East Coast, Equipment Corp.

National Labor Relations Board - Board Decisions

Nov 13, 1975

221 N.L.R.B. 618 (N.L.R.B. 1975)

618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
East Coast , Equipment Corporation and Steco Sales,
Inc. and AluminumAWorkers,International Union,
AFL-CIO, Region #4
East Coast Equipment Corporation and Aluminum
Workers International Union, AFL-CIO. Cases 4-
CA-7104 and 4-RC-11267
November -13, 1975
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On May 30, 1975, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, Charging Party filed
exceptions' and Respondent filed a brief in opposi-
tion to General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
1. We adopt the Administrative Law Judge's
finding that Respondent violated Section 8(a)(1) of
the Act by threatening to reduce its employee
complement to inhibit union activities in its plant.
The Administrative Law Judge found that by
creating the impression that it would close its plant in
order to avoid bargaining with any union the
Respondent also violated Section 8(a)(1).2
2. The complaint alleged, inter alia, that Respon-
dent violated Section 8(a)(1) and (3) of the Act
because "On or about October 25, 1974, Saul Spector
stated that the [laid off] employees . . . were
permanently laid-off upon being informed that
temporarily laid-off employees had a right to vote in
the Board conducted election to be held in Case No.
4-RC-11267." The Administrative Law Judge did
i Charging Party has also filed a motion to reopen the case to permit
introduction of evidence that on or about May 10, 1975, Respondent hired a
new employee Because of our findings below, a further hearing is
unnecessary . Accordingly, Charging Party's motion is denied.
2 In the absence of exceptions thereto, we, pro forma, adopt this finding
with regard to Respondent 's October 17, 1974, speech (all dates herein are
1974 unless otherwise indicated)
3 In agreement with the Administrative Law Judge, we find that General
Counsel has not established that the October 17 layoff was unlawfully
motivated.
4 There is no evidence that employees were told the layoff was
permanent Employees testified that they were told they would be back
shortly or in a few weeks Respondent Supervisor Mootz testified that he
informed some of the employees that the layoffs were "indefinite" and that
221 NLRB No. 76
not decide the merits of the issues as framed in this
allegation, finding instead that there was no allega-
tion that Respondent explicitly "discharged" any
employee as of October 25 and that the case was not
tried on that theory. He viewed Respondent's actions
and statement of that date, as described above, as
relevant only to the question of whether the employ-
ees, who earlier had been lawfully laid off, had a
reasonable expectancy of recall as of the date of the
election so as to, be eligible to vote therein. General
Counsel contends that the Administrative Law Judge
erred in not finding that the evidence established that
Respondent violated the Act as set forth in the above
complaint allegation. We, agree.
As fully detailed' by 'the Administrative Law Judge,
Respondent laid off 18 employees on October 17.3 At
this time there was nothing to indicate their layoffs
were other than temporary.4 To the contrary,
Spector, at a preelection meeting held on October 25
with his attorney, two union agents, and a Board
agent,5 stated that if his business improved he would
be calling back the 18 employees .6
That all changed, however, when at this meeting
Spector was advised that laid-off employees, having a
reasonable expectancy of recall, are eligible to vote in
Board-conducted representation elections. Upon
being so informed, Spector replied, "that he had no
union in his plant, and that he did not have to take
these people back . . . that if that was the case he
wouldn't take them back." With these words the
status of 18 employees was changed from that of
temporarily laid-off, with an expectation of recall, to
that of permanently laid-off employees with no
expectation of recall. Considering Spector' s state-
ment in context, we conclude that the sole reason for
the change was to prevent these employees from
participating in a Board-conducted election. Accord-
ingly, we find that Respondent thereby violated
Section 8(a)(3) and (1) of the Act.7
3. We cannot, however, find in Spector's state-
ment any independent violation of Section 8(a)(1).
Spector made his comments at a prehearing confer-
ence which was not attended by any employees. Nor
was there any evidence that employees were ever
made cognizant of the context of Spector's statement.
he did not know how long such would last. Saul Spector , Respondent's
owner and president, could not recall what he said at the time of the layoff
5 The purpose of the meeting was to discuss the possibility of a consent
election in Case 4-RC-11267.
6 Those employees were . Harold Blankenhorn , James Bucher , Harold
Bucher, Wilbur Clark, Joseph P. Cromyak, Ray Culbert, Jr., William F
Culbert, Bruce A Gilbert, Michael Kretulskie , John Polatz, Anthony
Sylvester, Robert Stonelake , Michael A. Sukana , Sr, Michael A Sukana,
Jr., Thomas A Sweigert, Kenneth Thomas , Michael A. Tonck, and
Frederick D. Smith . Clark, Polatz, and Torick were recalled on November
7
7 Cf. Oahu Refuse Collection Co., Inc., 212 NLRB 224 (1974); see also
United Mineral & Chemical Corporation, 155 NLRB 1390 (1965), enforce-
ment denied 391 F 2d 829 (C A 2, 1968).
EAST COAST EQUIPMENT CORP. 619
Thus, even though Spector's conduct was motivated
by antiunion considerations and had the, effect of
discriminating against certain employees for those
reasons, we conclude that in these circumstances the
statement itself did' not interfere with employees'
Section 7 rights.
4. In the representation election held on Decem-
ber 10,8 Respondent challenged the ballots ' of 14
individuals whotn it contended had been permanent-
ly laid off.9 The challenges, a number sufficient to
affect the outcome of, the election,10 were cast by
employees who were among the 18 employees
unlawfully laid off on October 25. As discrimmatees,
they were eligible to vote in the election.ii Therefore,
we shall direct the Regional Director to open and
count the challenged ballots and issue a revised 'tally
of ballots.
