks by Ansley was to
convince employees that, because of the Union's campaign,
Respondent would take action to reduce work and overtime
opportunities for its employees. By gratuitously shifting to
the Union-which had made no threat to strike and had yet
to advance its first bargaining demand-the onus for Respon-
dent's predicted reduction of overtime, Respondent sought to
disparage and undermine the Union by conveying to the
employees the impression that the Union stood in the way of
customary liberal overtime opportunities." Thus Respond-
General Counsel 's witnesses . I also find incredible his statement that he and
Perreault did not discuss which employees had signed union cards in the
light of his further admission that employees told him who had signed cards.
16 George Perreault in fact so notified Respondent's customers, as has
been found.
17 Perreault admitted that , at this time , no one had mentioned a strike to
him. No bargaining demands had been received from the Union-only its
demand for recognition.
18 As noted, the subsequent across-the-board cut in overtime was the first
in Respondent's history.
I discredit Ansley's self-serving testimony that the reason he made the ad
lib about overtime was because it was difficult to obtain employees to work
overtime. No such explanation was given in his speech. On the other hand,
any reduction in overtime would be a natural consequence of Respondent's
efforts to discourage its customers from sending work to Respondent-a
matter Ansley had just discussed in his speech. Also I note that, when first
examined by the General Counsel, Ansley stated he made no announcement
ent held out to the employees the possibility that the previous
virtually unlimited policy would be continued but for the
Union and that changes in this policy would be made by
Respondent in reaction to the Union's campaign. By this
conduct, Respondent, through Ansley, interfered with, re-
strained and coerced its employees in the exercise of their
right to support the Union guaranteed in Section 7 of the Act
and thereby violated Section 8(a)(1) of the Act.19
More will be said hereinafter about Ansley's remarks on
this occasion.
4. Alleged threat of Penniman to employees (subparagraph
8(f) of the complaint)
On the day before the conference at the Board's Regional
Office in Boston which, I have found, occurred on or about
June 19, 1973, Foreman Penniman and Lovec spoke with
employee Micolites at the Respondent's plant in Auburn.
Penniman asked Micolites who was going to Boston. When
Micolites responded that he did not know, Penniman re-
marked that he would not want to be in the shoes of anyone
who went to Boston.20
Since Micolites was an employee and since the incident
occurred the day before the Boston conference on the Union's
petition in the representation case, I conclude that, in asking
Micolites who was going to Boston , Penniman was inquiring
which employees were going to Boston for that conference.
In so doing and by adding the statement he would hate to be
in that employee's shoes, I conclude that Penniman coer-
cively interrogated Micolites concerning his fellow em-
ployees' union activities in violation of Section 8(a)(1) of the
Act.
5. Alleged interrogation by Perreault (subparagraph 8(g)
of the complaint)
On or about June 15, 1973, Dees overheard a conversation
between Perreault and Ed Spinnie. In this conversation, Per-
reault asked Spinnie if the latter knew who was going to
Boston.21
Inasmuch as Spinnie was an employee and since the confer-
ence on the Union's representation election petition was to be
held at Boston within the next few days, I conclude that
Perreault was inquiring which employees were going to this
conference. In making this inquiry, for which no business
about the overtime reduction in his speech. He later admitted that he made
the ad lib about overtime in his speech but claimed it was a joke.
19 See American Paper and Supply Co., 159 NLRB 1243 (1966). 1 am
unimpressed with Respondent's contention that Ansley's remark about em-
ployees being tired of overtime was a joke. That employees might have
laughed when that was the apparent wish of the company president who had
never addressed them before in a group, I do not find surprising. Returning
however to the real world of objectivity, the earnings of a working
man-or woman-are not a joking matter.
20 Micolites credibly so testified. I discredit the denial of Penniman that
he made this remark. Penniman I found to be an evasive witness particularly
with regard to his discussions with employees about the Union. Lovec did
not deny this incident.
21 Dees credibly so testified. Spinnie did not testify. I discredit Perreault's
denial that he, Perreault, so inquired of Spinnie. Perreault admitted he knew
who was going to Boston and that he asked his foreman about this
matter-thus clearly indicating his interest in it. When denying an earlier
general question whether he asked nonsupervisory employees about this
matter he noticeably ground his jaws together.
TUPCO, DIVISION OF DART INDUSTRIES, INC.
justification was shown nor any guarantee against reprisal
given, I conclude that Perreault coercively interrogated Spin-
nie about his fellow employees' union activities in violation
of Section 8(a)(1) of the Act.22
6. Alleged statements by Foreman Witkus to employees as
to why they were not receiving overtime (subparagraph
8(1) of the complaint)
Foreman Witkus told employee Dunphy at the latter's
machine at the plant on several occasions between the filing
of the election petition (May 23, 1973) and the election (Au-
gust 3, 1973) that the reason overtime was being cut during
that period was because Respondent was not taking orders.
Witkus added on these occasions that the employees should
"use their head" and that they didn't need a union. Witkus
told Dunphy, that it was true that the time was being cut
down because the Union was there. He also told Dunphy to
"forget the Union," to "go back to work and bring conditions
back to normal." Witkus further told Dunphy on these occa-
sions that if the Union were out of the plant and conditions
were normal, overtime would be worked again.23
Witkus also told employee Skalubinski several times dur-
ing June and July 1973 in the work area of the plant that if
the Union came in the place would shut down.24
I conclude that by Witkus' remarks to Dunphy, supra, that
overtime was cut down because of the Union and that over-
time would resume if the Union were out of the plant, Re-
spondent, as in the case of Ansley's speech discussed above,
was holding out to Dunphy that employees would receive this
benefit if it were not for the Union, and that Respondent
thereby violated Section 8(a)(1) of the Act.
I further conclude that by Witkus' remarks to Skalubinski,
supra, Respondent was threatening Skalubinski with plant
shutdown if the Union came into the plant and that these
threats were in violation of Section 8(a)(1) of the Act.25
7. Alleged threats of plant shutdown by Lovec
(subparagraph 8(i) of the complaint)
After the petition was filed (May 23, 1973) and before the
election (August 3, 1973) Lovec came into Skalubinski's work
area at the plant and told Skalubinski on several occasions
that if the Union tried to get in, the place would close down
or they would phase out the factory.'6
22 Abex Corporation-Engineered Products Division, 162 NLRB 328
(1966); Swanson-Nunn Electric Company, Inc., 203 NLRB 213 (1973).
23 Dunphy credibly so testified. I found Dunphy to be a generally sincere
witness, although a bit wordy. I was not so impressed with Witkus. Witkus
looked down and blinked on several occasions when denying testimony of
the General Counsel's witnesses. Moreover, although he made such denials,
he admitted talking with employees about the Union-but claimed he did
not remember what he said or to whom he spoke. Hence I do not credit his
denials of the statements attributed to him by Dunphy. In so finding, I also
note that Witkus admitted that he had discussed the matter of overtime
reduction with employees after first denying he had done so.
24 Skalubinski credibly so testified. I discredit Witkus' denial that he made
any such statements to employees. I found Skalubinski, who was subpenaed
to testify by both sides in the proceeding (and not as a hostile witness), to
be sincere and forthright in his manner. I have already commented on the
impression created by Witkus.
25 See, e.g., Enterprise Products Company, 196 NLRB 549, 563, enfd. 471
F.2d 651 (C.A. 5, 1973).
431
I find that by Lovec's statements to Skalubinski on these
occasions, Respondent threatened Skalubinski with reprisal if
the Union came in, and that Respondent thereby violated
Section 8(a)(1) of the Act.
8. Alleged threat by Lovec on or about July 16, 1973, of
reduction of hours if the Union won the election
(subparagraph 8(k) of the complaint)
Inasmuch as no probative evidence was introduced in sup-
port of this allegation of the complaint , I shall recommend its
dismissal consistent with the unopposed motion of the Gen-
eral Counsel therefor.
9. Alleged threat by Lovec to Gonyea (subparagraph 8(1)
of the complaint)
On the Monday following the election, that is, on or about
August 6, 1973, Josef Lovec came over to Gonyea's machine
at the plant where Gonyea was speaking to Connor. Lovec
told these employees that the election was over, things would
go back to normal, and that employees would go back on
overtime. Lovec added that this (the overtime) would not,
however, be enjoyed by Gonyea who would perhaps be
fired.27
By Lovec's instant statement to Gonyea I conclude that
Lovec was threatening Gonyea with reprisal for the latter's
participating in the attempts to organize a union and that
Respondent thereby coerced Gonyea in the exercise of his
Section 7 rights in violation of Section 8(a)(1) of the Act.
