F. L. Smithe Machine Co.

National Labor Relations Board - Board Decisions

Jan 8, 1992

305 N.L.R.B. 1082 (N.L.R.B. 1992)

1082
305 NLRB No. 177
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent submitted with its brief a posthearing affidavit
by its industrial relations manager, Henry Codd, attesting to the Re-
spondent’s posthearing operational status. The General Counsel
moved to strike the affidavit. We find that the evidence presented
in the affidavit would not affect the outcome of the case, and we
grant the General Counsel’s motion. Robinson Bus Service, 292
NLRB 70 (1988), cited by the Respondent, does not suggest a con-
trary result. The main issue in that case was whether the Board had
jurisdiction over an employer engaged in providing bus transpor-
tation for private and public entities. There the employer bargained
unsuccessfully for a year with the duly elected and certified rep-
resentative of its employees, then asserted doubt of the union’s ma-
jority status and withdrew recognition. The Board found that the em-
ployer violated Sec. 8(a)(5) of the Act. However, the Board granted
the employer’s motion to reopen the record to admit evidence bear-
ing on the posthearing imposition by a state board of education of
a new drug-testing requirement on the employer and other vendors
of transportation services. Because the evidence was relevant to the
Board’s prospective bargaining order, the Board admitted the evi-
dence. Here the affidavit offered by the Respondent has no such pro-
spective relevance to our bargaining order.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 We correct the judge’s Conclusions of Law 4 and 5 to refer to
dates in 1990 rather than in 1989.
4 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
5 See Eddyleon Chocolate Co., 301 NLRB 887 (1991).
F. L. Smithe Machine Company, Inc. and District
Lodge No. 98, International Association of Ma-
chinists and Aerospace Workers, AFL–CIO.
Cases 6–CA–22981 and 6–RC–10494
January 8, 1992
DECISION, ORDER, AND DIRECTION
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On September 11, 1991, Administrative Law Judge
Peter E. Donnelly issued the attached decision. The
Respondent filed exceptions and a supporting brief and
the General Counsel filed an answering brief.1 The Re-
spondent filed a brief in reply to the General Counsel’s
answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions,3 as modified below, and to adopt the rec-
ommended Order as modified.
The judge found, and we agree for the reasons given
by the judge, that the Respondent violated Section
8(a)(1) of the Act by threatening employees with re-
duced hours and plant closure, interrogating employees
concerning their union activities and those of other em-
ployees, and creating the impression of surveillance.
We further adopt the judge’s findings that the Re-
spondent violated Section 8(a)(3) of the Act by termi-
nating Michael Hollern and by reducing the work
hours of, and thereafter terminating, Steve Rossman.
We also find, as did the judge, that the Respondent’s
unfair labor practices were so serious and pervasive as
to warrant the imposition of a Gissel4 bargaining order.
The Respondent’s conduct affected all of the unit em-
ployees and included threats of plant closure and dis-
criminatory layoffs of union adherents, ‘‘hallmark vio-
lations’’ of the Act that are likely to have a lasting de-
structive effect on election conditions.5
The judge found that the unfair labor practices al-
leged as objectionable conduct also warranted setting
aside the election in the consolidated representation
case. Because he had set aside the election, the judge
concluded that challenges to the ballots of Hollern and
Rossman were moot. We disagree that the challenges
are moot. We have found, in agreement with the judge,
that Hollern and Rossman were unlawfully discharged.
Accordingly, they were entitled to vote in the election,
and we find that their ballots should be opened and
counted. If, on the basis of these ballots, the Petitioner
wins the election, it is entitled to a certification of rep-
resentative. This certification of representative shall be
in addition to our bargaining order. See Eddyleon
Chocolate Co., supra; Moe Warehouse & Accessory,
275 NLRB 1132 (1985).
Accordingly, we shall remand the proceedings in
Case 6–RC–10494 to the Regional Director and direct
him to open and count the ballots of Michael Hollern
and Steve Rossman and issue a revised tally of ballots.
If the revised tally of ballots shows that the Petitioner
has lost the election, we shall order that the results of
the election be set aside, that the petition be dismissed,
and that the bargaining order be given effect. If the re-
vised tally of ballots shows that the Petitioner has won
the election, the bargaining order shall be given effect
and, in addition, the Regional Director shall issue a
certification of representative. We modify the judge’s
recommended Order accordingly.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, F. L.
Smithe Machine Company, Inc., Duncansville, Penn-
sylvania, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Add the following unnumbered provisions fol-
lowing paragraph 2(f).
‘‘IT IS ORDERED that the challenges to the ballots of
Michael Hollern and Steve Rossman are overruled.
‘‘IT IS FURTHER ORDERED that Case 6–RC–10494 is
severed from Case 6–CA–22981, and that it is re-
1083F. L. SMITHE MACHINE CO.