We agree with the General Counsel's exception
that the Administrative Law Judge erred in failing to
deal with Petitioner's objections and in not making
recommendations to the Board in light of the
Regional Director's order consolidating cases which
contained a specific direction that after the consoli-
dated hearing the representation case be transferred
to the Board.12 Since the revised tally of ballots to be
issued by the Regional Director may reveal that
consideration of the impact of Respondent's conduct
upon the election is unnecessary, we have decided to
defer ruling on the election's validity until such time
as the Regional Director has opened and counted the
challenged ballots, and the final outcome of the
voting is known.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices we shall order that it
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the purpose
and policies of the Act.
We have found that on October 25, 1974, Respon-
dent discriminatorily changed the status of 18
employees from temporarily laid off to permanently
laid off. Three of these employees, Clark, Polatz, and
Torick, were recalled to work on November 7, 1974.
As to the remaining 15 employees we shall order
Respondent to recall them to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions of employment, without prejudice to their
seniority or other rights and privileges. In the event
fi The election was conducted in a unit of all production and
maintenance employees of Respondent excluding all office clerical
employees, professional employees, guards, foremen and supervisors as
defined in the Act Respondent's answer to the amended complaint
admitted the appropriateness of such a unit
9 They were: Harold Blankenhorn, James Bucher, Harold Bucher,
Joseph P Cromyak, Ray Culbert, Jr., William F. Culbert, Michael
Kretulskie, Bruce A. Gilbert, Anthony Sylvester, Robert Stonelake, Michael
that no fobs are available, we shall order Respondent
to prepare a preferential hiring list and recall them in
accordance with such list, discharging, if necessary,
any employees hired after October 25, 1974. We shall
require Respondent to make each of the 18 laid-off
employees whole for any loss of earnings each may
have suffered because of his layoff by payment to
each of them of a sum of money equal to the amount
that he normally would have earned as wages from
October 25, 1974, until the date of his recall or
placement on a preferential list, as the case may be,
less his net earnings during said period, the backpay
to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth
Company, 90 NLRB 289, 2911-294 (1950), with
interest accruing at the rate of 6 percent per annum
to be computed in the manner set forth in 'Isis
Plumbing & Heating, Co., 138 NLRB 716 (1962).
In issuing our customary reinstatement and back-
pay order, however, we have taken into consideration
that the adverse economic conditions, which moti-
vated the layoffs of the 18 employees on October 17,
appear , to have persisted past the time when
Respondent discriminatorily converted those layoffs
from temporary to permanent status. Consequently,
we recognize that, regardless of such discrimination,
there well may not have, been any jobs available for
those employees as of the time of their unlawful
layoff or for sometime thereafter, except for the three
who were recalled on November 7. In other words,
absent the discrimination found herein, a question
still exists as to when, if at all, the remaining laid-off
employees would have been recalled to work.
Accordingly, we find- it necessary to leave the
determination of this issue to the compliance stage of
this proceeding, since it is not our intention to
require the laid-ofd' employees' immediate recall or
backpay if it appears in the compliance stage that
they are not entitled thereto under Board precedent.
Since we have found that Respondent committed
unfair labor practices which go to the very heart of
the Act by interfering with the rights guaranteed
employees by Section 7 of the Act, we shall order it
to cease and desist therefrom in any other manner.
General Counsel excepts to the failure of the
Administrative Law Judge to issue a bargaining
order to remedy Respondent's unfair labor practices.
We have decided to defer ruling on such remedy
until after we are apprised of the outcome of the
A. Sukana, Sr., Michael A. Sukana, Jr., Thomas A Sweigert, and Frederick
D. Smith.
io The tally now shows that, in addition to the challenges , 14 ballots were
cast for, and 19 against , Petitioner
'i See, e g, Washington Aluminum Company , Inc., 126 NLRB 1410, 1411
(1960), affd. 370 U.S 9 (1962)
12 See Dexter Foods, Inc, d/b/a Dexter IGA Foodliner, 209 NLRB 369
fn.l (1974)
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election based on a revised tally of ballots to be
issued by the Regional Director, since that result
may make it unnecessary to consider whether to
include a bargaining order as part of the remedy in
this case. We shall, therefore, retain jurisdiction over
Case 4-CA-7104 for the limited purpose of deter-
mining what further remedial measures, if any,
would be warranted in the event Petitioner does not
receive a majority of the valid ballots cast in the
election held in Case 4-RC-11267.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
East Coast Equipment Corporation and Steco Sales,
Inc., Lower Mill Creek Manor, Pennsylvania, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening to reduce its employee complement
in order to inhibit union activities.
(b) Creating the impression it would close its plant
entirely in order to avoid bargaining with any union.
(c) Discriminating in regard to the hire and tenure
of employment and term or condition of employment
of any of its employees, including permanently
laying off employees to prevent them from being
eligible to vote in a Board-conducted election.
(d) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of the
right to self-organization, to form a labor organiza-
tion, to join or assist Aluminum Workers Interna-
tional Union, AFL-CIO, Region #4, or any other
labor organization, to bargain collectively with
representatives of their own choosing, to engage in
concerted activities' for the purpose of collective
bargaining or other mutual' aid or protection, or to
refrain from any or all such activities.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer to each of the following named individu-
als immediate and full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority
or other rights and privileges, or, if no such jobs are
available, prepare a preferential hiring list and
thereafter recall employees as jobs become available
in accordance with such list, and before other
persons are hired for such jobs, in the manner set
forth in the section of this Decision entitled "The
Remedy."
