ERE Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1096 (N.L.R.B. 1975)

1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Lasaponara & Sons, Inc., a wholly owned
subsidiary of ERE Industries, Inc. and Mechanics
Educational Society of America , AFL-CIO
A. Lasaponara & Sons, Inc., a wholly owned
subsidiary of ERE Industries , Inc. and ERE
Industries, Inc. and Mechanics Educational Socie-
ty of America, AFL-CIO. Cases 3-CA-5634 and
3-CA-5708
June 30, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On November 22, 1974, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, Respondents filed exceptions
and a supporting brief, and General Counsel filed an
answering brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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, fmd-
ings,2 and conclusions3 of the Administrative Law
Judge and to adopt his recommended Order,4 as
modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified, and hereby orders that Respondents A.
Lasaponara & Sons, Inc., a wholly owned subsidiary
of ERE Industries, Inc., Oriskany, New York,
and/or ERE Industries, Inc., Medford, Massachu-
setts , their officers, agents , successors , and assigns,
shall take the action set forth in said recommended
Order as modified below:
1. Delete Part B.
2. Substitute the following for the introductory
paragraph:
"Respondents , A. Lasaponara & Sons, Inc., a
wholly owned subsidiary of ERE Industries, Inc.,
and/or ERE Industries, Inc., their officers, agents,
successors , and assigns, shall:"
3. Insert the following as paragraph 1(e) and
reletter former paragraph 1(e) as 1(f):
"(e) Unilaterally changing existing benefits and
other terms and conditions of employment of
218 NLRB No. 168
employees in the appropriate bargaining unit found
herein."
4. Substitute the attached notice for that of the
Administrative Law Judge.
CHAIRMAN MURPHY, dissenting in part:
I differ with the decision of my colleagues,in only
one respect. I would base no violation findings on
any part of the evidence depicting the reactions of
Production Manager Fazzino, on April 5, 1974, when
Wilson, who had identified herself as the chairman of
the employee committee sponsoring,the work sched-
uling protest, presented the employees' petition to
him. It seems to me that the same considerations
which militate against finding anything unlawful in
Fazzino's crumpling of the petition also militate
against finding anything unlawful in the remark
which accompanied that action. In any event, I am
unable to read in Fazzino's comment to Wilson that
she was "a troublemaker" a threat of reprisal to her.
In all other respects, I concur in the decision of my
colleagues.
1 We note that on February 3 , 1975, the General Counsel filed as part of
its answering brief to Respondents' exceptions his motion to correct
transcript which earlier had been filed with the Administrative Law Judge.
In this regard we note that on October 29, 1974, the Administrative Law
Judge granted the General Counsel's motion to correct the transcript and
we hereby affirm the Administrative Law Judge's ruling in this respect.
2 The Administrative Law Judge found, inter ala, that Sec 8(a)(l) of the
Act was violated by the actions of Production Manager Fazzino , on April 5,
1974, in crumpling a petition protesting the scheduling of work and in
informing employee Wilson that she was a troublemaker after she presented
the petition to him . While we agree that the singling out of Wilson and
calling her a troublemaker violates Sec. 8 (a)(l), we do not find that
Fazzmo's crumpling of the petition , in the circumstances herein , additional-
ly violates Sec. 8(a)(1). In this regard , the record reveals that on April 6
Fazzino spoke with Union Business Agent DeBella , and explained to
DeBella his reasons for wanting the employees to work the scheduled day,
Palm Sunday . He informed DeBella that the employees should have given
advance notice that they wanted the day off. Thus, we do not find, as did
the Administrative Law Judge, that Fazzino's conduct reveals a rejection of
the principles of collective bargaining.
3 In the absence of exceptions thereto, we adopt pro forma, the
Administrative Law Judge's disnussal of the allegation that the discharge
effectuated on June 7, 1974, violated Sec. 8(a)(3) of the Act.
4 The recommended Order of the Administrative Law Judge omits the
requirement that Respondents cease and desist from making unilateral
changes in existing benefits and other terms and conditions of employment
for unit employees. We shall correct this omission.
In addition, since it has been found that on or about April 23, 1974, ERE
Industries , Inc, purchased A. Lasaponara & Sons, Inc., and Lasaponara
became a wholly owned subsidiary of ERE, we perceive no necessity for
separate Orders as fashioned by the Administrative Law Judge. According-
ly, we shall so modify the Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with
reprisals to dissuade them from supporting the
Union.
A. LASAPONARA & SONS, INC. 1097
WE WILL NOT coercively interrogate our em-
ployees concerning their union membership,
activities, or desires.
WE WILL NOT unilaterally change existing
benefits and other terms and conditions of
employment of employees in the appropriate
bargaining unit found herein.
WE WILL NOT refuse to bargain collectively with
the Union as the exclusive collective-bargaining
representative of the employees in the bargaining
unit herein found to be approved.
WE WILL NOT refuse to hire, will not discharge,
or otherwise discriminate against employees in
regard to hire or tenure of employment, in order
to encourage or discourage membership in a labor
organization or to interfere with, restrain, or
coerce employees in the exercise of Section 7
rights, except to the extent that such rights may be
affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce the employees of A.
Lasaponara & Sons, Inc., a wholly owned
subsidiary of ERE Industries, Inc., in the exercise
of their rights guaranteed in Section 7 of the Act,
except to the extent that such rights may be
affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
WE WILL, upon request, bargain with Mechan-
ics Educational Society of America, AFL-CIO, as
the exclusive collective-bargaining representative
of our employees in the unit herein found
appropriate and embody any understanding
reached in a signed agreement . The appropriate
bargaining unit is:
All production and maintenance employ-
ees, employed by A. Lasaponara & Sons,
Inc., a wholly owned subsidiary of ERE
Industries, Inc., at its Base Road , Oriskany,
New York, ' location; excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
WE WILL, if required by the Union, rescind the
unilateral changes, made around May 1974, and
thereafter, in benefits of employment of the
employees in the appropriate bargaining unit, set
forth above, provided, however, absent such
request by the Union, there is no requirement for
a rescinding of such changes in benefits.
WE WILL offer to Peter Muraca immediate
employment to the position for which he was
discriminatorily considered on May 27, 1974, or,
if such position no longer exists, to a substantially
equivalent position, and make him whole for any
loss of pay suffered by reason of the discrimina-
tion against him.
WE WILL offer to Eva Wilson, William Bon-
ville, Robert Kraeger, Margaret Peck, Richard
Hayes, and Gary Bartle immediate and full
reinstatement to his or her former position or, if
such position no longer exists , to a substantially
equivalent position, -without prejudice to his or
her seniority or other rights previously enjoyed,
and make each whole for any loss of pay suffered
by reason of his or her unlawful discharge.
All of our employees are free to become or remain,
or refrain from becoming or remaining, members of
any labor organization except to the extent that such
rights may be affected by lawful agreements in
accord with Section 8(a)(3) of the Act.
A. LASAPONARA & SONS,
INC., A WHOLLY OWNED
SUBSIDIARY OF ERE
INDUSTRIES, INC.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This
proceeding, under Section 10(b) of the National Labor
Relations Act, as amended , was tried pursuant to due
notice on September 11 and 12, 1974, at Rome , New York.
As to Case 3-CA-5634, the original charge was filed on
April 10, 1974, the amended charge was filed on May 31,
1974, and the complaint was issued on June 14, 1974.
As to Case 3-CA-5708, the original charge was filed on
June 12, 1974, the first amended charge was filed on July
23, 1974, the second amended charge was filed on July 26,
1974, and the complaint was issued on July 29, 1974.
Cases 3-CA-5634 and 3-CA-5708 were duly consolidat-
ed for hearing by order dated July 29, 1974.