1 No opposition thereto having been filed, the General Counsel’s
motion to correct transcript is granted.
2 There is conflicting testimony regarding some of the allegations
of the complaint. In resolving these conflicts, I have taken into con-
sideration the apparent interests of the witnesses; the inherent prob-
abilities in light of other events; corroboration or lack of it; and con-
sistencies or inconsistencies within the testimony of each witness
and between the testimony of each and that of other witnesses with
similar apparent interests. In evaluating the testimony of each wit-
ness, I rely specifically on his demeanor and make my findings ac-
cordingly. And while apart from considerations of demeanor, I have
taken into account the above-noted credibility considerations, my
failure to detail each of these is not to be deemed a failure on my
part to have fully considered it. Bishop & Malco, Inc., 159 NLRB
1159, 1161 (1966). I also note, as to the testimony of Paul Carnell,
that he is still employed by Respondent. His testimony was therefore
against the interest of his employer, thus enhancing its credibility.
3 Complaint was amended at hearing to reflect that Respondent is
a New York rather than a Pennsylvania corporation.
manded to the Regional Director for Region 6 for ac-
tion consistent with the direction below.
2. Add the following direction at the conclusion of
the Order.
DIRECTION
‘‘IT IS DIRECTED that the Regional Director for Re-
gion 6 shall, within 10 days from the date of this deci-
sion, open and count the ballots of Michael Hollern
and Steve Rossman, and that he prepare and serve on
the parties a revised tally of ballots.
‘‘If the final revised tally in this proceeding reveals
that the Petitioner has received a majority of the valid
ballots cast, the Regional Director shall issue a certifi-
cation of representative. If, however, the revised tally
shows that the Petitioner has not received a majority
of the valid ballots cast, the Regional Director shall set
aside the election, dismiss the petition, and vacate the
proceedings in Case 6–RC–10494.’’
Julie Rose Stern, Esq., for the General Counsel.
Richard K. Muser, Esq., of New York, New York, for the
Respondent Employer.
Eugene Marcaccio, Esq., of Stamford, Connecticut, for the
Charging Party Petitioner.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. On Octo-
ber 12, 1990, District Lodge No. 98, International Associa-
tion of Machinists and Aerospace Workers, AFL–CIO
(Union or Charging Party) filed objections to the election in
Case 6–RC–10494 which had been held on October 5, 1990,
in a unit of production and maintenance employees employed
by F. L. Smithe Machine Company, Inc. (Employer or Re-
spondent) at its production facility in Duncansville, Pennsyl-
vania. The election unit consisted of four employees: one
voted for the Union, one voted against the Union, and two
ballots were challenged by the Employer. Those ballots, cast
by Michael Hollern and Steve Rossman, were challenged on
the grounds that they had been permanently laid off. An
order consolidating cases, and an order directing hearing on
objections and challenged ballots and notice of hearing
issued on October 22, 1990, consolidating for hearing the ob-
jections and challenged ballots with the unfair labor practice
previously issued on October 18, 1990, and subsequently
amended on October 25, 1990. The allegations of objection-
able conduct and challenged ballots are coextensive with the
allegations of the amended complaint.
Answers were timely filed by Respondent. The hearing
was held before the administrative law judge on February 11
and 12, 1991. Briefs have been timely filed by General
Counsel, Respondent, and Union, which have been consid-
ered.1
FINDINGS OF FACT2
I. EMPLOYER’S BUSINESS
The Employer is a New York corporation3 with an office
and production facilities in Duncansville, Pennsylvania,
where it is engaged in the manufacture and nonretail sale of
envelope making machines. During the 12-month period end-
ing September 30, 1990, Respondent sold and shipped goods
and materials valued in excess of $50,000 from its
Duncansville, Pennsylvania facility directly to points located
outside the Commonwealth of Pennsylvania. The complaint
alleges, Respondent admits, and I find that Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
As noted above, Respondent is a manufacturer of envelope
making machines. The basic production facility, or main
plant, employs some 520 individuals. About 365 of those are
production and maintenance employees represented under
contract by the Union. Respondent also operates a separately
located urethane plant where plastic components are added to
parts manufactured at the main plant. The urethane plant em-
ployed four production employees, Carnell, Rossman,
Hollern, and leadman Jim Lindsey. None of the urethane
plant employees are organized. Their supervisor is Jim War-
ner. Two of the four employees, Hollern and Rossman, are
alleged to have been discriminatorily discharged.
It appears that in early June 1990, Carnell, Hollern, and
Rossman were assigned to sort out a shipment of mixed parts
from a New York supplier before the parts were sent to the
main plant. While so engaged, they were observed by main
plant Union Steward Bob Miller who told them that this was
bargaining unit work and that he would have to file a con-
tract grievance over nonunit employees doing such work.