13 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Harold Blankenhorn Bruce 'A. Gilbert
James Bucher Michael Kretulskie
Harold Bucher Anthony Sylvester
Joseph P. Cromyak Robert Stonelake
Ray Culbert, Jr. Michael A. Sukana, Sr.
William Culbert Michael A. Sukana, Jr.
Thomas A. Sweigert Kenneth Thomas
Frederick D. Smith
(b) Make each of the above-named employees and
Wilbur Clark, John Polatz, and Michael A. Torick
whole for any loss of earnings he may have suffered
by reason of the discrimination against him in the
manner set forth in the section of this Decision
entitled "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its plant in Lower Mill Creek Manor,
Pennsylvania, copies of the attached notice marked
"Appendix." 13 Copies of said notice, on forms
provided by the Regional Director for Region 4, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to, employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that those allegations in the
complaint as to which no violations have been found
be, and they hereby are, dismissed.
IT IS FURTHER ORDERED that the challenges to the
ballots in the election held on December 10, 1974, in
Case 4-RC-1 1267 be, and they hereby are, over-
ruled.
IT IS FURTHER ORDERED that Case 4-RC-1 1267 be,
and it hereby is, remanded to the Regional Director
for Region 4 for the purpose of opening and counting
the challenged ballots of Harold Blankenhorn,
Harold Bucher, James Bucher, Ray Culbert, William
Culbert, Joseph Cromyak, Bruce Gilbert, Michael
Kretulskie, Frederick B. (Fred) Smith, Robert (Bob)
Stonelake, Michael A. Sukana, Jr., Michael A.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
EAST COAST EQUIPMENT CORP. 621
Sukana , Sr., Thomas Sweigert , and Anthony Sylves-
ter.
DIRECTION
It is hereby directed that the Regional Director
shall, pursuant to the Board's Rules and Regulations,
Series 8, as amended, within 10 days of the date of
this order and direction open and count the ballots
and cause to be served on the parties a revised tally
of ballots. In the event Aluminum Workers Interna-
tional Union, AFL-CIO, receives a majority of the
valid ballots cast the Regional Director shall issue a
certification of representative. In the event the
revised tally of ballots reveals that Aluminum
Workers International Union, AFL-CIO, has not
received a majority of the valid ballots cast in the
election held on December 10, 1974, in Case 4-RC-
11267 the Regional Director shall transfer Case 4-
RC-11267 to the Board for further processing.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer to the individuals named below
immediate reinstatement to their former jobs or, if
those jobs no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, or, if no
such jobs are available, put these employees on a
preferential hiring list and recall employees as
jobs become available in accordance with such
list and before other persons are hired for such
jobs: Harold Blankenhorn, James Bucher, Harold
Bucher, Joseph P. Cromyak, Ray Culbert, Jr.,
William Culbert, Bruce A. Gilbert, Michael
Kretulskie, Anthony Sylvester, Robert Stonelake,
Michael A. Sukana, Sr„ Michael A. Sukana, Jr.,
Thomas A. Sweigert, Kenneth Thomas, and
Frederick D. Smith.
WE WILL make whole the above- named em-
ployees for, any loss of earnings they may have
suffered by reason of our'i discrimination against
them by payment to each of them of a sum of
money equal to the amount that he normally
would have earned from the date of such
discrimination to the date of recall or placement
on a ' preferential list, as the case may be, less his
net earnings during said' period, together with
interest thereon at 6 percent per annum.
WE WILL make wholes Wilbur Clark, John
Polatz , and Michael A. Torick for any loss of
earnings they may have suffered between October
25 and November 7, 1974, by reason of our
discrimination against them together with interest
thereon at 6 percent per annum.
WE WILL NOT threaten to reduce the employee
complement in order to stop union activities
among our employees.
WE WILL NOT create the impression we will
close our plant in order to avoid bargaining with
any union the employees may choose.
WE WILL NOT permanently lay off temporarily
laid-off employees, or otherwise discriminate in
regard to the hire and tenure of employment and
terms or conditions of employment of any of our
employees because of the ability of temporarily
laid-off employees to vote in Board-conducted
elections.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to join
or assist Aluminum Workers International Union,
AFL-CIO, Region #4, or any other labor
organization, and to engage in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any and all such activities, except to the
extent that such right may be affected by an,
agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the Act.
EAST COAST EQUIPMENT
CORPORATION
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: This is a
consolidated proceeding joining a complaint case- 4-CA-
7104-with a representation case- 4-RC-1 1267. Upon a
charge filed on November 4, 1974, by Aluminum Workers
International Union, AFL-CIO, Region #4 , herein called
the Union, the complaint issued on March 17, 1975,
against East Coast Equipment Corporation and Steco
Sales, Inc., herein together called the Respondent, or the
Company. In the representation case a petition for an
election was filed by the Union and a Board-conducted
election was held on December 10, 1974; the Regional
Director thereafter ordered a hearing on certain challenges
affecting the results of the election and on certain
objections filed by the Union. The two cases were joined
for single hearing, which was held on March 31 and April 1
and 2, 1975, at Pottsville, Pennsylvania. The issues are
whether the Respondent violated Section 8(a)(1) and (3)
of the Act, and whether the challenged ballots should be
opened and counted. Briefs were filed after the close of the
hearing by the General Counsel and the Respondent.