The issues concern (1) whether Respondents have
violated Section 8(a)(1) of the Act by acts of interrogation,
statements, threats , promises of benefits , discharges of and
refusal to hire certain employees, and refusal to bargain
with the Union; (2) whether Respondents have violated
Section 8(a)(3) of the Act by discharge of and refusal to
hire certain employees, and (3) whether Respondents have
violated Section 8(aX5) of the Act by refusal to bargain
with the Union.
All parties were afforded full opportunity to participate
in the proceeding, and the General Counsel and the
Respondent have filed briefs which have been considered.
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER'
B. The Refusal to Bargain
The parties are in agreement as to the appropriate
collective-bargaining unit of Respondents' employees
involved in this proceeding. Thus, based upon the
pleadings and statements (at the hearing) narrowing the
issues, it is concluded and found that "all production and
maintenance employees, employed by A. Lasaponara &
Sons until April 23, 1974, and since that time by A.
Lasaponara & Sons, a wholly-owned subsidiary of ERE
Industries, Inc., at its Base Road, Oriskany, New York
location; excluding all office clerical employees, profes-
sional employees, guards and supervisors as defined in the
Act" constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.
The parties stipulated to the effect that there were 20
employees in the appropriate collective-bargaining unit,
described above, and that 11 of such employees had signed
proper union authorization cards, designating the Union as
the employees' collective-bargaining representative, by on
or about December 1, 1973. Accordingly, it is concluded
and found that on or about December 1, 1973, a majority
of the employees of A. Lasaponara & Sons, Inc., in the unit
described above, designated or selected the Union as their
representative for the purpose of collective bargaining with
Lasaponara.
The facts reveal that the Union, on December 3, 1973,
requested Lasaponara to bargain collectively with respect
to rates of pay, hours of employment, and other terms and
conditions of employment as the exclusive collective
bargaining representative of all of the employees of the
Respondent in the bargaining unit described above.
Lasaponara and ERE Industries, Inc., had been in
negotiations since August 1973, for the sale of 'controlling
ownership interest in Lasaponara, a family owned corpora-
tion, was so involved in December 1973, continued such
negotiations, reached firm understanding as to such sale in
March and early April 1974, and completed the sale of
such interests to ERE on April 23, 1974.
Oneida Development Corporation and its head, a Mr.
Zappone, had been instrumental in the initial location by
Lasaponara of a plant at Oriskany, New York. Such
Oneida Development Corporation had an interest and
some influence with respect to any sale of ownership
interest by Lasaponara, because of its needed approval of
certain financial involvements or releases.
The Union, on December 5, 1973, filed a standard
NLRB representative petition (Case 3-RC-5913) with
Region 3 of the National Labor Relations Board.4
The Union, on December 7, 1973, transmitted a letter to
Lasaponara in which the Union notified the Company of
certain employees on the Union' s organizational commit-
tee.
Joseph Lasaponara, President Lasaponara, contacted
Zappone of the Oneida County Development Corporation
with respect to the Union letters and petition referred to
statements narrowing the issues at the hearing.
4 Such position invokes the NLRB investigation of questions concerning
representation and the holding of elections and issuance of certifications
thereto when appropriate.
A. Lasaponara & Sons, Inc., herein sometimes called
simply Lasaponara, 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 New York. At all times
material herein, Lasaponara has maintained its principal
office and place of business at RD # 1, Phillipsburg Road,
in the City of Goshen, and State of New York, herein
called the Goshen plant, and at Base Road in the City of
Oriskany, and the State of New York, herein called the
Oriskany plant, and is, and has been at all times material
herein, engaged at said plants and locations in the
manufacture and wholesale distribution of cheese and
related products. During a recent 1-year period, Lasapo-
nara in the course and conduct of its business operations
manufactured, sold, and distributed at said Oriskany plant
products valued in excess of $50,000, of which products
valued in excess of $50,000 were shipped from said plant
directly to States of the United States other than the State
of New York.
ERE Industries, Inc., herein sometimes called simply
ERE, is engaged in the manufacture and wholesale
distribution of cheese and related products in Medford,
Massachusetts. On April 23, 1974, ERE purchased Lasapo-
nara, and Lasaponara became a wholly owned subsidiary
of ERE.
Based upon the foregoing and as conceded by the
Respondents, Lasaponara and ERE each is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(5) of the Act.
II. THE LABOR ORGANIZATION INVOLVED2
Mechanics Educational Society of America, AFL-CIO,
is, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
It is so concluded and found.
III. THE UNFAIR LABOR PRACTICES
A. Supervisory Status 3
At all times material herein, the following persons
occupied positions set opposite their respective names, and
have been and are now agents of Lasaponara and ERE,
acting on their behalf, and are supervisors within the
meaning of Section 2(11) and (13) of the Act: Frank
Oddi-president of ERE-president of Lasaponara (since
April 23, 1974); Joseph Lasaponara-president of Lasapo-
nara until April 23, 1974-sales manager at Lasaponara
since April 23, 1974; Anthony Fazzino-plant manager at
Lasaponara Oriskany Plant; and John Kosh-Foreman at
Lasaponara Oriskany Plant until April 1974.
1 The facts are based upon the pleadings and admissions therein.
2 The facts are based upon the pleadings and the narrowing of issues at
the hearing.
9 The facts are based upon the pleadings , admissions therein, and
A. LASAPONARA & SONS, INC. 1099
above, and requested Zappone to contact the Union for the
Lasaponara interests.
Tom Zappone, of the Oneida Development Corporation,
met with union officers Kozma and DeBella on December
10, 1973, told the union officials that the Oneida Develop-
ment Corporation had built the plant, helped finance the
plant, and had been instrumental in bringing Lasaponara
into Oneida County. Zappone told the union officials that
the Lasaponara Company was involved in discussions with
some other company about merging and that an election or
union at this time could jeopardize the operation and cause
the loss of jobs for 20 people.5 The union officials told
Zappone that they did not want to drive anyone out of
business, that they, however, had to protect the interests of
the employees who had joined the Union, that they
thought that if they could sit down with the Lasaponara
principals, and they could work out the problems.
Later, a meeting between the union officials and
Lasaponara officials was arranged by Zappone for Decem-
ber 12, 1973. At such meeting were Zappone, Joseph
Lasaponara and Fazzino for the Company, and Kozma
and DeBella for the Union.
The parties discussed the fact that Lasaponara was
involved in discussions with another company concerning
the sale of the ownership interest in A. Lasaponara & Sons,
Inc., to another company.6 Joseph Lasaponara told the
union officials in effect that he had no objection to a union
being in his plant, however, that this was not the time for
such to be since an election could affect production and
upset the sale or merger.?
Kozma and DeBella told Lasaponara that the question
of an election did not present a problem, that there were
other ways to handle the question of recognitions The
union officials told Lasaponara in effect that the question
of an election would be solved if the Company would
recognize the Union, give a 25-cent wage increase , and that
a contract could be formalized later. Lasaponara inquired
at this point as to what the employees were interested in as
regards a contract. DeBella, for the Union, made notes of
certain proposals, read the proposals to Lasaponara, and
Lasaponara made notes of such proposals. Lasaponara and
Fazzino9 told the union officials that they would think
about the proposals andlet them know.10
Joseph Lasaponara met with the union officials on
December 14, 1973. Lasaponara told Kozma and DeBella
that he was not ready to sign a contract at this time, that he
5 1 credit Kozma's testimony to the effect that the word "merging" was
used Joseph Lasaponara and Fazzino testified to the effect that in the
conversations in which they were involved on December 12 and 14, 1974,
that the term "sale" was used. What actually was involved was the sale of
ownership interest and the merging of the Lasaponara Corporation at the
time of such sale into the ERE enterprise as an entity.
6 Whether the word "sale" or "merge" was used is not material since I
am persuaded that enough details were discussed about the transaction to
warrant an interpretation by Kozma and DeBella that the Lasaponara
Company was to be merged into the other company
7 The facts relating to the events of December 12 and 14, 1973, are based
upon a composite of the credited aspects of the testimony of Kozma,
DeBella, Lasaponara , and,Fazzino , the exhibits (including the December
20, 1973, proposed recognition agreement ) and the logical consistency of all
of the facts
8 I discredit Lasaponara's testimony to the effect that the union officials
indicated an uncertainty as tCi 'how to dispose of the representative petition.