Miller also took the opportunity to ask if they would be in-
terested in union representation for themselves. They were,
and a meeting was arranged with Pete Mathieus, president of
1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The record supports the conclusion that during the weeks prior
to July 30, the urethane plant employees were working 5 hours of
overtime weekly on a regular basis.
Local 2348 of the IAM, followed by a meeting on June 18
with IAM Special Representative Steve Miller. At the June
18 meeting, Miller advised them about the process for orga-
nizing, and all three signed union authorization cards indi-
cating their desire to be represented by the IAM.
After this meeting, by letter dated July 24, Steve Miller
advised Respondent that it represented a majority of the pro-
duction and maintenance employees in the urethane plant and
requested recognition as their collective-bargaining represent-
ative. By letter from Henry W. Codd, industrial relations
manager, dated Monday, July 30, 1990, Respondent rejected
this request for recognition, asserting a good-faith doubt that
the Union represented a majority of the unit employees.
On the same day, Warner met with all four production em-
ployees in the lunchroom at the urethane plant. Warner read
to those employees a letter composed by Respondent’s labor
relations attorney. That letter is captioned ‘‘JIM WARNER
STATEMENT,’’ and reads:
I have been told by Hank Codd that he received a letter
from District 98 of the Machinists saying that they had
union cards signed by a majority of you guys. First of
all, I don’t believe that a majority of you have actually
signed union cards. Secondly, even if you did sign one
to get some union guy who was hassling you off your
back, you should realize that having a union here in
this facility, particularly District 98 of the Machinists,
would not be in your best interests. Just so that there
are no misunderstandings, you should know that the
company is opposed to a union in this plant, and Hank
Codd has told me that the company will do everything
legally within its power to oppose the union. I think the
only thing the union wants for you is to try to secure
jobs for people in the main plant if there is a layoff
there. Obviously, whenever it comes down to what’s
good for you guys and what’s good for the guys in the
main plant, the union will side with those guys. The
Company views you as one of four guys. To the Union,
you’ll be one of 350! So look long and hard before you
decide about this union. I’m sure you’ll agree with me
that it is not in your best interest.
Apart from the letter, according to Carnell, Warner also told
them that because of the Union’s effort to organize them,
their overtime hours were going to be eliminated4 and that
if the union activity continued, Respondent would further re-
duce their hours and even shut down the plant and move it
to Virginia, where the Company had originally intended to
locate it. Generally, the testimony of Carnell was corrobo-
rated by Rossman and Hollern, and, having carefully re-
viewed the record, I credit those accounts despite testimony
from Lindsey to the effect that Warner made no reference to
a reduction in hours and Warner’s testimony that he simply
read from the contents of the letter.
Later on in the day at about 2:30 p.m. in the shop office,
Warner again spoke to all four employees, this time advising
him that he had been mistaken about the reason for the
elimination of their overtime; that their overtime was being
eliminated because of a lack of work. Despite Warner’s
somewhat vague denial, I conclude that he did return and
offer this revised rationale to the employees for the elimi-
nation of their overtime. It is undisputed that overtime was
eliminated at this time.
Thereafter, sometime in early August, according to
Carnell, while working with Lindsey, he was approached by
Warner who asked him if he would be honest in telling him
if he had signed an authorization card. Carnell said that he
would, but when Warner asked him, he denied it. Again on
about August 10, while in Warner’s office, Warner told
Carnell that he thought that the authorization cards had been
forged but that if they were not forged, he did not suspect
Carnell and Lindsey, and asked if Carnell had heard anything
from Rossman and Hollern about their signing authorization
cards. Carnell denied any such knowledge. In this regard,
Carnell testified:
He had—he had stated that he thought these cards were
forged, but if they weren’t, that there is two people that
they would suspect have signed cards, and that Jim
Lindsey and myself was not one of them, and then he
had asked me if I had heard anything from Mike and
Steve, on whether they had signed cards . . . . and I
said no.
Carnell further testified that on about August 17, in a discus-
sion at the plant, Warner apologized to him for having said
what he had and that it was his opinion that if things contin-
ued with the Union, the plant would shut down. Warner de-
nied having asked questions about authorization cards, and
testified that he had been advised as of July 27 by Respond-
ent’s attorney about what to say during the union organiza-
tional campaign. Nonetheless, having reviewed all the rel-
evant testimony, I am persuaded that Carnell’s version of
these events is credible.
Also, according to Rossman, in about mid-August, Warner
met with himself, Hollern, and Carnell and told them that
Respondent had their authorization cards and they were
going to check them against their ‘‘W-2 forms’’ because they
felt the cards were forgeries, and told them that Ed Smithe,
the owner, would rather have the plant closed down than
allow it to go union.