Upon the entire record, and from my observation of the
witnesses I make the following:
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
ever returned to work. The complaint alleges that all 18 of
the men were laid off or discharged-it is of little moment
what descriptive word is used - because "the Union was
trying to organize" the employees, and therefore in
violation of Section 8(a)(3) of the Act.
Pursuant to the Union's petition the Board conducted an
election of December 10, 1974; 14 pf the men who had not
been recalled cast challenged ballots, which are sufficient
in number to affect the results of the election. If in fact
these 14 had been illegally discharged, their ballots must
now be opened and counted. If it is not proved they had
suffered unlawful discrimination in employment when sent
home, they still had a right to vote, and their ballots must
be opened, if in fact they had a reasonable expectancy of
return to work on the day of the election, almost 2 months
after they were sent home. These last questions must be
determined in the representation case aspect of this
consolidated proceeding.
The Respondent denies any unlawful motive in its
actions. Affirmatively, it contends all the discharges were
economically dictated by adverse financial conditions.
There are facts, according to the General Counsel, which
indicate antiunion intent in the mass layoff: timing, high
percentage of union cardsigners among the dischargees,
knowledge of union activities in management, and clear
evidence the Respondent preferred not to have a union
represent its employees. And there are facts supporting the
assertion of economic explanation: the employees were
told on October 17 the layoffs were necessitated by
financial stress, no new employees were ever hired to
replace a single one of the 15 permanently released
production workers, the reduced complement-35 in place
of 50-worked more efficiently and produced more
finished trailers than before the reduction in force, and
there was even less overtime worked than had been the
case earlier. The resultant thrust of the complaint is one of
inference, suggesting that the external appearance of
things-what was said at the critical times and what
materially happened thereafter-be weighed in the balance
against circumstances that point a finger of suspicion, and
support, it is argued, a contrary conclusion.
There is precedent for the situation where the external
format of things belies the true, albeit hidden, mental state
of the actors. It is important in such cases, however, to
guard against Inflamatory argument, deliberate descriptive
coloration of words which reflect only the attitude or inner
convictions of the speaker and prove nothing objectively
useful. It is the established facts, as distinguished from
statements of opinion, that must be appraised in deciding
whether or not an inference, of , illegality, is warranted.
Fairness also demands that all the relevant facts of record
be considered, and not only an out-of-context selection of
truths which collectively may support one finding or
another. And, finally, the burden, of establishing the truth
of the complaint allegation of improper conduct rests
essentially upon the General Counsel. If in the end the
facts point equally to an illegal intent and to just cause for
discharge, the complaint must be' dismissed. See, N.L.R.B.
v. Glen Raven Silk Mills, 203 F.2d 946 (C.A. 4).
East Coast Equipment Corporation and Steco Sales, Inc.,
are each Pennsylvania corporations and, up to December
3, 1974, together carried on a trailer manufacturing and
selling business at Lower Mill Creek Manor, Pennsylvania.
At that time Steco bought the entire assets of East Coast
and continued uninterrupted the same manufacturing and
selling business as before, using the same equipment and
the same complement of employees and supervisors. Both
corporations were, and still are, owned in their entirety by
Saul Spector, who is and always has been president and
direct manager of each and always used a single office for
both of his businesses . Spector runs the distribution part of
the business in part by traveling about the country as a
salesman . As to the production part, all centered in
Pennsylvania, he had, before December of 1974, a
supervisor or two directly in charge of the production
process, but they always took their orders from him. It was
always he who made all business decisions, including level
of hiring, purchase of materials, and any other manage-
ment decisions needed for the day-to-day functioning of
the plant. He took everything into the name of his Steco
Sales Corporation as a paper device to clear unpaid bills of
East Coast and from December on has had less supervision
in production and spent more of his time in direct contact
with the production process. It is admitted in the answer
that during the 12-month period before issuance' of the
complaint the two corporations together, at this one
location, purchased and received goods from out-of-state
sources valued in excess of $50,000.
Both companies, here together named the Respondent,
dispute the complaint allegation that the two corporations
together constitute a single employer within the meaning of
the Board's decisional precedents, or that Steco is a
successor of East Coast. I find on the total record that the
two corporations were, before December 1974, a single
employer, that Steco since then has been at least the
successor to East Coast, that the complaint correctly names
them a single Respondent here, and that they are engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that Aluminum Workers International Union,
AFL-CIO, Region #4, is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
This case centers upon the discharge of 18 employees on
October 17, 1974. During the prior month, between
September 23 and 29, more than 40 of the total comple-
ment of about 50 had signed cards in favor of the Union,
and the Union had, by letter dated October 1, demanded
recognition from the Respondent as exclusive bargaining
agent . It also filed a petition at that time for a Board-
conducted election. Seventeen of the eighteen men sent
home had signed union cards. Ten days or so later three of
the laid off men were recalled; one of these was the man
who had not signed a card. None of the remaining 15 was
Section -8(a)(1)
EAST COAST EQUIPMENT CORP. 623
A. Evidence to Support the Complaint
Michael Sukana, Jr., one of the discharged employees,
spoke about what he called an "independent union," with
three officers of whom he was recording secretary. He said
its function was to meet with "company employees-if
they wanted to fire a guy-to talk with them, and so forth;
to represent the men." Of the more than- 30 witnesses who
appeared at the hearing no mention was made by any other
of them about there ever having been a union in this plant
before the advent of the Aluminum Workers in September
1974. In any event, Sukana testified that one day in June
he and two other employees spoke to Saul- Spector, the
owner of the Company, about a bonus and a profit-sharing
plan. Spector said he would think about it, and the three
met with him again in July. Nothing came of that meeting
either, but according to Sukana, Spector said to them that
day "If I hear anymore bullshit about unions, I'll cut this
shop down to twenty-seven men." Spector, one of the last
witnesses to testify, did not contradict Sukana, whom I
therefore credit. I find the owner's threat- that day to
reduce the employee complement in retaliation for union
activity was an unfair labor practice in violation of Section
8(a)(1) of the Act.