10. Alleged threat of Perreault to Gonyea; alleged
statement by Perreault to Gonyea that he, Perreault, knew
who had supported the Union (subparagraphs 10(m) and
(n) of the complaint)
About a week or so after the election, or on or about
August 10, 1973, Gonyea asked to speak to Perreault. A
meeting thereafter took place in Perreault's office with only
Perreault and Gonyea present.
Gonyea told Perreault that the election was lost and that
he, Gonyea, wanted things to get back to normal and to get
back on a regular work schedule.
Perreault told Gonyea that there was no way that this
could be done; that he, Perreault, had his orders and that the
union activity would not start up again. Perreault continued
that it was either Gonyea's job, or his, Perreault's, job. Per-
reault also said he, Perreault, had a list of union supporters,
26 Skalubinski credibly so testified. I discredit the denial of Lovec. I have
already commented on the credibility of both Skalubinski and Lovec.
27 Gonyea credibly so testified. When Gonyea was a bit defensive in his
manner on the stand , I found him to be a generally reliable witness. Re-
spondent sought to discredit him by showing that he, Gonyea, at least at one
point after the election , sought a meeting with Ansley and that such meeting
took place . In that meeting Gonyea sought to ascertain what his, Gonyea's,
status would be and he informed Ansley and other Respondent officials that
he, Gonyea, had tried unsuccessfully to withdraw the charges herein-all as
recounted supra. In my judgment these incidents are insufficient to provide
a basis to discredit Gonyea. That he should seek to make peace with Re-
spondent even on capitulation terms could hardly be unexpected in the light
of this threat to which he was subjected by Lovec. I have already com-
mented on the credibility of Lovec. I also note that Levee admitted that he
knew Gonyea was a union supporter and also knew the identity of most of
the employees who signed cards. Connor did not testify.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Gonyea's name was first on the list and others on the list
included Turcotte and Dees.28
I find that Perreault's statement to Gonyea that, under
Perreault's orders, if the Union started up again, it would be
either Gonyea's job or Perreault's job, to be a threat to Go-
nyea that the latter would be discharged in the event the
Union started up again at the plant. I further conclude that
by this threat to Gonyea, Respondent coerced and restrained
Gonyea in his right to support the Union and thereby violated
Section 8(a)(1) of the Act.
11. Alleged statement by Lovec to employees that
Perreault kept a list of union supporters in his head
(subparagraph 8(b) of the complaint)
I find no probative evidence in support of this allegation of
the complaint-only remarks by employees to Lovec stating
or implying that they understood that Perreault or Respond-
ent had such a list which, according to Lovec, he denied.
Therefore, I shall recommend dismissal of this allegation
of the complaint.
12. Alleged suggestion by Lovec to employees that they
should quit because they had supported the Union
(subparagraph 8(p) of the complaint)
On or about August 8, 1973, a date also after the election,
Lovec came over to Dees' bench at the plant and engaged in
a conversation with Dees. On this occasion Lovec reminded
Dees that the people who were for the Union had said they
were going to quit because they didn't think they would have
their jobs if the Union lost the election. Lovec then asked
Dees "so, why don't you get the f-k out." Then he told Dees
that the Company had gone through the records for the
preceding years which showed that "you" (apparently speak-
ing to Dees and other union adherents) had gotten the most
amount of raises and the most money of anybody , thus the
Company couldn't figure out why "you're trying to screw
them." Dees responded that she did not say that she was
going to quit and then told Lovec she did not want to argue
the matter. With this Lovec said that the Union people were
smiling before but they were now walking around with their
tails between their legs. Lovec thereupon walked away.29
28 These findings are based on the credible testimony of Gonyea in this
regard . Perreault admitted his participation in this conversation and he also
admitted that he told Gonyea that he knew who was a union supporter. He
further admitted that he knew the names of at least 10 or 12 union support-
ers and that he told Gonyea that he would hate to go "through this" again.
He did not precisely deny saying it was his job or Gonyea's job. I discredit
his denial that he told Gonyea he had a list of union supporters . Perreault,
a somewhat argumentative witness , was particularly argumentative , hence,
in my judgment , evasive , when cross -examined -on this subject.
29 These findings are based on the credible testimony of Dees in this
regard. I found Dees to be a sincere witness who appeared to testify to the
best of her knowledge and belief . I am not persuaded that her failure to
mention in her affidavits the precise words used by Lovec in the foregoing
encounter suggests that Lovec did not speak to.her as I have found above.
The necessity of repeating the specific expletive in her affidavits could
reasonably be viewed by her as being less compelling at that time than it was
in her testimony. This was indeed her explanation of the discrepancy, if it
may be considered one, between her affidavits and her testimony . I discredit
Lovec's denial that he made this statement. Lovec, in any event , admitted
that several named union supporters-not including Dees-had said prior
I conclude that in the foregoing conduct of Lovec, Re-
spondent created the impression of surveillance of the union
activities of its employees and further suggested that because
of Dees' support of the Union the Respondent desired her to
resign and that by these activities Respondent coerced and
restrained Dees in any desire she may have had to continue
to support the Union , thereby violating Section 8 (a)(1) of the
Act.
13. Letter from Perreault to all employees on October 26,
1973, in which Perreault, it is alleged, impliedly
threatened retaliation against employees who filed charges
or who continued to support the Union (subparagraph
9(q) of the complaint)
This letter, which is General Counsel's Exhibit 6, states,
inter alia, that Perreault had refused to settle the unfair labor
practice charges against Respondent; that he did not think
the Government fairly investigated the charges (by tending to
talk to "complainers, gripers, antis, and poor losers" and not
other employees); that the case might take years to litigate;
that the party who filed the charge would not be discharged
(but would be treated like any other employee and discharged
only if he did not do his job) and finally that he, Perreault,
desired things to return to normal but that this would not "be
possible as long as a minor number of the poor losers and
nonproductive employees were trying to impose their will
upon the majority of faithful and considerate employees."
Perreault admitted at the hearing that the so-called "poor
losers and nonproductive employees" were the union sup-
porters.
Insofar as the employees are concerned, I find nothing in
this letter which exceeds the bounds of free speech protected
under Section 8(c) of the Act. While the letter suggests that
things will not get "back to normal" as long as a number of
poor losers and nonproductive employees persist in their ef-
forts to impose their will on other employees, I can detect no
implication of threat or promise of benefit from the bald
phrase "back to normal" in the context in which it appears.
Accordingly, I shall also recommend that this allegation of
the complaint be dismissed.
E. The 8(a)(3) and (1) Allegations
1. Respondent 's initiation of a written warning system on
or about June 8, 1973, as a method of disciplining all em-
ployees at the plant (subparagraph 9(a) of the complaint)
Respondent first began giving written warnings to its em-
ployees in May or June 1973 after the advent of the Union.
While a written warning system has been in effect "at all
Tupperware plants" including Respondent since at least
1969, when Perreault became plant manager of Respondent's
Auburn plant here involved , no written warnings were given
from 1969 until the Union appeared on the scene . Hence, for
all practical purposes, Respondent itself had no such system
until the latter time.
The written warning system was put into effect by Per-
reault because of employee talking-the extent of which will
be discussed , infra. The talking was thought by Perreault to
to the election that they would quit if the Union lost the election. Lovec also
admitted that he knew Dees had signed a union card.
TUPCO, DIVISION OF DART INDUSTRIES, INC.
be about the Union. The names of a number of recipients of
written warnings were recited by Perreault at the hearing.
Most of these were known by him to be union
adherents.30
Respondent defends that the issuance of written warnings
beginning in May or June 1973 was necessitated by the exces-
sive amount of talking in the plant at that time. Perreault so
testified and gave this to the foreman as his reason for imple-
menting the written warning system. Ansley also testified
that he had noticed an excessive amount of talking and also
"goofing off" and he mentioned the latter in his speech to
employees on May 23, 1973. Ansley also testified that in
response to his, Ansley's, accusation that employees were
only working 80 percent of the time, one employee, Turcotte,
stated employees were loafing 30 percent of the time. On July
24, 1973, Respondent also posted a notice explaining that
employees could not talk about the Union on company time.
It is clear from all the foregoing that the talking among
employees which caused Respondent to implement a written
warning system was talk about the Union and that the union
advocates were the primary target of this system. The mere
fact that such talk was about the Union does not, however,
immunize it from employer discipline where it occurs on an
employer's time and property. Indeed, as the Supreme Court
has succinctly observed, working time is for work.31 On the
other hand if talking is a normal condition of employment an
employer may not change such a condition primarily for the
purpose of blocking union activity and harassing union sup-
porters.