Fa=no's testimony supports Kozma 's and DeBella's testimony as to what
did not want a long term but a shorter term contract, that
25-cent-an-hour increase in wages was too much, and that
he could live with 20-cent-an-hour wage increase if he
received credit for it when he bargained for a full contract.
The parties discussed and agreed in effect to a wage
increase, continuation of the past practice of wage
increases, and the availability of other benefits to employ-
ees in return for Lasaponara's agreement to formally
recognize the Union at a future date, April 1, 1973.11
Excepting with respect to the agreement to recognize in
the future, more precise details of the agreement reached
on December 14, 1973, are revealed by the following
credited excerpts from Kozma's testimony:
A. We thought that we could live with the twenty
cents an hour provided of course that he
continued the past practice of granting increases
every three months and also making the Welfare
Program, Hospitalization and what not available
to employees after they had been there six
months. He also wanted to know if at that time, if
the twenty cents an hour would be --if he get
credited for it when he negotiated the complete
contract.
Q. Was there a discussion when a complete contract
would be negotiated?
A. Yes, at that meeting and prior meetings there is a
Q.
A.
time element they thought they had to have and
we talked about a February date, a March 1st
date and I think on that date, March 1st, we
weren't quite sure whether that would be time
enough to consumate their negotiation or what-
ever they were doing and we suggested the middle
of March or lets make it April 1st. We told them
we would prepare a recognition agreement and
withdraw the Petition for an election with the
National Labor Relations Board.
Did he give any response when you told him that?
He said fine, then we will formulize it, we could do
that at the plant and we were going to set up a
date or we did set up a date for about the 20th
and this is going to be formulized where Mr.
Fazzino who is the Plant Manager and a brother-
in-law to Mr. Lasaponara, would formulize it and
we go on from there.
occurred . Considering this and the logical consistency of the facts, I find the
facts as set forth.
9 Fazzino, in addition to being production manager, was an in-law and
part owner of the family owned corporation
10 At some point in the discussion, it appears that Lasaponara adverted
to the fact that he needed time to complete his merger discussions and that
such time needed was estimated to be until some time in February or March
1974.
11 The fact that the agreement was to formally recognize the Union in
the future is based upon a composite of all the credited facts, the credited
aspects of Lasaponara's testimony, and the proposed recognition agreement
drafted by the Union and presented on December 20, 1973. The overall
facts clearly reveal an agreement of recognition. Lasaponara's testimony
reveals an agreement to recognize the Union. The proposed draft reveals
that the agreement was for future recognition. Considering the logical
consistency of all the facts, I discredit Lasaponara's testimony to the effect
that ultimate recognition was contingent upon his failure to sell the
business.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 20, 1973, union officials Kozma and
DeBella and certain employees (Wilson, Muraca, Bonville,
and Kraeger) met with Production Manager Fazzino. At
such time Kozma signed a document relating to recogni-
tion, had certain employees to witness the document, and
gave the document to Fazzino for transmittal to Joseph
Lasaponara. Such document is as herein set out:
RECOGNITION AGREEMENT
by and between
LASAPONARA & SONS, INC.
and
MECHANICS EDUCATIONAL SOCIETY OF
AMERICA
AFL-CIO
Effective April 1, 1973, Lasaponara & Sons, Inc. will
recognize the Mechanics Educational Society of
America, AFL-CIO as the sole collective bargaining
agency on behalf of the employees employed at its
plant located on Base Road, Oriskany, N.Y. for rates of
pay, wages, hours of work and any other conditions of
employment.
[two signature lines]
WITNESS
[three signature lines]
Dated day of , 1973
Fazzino told Kozma and the employees that the
Company was having problems, that it would take time to
iron out the problems, and that the employees would get
20-cent-an-hour raise on the day before Christmas.
Fazzino also told Kozma and the employees that he would
send the "document" to Joseph Lasaponara for signature.
. Kozma told Fazzino that Eva Wilson was the chairlady
of the employee committee, that if there were any
problems, Fazzine should work with her, gave Fazzino a
telephone number for DeBella, and told Fazzino that if
there were any additional problems that Fazzino could
contact DeBella.
On December 20, 1973, the Union mailed an executed
"withdrawal request" (in Case 3-RC-5913) to the Regional
Director for Region 3 of the NLRB, and said "withdrawal
request" was approved by the Regional Director on
December 26, 1973, the date of the scheduled hearing in
such representation proceeding.
On December 24, 1973, the Respondent put into effect
the 20-cent-an-hour raise increase previously referred to.
On January 14, 1974, the Union sought withdrawal of a
representation petition concerning Respondent's employ-
12 Such conduct, and other conduct violative of Sec. 8(a)(1) of the Act, is
set out in see. III,C of this Decision.
13 Fazzino testified to the effect that this conversation took place on
January 25, 1974. The exact timing does not appear material. I found
DeBella, however, to appear to be a more accurate witness, and find the
facts as set forth
ees that it had filed with the New York State Labor
Department. Such request was granted on February 8,
1974.
In the meantime, during mid-December, the last of
December 1973, and the first of January 1974, the
Respondent, by its agents Joseph Lasaponara and Fazzino,
interfered with, restrained, and coerced employees in the
exercise of Section 7 rights, and thereby violated Section
8(a)(l) of the Act, by interrogating employees as to why
they wanted a union and by telling employees in effect that
they could not get raises because of the pendency of the
union question.12
As to the proposed written agreement for recognition
and Lasaponara's failure to return the instrument in an
executed state, I note the following. Union official DeBella
telephoned Production Manager Fazzino shortly after
January 1, 1974, and inquired as to why he had not
received such instrument. Fazzino told DeBella that
because of the holidays there had been a delay, that he had
not been able to get the document to Joseph Lasaponara,
that he would do so, and that the Union would be hearing
from Lasaponara.
On February 5, 1974, DeBella for the Union spoke to
Fazzino about some employee complaints concerning
health insurance coverage and the fact that some employ-
ees had not received their automatic wage increase. On
such occasion DeBella again spoke to Fazzino about the
fact that the Union had not received the executed
"agreement to recognize." Fazzino told DeBella that he did
not receive an executed agreement, that it must be because
Joseph Lasaponara had been busy.13
On February 6, 1974, DeBella contacted Zappone, for
the Oneida Development Corporation, and requested help
in arranging a meeting with Lasaponara. Zappone indicat-
ed that he would and later indicated that he was unable to
arrange a meeting at the time.14
In the meantime Joseph Lasaponara was in contact with
Oddi, President of ERE, during the middle of January
1974. Lasaponara told Oddi that there had been some
union activities but that the same was under control.
Around February 28 or March 1, 1974, DeBella again
contacted Fazzino of the Respondent and discussed the
question of a layoff of certain employees, including several
of the employees on the union committee. The gist of
DeBella's conversation was a contention that the layoff
was improper, that the girls could not be laid off because
they were for the Union, that the girls could not be laid off
because of sex, and that the Respondent should reconsider
or the Union would file charges.
Fazzino discussed the matter with Joseph Lasaponara,
and the "layoff' was not effectuated.15
On March 5, 1974, DeBella, for the Union, spoke to
Joseph Lasaponara about grievances, employee problems
concerning insurance, automatic wage increases, and a
"proper rate" for one employee. Lasaponara suggested that
DeBella put these grievances in writing. DeBella, there-
14 Kozma, the other union official, was away on vacation for several
days after December 20, 1973, was back for approximately 3 weeks in
January 1974, and was on vacation in February 1974. Kozma left the
question of following up as to the "recognition" to DeBella.
15 The question of whether the proposed layoff was discriminatory is not
an issue.