On September 23, 11 employees met at a public place
away from the plant with Robert Christian, a union staff
representative, and all signed union cards. They were given
additional cards and by the end of the month many more
had signed, at their homes, in the plant, and at later union
meetings. Weekly meetings of employees were held by
Christian regularly thereafter. On October 1, the Union
wrote the Company it represented a majority, and offered
to meet for the purpose of convincing the Company of the
fact, providing the cards be examined only by an outsider,
with no member of management ever to know which
employees had signed. Almost simultaneously the Union
filed its petition and placed in the hands of the Board
agent, according to- Christian, 40 signed cards.' The parties
stipulated that on October 1, there were 53 rank-and-file
employees in the bargaining unit.'
On October 17, Spector assembled the employees in the
plant 'and talked to all of them. There was no written
speech and no record was made of his comments. He
testified about what he said and a number of employees
spoke at the hearing of what they remembered hearing.
Out of the generalities and vagaries in the testimony, from
the paraphrasing by many witnesses and the leading
character of much of the questioning, four ideas emerge
definitely, as having been voiced ' by the owner that day.
1. Spector said the Company was in such bad financial
condition there 'had to be a mass layoff. From his
testimony:
I told them that the company was in bad financial
condition and that I could not afford to continue on
this way 'and that I would have to lay off people
because I cannot pay my bills-and that due to the
, Among the witnesses, three of the persons named on the stipulated list
of employees testified they were no longer working on October I George
Reed said he was laid off in July and never recalled. Wojoik asked to be laid
economy, increase of steel and increase of the prices,
and what I'm getting, for the units, that I'm running
seriously in the red and I don't know what or how I'm
going to continue from here.
* s s
I told them that it was hard for me to get parts in to fill
the orders that I had . . . that basically we were out of
wheels at a certain time... .
From the testimony of Joseph Cromyak:
Well he said business was bad and he didn't have any
orders, couldn't get any parts.
Employee Bruce Gilbert:
Well he informed us of the condition of the company-
financial, the amount of stock, the shortage of orders-
and that he had to-lay off in order to get caught up
again.
Ray Culpert, Jr.:
That due to the economic trouble he had to lay men off
. Like there was poor management, he told us, and
he had to straighten it out.
2. Spector said in his opinion the employees did not
need a union and he preferred they not be represented.
From his testimony: "I told the employees that in my
opinion that they didn't need a union." Cromyak: "He said
he didn't want to have a union run his company. . . . He
said that the orders were down-but there was a lot of
orders." Bruce Gilbert: "Well he said that he didn't think
that we needed a union or that one was necessary in the
Company." Thomas Sweigert: "Well, that he didn't think
that we needed a union, that we were getting along fine
without one.,,
3. Spector told the employees each should decide the
question according to the dictates of his own conscience.
Spector: "But I also told them that in their hearts, if they
felt that they needed a union to represent them that-
without prejudice on my part-that they should vote for
it." Bruce Gilbert: "Q. In fact, didn't Mr. Spector ask the
assembled employees to do what they felt in their hearts
was best? A. Yes, he did." Culpert, Jr.: "Q. Do you
remember Mr. Spector saying, `Do what you believe (was)
right in your own heart'? A. Yes."
4. Spector said that if necessary he could afford to close
the plant because he had enough personal money to live
on. Again, both Spector and the General Counsel's
employee-witnesses agreed he did make that statement. On
this fourth point, however, there is a dispute as to how and
in association with what other ideas the owner talked of
closing down the business. According to Spector, he did
not say this when expressing his view of unions, or telling
off in July and also never returned, And Marvin Blankenhorn was hurt in
February 1973, has been off most of the time since, and last worked a day or
two last July.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees they had a right to and should decide as in
their heart they thought right. He insisted he explained that
if the business did not improve financially, if it kept losing
money he could close it and keep on living well anyway.
What this means, if Spector is to be believed, is that he was
calling for cooperation in the sense that the employees
should work harder, produce more, idle less, and thereby
avoid the danger of total closure.
The General Counsel reads the record transcript other-
wise. She sees in Spector's statement a threat of retaliation
if the employees did not abandon the union idea
altogether. It is by no means clear that the employees'
recollections support this contention.
Ray Culpert, Jr.:
Well he said that he could-like, in other words, he said
that he didn't really care about the place, that he would
shut down if trouble started, if we kept with the
union-stuff like that.
Bruce Gilbert's testimony can be read otherwise.
Q. (By Mrs. Berkowitz) Do you recall if Mr.
Spector said anything in his speech on the 17th about
closing the plant?
A. He said that conditions were'such that if they
didn't approve it was a possibility.2
And Sweigert testified as follows:
Q. Do you remember him discussing anything
about the financial condition of the Company?
A. Yes, he said that it was pretty shaky.
Q. Do you remember him saying anything about
closing the Company.