I am satisfied that the latter was the Respondent's purpose
in implementing its written warning system here For, in
answer to the question whether talking was customary at the
shop, Perreault frankly admitted that a certain amount of it
had gone on because he could understand that it was difficult
for employees to "stay right at it" when they work 12 hours
per day.32 While he stated that there was a limit to the
amount of talking allowed and that he deemed 10, 15, or 20
minutes excessive, he did not explain how, if at all, incidents
of talking of such duration , assuming their occurrence, dif-
fered from talking which was customary at the shop and
which had been permitted by Respondent without written
warnings until the advent of the Union. The difference,
rather, was that employees were talking about the Union,
whereas they had not apparently done so before.
In these circumstances I conclude that Respondent's im-
plementation of a written warning system for the first time in
at least 4 years and in the course of the Union's campaign had
as its primary purpose the harassment of union adherents and
that Respondent thereby violated Section 8(a)(3) and (1) of
the Act.33
30 The foregoing findings is to this written warning system are based on
the admissions of Perreault or Ansley in this regard
31 Republic Aviation Corporation v NL R.B., 342 U S 793, 803, fn 10
32 Perreault also so informed Dunphy when the latter began working for
Respondent on January 15, 1973
33 Mississippi Tank Company, 194 NLRB 923, 925 (1972), Cf James
Hoomaian d/b/a Chicago Master Mattress and Furniture Company, 196
NLRB 579 (1972), enfd 471 F 2d 654 (C A 6, 1973)
433
2. Written warnings to Skalubinski and Bezdegian
(subparagraph 9(b) of the complaint)
Respondent admitted in its answer to the complaint that
it had given written warnings to Skalubinski and Bezdegian
on August 13, 1973. I so find . The written warning given to
each stated as follows:
Excessive talking and loafing. You have been given ver-
bal warnings on this several times by your foreman, Josef
Lovec. Continuation of this practice will result in disci-
plinary action or discharge.
In the incident following which Skalubinski was given his
written warning , Skalubinski , as he admitted, had been talk-
ing for some 10 minutes with Stanley June and Walter Zbi-
kowski who had left their work stations 75 to 100 feet away
to talk to Skalubinski Skalubinski at the time had run out of
work and was waiting to speak to his foreman who was in
attendance at a management meeting . When the management
meeting broke up, Lovec walked out of a door nearby and saw
the three men talking. Lovec immediately came over to
Skalubinski's station and June and Zbikowski departed. Lo-
vec told Skalubinski that "you guys are stirring up the
s-" and "a bunch of you guys are going to get fired-its
either going to be them or me." After a few more words
Lovec left but returned in several minutes to tell Skalubinski
that Perreault wanted to see him. Bezdegian followed.
After Skalubinski and Bezdegian reached Perreault's of-
fice, each was handed the above-named written warning,
which had already been prepared. Perreault then asked
Skalubinski why he was not working and Skalubinski ex-
plained he was waiting for a job . Perreault then suggested
that Skalubinski wipe his machine down and sweep the floor
to which Skalubmski responded that since no one else did this
he questioned why he should.34 Both Bezdegian and Skalu-
binski refused to sign their slips.35 Perreault and Lovec did
sign them.
There is no indication that either June or Zbikowski was
given a warning slip on this occasion, although a number of
warning slips were introduced into evidence. Nor were June
and Zbikowski present when Perreault gave the warning slips
to Bezdegian and Skalubinski. I, accordingly, conclude that
June and Zbikowski were not given warning slips for this
incident.
Other employees also talked in the shop but were not given
warning slips. A particular case in point was Bill Van Nieu-
wenhuyze who talked with several employees at his machine
for an hour and a half on the day of the election.36 Van
Nieuwenhuyze had been a union advocate early in the cam-
paign but changed his mind before the election. The latter
was seen talking by Lovec on the day of the election but was
not warned by Lovec because, according to Lovec, Lovec was
not then his supervisor. This difference in supervision did not,
however, deter Lovec from initiating the written warning to
34 The foregoing findings are based on the credible testimony of Skalubtn-
ski in this regard and are not essentially disputed by the testimony of
Perreault and Lovec Bezdegian did not testify
35 Perreault so admitted
36 Skalubmski credibly so testified His testimony is not disputed by that
of Van Nieuwenhuyze
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Skalubinski, on August 13, 1973. At that time Skalubinski
was working for Witkus, for whom Skalubinski was waiting
to receive a job assignment when Lovec spoke to Skalubinski.
The incident, if any, which gave rise to Bezdegian's warn-
ing slip is not shown by the record. However, the latter was
not talking to Skalubinski when the confrontation between
Lovec and Skalubinski developed.
I conclude in all the circumstances that Respondent's writ-
ten warning system was applied discriminatorily to Bezde-
gian and Skalubinski on August 13, 1973. Both were known
by Respondent to be union adherents. Skalubinski had, in
fact, been a member of the plant organizing committee and
had been one of those representing the Union at the represen-
tation election conference at the Board 's Regional Office in
Boston on or about June 19, 1973. Lovec's remark at least to
Skalubinski that "you guys are always stirring up the s-"
further suggests that Lovec was singling out the latter for
punishment for offenses which, in Lovec's mind, were beyond
mere talking..I, accordingly, conclude that in issuing written
warnings to Skalubinski and Bezdegian on August 13, 1973,
Respondent violated Section 8(a)(3) and (1) of the Act.
3. The reduction of overtime for all employees from May
30 to July 15, 1973 (subparagraph 10(a) of the complaint)
In its answer to the complaint Respondent admitted that
it reduced the hours of overtime of all production and mainte-
nance employees at the plant from May 30 to July 15, 1973.
I so find.
The complaint alleges that Respondent took this action to
discriminate against its employees thereby discouraging their
membership in the Union, whereas Respondent defends that
this action was taken for reasons of economic necessity,
primarily because Respondent did not have enough work to
continue extended overtime. Respondent further contends
that its action was designed to stretch out the work then
available to avoid layoffs.
I conclude that the reason Respondent reduced the over-
time of its employees during this period was a discriminatory
one.
As previously found, the Union made its demand for recog-
nition on Respondent in a letter dated May 21, 1973, and filed
its election petition on May 23, 1973. On the latter date
Ansley spoke to Respondent's employees about the Union. In
this speech Ansley said, inter alia, that he was instructing
Perreault to notify Respondent's customers of the Union's
campaign at Respondent 's plant and the effect it might have
on Respondent's production schedule. Ansley also told the
employees that the decision what to do would be up to the
customer. Ansley then stated that he felt this action necessary
to keep up customer relations but added that employees were
probably tired of working overtime anyway. Since Respon-
dent 's principal customer was, and is , Tupperware, and in
view of the reference of overtime, the obvious implications of
Ansley's remarks were that Tupperware and other customers
would act on Perreault's representations to cut back on their
orders to Respondent while the Union was on the scene and
that this would result in a reduction of the overtime of Re-
spondent's employees." Both of these implications turned
out to be predictions of the events which followed.
Beginning with the day before Ansley's speech, that is, on
May 22, 1973, and continuing to July 20, 1973, Tupperware
awarded 28 mold orders to Diecraft, a mold manufacturer in
Australia which is wholly owned by Dart Industries (Re-
spondent and Tupperware, as noted, are also wholly owned
by Dart Industries). During the same period Tupperware
gave no mold orders to Respondent. Further, Tupperware,
during the week ending June 3; 1973, removed a mold order
from Respondent (Respondent's job 1391) and awarded the
job to Diecraft. Job 1391 was a Tupperware mold just like
another mold then being worked on for Tupperware by Re-
spondent's employees. In early June 1973, one other cus-
tomer, Mack Molding, declined to place an order with Re-
spondent after Perreault had told its chief tool engineer,
Brown, of the Union's organizing campaign.
The order cutting overtime came a week after Ansley's
speech, that is, on May 30, 1973. On the latter date Respond-
ent published a notice to all employees in which it stated.
Effective immediately, and until further notice, the nor-
mal working day will consist of nine (9) hours a
day-7:00 a.m. to 4:30 p.m.
This notice was signed by George Perreault. As Perreault
admitted, the new limit meant that the employees' work week
was thereby reduced from 50-55 hours to 45 hours. Previ-
ously there had never been a general reduction of overtime in
the more than 7 years the plant had been in operation. Prior
to issuing the above notice, Perreault and Ansley discussed
the presence of the Union in the plant. As Perreault testified,
the order was implemented on May 31.