A. LASAPONARA & SONS, INC.
after, on March 8, 1974, gave Fazzino a letter dated March
8, 1974, referring to such grievances for deliverance to
Joseph Lasaponara.
In the meantime, Joseph Lasaponara was in contact with
Oddi, for ERE, and related the fact that the Union was
contacting the Respondent concerning grievances. Oddi
told Lasaponara, in effect, to be very careful, that he was
not authorized to bind ERE Industries without their
knowing about the matter.
DeBella later attempted to contact Joseph Lasaponara.
Being unsuccessful in contacting Lasaponara, DeBella
contacted Zappone, of the Oneida Development Corpora-
tion. Zappone told DeBella in effect about Oddi, and ERE
Industries' involvement in the purchase of the ownership
interests in Lasaponara, and gave DeBella a telephone
number for contacting Oddi.
DeBella, around April 1, 1974, placed a telephone call to
Oddi but did not reach Oddi himself, and left a message for
Oddi to call DeBella . Oddi was apprised of such telephone
call, knew that the call was from the Union, and did not
call DeBella or the Union.
As has been indicated, A. Lasaponara & Sons, Inc., and
ERE Industries, Inc., had been in negotiations since
August, 1973, as to the sale or purchase of the ownership
interests in Lasaponara. The final closing of such transac-
tion was supposed to be in March 1974. The facts are
revealed in effect by the following credited excerpts from
Oddi's testimony.
A. Yes. The finite closing was to have taken place in
March of 1974. To elaborate a little if you wish
me to, the closing was to have taken place earlier
then that but for reasons I could go into or not, it
did not but the papers were finally prepared and
signed on March the 6th, March the 7th, 1974,
pending receipt of one document which was of
critical importance and without that document
this closing would not have been completed. So
why we were waiting for that document, every-
thing had been signed and was held in escrow and
the - then the document was finally received
and escrow dispursed on April 23rd.
In the meantime, on March 27, 1974, Oddi addressed the
employees of A. Lasaponara & Sons, Inc., told them in
effect that he would be the new president of Lasaponara,
and that the benefits of the parent company, ERE
Industries, Inc., would be extended to employees of
Lasaponara. Oddi told the employees in effect that some of
the changes would be effective as of May 1, 1974, and that
the others would be effectuated at a later date.
On May 1, 1974, as Oddi had told the employees, certain
changes in benefits were placed in effect. Since that date
and prior to September 11, 1974, other changes in benefits
have been effected so as to extend the employee benefits of
the parent company to the employees of Lasaponara. Thus,
it is clear that the Respondents have changed the benefits
of employees of Lasaponara as regards holidays, sick days,
bereavement, and health and life insurance.16
16 The exact details are not, important since such details are a matter
easily determined in compliance . I note as an example that the General
Counsel contends that vacation benefits were changed . Although employee
Contentions and Conclusions
1101
The General Counsel alleges and contends that (1) A.
Lasaponara & Sons, Inc., on December 14, 1973, voluntari-
ly recognized the Union as the exclusive collective-bargain-
ing representative of the employees in the appropriate
bargaining unit; (2) A. Lasaponara & Sons, Inc., on or
about early April, 1974, withdrew recognition from the
Union; and (3) that A. Lasaponara & Sons, Inc.,a wholly
owned subsidiary of ERE Industries, Inc., refused to
bargain collectively with the Union by unilaterally chang-
ing conditions of employment.
The Respondent contends in effect that the Union
agreed to abandon and did abandon its bargaining rights
in December 1973 and January 1974, and that ERE was
unaware of what had transpired and therefore was not
obligated to bargain with the Union as to the "unilateral"
changes.
Considering all of the foregoing, I find that the facts
support the General Counsel's contentions and do not
support the Respondent's contentions. Thus, the facts
reveal that the Union was designated as the collective-
bargaining representative by a majority of the employees in
the appropriate bargaining unit. The facts are clear that the
employing entity, in December, 1973, had no question as to
the union's majority status but in fact agreed that such
status existed. Thus, the Employer's action in agreeing to
recognize the Union in the future, without other evidence
as to majority status, clearly fixes the Union as the
recognized exclusive collective-bargaining agent of the
employees involved. Contrary to Respondent's conten-
tions, the facts do not reveal that the Union abandoned or
agreed to give up bargaining rights. The withdrawal of
representation petitions under the circumstances of agree-
ments to recognize do not reveal abandonment or waiver
of bargaining rights. Rather, the facts reveal that the
Employer and Union agreed to keep the matter of formal
recognition and formal contracts in abeyance until the
"sale" or "merger" of the Employer's controlling owner-
ship interest had been determined. The credited facts
reveal that the employing entity has remained the same
and that the obligation to recognize the Union has
continued. Since the agreement to hold formal recognition
and formal contracts in abeyance was contingent upon the
"sale" or "merger" completion, and since such act of "sale"
or "merger"- occurred on April ' 23, 1974, the employing
entity's action in ignoring the Union with 'respect to
bargaining, and in making unilateral changes in employ-
ment conditions on May 1, 1974, and thereafter, was
tantamount to a withdrawal of its recognition that the
Union was the exclusive bargaining representative of the
employees in the appropriate 'unit, and constituted a
bypassing of theexclusive collective-bargaining representa-
tives as to such unilateral changes. Such 'conduct is
Wilson testified to the effect that the employees were told about vacation
benefits, the evidence does not reveal what, if any, were the former vacation
benefits.
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violative of Section 8(a)(5) and (1) of the Act. It is so
concluded and found.17
C. Interference, Restraint, and Coercion 18
1. Threat of reprisal
The General Counsel alleges and contends that the
Respondent, by John Kosh, in or about November 1973,
suggested to an employee that it would be futile to give any
assistance or support to the Union.
The facts reveal and the parties do not dispute that Kosh
was a supervisor of the Respondent at the time involved.
The Respondent contends in effect that Kosh was not
clothed with authority to engage in bargaining negotiations
or to make statements in its behalf in such regard. As a
supervisor, it is clear, however, that Kosh is an agent
within the meaning of the Act for the type of conduct
engaged in by him in this case.19
Bartle credibly testified to the effect that Kosh in
November 1973 stated that a union would not be permitted
to come in. By such statement, the employee was told in
effect that it would be futile for the employees to select the
Union since the Employer would not accept the Union as
an agent for the employees. By such conduct the
Respondent engaged in conduct violative of Section 8(a)(1)
of the Act. It is so concluded and found.
2. Joseph Lasaponara; interrogation, threats of
reprisals,20 promise of benefits
In the middle of December and at the end of December
1973, Joseph Lasaponara held meetings in his office with
employees, two at a time, in which he admittedly spoke to
such employees about the fact that A. Lasaponara & Sons,
Inc., was a family run company and inquired as to why
they wanted a union and thought they needed a union.
The foregoing is not disputed. What is disputed is
whether Joseph Lasaponara, at some of the meetings, made
threats of reprisals or promises of benefits concerning the
Union.
Eva Wilson credibly testified to the effect that Joseph
Lasaponara, at one of the mid-December meetings, told
her and Peck that he could not give them raises as long as
they were negotiating with the Union. Bonville credibly
testified to the effect that Lasaponara, at one of the mid-
December meetings, told him and Radley in effect that if
they helped the Union or wanted the Union, he would fix
them. Kraeger credibly testified to the effect that Lasapo-
nara, at one of the meetings at the end of December, told
him and Culver in effect that if they helped the Union or
17 The Respondent found to have violated Sec. 8(a)(5) and (1) of the Act
is A. Lasaponara & Sons, Inc., a wholly owned subsidiary of ERE
Industries, Inc. ERE Industries, Inc. was not alleged to have violated the
Act in such regards.
is Although the General Counsel in the complaint in Case 3-CA-5708
alleges in effect that both A. Lasaponara & Sons, Inc., a wholly owned
subsidiary of ERE Industries, Inc., and ERE Industries, Inc., are
respondents liable for certain specific 8(a)(1) conduct, the facts and
allegations involved in sec III,C hereof reveal that the conduct involved
was conduct of A Lasaponara & Sons, Inc., and not that of ERE Industries,
Inc. Allegations to the effect that ERE is responsible for such 8(axl)
conduct will be recommended to be dismissed. The Respondent responsible
for the specific 8(a)(1) conduct found herein is A. Lasaponara & Sons, Inc.,
wanted the Union, he would fix them.21 Bartle credibly
testified to the effect that Lasaponara told him and
Wyckoff that if they would vote no on the Union, he could
go ahead and give them the benefits that they were entitled
to.