A. - Yes.
Q. What did he say about that?
A. Well, a couple of times he said it was like
contradicting himself, but he said that he could close
the company down and it wouldn't hurt him a bit for
any length of time; the only ones itwould hurt was us.
Again, still by Sweigert:
Q. (By Mr. Troy) And the first thing he spoke
about was the financial condition of the company,
wasn't it?
A. Yes.
Q. And it was in that particular area he said he
could get by on his own if the shop closed down, didn't
he?
A. Yes.
Q. And he didn't say anything about closing down
when he was talking about the union, did he?
A. No, not really.
I think Spector trenched too closely upon the statutory
proscription when he spoke of closing the plant in the same
talk explaming the imminent economic layoffs. Even
assuming he, had no intention of intimidating them away
from their prounion resolve, the possibility the employees
would merge the two concepts-economic shutdown and
anitunion shutdown-could not have escaped him. I find
that by joining the two ideas in the same talk, at a time
when the employees were particularly sensitive to econom-
ic danger-no one knew at that moment exactly who was
going to be selected for layoff-the necessary effect upon
the employees was one of coercion in 'their protected
freedom to choose or reject the Union. I therefore find that
by speaking of total closure that afternoon Spector violated
Section 8(a)(1) of the Act, as`alleged in the complaint.
At the -close of the workday' of October 17, the day
Spector made his announcement, 18 employees were laid
off and given paychecks then and there. The next' day was
the regular weekly' pay time for` the rest. Together with
their paychecks both groups-the 18 laid off and all who
remained-were given a written statement signed' by
Spector explaining why, they should not adhere' to the
Union.
A week or two later-the 'date not certain on the
record-Spector told his employees that if they succeeded
in producing more than an average of 6 trailers weekly-
figured at a total number of 24 during any' l month-he
would given them a bonus of $150 per extra trailer, that
amount to be distributed equally among them , all. He
explained he was going under financially because not
enough trailers were, coming from the shop, and that six
weekly was the minimum required to keep his head above
water. Sure' enough, during November,, 34 trailers were
produced (according to consistent oral testimony; inconsis-
tencies between oral testimony and what limited, record
evidence was shown on this record is a pervasive, weakness
of both the General Counsel's and the Respondent's
cases!). Pleased with the production improvements as they
appeared; `Spector raised the ante and decided to, make it
$200, incentive bonus for every extra trailer instead.
Accordingly, on December 6, because the men had made
10 trailers, more than the November minimum require-
ment, he'gave' each man a check for $60. "In the ensuing
election the. Union lost." Here the election took place on
December 10, and the Aluminum Workers did fail of
majority, but the above quotation is from, the,Supreme
Court', decision in N.L.R.B. v. Exchange Parts Company,
375 U.S. 405 (1964). -
No `citation of authority is- needed for the proposition
that where the employer gives increased benefits in pay
immediately before an election and as inducementfor
employees to vote against the union, he illegally restrains
and coerces them. And even where, he says nothing about
his inner purpose in the unprecedented largesse, he may
still run afoul of the statute because "The danger inherent
m well-timed increases in benefits is the suggestion of a fist
inside i the velvet glove." Exchange Parts, supra. But when
the payment, albeit for the first time, is affirmatively
shown-as clearly is the case here-to be directly ex-
plained and, justified by unmistakable economic condi-
tions, the conclusion of illegal motive, or of inevitable
2 The word "approve" appearing in the, transcript of testimony as
coming from Culbert is a typygraphical error; it should read "improve"
instead.
EAST COAST EQUIPMENT CORP. 625
coercive effect, is not warranted. As the Supreme Court
also said in Exchange Parts, it was there dealing with
"conferral of employee benefits . . . for the purpose of
inducing employees to vote against the union ...." There
can be no such finding based upon Spector's payment of
the incentive bonus to his people in December 1974, for the
objective evidence of a purely economic and a clearly
expressed legitimate purpose could not be plainer. Cf.
Fashion Fair, Inc., 157 NLRB 1645 (1966).
In fact, there is an extraordinary parallel between his
payment to 35 employees in December and his reduction
of 15 from the total complement of 50 employees in
October. The bonus was paid because the employees did
work with attention and diligence. The 15 were released in
October because for some months the 50 had not been
working with attention and diligence. And it is a fact that
they did not, because when the layoff was over, the
remaining group, working with attention and diligence,
produced more trailers!
B. The Discharges; Additional Evidence; Analysis
and Conclusion
I find that the evidence in its totality does not suffice to
prove the complaint allegation that the discharge of the 18
employees on October 17, 1974, constituted violations of
Section 8(a)(1) and (3) of the Act because legally
motivated, and I shall therefore recommend dismissal of
the complaint to that extent.
There had been economic layoffs before, one in January
and another in July 1974. Of the six or seven employees
sent home in July, two returned and the rest were never
recalled. In past layoffs seniority was not a method of
selection used by the Respondent. Because his business
was coming upon increasing production and financial
difficulties, Spector in June hired what he thought was an
experienced manager, -an efficiency expert, called Leven-
good, and placed him in complete charge of the production
operation, even over Mootz, the long-time supervisor and
only other managing agent in the shop. Spector himself
spends most of his time away from the plant selling the
trailers all over the country.