The aforementioned notice did not explain the reason for
the reduction in overtime and Perreault did not explain it to
the employees. While Perreault claimed at the hearing that
he directed his foreman to tell employees that overtime was
being reduced to stretch out the work load, Foreman Penni-
man did not call his employees to tell them this but only
mentioned it, he testified, when employees asked hint. Lovec
testified that he followed Perreault's instructions in this re-
gard. For his part, ForemanWitkus did not recall so advising
his employees but, as I have found, told employee Dunphy
on several occasions after the overtime was cut, that the work
week was reduced because Respondent was not taking orders
and because the Union was there. Witkus also told Dunphy
on these occasions that the overtime would be restored if the
Union were out of the plant.
In his testimony, Anterni, heretofore found to be an agent
of Tupperware, which exists in a single employer relationship
with Respondent, acknowledged that the Union's organiza-
tional campaign was a factor in his determination to award
mold contracts to Diecraft rather than Respondent during
the period in question here."
37 The force of these implications was not lost on Dees and Turcotte who
testified that it was their recollection that Ansley stated on this occasion that
Respondent would take no more orders or that Respondent 's work would
be done elsewhere . Both also recalled Ansley's admitted statement about
employees being tired of working overtime.
38 In this testimony Anterni admitted making a statement in his prehear-
ing affidavit to this effect. I have considered this admission not only as it
may tend to contradict his other sworn testimony on this same subject,
TUPCO, DIVISION OF DART INDUSTRIES, INC.
I conclude from all the foregoing that the General Counsel
has established a substantial prima facie case that the reduc-
tion of overtime for all employees lasting from May 30 to July
15, 1973, was caused by Respondent to discourage member-
ship in the Union in violation of Section 8(a)(3) and (1) of the
Act. Thus, Respondent 's animus against the unionization of
its employees and particularly by this Union is well demon-
strated by Ansley's speech and the conduct of Respondent's
supervisors heretofore found violative of Section 8(a)(1) of
the Act.39 The reduction of overtime was announced only a
week or so after the Union had demanded recognition and
had filed an election petition. Also Ansley's speech, in effect,
predicted , just as Foreman Witkus later told employee Dun-
phy, that Respondent was taking action to curtail its business
and that a reduction of overtime was developing because of
the Union 's presence in the plant.
Respondent , as noted , asserts that the reduction of over-
time was due to lack of work or, more precisely, to stretch
out the work then available. It also asserts that the actions of
Tupperware to make mold assignments to Diecraft including
job 1391, which was taken away from Respondent, were
based on economic reasons and not on any discriminatory
motivation . In support of these arguments , Respondent ad-
vances a number of contentions . I will treat with each of these
seriatim.
A. The Sequence of Events which Led Up to the Reduction
of Overtime Prior to the Advent of the Union Campaign
Respondent contends that Perreault and Ansley first dis-
cussed the matter of reducing Respondent 's overtime in
March 1973. Ansley so testified without contradiction.
Hence, I so find. And Ansley testified, and I find, that Ansley
and Perreault continued thereafter to discuss the matter of
stretching out the work at Respondent's plant every 2 weeks
for several months. Ansley and Perrault also contacted An-
terni , who is in charge of Tupperware 's engineering depart-
ment, in an effort to obtain more repair work from Tupper-
ware. This latter effort was successful in that more repair
work was sent to Respondent by Tupperware. In May, Per-
reault told Ansley that Respondent had to get more work or
he would have to lay off employees. Ansley ultimately told
Perreault to cut hours rather than lay people off and this
decision was reached about the last of May . Ansley and Per-
reault also discussed the Union 's organizational campaign
before this decision was made , as already found.
That Perreault and Ansley discussed Respondent 's over-
time situation and its workload prior to the initiation of the
Union 's campaign I do not find significant , however, in rela-
tion to the issues before me here . For the fact remains that
no decision to reduce hours was made until the Union's de-
mand for recognition . And this decision was made after Per-
reault and Ansley had also discussed the presence of the
Union in the plant. Further , work never ran out at Respon-
dent 's plant although its backlog had decreased from what it
had been (as will be discussed more fully hereinafter).
which will be discussed infra, but also an affirmative evidence in support of
my findings herein . Awrey Bakeries, Inc., 197 NLRB 705 (1972) (fn. 4).
39 Foreman Penniman also frankly admitted that it was common knowl-
edge that Respondent did not like unions.
435
B. Economic Reasons for the Placement of New Molds with
Diecraft in Australia rather than with Respondent During
the Period May 22 to July 20, 1973
Respondent asserts that these 28 molds were placed with
Diecraft rather than with Respondent-to which Tupper-
ware gave no new molds during this period-because Tup-
perware has a policy that whenever a mold is to be "run " (i.e.,
used to manufacture Tupperware products ) in Australia the
mold itself must also be made in Australia . That Respondent
has such a policy was attested to by Ansley . I so find. The
reason underlying this policy according to Ansley is that if a
foreign (e.g., American) mold is later "run" in Australia, the
Australian government charges a 50-percent duty on the total
cost of the mold.
Respondent asserts that the instant 28 molds were to be
"run" in Australia , therefore compelling the placement of
these molds with Diecraft . In support of this assertion Re-
spondent relies on the testimony of Anterni to this effect
although I note that Ansley likewise testified that these molds
were eventually to be "run" in Australia.
In all the circumstances , I conclude that Respondent has
not established its defense that the instant molds were sent to
Australia for manufacture because they were to be "run"
there. I reach this conclusion for the following reasons.
The responsibility to place molds for Tupperware is appar-
ently a shared one. Ansley testified that he decides on mold
placement based on Anterni's recommendation . For his part,
Anterni testified that he, Anterni , makes the decision in 80
percent of the cases and in other cases consults Ansley. In
these circumstances I conclude that both play a role in this
determination and that the basic responsibility is Anterni's.
There are also apparently several criteria considered in the
placement of a mold . Anterni testified that these criteria are
the location where a mold is to be "run ," where it is going
to be placed or based and its delivery date. Later he added
the criterion of price and stated that Respondent and Diecraft
bid competitively against each other on mold manufacturing
work and that their bids were apart 50 percent of the time.
There is no showing that Respoi .. dent was given an oppor-
tunity to bid on the 28 molds sent to Australia during this
period. But even if Respondent did bid and was the low
bidder , I conclude from Anterni's testimony that price was
not the controlling factor but rather that any decision to
award these contracts was based on an evaluation of a num-
ber of considerations . The question here is what was the
controlling factor in Tupperware 's determination to send the
instant 28 molds to Australia during this period.
As noted , Anterni testified that these molds were sent to
Australia by Tupperware because the molds were to be "run"
in Australia. I do not credit this testimony in the light of the
entire record and particularly other statements by Anterni.
To begin with this testimony is at odds with Anterni's
pretrial affidavit . In the latter Anterni stated "also considered
in the decision on where to place certain of the molds between
March 28 and July 30 , 1973, was where the mold was going
to be based." (Emphasis supplied.) Of the 28 molds sent to
Diecraft in Australia during this period , 14 or half of them
were, according to Respondent ' s mold placement order
sheets, to be "based" in the United States and not Australia.40
40 See Resp . Exh. 18.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The distinction, if any, which Respondent draws between
where a mold is "run" and where it is "based" is not ex-
plained by Respondent. The General Counsel sought an ex-
planation from Anterni of this distinction but Anterni was
indefinite, as will appear.
In so inquiring of Anterni the General Counsel referred to
the mold placement forms which are used by Tupperware.