Lasaponara testified in conclusionary effect that he
made no threats of reprisals or promises of benefits to the
employees. Considering the factual detail presented by the
testimony of Wilson, Kraeger, Bonville, and Bartle, I am
persuaded that their testimony is more complete, objective,
and reliable than that of Lasaponara and credit such
testimony over Lasaponara's where in conflict.
Considering the foregoing, I am persuaded and conclude
and find that the Respondent, as alleged, interrogated its
employees in mid-December 1973 about their union
desires, in a manner constituting interference, restraint,
and coercion within the meaning of Section 8(a)(1) of the
Act.22 Such conduct is conduct violative of Section 8(a)(1)
of the Act. It is so concluded and found.
Considering the foregoing, I am persuaded and conclude
that the Respondent, by Lasaponara's statements to
Wilson and Peck concerning inability to give raises
because of pending union negotiations, and to Bonville,
Radley, Kraeger, and Culver to the effect that if they
helped or wanted the Union he would fix them, engaged in
threats of reprisals to employees to cause such employees
to desist from union activity. Such conduct is violative of
Section 8(a)(l) of the Act. It is so concluded and found.
Considering the foregoing, I am also persuaded that the
evidence relating to the remarks by Joseph Lasaponara to
Bartle and Wyckoff - to the effect that if they would vote
no on the Union, he could go ahead and give them the
benefits that they were entitled to - constituted a threat of
reprisal to employees because of or if they selected a union.
Such statement, at first blush, may appear to have two
meanings . One meaning may be said to be a threat that a
benefit is not forthcoming because of union consideration.
The other meaning may be said to be a promise of a benefit
if the union considerations adverse thereto were removed.
Since the statement by Lasaponara referred to benefits to
which the employees were entitled, I am persuaded that the
statement should be construed as a threat of reprisal. I note
further that Bartle's testimony, places the timing of such
statement as being in mid-December 1973, and that there is
no allegation of improper "promise of benefit" relating to
the events of mid-December 1973. At the trial of this
matter, the General Counsel contended that Bartle's
testimony in such regard related to an alleged "promise of
benefit" which allegedly occurred in January 1974. I am
persuaded that this contention is in error and that no
a wholly owned subsidiary of ERE Industries, Inc.
19 See The Rupp Forge Company, 201 NLRB 393, 394 (1973).
20 The facts are based upon a composite of the credited aspects of the
testimony of Eva Wilson, Smith, Peck, Bartle, Bonville , and Joseph
Lasaponara.
21 Bonville's and Kraeger's testimony was in more pungent and
descriptive detail. The meaning is as set forth.
22 The Respondent's contention that the interrogation and conversations
were not coercive is rejected. As indicated , the facts reveal threats of
reprisals. Further, the total text of the conversations do not reveal any
assurances of nonrepnsals, and reveal dissatisfaction with the employee
union interests.
A. LASAPONARA & SONS, INC. 1103
evidence was presented with respect to the alleged violative
conduct of a "promise of benefit" by Joseph Lasaponara
occurring in January 1974. The facts, excluding the
testimony of Bartle, already clearly establish that the
Respondent, by Joseph Lasaponara, made unlawful threats
of reprisals in violation of Section 8(a)(1) of the Act. Since
the Respondent, by pretrial motions, has acted diligently to
have the issues presented squarely, since the General
Counsel's complaint included allegations of improper
promises of benefits by Joseph Lasaponara in January
1974, and since the General Counsel, at the trial,
contended such evidence, by Bartle, in support of the
allegation of "unlawful promise of benefits," I do not think
that due process would be served by a finding that Bartle's
testimony as to Joseph Lasaponara's statement, a threat of
reprisal, constituted a separate incident of alleged mid-
December 1973 misconduct in such regard. Further, since
the evidence does not support an allegation of improper
promises of benefits by Joseph Lasaponara in January
1974, recommendation will be made that such allegation be
dismissed.
3. Anthony Fazzino
Interrogation
A composite of the credited aspects of the testimony of
Marcelletta and Smith reveals that Production Manager
Fazzino questioned them during the week of January 8,
1974, about the signing of union cards . What occurred is
revealed in effect by the following excerpts from the
testimony of Smith.
A. Karen and I went in there to ask why he was in
Q.
A.
such a bad mood and he told us since we wanted
to treat him bad that he was going to treat us the
same way, that he was going to act like a boss
should act.
Is that all that was said during that conversation?
No, then he asked Karen and I who signed Union
Cards and we told him we didn't know. He said
its okay, he knew who signed them and asked if
Karen, me and Pete Muraca started the union
and we said no, and he said he knew who started
it.
Bartle credibly testified to the effect that Production
Manager Fazzino questioned him, around March 1, 1974,
about the occurrence of a union meeting . What occurred is
revealed in effect by the following credited excerpt from
Bartle's testimony:
A. I believe I did but Tony Fazzino asked me - it
Q.
was about girls being layed off and -
The lay offs that occurred in late February, lay
offs of Marge Peck and Eva Wilson?
A. Yes , I remember it now and ask me if the union
meetings had taken place and I told him that if
there has been a union meeting that I would have
23 The facts are based upon a composite of the credited testimony of
Wilson , Peck, and Fazzmo. As indicated, I credit Wilson's and Peck's
testimony to the effect that Fazzino called Wilson a troublemaker. I
discredit Fazzino's testimony to the effect that he did not call Wilson a
troublemaker.
been notified. I told him there was no union
meeting.
Considering the foregoing, it is clear and I conclude and
find that the Respondent, by Fazzino, as alleged, engaged
in coercive interrogation of employees about union
activities of employees. Such conduct is violative of Section
8(a)(1) of the Act. It is so concluded and found.
4. Threats
The General Counsel alleges and contends that the
Respondent violated Section 8(a)(1) of the Act (interfered
with, restrained, and coerced employees in the exercise of
protected concerted activities) by the conduct of Pro-
duction Manager Fazzino, on April 5, 1974, in crumpling a
petition protesting the scheduling of work and in informing
an employee that she was a troublemaker after she
presented the petition to him.
The facts are undisputed excepting as to whether
Fazzino called Eva Wilson a troublemaker. Wilson was a
more impressive witness than Fazzino. I found her to
appear more objective, frank, and forthright in her
testimonial demeanor than I did Fazzino. I credit her
testimony over Fazzino's where such testimony is in
conflict.
The facts 23 reveal that Wilson gave Fazzino, on April 5,
1974, a petition relating to the scheduling of work for Palm
Sunday.24
Such petition was as is herein set out:
WE, THE UNDERSIGNED MEMBERS OF MECHANICS
EDUCATIONAL SOCIETY OF AMERICA, AFL-CIO (M.E.S.A.,
AFL-CIO), EMPLOYEES OF LASAPONARA & SONS , INC. HAVE
BEEN ADVISED THAT PALM SUNDAY APRIL 7, 1974 HAS
BEEN SCHEDULED AS A DAY OF WORK.
Since this is a religious holiday that is important to
us, we request that this schedule be rescinded.
In the event that this schedule is not changed, you
are advised that we will not report for work on Palm
Sunday, Apr. 7, 1974, but will report to work on
Monday , April 8, 1974.