With the discharges reducing the complement of employ-
ees to about 35, Spector took personal charge of pro-
duction and remained much longer periods than before in
the plant. A week after October 17 he discharged
Levengood, and never replaced him. Notwithstanding the
increased production of November, the financial position
remained poor and late in November or early December
the Internal Revenue Service took steps to seize the entire
property of East Coast, the corporate entity literally
owning the production equipment and stock. To avoid
complete collapse, Spector, in the name of Steco, his
personally owned corporate entity in charge of the selling
aspect of his business , took over East Coast's assets. To
accomplish this he borrowed money and paid the Internal
Revenue Service $115,000 in cash for overdue and unpaid
taxes. All the foregoing is from the uncontradicted and
perfectly creditable testimony of Spector himself. He
produced no corporate records of any I kind to prove his
assertion, but the General Counsel did have access to the
records of East Coast Corporation and did not offer any
conflicting evidence or object to Spector's recital of the
past. Appraisal of the affirmative defense of discharge for
cause must therefore start with appreciation of the fact this
business screamed for extreme corrective measures in the
fall of 1974.
On the question of how 18 men were selected for layoff,
there is only the oral testimony of Spector, and he said he
did not personally make the choice. He said Levengood
and Mootz did so, that he asked them to get rid of the
misfits, the idlers, the poor workers, etc., and that his
subordinates did just that. There is, however, no counter-
vailing evidence that the selection was made in any less
rational way. That unneeded employees were released, that
the poor producers were sent home, is, moreover, strongly
indicated by the fact that with the lesser staff later, and
with what Spector said was more attentive and discriminat-
ing supervision, more trailers were produced. As already
stated, the facts as to production are not clear on this
record. The witnesses all agreed 34 trailers were produced
in November. One witness, Maskerines, said he used to
keep a record, and therefore knew that an average of 27
trailers per month were produced in August, September,
and October, and 19 during only 2 weeks in January. But
the General Counsel placed into evidence records which
show the following production of trailers: August-6;
September-19; October-19; and November-31. No
one saw fit to try to reconcile all of this evidence.
It must therefore be found as a fact on this record that
the fewer employees produced more trailers than the larger
number had been able to put out before. In the circum-
stances it would be very difficult, to say the least, if not
virtually impossible, to hold that Spector lied when he said
his purpose in the mass layoff was economic adjustment,
and not fulfillment of an antiunion objective.
And, of course, the very fact that not 1 of the 15
employees permanently released in October had been
replaced 5 months later, the time of the hearing, only
makes the defense assertion the more convincing-all that
happened was unneeded employees were removed from the
payroll. The suggestion during the hearing that Respon-
dent compensated for the missing employees by overwork-
ing the remaining 35, has no support in evidence. Indeed,
less overtime was performed during the 7 weeks after the
layoffs than had been worked during the 7 weeks before
October 17; the totals were 502 overtime hours before and
280 after.
The idea that the remaining 35, scared out of their wits
by the illegal discharge of so many of theirfellow-workers,
strained inhumanly and outdid any earlier performance
only out of fear, has no evidentiary support. Not one of the
many employees 'still working who testified gave the least
suggestion of such an explanation for the increased
production.
Two months before the Aluminum Workers appeared on
the scene, Spector said he would never stand for a union,
would cut the staff in half before having one in his shop.
And on the very day of the discharges, he spoke
ambiguously about plant closure, while discussing both his
financial troubles and his dislike for unions. Does it follow
on this total record he sent 18 people home that day
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because he did not like unions? All things considered, I
think not.
A final aspect of the unfair labor practice part of this
consolidated proceeding calls for comment. It will be
recalled that on October 1 the Union formally advised the
Company that it represented a majority of the employees
and offered to prove the fact. It does not appear the
Respondent ever answered the invitation, a position of
indifference often equated by the Board, in other cases, to
be a refusal to extend recognition on request. The General
Counsel did not expressly allege, either in the pleadings or
during the hearing, a demand and refusal, but she does ask
that the. Respondent be ordered to bargain with the Union
as part of the remedy in this case. See, N.L.R.B. v. Gissel,
395 U.S. 575 (1969), and Steel-Fab, Inc., 212 NLRB 363
(1974). The theory is that because of the severity of the
unfair labor practices committed, it is not possible to hold
a fair election and therefore the Respondent must be
ordered to bargain without an election. In further support
of the position the prosecution offered evidence intended
to prove that in fact the Union had been authorized to
bargain immediately on their behalf by a majority of the
employees in the appropriate unit.
I do not believe that the separate violations of Section
8(a)(1) found above are of such character and significance
as to justify an affirmative bargaining order in this case.
Accordingly, the collateral questions of appropriate unit
and majority representative status are mooted, and
therefore I make no finding as to either. Compare, May
Department Stores, 211 NLRB (1974). Were it necessary to
decide I would find the unit set out in the complaint to be
appropriate, and I would find that a card majority on
October 1, 1974, in fact existed in favor of the Union.
1. Case 4-RC-11267; the challenges
As the 14 employees laid off on October 17 and who cast
challenged ballots in the December 10 election had not
been discharged in violation of the Act, it cannot be said
they had a- right to vote because of any illegality in their
removal from the payroll before the balloting. If at the time
of the election, although in lawfully laid-off status, they
had a reasonable expectancy of returning to work, they
were eligible voters, and the challenges to their ballots must
therefore be overruled. Among the factors relevant to the
question of return expectancy, of course, is what employees
are told by management when sent home. There is some
variance in the testimony here on that point, but not a very
significant disagreement. Cromyak, an employee, quoted
Spector, as saying in his October talk about financial
difficulties that laid-off people would be gone "a few
weeks." Cromyak also quoted Mootz, the supervisor, as
telling him that he, Cromyak, would "be the first one to be
called back. He said only a few weeks." According to
Sukana, also laid off, Spector said that day "he hoped to
have everybody back within two weeks." Sukana also
recalled Mootz saying "You'll be back shortly."