These forms contain entries for mold numbers, number of
mold cavities, mold description, place of ownership, place of
base, name of moldmaker, estimated price and mold comple-
tion date. There is no entry designating where the mold is to
be "run." The General Counsel therefore asked Anterni to
explain-as to Tupperware's Mold Placement sheet No. 213,
dated July 18, 1973, in which 6 molds are described and
whereon Diecraft is designated "moldmaker" (these being 6
of the 28 molds sent to Australia during this
time)-whether Anterni could tell from the sheet where the
mold would be "run." Anterni responded that the last two
molds on this sheet would definitely be "run" in Australia
because, as the sheet shows, they are "based" there. As to the
other four which are "based" in the United States, Anterni
initially said they would be "run" in the United States, then
he said they would be "run" at first in Australia, later he
stated he wouldn't say if they're going to be run in the United
States and finally he said merely that it was a possibility that
they would "run" in Australia. In these circumstances I do
not credit his other testimony that all 28 molds were sent to
Diecraft because they were to be "run" in Australia.41
I conclude rather that there is an absence of probative
credible evidence that at least 14 of the 28 molds sent to
Diecraft during this period were sent there because the molds
were to be "run" in Australia. I further conclude, consistent
with Anterni's prehearing admission, acknowledged at the
hearing (about the reasons work was not being sent from
Tupperware to Respondent at this time), and the statement
in Ansley's speech that Perreault was discouraging Respon-
dent's customers from giving it orders, that these molds were
sent to Diecraft in Australia for manufacture because of the
Union's organizational campaign at Respondent's plant. In
reaching this conclusion, I further rely on Witkus' remark to
Dunphy that Respondent was not taking work at the time in
question here because of the presence of the Union in the
plant. Finally, I rely on the expectations of Morris, Respon-
dent's administrative assistant in charge of purchasing and
personnel (which expectations Morris included in a sales pro-
jection report in April 1973, before the advent of the Union,
and about which more will be said hereinafter), that Re-
spondent would be receiving mold orders from Tupperware
in May, June, and July 1973.42
41 I also discredit Ansley's testimony that the instant molds were to be
"run" in Australia. For his testimony and that of Anterni do not jibe with
respect to the responsibility for placing molds, as has been pointed out. Also
in his testimony about molds Ansley stated that Tupperware had no molds
to place in May when he talked to Perreault about the Union's organizing
drive. Respondent's records show that six molds were placed with Diecraft
between May 22 and 30, 1973. I also discredit Ansley's testimony concern-
ing why these 28 molds were sent to Australia because of Anterni's tes-
timony, recounted supra, which does not corroborate Ansley's testimony in
this regard but rather leaves the matter unclear whether 14 of these molds,
which were to be based in the United States , would be "run" in Australia.
42 The only mold orders from Tupperware during this period came on July
30, 1973.
C. Removal of Respondent's Job 1391 (Tupperware Mold
792E)
Molds 792E and 792D, identical molds, were originally
placed by Tupperware with Respondent. During the week
ending June 3, 1973, Mold 792E (i.e., Respondent's job 1391)
was taken away from Respondent and sent to Diecraft in
Australia.
Mold 792E had a due date of September 21, 1973, as of
the week before the job was removed. It was a job which
would have taken 3,027 hours to complete.
Respondent contends that mold 792E was taken away
from Respondent because, anticipating labor problems, Per-
reault was unable to guarantee delivery on time. Respondent
also asserts that this job could not in any, event have been
completed by working overtime because only five or six men
could work on it at one time. I reject these contentions on the
grounds which follow.
There is a conflict in the testimony of Respondent's wit-
nesses as to the reasons the job was removed. Ansley, Per-
reault, and Anterni were all involved in the decision. Per-
reault and Ansley testified that this job was removed for the
reason that Perreault could not promise delivery because of
union negotiations and the possibility of a strike. Anterni, for
his part, testified that the reason for the removal was Respon-
dent's lack of machine capacity and Anterni further stated
that Perreault did not say he could not guarantee delivery.
Anterni said he, personally, was fearful that Respondent
might not meet its delivery date which was "August 14,
1973." Respondent's records, however, show that the deliv-
ery date was September 21, 1973, as found above.
Anterni also testified that the work would not be done by
Respondent even on any overtime basis because only five or
six men could work on it at one time. Perreault, for his part,
admitted that job 1391 might possibly have been completed
if the overtime had not been cut during the instant period. At
any rate mold 792E had still not been delivered from Diecraft
at the time of the hearing and was not expected until Febru-
ary 15. Mold 792D was expected to be completed by Re-
spondent at the same date.
Anterni's testimony that Respondent's lack of machine
capacity, i.e., the need to use the same machinery to build
molds 792E and 792D (which remained with Respondent),
was the reason the job was removed suggests that Respondent
would be unable to build two molds of the same type at the
same time. However, Respondent's records indicate that it
has made duplicate molds at the same time before and indeed
had two such Tupperware duplicate jobs in the house at the
time Mold 792E was removed (i.e. Tupperware molds 1200A
and B, each of which was a job requiring 2,828 more hours
work, and Tupperware molds 1204B, C, and E which re-
quired, variously, 2,260 hours to 2,845 hours more work to
be done). Anterni also admitted that it was easier to build a
duplicate mold after the first had already been built.
Nor am I impressed with Respondent's argument that it
anticipated labor problems because the Union was talking (at
union meetings) about hourly wages $4 to $5 above Respon-
There is no showing that any of the previous 28 mold orders of Tupper-
ware, all of which were awarded to Diecraft, were beyond Respondent's
technical capability.
TUPCO, DIVISION OF DART INDUSTRIES, INC. 437
dent's wage rates. The Union never made any demands on
Respondent except a demand for recognition. Respondent
had no way of knowing what wages it would seek. Even the
wages discussed at union meetings varied from $2.65 to $4.65
an hour in amount (i.e., $6.35 per hour to $9 to $11 per hour).
I conclude, in all the circumstances, particularly the timing
of the removal of job 1391 shortly after the reduction in
overtime at the plant and Respondent's reaction to the Union
at that time, that the job was taken away from Respondent
to reduce the work available to its employees.
D. Reduction of Tupperware Capital Expenditures for
Molds during 1973
Respondent also contends that, during the period January
1 to December 1, 1973, Tupperware spent about 32 percent
less money for molds than in the comparable period in 1972.
Respondent's records support this conclusion. I so find.
However, the amount of money spent by Tupperware for
molds in this period is beside the point. The question here is
whether Respondent was being deprived of whatever Tupper-
ware molds there were available-along with other
work-because of the Union's campaign. And it is clear that
Tupperware was committing funds for work at this time
because it ordered 28 molds to be manufactured in Australia
and such orders were placed between May 22 and July 20,
1973.
E. Respondent's Projected Decrease in Sales Which, says
Respondent, Was Arrived at Prior to the Union's
Organizational Campaign
Respondent also refers to other evidence that its business
was down in 1973 and that this picture of decreased sales had
developed before the Union campaign began at its plant.
More precisely Respondent points out that administrative
assistant Morris revised Respondent's "profit plan" (planned
sales for the year based on the molds to be manufactured,
repair work, and trade) downwards on April 19, 1973, after
consultation between Morris and Perreault in early April
1973.
The profit plan is prepared in December of each year for
the coming year and is revised every succeeding quarter. The
procedure in preparing it is to look at work orders "in house,"
work in progress (here that which was scheduled for 1973)
and the predictions of Respondent's customers. Also taken
into consideration, according to Morris, is the number of
employees available. Based on the April 19 revision, the profit
plan's estimate of about $1,950,000 business in 1973 was
reduced by $250,000. The final figures for the year 1973
showed that the actual total business of Respondent for the
year came to approximately $1,700,000.
Morris, who prepared the estimates, and who is, conced-
edly, an agent of Respondent and a supervisor, also admitted,
however, that when his revised projections were made he had
hoped to receive molds from Tupperware in May, June, and
July and the sales "looked fairly well" for May and June.
Morris also admitted that he arrived at his projections after
checking with Tupperware.
I find that the actual business performed by Respondent in
1973 fell by $250,000 from its original projection in Decem-
ber 1972 and that this decrease coincides with its downward
revised projections which were made on April 19, 1973, prior
to the advent of the Union. But since this revised estimate
anticipated mold work from Tupperware in May, June, and
July which never materialized (until one order on July 30,
1973) it follows that the $1,700,000 actual business did not
include Tupperware mold orders which had been projected
for May, June, and July. Thus, even without receiving the
projected Tupperware mold orders Respondent did as much
work-dollar wise-as it predicted that it would do with the
Tupperware mold work.
What this means is that, if Respondent had received the
expected orders for Tupperware mold manufacture in May,
June, and July 1973 and had performed such work (as it
would have done at least in part by continuing its normal
virtually unlimited overtime policy during the period May 30
to July 15 and thereafter) then its business for 1973 would
have exceeded the $1,700,000 figure by the amount of work
it would have done on said expected Tupperware molds. That
is, if Respondent had gotten the Tupperware mold orders it
expected in May, June , and July 1973", it would not have
suffered a loss of business amounting to $250,000, as reflected
in Morris' profit plant revision of April 19, 1973. This loss
would have been cut by the dollar value of whatever work
would have been done on the instant Tupperware molds.