/s/ Eva Wilson
/s/ Gary Bartle
/s/ Marge Peck
/s/ Dick Hayes
/s/ Douglas
/s/ John Tartaglia
/s/ Norman C . Bolton
/s/ Patricia J. Wilson
/s/ Douglas A. Hitts
/s/ Lindsey K. Wyckoff
/s/ Robert J. Kraeger
/s/ Bill Bonville
Dated, --
24 I found Peck's overall testimony to the effect that the incident
,occurred on April 5, 1974, to be the most believable and reliable as to the
tuning of the presentation of petition.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
What occurred at the time of the presentation of the
petition is revealed in effect by the following excerpts from
Wilson's testimony:
A. Yes, I give him the Petition and told him those are
Q.,
the list of names that the union wrote a Petition,
we didn't want to work Palm Sunday. He got
kind of mad and crumbled it up and threw it on
the floor and wanted to hear it from everybody's
mouth. He got us together and asked us if we
would work and we said no, except Pat Wilson
and he said he was going to turn our names into
Boston whoever didn't work.
Any remarks during this conversation directed to
you?
A. Yes, he said I was a troublemaker.
Considering all of the foregoing facts, I am persuaded
and conclude and find that the Respondent, by Fazzino's
conduct in crumpling the petition (concerning the schedul-
ing of hours for Palm Sunday) and in calling Eva Wilson a
troublemaker, engaged in conduct violative of Section
8(a)(1) of the Act. Such conduct, in the context of a
previous understanding of the handling of grievances and a
contemporaneous avoidance of such understanding, re-
veals a rejection of the principles of collective bargaining
and a singling out of the Union's spokesman for an implied
threat of reprisal. Accordingly, as indicated, it is concluded
and found,that such conduct is violative of Section 8(a)(1)
of the Act. `
D. Discriminatory Refusal to Hire Muraca - May
27, 1974
Peter Muraca was working for A. Lasaponara in
November 1973. In November 1973, Muraca, signed a card
authorizing the Union to be his collective-bargaining
representative. Later' the Union put Muraca on its shop
organizational committee and so notified A. Lasaponara &
Sons, Inc., by letter, dated December 7, 1973. As a part of
such shop committee, Murata met with the union
representatives, other members of the committee, and
Fazzino on December 20, 1973, when the Union gave
Fazzino a document relating to recognition of the Union.
The last day that Murata worked for Lasaponara was on
December 21 1973: ' Muraca was given a 2-week suspen-
sipn as of December 26, 1973, and received his final pay
and was terminated around January 21, 1974. Although the
exact details as'tp` what occurred may be in some dispute,
there is no contention that the suspension for 2 weeks, or
the termination" around January 21, 1974, were for
discrimanatoty,reaions within the meaning of the Act.
Later {there appears to have arisen some problems
concerning the receipt of unemployment pay by Muraca. It
is clear, however; that there is no evidence to relate such
problem to the refusal of the Respondent to rehire Muraca
on May 27, 1974.
25
Fa=no did nt testify to these events of May 27 and June 10, 1974,
nor did he testify R's to why he would not rehire Murac at such tune.
Rather, Fazzmo's testimony was directed to the validity of the January 21,
1974, dtschargee.
26 The General Counsel's complaint alleget in effect that both A.
Lasaponara & Sons, Inc., a wholly owned subsidiary of ERE Industries,
As the instant record reveals, the Union filed unfair
labor practice charges in Case 3-CA-5634 concerning the
instant allegations of refusal to bargain. The record further
clearly reveals that the investigation of such charges were
pending andbeing processed in May 1974.
The only evidence relating to Muraca's attempt to secure
employment from the Respondents on May 27, 1974,
consists of, the testimony of Muraca. I credit such
testimony, and" the facts as to what occurred on May 27,
1974, are revealed by the following credited excerpts from
Muraca's testimony: 25
A. Well, on the 27th I had been on unemployment for
Q.
A.
Q.
A.
a while and I wanted to get back to work. I was
telling Lindsey Wyckoff if I could get back to
work, he said the best thing would be is to go
back to the plant and talk to him. On May 27th I
went in the office and talked to Tony and asked
Tony if I could have my job back and he said,
Pete, I know we need people, I have to wait until
this union thing gets settled, I said what does this
have to do with me and he said you got me in
trouble and some guy from the Board had a
meeting with him and some guy Oddi and I don't
see what this has to do with me and if I am a good
worker and need help, I don't know why I can't
get work.He said he would call me so I left.
Did he call you?
No.
Did you ever return to the plant after that?
On June 10th, I went back there and went in the
office and talked to Tony and asked Tony could I
have my job back. He said I will have to talk to
Oddi and at this time I noticed he was hiring all
these new people and I noticed them and I asked
Tony what is'this, you hired all these other people
and you don't give me a call to give me a job, he
said we need help and he would have to talk to
Oddi and would' call me. I left again and never
got a call.
Considering all of the foregoing, I am persuaded and
conclude and find that the Respondents refused to hire
Muraca on May 27, 1974, and thereafter, because of
knowledge of his adherence to the Union and the pending
unfair labor, practice charges and union claims as an
exclusive collective-bargaining representative. Thus, it is
clear that the Respondents knew Muraca was a union
supporter' and was basing its consideration upon union
considerations anti the pendency of NLRB charges. Under
such circumstances, the selection for employment is one
based upon discriminatory considerations. Accordingly, it
is concluded and found that the Respondent violated
Section 8(ax3) and '(1) -of the Act by discriminatorily
refusing to hire Muraca on May 27, 1974, and thereafter.26
Inc., and ERE Industries, Inc., were the Respondents responsible for the
discriminatory rrfusgl 'to hire Muraca on May 27, 1974. Since ERE
Industries, Inc., had acquired ownership control of A. Lasaponara & Sons,
Inc., since Oddi , president of ERE, became president also of Lasaponara,
and since the local' panagement looked to ERE for top management and
handling of labor, relations , I find that the Respondents ' operations were
A. LASAPONARA & SONS , INC. 1105
E. The June 7, 1974, Discharges
As indicated previously, Eva Wilson, the chairlady of the
union shop committee, on April 5, 1974, presented a
petition requesting the rescinding of the scheduling of
hours of work on a religious holiday, Palm Sunday, to
Production Manager Fazzino. Also, as indicated previous-
ly, Fazzino crumpled the petition, called Wilson a
troublemaker, and then ascertained which employees
would say that they would work on Palm Sunday. Later,
on April 6, 1974, DeBella, for the Union, and Fazzino
discussed the petition, the fact that Fazzino had called
Wilson a troublemaker concerning the petition, Wilson's
righl to present the petition, a suggestion by DeBella that
the employees would be willing to work overtime during
the week to make up for the Sunday hours, and Fazzino's
problems and need for production and time for distribu-
tion. Fazzino told DeBella in effect that if the employees
did not want to work, he could not force them to work.
Around April 5, 1974, Fazzino spoke to Oddi, president
of ERE Industries, Inc. What occurred is revealed by the
following credited excerpts from Oddi's testimony:
A. This would have been my recollection, is that he
either called me on the Thursday or Friday that it
happened and in short there was this threat of
absenteeism during this period and I said first
keep in mind that I am not the owner of this
company nor do I have any authority in it and
therefore, no responsibility so whatever you do, is
really your own decision. However, my sugges-
tion is that because some people apparently have
responded, they will come in, why don't you wait
and see how many do come in and make the best
of it as you possibly can. At that point, he really
had little alternative.
On Palm Sunday, April 7, 1974, employees Eva Wilson,
William Bonville , Robert Kraeger, Margaret Peck, Richard
Hayes, Gary Bartle, and Douglas Hitts did not work. Said
employees however returned to work on April 8, 1974.
Lahr, Hitts was terminated for reasons unimportant to the
issues in this case. The other named employees continued
to work until June 7, 1974.