At the hearing Spector stressed the fact he did not use
the word "discharge," but only told the employees they
were being "laid off." He denied having used the phrase
"two weeks," and while asserting the layoffs were
"permanent," he admitted he could not recall exactly how
he had phrased the announcement. Mootz said all he told
the departing employees was that the layoffs were
"indefinite," and that he did not know how long they
would last.
There was an element of uncertainty on October 17
whether any of the 18 persons sent home would ever be
called back; 3 of them were recalled a week or so later.
Clearly the Respondent did not, and could not know with
certainty then, what future prospects were-for the
employees or for the Company. It is one thing to hope, or
express the hope, that business will improve and permit the
recall of laid-off employees, but it is something else again
to have rational basis for predicting in a reasonable
manner their actual recall. The question of reasonable
expectancy must be tested, therefore, as of December 10,
and the fact that none of the 15 discharged employees had
been recalled now 9 weeks later, is more weighty indication
that their chances for future employment were indeed very
low. If to this be added the now known fact that in the
interim-between October 17 and election day-things
were going better for the Company with the reduced
complement, the, likelihood of employment virtually
vanishes. And finally, it is no less reasonable to consider,, in
the total context, what happened even after the election; as
of March 31, 1975-almost half a year after the layoffs-
not one of the challenged voters had returned to work.
I do not think the 14 voters in question had a reasonable
expectancy of return on December 10, 1974, and I do,not
think a statement made by Spector at a prehearmg
conference in the representation case warrants a different
conclusion. On October 25 the parties discussed the
possibility of a consent election. Spector was asked were
there any laid-off employees, and whether, "if the business
improved . . . he would be calling those employees back,"
he answered yes. He was then advised that any of the laid-
off people who had a reasonable expectancy of recall were
eligible to vote. To this, according to the uncontradicted
testimony of Christian, the Union's agent who was present,
Spector said: " ... that he had no union in his plant and
that he did not have to take these people back. He stated
that if that was the case, he wouldn't take them back."
The only true relevance these words can have in this
overall proceeding is to the possibility Spector did not
recall any of the 15 employees after October 25 because of
a desire to keep them from voting in the ,election. But the
complaint does not explicitly allege any discharge of
anyone as of that day, either as a removal from actual
employment or as an affirmative act of refusal to recall.
The case was not tried on any such theory, although the
General Counsel belatedly makes such an argument in her
brief. In any event, although Spector's words that day can
fairly be taken as an expression of intent to commit wrong,
the facts shown give no indication that he ever had the
opportunity to implement an improper objective. There
never came a time when there was need or justification for
hiring any of these people. Proof of improper intent in the
employer's mind is not a substitute for affirmative evidence
that there is, or was, work available for any employees-
old ones or new ones.
EAST COAST EQUIPMENT CORP. 627
I find that the record evidence supports the challenges to
the 14 ballots in question, and I accordingly recommend
that the challenges be sustained.
2. The objections
My reading of the formal documents indicates that the
Regional Director ordered a hearing on only three
objections filed by the Union-asserted illegal discharge of
employees on October 17, asserted illegal promise of
incentive pay later that month, and asserted illegal
granting of the incentive award on December 6. The
findings already made with respect to those three objec-
tions show that all three should be overruled.
The violation of Section 8(a)(1) committed by the
Respondent in July 1974 occurred before the filing of the
petition and therefore can in no event be basis for setting
the, results of the election aside. The violation of Section
8(a)(1) found above, based on Spector's speech to the
employees on October 17, did occur within the standard
period for filing objections, but I do not see it as an
objection filed by the Union and therefore make no
recommendation to the Regional Director in that respect.
If in his judgment he sees fit to set the election aside for
that reason, it is a matter outside the discretion of the
heiring officer.
IV. THE REMEDY
This case calls for no more than the usual remedy
ordering the Respondent to cease and desist from
committing the type of unfair labor practices that have
been found. It must also be ordered not to commit other
unfair labor practices of a like or related manner.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, have a close, intimate,
and substantial relation 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.
CONCLUSIONS OF LAW
1. By threatening to reduce the employee complement
in order to inhibit union activities and by creating the
3 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.
impression it would close its plant entirely in order to avoid
bargaining with any union the Respondent has engaged in
and is engaging in unfair labor practices in violation of
Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices 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, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
The Respondent, East Coast Equipment Corporation
and Steco Sales, Inc., Lower Mill Creek Manor, Pennsyl-
vania, its officers, agents, successors , and assigns, shall:
1. Cease and desist from threatening to reduce the
employee complement in order to inhibit union activities,
creating the impression it would close its plant entirely in
order to avoid bargaining with any union, or in any like or
related manner interfering with , restraining, or coercing
employees in the exercise of the right to self-organization,
to form, join, or assist Aluminum Workers International
Union, AFL-CIO, Region #4, or any other labor
organization to bargain collectively through representa-
tives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any
and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its place of business in Lower Mill Creek
Manor, Pennsylvania, copies of the attached notice marked
"Appendix."4 Copies of said notice, on forms provided by
the Regional Director for Region 4, after being duly signed
by, its representatives, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by it
to insure that all said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 4, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.
To the extent that the complaint alleges the illegal
discharge of any employees, I recommend that it be, and it
hereby is, dismissed.
4 In the event that 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."