I also note that after April 19 (when Respondent's shop
force stood at 57 with 2 on vacation) that this force fell by
June 3 to 53 men and women. Since Morris' projections were
based on the number of employees available-and since that
number fell after the projections were made-it follows that
there would have been fewer people (hence more overtime
opportunities for them) to perform the work projected.
Far from supporting Respondent's defense of a correctly
predicted business downturn in 1973, the foregoing shows
that Respondent's business would have exceeded its revised
projections if it had received the mold orders projected to be
received from Tupperware in May, June, and July 1973.
Further, despite the downward revision of the profit plan
on April 19, 1972, of which revision Perreault was then
aware, no decision to reduce overtime was made at that time.
The decision came 6 weeks later after the union campaign had
begun at Respondent's plant and after the Union had de-
manded recognition.
F. Respondent 's Request for Additional Work from
Tupperware
Respondent also urges, consistent with its contentions that
its volume of work started to slacken early in 1973, that it
sought additional mold work from Tupperware to take up
this slack. Thus, Anterni testified that Perreault began calling
Anterni to look for more mold work and the earliest of these
calls came around the first of the year, 1973.
43 The mold contracts awarded by Tupperware during those months (ex-
cept for July 30) went, as previously noted, to Diecraft in Australia. The
dollar figure for these orders, including those for the 14 molds to be "based"
in the United States, has been deleted from the copies of these orders placed
in evidence. The purpose of this deletion was to assure that Respondent will
not learn what Diecraft charges for these types of molds and to keep Die-
craft and Respondent competitive.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The short answer to this contention is that whatever Per-
reault may have done at the beginning of the year to increase
Respondent's sales, the picture changed when the Union ar-
rived on the scene. After that time, admittedly, Respondent
through Perreault took actions to reduce its work; e.g., by
telling its customers that it had a union campaign going on
at its plant and therefore could not guarantee deliveries on
schedule. In at least one instance a customer other.than
Tupperware-Mack Molding-did not give Respondent an
order after Perreault had given it this information. Further,
as noted, Tupperware shut off its mold orders to Respondent
in May, June, and July until July 30.
G. Tupperware Repair Work Increased During the Period
March 28 to July 30, 1973, Over What It Had Been-
During the Previous Year
Respondent also asserts that it sought and obtained more
repair work from Tupperware during this period to increase
the amount of work in Respondent's shop.
However, it is not clear whether Respondent would have
been awarded this mold repair work in any event. Respond-
ent does not have to compete with Diecraft in Australia for
repair work as it does on mold manufacture and there is no
showing that any other Dart Industries subsidiary does mold
repair work for Tupperware.
In any event, such repair work does not involve the
majority of Respondent' s man-hours (e.g., only 600 hours at
its peak during the week ending June 24, 1973, compared
with 2,308 hours of total work in the same week). Nor does
it alter the facts that Perreault was discouraging Respon-
dent's other customers from sending it work during the same
period nor that Tupperware was sending all its mold manu-
facturing work to Diecraft and none to Respondent at that
time.
H. Statistics Concerning Respondent's Workload During the
Period in Question Here,- Relationship to Similar Statistics
for the years 1971 and 1972
Respondent introduced a number of charts developed from
statistics taken from its weekly progress reports. The latter
reports show the hours Respondent's employees work each
week and the amount of work expressed in hours which
Respondent had pending at the end of each week, with a
breakdown of such work in terms of mold manufacture or
repairs. The charts concern, variously: Respondent's 1971,
1972, and 1973 workloads expressed in man-hours of work to
be performed; its workload of Tupperware molds for each of
these years; its actual hours worked on Tupperware repair
work for each of these years; its 1973 repair and so-called
trade workloads; and its total hours worked, average hours
worked, and number of shop employees in 1973.
These charts show that commencing in February 1973
when Respondent's total workload high for the year was
reached there was a steady decline thereafter in that work-
load, dropping 23,000 hours by April and with a further
decrease of 10,000 in May-or 33,000 hours total decrease
from the February high. Tupperware molds constituted the
most significant aspect of Respondent's total workload dur-
ing this period. This mold work declined in parallel to the
decline in the overall workload described above. This decline
also commenced in February, dropped by 23,000 hours in
April and another drop in May-or again a difference of
33,000 from the February high.
The 1971 workload also dropped substantially from a high
in April to a low in September-a drop of approximately
32,000 hours.The 1971 statistics for Tupperware molds paral-
lel the foregoing statistics as to the entire workload-a high
in April to a low in September.
Respondent's workload,on trade items (apparently grind-
ing and milling assignments for other manufacturers) bot-
tomed out to almost nothing at the end of June and the first
part of July 1973.
Respondent's Tupperware repair work surged upwards at
the end of June 1973 but not to its highest for the year.
Insofar as the 1973 overall workload of Respondent can be
compared to earlier years, there was a large downswing near
the middle of the 1973 as in 1971. In 1972, however, the
workload stood steady at a high level. Hence there is no basis
to conclude that Respondent's workload decreases in the
middle months of every year. The same conclusions obtain
with respect to a comparison of Respondent's 1973, 1972, and
1971 workloads of Tupperware molds.
Also regardless of workload fluctuations in prior years
there had never been an across-the-board reduction of over-
time as in 1973.
As to the 1973 workloads for overall repair and trade work,
no comparison is offered with respect to experience in prior
years in regard to these same items. The 1973 trade workload,
as noted, fell to almost nothing at the end of June. The overall
repair workload dropped in June and dropped still more in
July.
As to the Tupperware repair work, no significant pattern
emerges by comparing the records for 1973 with those of
1971 and 1972 except that the workload at the end of June
1973 was higher for that item than it had been at the same
time in the previous years. However, the difference between
amount of this work in June 1972 and June 1973 for this small
item is of 475 hours and the difference between June 1971 and
June 1973 is only 350 tc• 450 hours.
The 1973 charts show that Respondent's overall workload
dropped off from a high in February to a low near the end
of July. The total hours worked dropped from a high in
January to a low at the end of June, but the drop in average
hours during this same period is neither as great nor as sharp
a decline. This last may be explained in part by a drop of 25
percent in productive personnel from the first of February
1973 to July 1973 and again in August 1973.
Although Respondent's overall workload dropped near the
end of July 1973 it never hit bottom. At that time there still
remained over 20,000 hours of work to be performed and
with, as noted, a 25 percent smaller work force than at the
first of February. The shrinkage of the available work force
was due not only to vacations but also apparently to separa-
tions. There was then work for at least 8 weeks at the rate of
hours logged in the last week of May before the cut in over-
time was ordered by Respondent. Receipt by Respondent of
the 14 U.S. based molds awarded to Diecraft between Ma}
and July 20 would, of course, have swollen this work backlog
as would the mold order not given by Mack Molding and job
1391, which was taken away from Respondent during the
week ending June 3, 1973. There remained at that time over
TUPCO, DIVISION OF DART INDUSTRIES, INC. 439
3,000 hours work to be done on the latter mold alone, which
would have expanded Respondent's total backlog by at least
the equivalent of 1 week at the end of May rate of weekly
hours worked. Also the vacations which began in June would
have stretched the available work even further.
Based on my analysis, supra, of all of Respondent's eco-
nomic defenses, I am not satisfied that it has established that
its reduction of the previous virtually unlimited overtime of
its employees-a reduction enforced for all of them from May
30 to July 15, 1973-was economically motivated. While its
workload decreased during this same period, I further con-
clude, as I have held above, that Respondent and Tupper-
ware, with which Respondent exists in a single-employer rela-
tionship, were also responsible for substantial aspects of this
decrease and that the joint efforts of Respondent and Tupper-
ware to reduce Respondent's workload during this period
were occasioned by the advent of the Union at Respondent's
plant.
Respondent argues , however, that it is not a violation of the
Act for an employer to reduce its business operations in the
face of a union's organizational campaign, where such a re-
duction is based on an appraisal of the potential costs of the
union's economic demands and such appraisal shows that
continuation would be uneconomical or would be infeasible
because of potential labor problems. In advancing this con-
tention Respondent relies on G. W. Murphy Industries, Inc.,
184 NLRB 62 (1970).
Murphy is, however, distinguishable because there a
union had already made bargaining demands on the employer
for toolroom employees which, if granted, would have made
the operations of the instant toolroom uneconomical. Here,
as has been pointed out, no bargaining demands were ever
made nor could they have been anticipated because, as noted,
the wage rates discussed at union meetings varied widely. Nor
was the Union already recognized here as in Murphy.