A. Lasaponara & Sons, Inc., took no action and made
no statements to the above-named employees from April 7,
1974, until the date that ERE Industries, Inc., obtained
ownership interest on April 23, 1974. Thereafter, A.
Lasaponara & Sons , Inc., a wholly owned subsidiary of
ERE Industries, Inc., took no action and made no
statements to the above-named employees until June 7,
1974. At this time, Oddi, president of ERE Industries, Inc.,
and president of , Lasaponara, instructed Fazzino to
terminate such employees because they had refused to
work on Palm Sunday. Thereupon, Fazzino terminated the
employment of Eva Wilson, William Bonville, Robert
Kraeger, Margaret Peck, Richard Hayes, and Gary Bartle.
FaaT,zino ' told such employees that they were being
intertwined and m effect a single employer for the purposes of Sec. 8(a)(3) of
the Act.
29 The facts are based upon a composite of the credited aspects of all the
witnesses' testimony.
terminated because they had refused to work on April 7,
1974, Palm Sunday.
In addition to the foregoing, the following facts are
noted.27 (1) Prior to 1974, A. Lasaponara & Sons, Inc.,
customarily worked on Palm Sunday with -respect to
production needs for the oncoming Easter week. (2) The
employees gave notice only as of April 5, 1974, of their
intended refusal to work on April 7, 1974.' (3) The
employees evidenced no intent to engage in repeated or
intermittent refusals to work. (4) The Respondent did not
question the employees as to their future intentions
regarding such work or similar work. (5) The facts reveal
that Eva Wilson, William Bonville, Robert Kraeger,
Margaret Peck, and Gary Bartle all had signed union cards
by December 1, 1973, that Wilson, Kraeger, Bonville,
Muraca, and Peck were on the union organizational or
shop committee, as notified to the Respondent on
December 7, 1973, and that Wilson, Kraeger, and Bonville
were with the union representatives on December 20, 1973,
in the meeting with Fazzino.
Further, on Monday, April8, 1974, Production Manager
Fazzino telephoned Oddi, president of ERE Industries,
Inc., and told him about the employees who had not
worked on Palm Sunday. Oddi told Fazzino that he (Oddi)
had no authority to tell him what to do at the time (since
ownership by ERE of Lasaponara had not been acquired
at this time), suggested that he do nothing but let him
(Oddi) investigate and get expert advice, and that he would
later let Fazzino know what should be done.28
Oddi contacted his attorney about the legal ramifications
of the employees' refusal to work on Palm Sunday. Oddi's
attorney suggested that he contact other counsel. Oddi
contacted other counsel about this matter and ultimately
instructed Fazzino to discharge the employees who had
refused to work on Palm Sunday, as is revealed by the
following credited excerpt from Fazzino's testimony:
A. He told me that the people never came to work on
Palm Sunday to be dismissed and I asked Mr.
Oddi what reason, because I forget about -
about Palm Sunday and he said, tell the people
they were dismissed for not reporting to work
when we needed them.
Contentions and Conclusions
The General Counsel alleges and contends that the
Respondents discharged Wilson, Bonville, Kraeger, Peck,
Hayes, and Bartle on June 7, 1974, because of their union
activities and because they engaged in protected concerted
activities. I am persuaded from the statements of counsel,
the cases cited, and the facts as a whole, that the real issue
presented is whether the employees were discharged
because of their protected concerted activities. I would
note, however, that the overall facts make it suspicious that
the union activities of the employees might be a part of the
motivation for the June 7, 1974, discharges. Thus, most of
the discharged employees had engaged in union activity
which was known to the Respondents, and the unfair labor
28 The facts are based upon a composite of the credited aspects of the
testimony of Fazzino and Oddi.
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice charges relating to the refusal to bargain issues
were pending. Respondents have, one or the other or both,
engaged in conduct violative of Section 8(a)(1) of the Act,
have refused to bargain with the Union in violation of
Section 8(a)(5) of the Act, and have discriminated in the
employment of Muraca on May 27, 1974, based upon
union considerations. Accordingly, it is suspicious that the
discharge of the employees on June 7, 1974, was based
upon considerations of the union activities of the employ-
ees, a desire to destroy the Union, and a utilization of a
belief of an unprotected concerted activity as a pretext.
However, I am persuaded that the overriding nature of the
"protected concerted" activity issue makes a finding that
the discharges were for discriminatory reasons somewhat
speculative. Accordingly, it will be recommended that the
allegation of conduct violative of Section 8(a)(3) be
dismissed.
Considering all of the facts, I am persuaded and
conclude and find that the employees' refusal to work on
April 7, 1974, Palm Sunday, was a protected concerted
activity. Such refusal to work constituted a strike of limited
duration and was unaccompanied by evidence of an intent
to engage in repeated or intermittent strikes. Board case
law reveals that when an employee engages in a strike of
limited duration, a one-time strike is presumed to be
protected unless there is evidence of an intent to engage in
repeated or intermittent strikes. In such a limited and one-
time strike, the employee is not attempting to enjoy the
benefits of a strike without the detriments of a strike.29
Such is the case here. The facts are undisputed that the
Respondent discharged Wilson, Bonville, Kraeger, Peck,
Hayes, and Bartle on June 7, 1974, because they refused to
work on Palm Sunday, April 7, 1974. Accordingly, it is
concluded and found that the discharge of employees for
their protected concerted refusal to work on April 7, 1974,
constituted conduct violative of Section 8(a)(1) of the
Act 30
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents set forth in section III,
above, occurring in connection with the Respondents'
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.
V. THE REMEDY
Having found that the Respondents have engaged in
unfair labor practices , it will be recommended that the
Respondents cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
29 Polytech Incorporated. 195 NLRB 695 (1972).
30 It is not necessary to determine whether Respondent's conduct in
waiting from April? to June 7, 1974 , to discharge the employees constituted
"condonation" of such refusal to work. If necessary, however , I would make
such a finding. Thus, between April 8, 1973, and, April 23, 1974, the
authority to discharge the employees was in the hands of the officials of A.
It having been found that the Respondents refused to
hire Peter Murata, on May 27, 1974, in violation of Section
8(a)(3) and (1) of the Act, the recommended Order will
provide that Respondents offer him employment in the
position for which he was discriminatorily considered, or to
a substantially equivalent position if such position no
longer exists, and make him whole for loss of earnings
within the meaning and in accord with the Board's
decisions in F. W. Woolworth Company, 90 NLRB 289
(1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962),
except as specifically modified by the wording of such
recommended Order.
It having been found that the Respondents discharged
Eva Wilson, William Bonville, Robert Kraeger, Margaret
Peck, Richard Hayes, and Gary Bartle on June 7, 1974, in
violation of Section 8(a)(1) of the Act, the recommended
Order will provide that Respondents offer each reinstate-
ment to his or her former position or, if such position is not
available, to a substantially equivalent position, and make
each whole for loss of earnings within the meaning and in
accord with the Board's decisions in F. W. Woolworth
Company, supra and Isis Plumbing & Heating Co., supra,
except as specifically modified by the wording of such
recommended Order.
Having found that the Respondent, A. Lasaponara &
Sons , Inc., a wholly owned subsidiary of ERE Industries,
Inc., unlawfully, unilaterally made changes in its benefits
including at least in part holidays, sick days, bereavement,
and health and life insurance, it will be required, if
requested by the Union, to rescind such changes, provided
however that, absent such request, there is no requirement
for a rescinding of such changes in benefits.
Having found that the Respondent, A. Lasaponara &
Sons, Inc., a wholly owned subsidiary of ERE Industries,
Inc., has refused to bargain collectively with the Union, it
will be recommended that the Respondent, upon request,
bargain with the Union as the exclusive representative of
its employee in the appropriate unit.
Since A. Lasaponara & Sons, Inc., is a wholly owned
subsidiary of ERE Industries, Inc., and the employees
involved are directly employed by such subsidiary corpora-
tion, I am persuaded that the normal posting of a remedial
notice by said subsidiary adequately disposes of such
remedial requirement in such regard, and thereby shall
recommend the posting of such remedial notice only by A.
Lasaponara & Sons , Inc., a wholly owned subsidiary of
ERE Industries, Inc.
Because of the character and scope of the labor practices
herein found, the recommended Order will provide that the
Respondents cease and desist from in any other manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
Upon the basis of the above fmdings of fact and upon
the entire record in the case, I make the following:
Lasaponara & Sons, Inc. Such officials took no action and, in fact, Fazzmo,
part owner and production manager, obviously forgot the events of April 7,
1974. Such conduct revealed condonation in fact. As indicated elsewhere, I
find that the Respondents ' business was intertwined , a single employer in
effect, and that both are responsible for the June 7, 1974, discharges of
employees.
A. LASAPONARA & SONS, INC. 1107
CONCLUSIONS OF LAW
1. A. Lasaponara & Sons, Inc., at all times relevant
prior to April 23, 1974, and A. Lasaponara & Sons, Inc., a
wholly owned subsidiary of ERE Industries, Inc., subse-
quent to April 23, 1974, and ERE Industries, Inc., each, at
all tunes relevant herein, is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Mechanics Educational Society of America, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. By refusing to hire Peter Muraca on May 27, 1974,
the Respondents have discouraged union membership by
discriminating in regard to tenure of employment, thereby
engaging in unfair labor practices in violation of Section
8(a)(3) and (1) of the Act.
4. By discharging Eva Wilson, William Bonville,
Robert Kraeger, Margaret Peck, Richard Hayes, and Gary
Bart le on June 7, 1974, the Respondents have interfered
with, restrained, and coerced employees in the exercise of
Section 7 rights and have thereby violated Section 8(a)(1)
of the Act.
5. All production and maintenance employees em-
ployed by A. Lasaponara & Sons, Inc. (a wholly owned
subsidiary of ERE Industries, Inc., since April 23, 1974), at
its Base Road, Oriskany, New York, location; excluding all
office clerical employees, professional employees, guards
and supervisors as defined in the Act constitute a unit
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
6. At all times on and after December 1, 1973, the
Union has been the exclusive representative of all the
employees in said unit for the purpose of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
7. By making unilateral changes in conditions of
employment of the employees in the above unit around
May 1974, the Respondent has refused to bargain with the
Union and has thereby engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
8. By interfering with, restraining and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent has engaged in unfair labor
practices proscribed by Section 8(a)(1) of the Act.
9. The aforesaid unfair labor practices affect 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, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER31
A. Respondent, A. Lasaponara & Sons, Inc., a wholly
owned subsidiary of ERE Industries, Inc., its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union membership, activities, or desires.
(b) Threatening employees with reprisals to dissuade
them from supporting the Union.
(c) Refusing to bargain collectively with the Union as the
exclusive collective bargaining representative of the em-
ployees in the bargaining unit herein found to be
appropriate.
(d) Refusing to hire, discharging, or otherwise discrimi-
nating against employees in regard to hire or tenure of
employment or any term or condition of employment, in
order to encourage or discourage membership in any labor
organization or to interfere with, restrain, or coerce
employees in the exercise of Section 7 rights, except to the
extent that such rights may be affected by lawful
agreements in accord with Section 8(a)(3) of the Act.
(e) In any other manner interfering with, restraining, or
coercing the employees of A. Lasaponara & Sons, Inc., a
wholly owned subsidiary of ERE Industries, Inc., in the
exercise of their rights guaranteed in Section 7 of the Act,
except to the extent that such rights may be affected by
lawful agreements in accord with Section 8(a)(3) of the
Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Upon request, bargain with Mechanics Educational
Society of America, AFL-CIO, as the exclusive collective
bargaining representative of its employees in the unit
herein found appropriate and embody any understanding
reached in a signed agreement. The appropriate bargaining
unit is "all production and maintenance employees,
employed by A. Lasaponara & Sons, Inc., a wholly owned
subsidiary of ERE Industries, Inc., at its Base Road,
Oriskany, New York, location; excluding all office clerical
employees, professional employees, guards and 'supervisors
as defined in the Act."
(b) If requested by the Union, rescind the unilateral
changes made around May 1974 and thereafter, in benefits
of employment of the employees in the appropriate
bargaining unit found herein - provided, however, absent
such request by the Union, that there is no requirement for
a rescinding of such changes in benefits.
(c) Offer to Peter Muraca immediate employment to the
position for which he was discriminatorily considered on
May 27, 1974, or, if such position no longer exists, to a
substantially equivalent position, and make him whole for
any loss of pay suffered by reason of the discrimination
against him in the manner described above in the section
entitled "The Remedy."
(d) Offer Eva Wilson, William Bonville, Robert Kraeger,
Margaret Peck, Richard Hayes, and Gary Bartle immedi-
ate and full reinstatement to his or her former position or,
if such position no longer exists , to a substantially
equivalent position, without prejudice to seniority or other
rights previously enjoyed, and make each whole for any
loss of pay suffered by reason of their unlawful discharge
in the manner described above in the section entitled "The
Remedy."
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
all In the event no exceptions are filed as provided by Sec. 102 46 of the 102.48 of the Rules and Regulations, be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions and Order, and all objections thereto shall be
conclusions and recommended Order herein shall, as provided in Sec. deemed waived for all purposes.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay under the
terms of this recommended Order.
(f) Post at its place of business at Base Road, Oriskany,
New York, copies of the attached notice marked "Appen-
dix."32 Copies of said notice, on forms provided by the
Regional Director for Region 3, after being duly signed by
said Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be maintained by
said Respondent for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by said Respondent to insure that said notices are
not altered, defaced or covered by any other material.
(g) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of the receipt of this Order,
what steps the Respondent has taken to comply herewith.
B. Respondent, ERE Industries, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Through and with its subsidiary, A. Lasaponara &
Sons, Inc., refusing to hire, discharging, or otherwise
discriminating against employees in regard to hire or
tenure of employment or any term or condition of
employment, in order to encourage or discourage member-
ship in any labor organization or to interfere with, restrain,
or coerce employees in the exercise of Section 7 rights,
except to the extent that such rights may be affected by
lawful agreements in accord with Section 8(a)(3) of the
Act.
(b) Through and with its subsidiary, A. Lasaponara &
Sons, Inc., in any other manner interfering with, restrain-
ing, or coercing the employees of A. Lasaponara & Sons,
Inc., a wholly owned subsidiary of ERE Industries, Inc., in
the exercise of their rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected
by lawful agreements in accord with Section 8(a)(3) of the
Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Through and with its subsidiary, A. Lasaponara &
Sons, Inc., offer to Peter Muraca immediate employment
to the position for which he was discriminatorily consid-
ered on May 27, 1974, or if such position no longer exists,
to a substantially equivalent position, and make him whole
for any loss of pay suffered by reason of the discrimination
against him in the manner described above in the section
entitled "The Remedy."
(b) Through and with its subsidiary, A. Lasaponara &
Sons, Inc., offer Eva Wilson, William Bonville, Robert
Kraeger, Margaret Peck, Richard Hayes, and Gary Bartle
immediate and full reinstatement to his or her former
position or, if such position no longer exists, to a
substantially equivalent position, without prejudice to
seniority or other rights previously enjoyed, and make each
whole for any loss of pay suffered by reason of their
unlawful discharge in the manner described above in the
section entitled "The Remedy."
(c) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
It is recommended that the allegation of the complaint of
violative conduct, not found herein, be dismissed.
32 In the event that the Board's Order is enforced by a Judgment of a to a Judgment of the United States Court of Appeals Enforcing an Order of
United States Court of Appeals, the words in the notice reading "Posted by the National Labor Relations Board."
Order of the National Labor Relations Board" shall read "Posted Pursuant