Respondent's actions here therefore had nothing to do with
any economic demands by the Union but were aimed instead
at the Union's organizational campaign itself.
The mere existence of that campaign caused Respondent to
discourage its customers from sending it orders and to reduce
the overtime of all employees at the plant. For Ansley in his
speech, and later Witkus, effectively gave the message to
Respondent's employees that this was the reason for Respon-
dent's actions. That message was a very clear one. With the
Union the employees could expect less work and less over-
time. Without the Union, according to Witkus, things would
stay the way they were, that is, there would be work in the
plant and the usual virtually unlimited overtime for all. I,
accordingly, conclude on the basis of all the foregoing that by
reducing overtime for all its employees during the period May
30 to July 15, 1973, because of the Union's organizational
campaign, Respondent violated Section 8(a)(3) and (1) of the
Act.44
44 E.g ., Master Transmission Rebuilding Corporation & Master Parts,
Inc., 155 NLRB 364 (1965 ), enfd . 373 F.2d 402 (C.A. 9, 1967 ); Schott's
Bakery Inc., 159 NLRB 1040 (1966); Waldoroth Label Corporation, 91
NLRB 673.
4. The continued reduction of overtime after July 15,
1973, until on or about August 5, 1973 (subparagraph
10(b) of the complaint)
There was no across-the-board removal of the overtime
restriction on July 15. The overtime restriction generally con-
tinued until August 5, 1973, a date following the Union's loss
of the election. After July 15 there were, however, certain
assignments of increased work beyond the 9-hour day limita-
tion to individual employees. These assignments beyond the
9-hour day were occasioned by receipt of a job from the
Morgan Company and by the press of delivery dates on cer-
tain other work .41
The complaint, however, alleges that 30 named employees
(appearing on Appendix "A" attached hereto) continued to
be restricted in their overtime opportunities and that this
continued restriction for these named employees was in viola-
tion of Section 8(a)(3) and (1) of the Act.
For the reasons set forth in detail, supra, as to the illegality
of the across-the-board decrease from May 30, to July 15,
1973, I agree that the continuation of the limitation from July
15 to August 5, 1973, albeit with exceptions, further violated
Section 8(a)(3) and (1) of the Act.46
Since the across-the-board restriction was not removed, the
mere fact that Respondent, in the press of absolute business
necessity, made certain exceptions to the general restriction
does not alter, in my judgment, the impact of its unlawful
reduction on the bulk of the employees for whom no excep-
tion was made.
Respondent defends, specially, as to these allegations of the
complaint, that the complaint is deficient because a number
of the named employees received some increase in their hours
or were on vacation for part of this period. I disagree.
This contention is really addressed to the question of
remedy, hence is premature for me to consider at this point
in my decision. The essential fact remains again that the
across-the-board restriction was not removed and that the
named employees suffered loss of overtime as the result.
Where certain of the named employees may have been on
vacation during one or another of the 3 weeks involved in this
period or received some overtime beyond the 9-hour day
means only that Respondent's backpay liability will be re-
duced to that extent. These factors do not alter the question
of a violation.
Respondent also contends that some employees, not on the
30 employee list, who received increased overtime were
known union adherents and, further, that there is no showing
that the 30 named employees on the list were union adher-
ents. From this, Respondent asserts there is an absence of
evidence that Respondent discriminated against those em-
ployees on the list. I also disagree with this contention. The
thrust of the violation here is not against individual em-
ployees as such, but is rather based on the impact of Re-
spondent's unlawful program against its entire shop force
generally.47 The fact that the entire shop force is not named
45 Lovec credibly testified that Perreault so informed him. Dunphy's
testimony is consistent.
46 In reaching this conclusion I also rely on my finding, supra. that Lovec
told Gonyea on August 6, 1973, that the election was over and that em-
ployees would be working overtime again.
47 Cf. Arnoldware, Inc., 129 NLRB 228 (1960).
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in this allegation of the complaint does not alter the nature
of the violation but is based on the circumstance that excep-
tions were made for certain employees because of business
necessity.
I, accordingly, conclude that by continuing the reduction
of overtime for the 30 named employees during the period
July 15 to August 5, 1973, Respondent violated Section
8(a)(3( and (1) of the Act.
5. The continued reduction of overtime for Dees, Gonyea,
and Bezdegian for certain periods after August 5, 1973
Immediately after the election which the Union lost, Re-
spondent's shop returned to the virtually unlimited overtime
situation as it existed prior to May 30, 1973, except for Dees,
Gonyea, and Bezdegian all of whom were well known union
adherents.
Bezdegian: The complaint alleges that Bezdegian 's over-
time was discriminatorily reduced during the period August
13 through August 26, 1973. Bezdegian had already been
unlawfully discriminated against by being given a written
warning for talking on August 13, 1973, as I have found,
supra. Respondent defends that the allegation of the com-
plaint that Respondent also discriminatorily reduced the
overtime of Bezdegian is inaccurate because Bezdegian's
overtime increased during the period.
Bezdegian did in fact work 50 hours during each of these
2 weeks but he had worked 53 to 55 during the 3 preceding
weeks.48 Hence I conclude that his overtime was in fact re-
duced and in view of Respondent's animus against the Union,
generally, and the union activities of Bezdegian particularly,
as already found and as freshly shown by Respondent on
August 13, I conclude that his overtime from that date to
August 26 was discriminatorily reduced in violation of Sec-
tion 8(a)(3) and (1) of the Act.
Dees: The complaint alleges that Dees' overtime was dis-
criminatorily reduced from August 6 through August 19,
1973. Dees, a polisher, was a very active union adherent who
participated in the conference on the representation election
petition at the Board's office in Boston and had served on the
Union's organizing committee at the plant. Dees did in fact
work no more than 9 hours per day during the period in
question here.
Respondent defends as to Dees that Dees was not given
extended overtime49 because of lack of work in her depart-
ment and because Dees had not been performing up to par.
Respondent points out that Perreault so informed Dees when
Dees asked Perreault why she was not permitted to work
more than 9 hours during this period.
The testimony of Dees and Perreault confirms that Dees
and Perreault had the instant discussion. Although Dees
stated she was not satisfied with P,.erreault's explanation why
she was not being given additional overtime, she admitted
that she agreed with him at the time that her performance on
two jobs showed that she was not producing efficiently by
comparison with other polishers.
48 Bezdegian is not on the list of those whose overtime was dis-
criminatorily reduced from July 15 to August 5, 1973.
49 Dees has subsequently been laid off but this layoff is not alleged to be
unlawful.
It is well settled that an employee's active participation in
union affairs does not insulate that employee from employer
discipline for failure to give proper performance on the job.
Since it is clear that Dees' performance here by comparison
with that of her peers was low and because she was informed
that this was the reason why she was not being given greater
overtime opportunities at that time, I conclude that her depri-
vation of such opportunities at that time was justified for this
reason .5° I further conclude that the Respondent did not
thereby violate Section 8(a)(3) and (1) of the Act. I shall,
accordingly, recommend that this allegation of the complaint
be dismissed.
Gonyea: The complaint also alleges that Gonyea's overtime
was unlawfully reduced during the period August 6 until
August 26,1973. Gonyea, a grinder worked only 44.4 hours
during the week ending August 12, 1973, 43.7 during the
week ending August 19 but was on vacation the following
week. Since Gonyea was on vacation the following week Re-
spondent's liability for backpay, if any, for increased overtime
would not concern that week.
There were at least three grinders in the 2 weeks preceding
August 19-Gonyea, Turcotte, and Connor. Turcotte was on
vacation during these 2 weeks whereas Connor worked 52.9
and 48.9 hours, respectively, in each of these 2 weeks.
Gonyea spoke to Perreault to inquire why he was not
receiving extended overtime during this period but was told
by Perreault there was no work for grinders." The experi-
ence of Connor set forth above during this period, however,
indicates otherwise. Further, as I have already held, Lovec
told Gonyea on August 6, 1973, that although the election
was over and employees would go back on overtime, Gonyea
would not receive it because, he, Gonyea, might be fired. Also
on or about August 10, 1973, Perreault told Gonyea that he,
Perreault, had a list of union supporters and Gonyea was first
on the list.
I conclude on the basis of the foregoing, particularly the
threatening prediction of Lovec, that Gonyea's overtime was
discriminatorily reduced during the instant period and that
Respondent thereby violated Section 8(a)(3) and (1) of the
Act.52
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above, occurring in
connection with the operations described in section I, above,
have a close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
50 I find it unnecessary to reach or pass on the additional reason proffered
by Respondent that Dees' department had a lack of work at that time.
51 Gonyea credibly so testified.
52 Respondent argues, as to the allegations of the complaint generally, that
they lack merit because the Union filed no objections to the election. From
this it follows, says Respondent, that no objectionable conduct occurred.
The short answer to this contention is that we are not dealing with election
objections but with unfair labor practices. Charges alleging unfair labor
practices need not be filed by a Union but may, as here, be filed by an
individual.
TUPCO, DIVISION OF DART INDUSTRIES, INC. 441
V. THE REMEDY
The recommended Order will contain the conventional
provisions for cases involving findings of interference, re-
straint, and coercion and unlawful discrimination in violation
of Section 8(a)(1) and (3) of the Act. This will require Re-
spondent to cease and desist from the unfair labor practices
found and to post a notice to that effect which will also state
the affirmative action Respondent will be required to take
including its affirmative action to remedy its unlawful reduc-
tion of the overtime of its employees..
Respondent contends that, in the event of any violation
finding in respect to reduction of overtime, no award of back-
pay should be made because there is no practical way to
measure how much overtime would have been available and
how much of the available overtime would have been worked
by each employee. I reject this contention.
Congress has provided the Board with considerable au-
thority to fashion remedies under Section 10(c) of the Act.
And the Board has issued remedial orders requiring backpay
when it has found that employees have been discriminatorily
deprived of overtimes' In view of the fact that the majority
of employees were unlawfully deprived of overtime both dur-
ing the period from May 3 to July 15 (about 6 weeks) and also
July 16 to August 5, 1973 (3 weeks), I shall recommend a
backpay order requiring Respondent to pay each employee
discriminated against (i.e., all of them during the first 6-week
period and 30 of them, additionally, during the following
3-week period) an amount based on his average weekly over-
time earnings above 45 hours (40 hours straight time plus 5
hours overtime) during the 9 weeks preceding the week in
which May 31, 1973, fell. This amount will be paid to each
employee for each week in which he was discriminated
against (6 weeks for all employees and 3 weeks, additionally,
for the 30 employees named in Appendix A, and 2 weeks each
for Gonyea and Bezdegian , because of their respective unlaw-
ful reduction in August). All employees will receive, as well,
two-fifths of this weekly average figure because of the unlaw-
ful reduction on May 31 and June 1. Any employee who did
not work a full 9-hour day in any week during the period of
the discrimination against him will have his backpay reduced
by one-fifth of the weekly average for each such day but will
suffer no other penalty. Any employee whose work experi-
ence was abnormal during the 9-week period preceding the
week in which May 31 fell will have his backpay calculated
at the rate of the average of other employees in his classifica-
tion (e.g., Gonyea, whose work weeks in April 1973 were
shortened pursuant to doctor's orders after his illness).54
53 E.g., Schott's Bakery, Inc., supra.
54 The following hypothetical situations will demonstrate the manner in
which this order should be executed.
Employee A, whose name would appear on Appendix A hereto, worked
only 45 hours each week from May 30 to August 5. He worked 55, 50, 45,
50, 55, 45, 50, 45,and 55 hours, respectively, each of the 9 weeks preceding
the week in which May 31, 1973, fell, or an average of 50 hours per week
each of those weeks. His backpay will be 9 times (50 minus 45) plus two-
fifths (50 minus 45) or, in total, 47 (hours) times his overtime rate. Em-
ployee B's experience is the same as A's (as to discrimination and prior
average hours overtime) but B had 1-week vacation in July and worked a
half day and took another day off during 1 week of June in which week he
worked a total of 32 hours. His backpay will be (9 minus 1) times
(50-45) plus two-fifths (50-45) minus two-fifths (50-45) or, in total, 40
(hours) times his overtime rate. Employee C, whose name would not appear
Backpay shall otherwise be computed in accordance with the
formula set forth in F W. Woolworth Company, 90 NLRB
289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1963).
It is noted that the instant 9-week period used as a base to
determine averages here not only immediately precedes the
week in which the discriminatory reduction of overtime be-
gan but also falls entirely within the Respondent 's business
downswing which started in February 1973.
It will also be recommended that the written warning sys-
tem be abolished and that all warnings issued thereunder be
expunged from Respondent 's records.
Finally , in view of the nature of the unfair labor practices
in which Respondent has engaged (see N.L.R.B. v . Entwistle
Mfg. Co., 120 F.2d 532 , 536 (1941 ) it will be recommended
that Respondent be ordered to cease and desist from infring-
ing in any manner upon the rights guaranteed employees by
Section 7 of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
the Union is a labor organization all within the meaning of
the Act.
2. By discriminatorily reducing the overtime of all of its
shop employees during the period May 30 to July 15, 1973,
of those listed in Appendix A hereof during the period July
16 to August 5, 1973, and Arthur Gonyea and Aram Bezde-
gian for certain periods in August 1973 as found in section
III hereof, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
3. By instituting a written warning system and issuing
certain warnings thereunder, as found in section III hereof,
Respondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(3) and (1) of the
Act.
4. By creating the impression of surveillance of the union
activities of its employees; threatening them with reprisals
therefor; holding out to employees that virtually unlimited
overtime opportunities would be available but for the Union;
coercively interrogating them about their fellow employees'
union activities; and by suggesting that employees resign be-
cause of their union activities, in the manner found in section
III hereof, Respondent has violated, and is violating, Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law and
the entire record in the proceeding, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
on Appendix A hereto, was discriminated against only during the period
May 30 to July 15. His average overtime during the preceding 9-week period
was the same as A's . C's backpay will be 6 times (50-45) plus two-fifths
(50-45) or, in total , 32 (hours) times his overtime rate . Employee D's
situation is exactly the same as A's except that D worked 45, 46 and 52
hours during the weeks between July 15 and August 5, 1973 . D's backpay
will be (6 plus 1) times (50 minus 45) plus (50 minus 46) plus 0 (for the last
week) plus two-fifths (50 minus 45) or, in total, 41 (hours) times his overtime
rate.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER55
Respondent Tupco, Division of Dart Industries, Inc., its
officers , agents, successors and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf of,
Laborers International Union of North America, Local 243,
or any other labor organization by establishing or implement-
ing a written warning system; or by discriminating in regard
to overtime work or by discriminating in any other manner
in regard to any term or condition of employment of any of
Respondent 's employees in order to discourage union mem-
bership or other concerted activities.
(b) Coercively interrogating employees concerning their
fellow employees' union membership or activities; threaten-
ing to shut down or phase out the plant or take any other
reprisal if the employees organize a union ; creating the im-
pression among employees that it has ways or means of iden-
tifying employees who participated in union activities and of
knowing what these activities are; holding out to the em-
ployees that they would have virtually unlimited overtime
opportunities but for the Union; suggesting that employees
resign because they joined the Union or in any other manner
interfering with , restraining , or coercing employees in the
exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Make whole its employees for any loss of overtime pay
they may have suffered as the result of Respondent's dis-
criminatory reduction of their overtime opportunities in the
manner set forth in the section of this Decision entitled "The
Remedy."
(b) Expunge from the records of its employees any written
warnings issued pursuant to the establishment of Respon-
dent's written warning system.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
55 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes.
56 In the event the Board 's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
Order and necessary to insure compliance with the record
expungement requirements of this Order.
(d) Post at its plant in Auburn, Massachusetts, copies of
the attached notice marked "Appendix B."56 Copies of this
notice on forms provided by the Regional Director for Region
1, 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
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that such notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of the receipt of this Order, what
steps the Respondent has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges unfair labor practices
not found herein.
APPENDIX A
1. Spinnie, Edward
2. Sugalski, Joseph
3. Braney, James
4. Millowicz, Walter
5. LaBonte, Albert
6. Cote, Loenel
7. Desy, Owen Sr.
8. Zukowski, Walter
9. Zbikowdki, Walter
10. Plona, Stanislaw
11. Dion, Robert T.
12. Dees, Carole
13. Boucher, Arthur
14. Shea, Robert
15. Foster, Romeo
16. Groth, Edward
17. Israelson, Alan
18. White, Robert
19. Stapleton, Joseph
20. McGhee, James
21. Gallagher, Albert
22. Stevens, Eugene
23. Connor, Hugh
24. Gauthier, Louis
25. LaForge, Robert
26. Micolites, Walter
27. Mastoris, John
28. Dunphy, Harold
29. Skalubinski, Victor
30. Dion, Robert J.