Beginning on August 23, Hollern, Carnell and Rossman
wore union buttons on their hats and all of them were ob-
served by Warner so adorned. It was on the following day,
Friday, August 24, that Hollern was laid off. On Monday,
August 27, Rossman was reduced to 20 hours per week and
on Tuesday, August 28, Rossman was laid off.
With respect to the elimination of overtime and the lay-
offs, Warner testified that improved equipment was installed,
facilitating the production process, during the months of
May, June, and July 1990. According to Respondent’s wit-
nesses, the improvements had the effect of reducing the num-
ber of rejected parts and therefore the necessity to redo them.
It does not however appear, despite the improvements, that
hours were reduced during those months, since the 1 hour of
daily overtime was not eliminated until July 30, and there-
after until the discharges of Hollern and Rossman, the em-
ployees at the urethane plant continued to be employed full-
time.
1085F. L. SMITHE MACHINE CO.
5 While McCoy’s title was purchasing manager, it appears also that
he had responsibility for production at the urethane plant, since
originally the urethane operation was performed and purchased from
out-of-plant manufacturers. McCoy reports to plant owner Smithe.
6 Warner’s job list, however, shows only jobs and job numbers and
does not reflect the size of the jobs nor the number of man-hours
it would take to complete that work.
Warner testified that he was told by Evers McCoy, pur-
chasing manager and also his supervisor,5 that since the or-
ders for the urethane plant were not coming in from Scott
Zsifkov, planning supervisor in charge of maintaining the
parts inventory, that he should review the need for overtime.
Warner met with McCoy on about July 25. McCoy told him
about the transfer of some 9 or 10 employees out of the lathe
department to other departments in July and that since the
lathe department generated most of the work in the urethane
plant, this had caused a reduction in jobs coming to the ure-
thane plant from the main plant and that overtime should be
and it was eliminated on the following Monday.
With respect to Hollern’s layoff on August 24, Warner tes-
tified that on August 23, McCoy contacted him and asked
him to review the jobs pending ‘‘on the Board’’ in the ure-
thane plant. According to McCoy, this review was made nec-
essary by his evaluation that the orders were down because
of the previously noted transfers from the lathe department
and information from Zsifkov that customer orders were
down. Zsifkov confirmed that overall customer replacement
parts order were down which would include urethane coated
parts. Warner reviewed the number of jobs in the urethane
plant and prepared a list of jobs and orders, and testified that
incoming jobs to the urethane plant had come almost to a
halt.6 However, Hollern and Rossman testified that the level
of work in the urethane plant remained basically unchanged
throughout their employment up to their discharges, and
Carnell testified that the work remained steady until the lay-
offs.
On August 24, McCoy and Warner met with Codd and
showed him the list of job orders from the ‘‘Board.’’ He ex-
plained that there was little to do in the urethane plant.
McCoy spoke about the lack of orders from the main plant.
Warner expressed the opinion that 40 hours should be re-
duced from the manpower in the urethane plant. All agreed,
and Codd called Respondent’s attorney who advised him that
the should handle the matter just as he would if there were
no union organizing. Codd directed Warner to lay off the
least senior man in the urethane plant, who was Hollern. On
the same day, Friday, August 24, Warner called Hollern to
his office and read to him the following letter prepared by
Respondent’s attorney.
DRAFT OF STATEMENT TO EMPLOYEE
Mike, I’m sorry to have to tell you this but it prob-
ably doesn’t come as a surprise. I’m going to have to
lay you off because there is simply not enough work
in the shop. I have tried to string it out, hoping that
we’d get a bunch of orders in but they just haven’t
come. Therefore, I am going to have to lay you off and
hope that I can find enough work to at least keep the
other 3 guys busy. Frankly Mike, as I see it, it’s highly
unlikely that you will be recalled because I just don’t
anticipate the orders picking up. You can see for your-
self that the last two or three months the jobs have been
steadily diminishing and there’s no reason to expect it
to increase in the future. Therefore, you should go look
for work. You are a good worker Mike and if you need
a reference I’ll be happy to give you one.
On Monday, August 27, Lindsey returned from vacation.
According to Warner, he had ‘‘overlooked’’ Lindsey’s return
from vacation and came to the realization that there was not
enough work, even with Hollern laid off, to utilize all three
of the remaining employees. He estimated the need to cut 20
more hours from the collective workweek. He went to Codd,
who again called Respondent’s attorney, and was advised, as
before, to do as it would have been done if the Union were
not organizing. On that day, Warner reduced Rossman from
40 to 20 hours per week, since he was now the least senior
employee. On the following day, August 28, according to
Warner, he again looked over the work in the urethane plant
and decided that he would have to reduce by another 20
hours and again went to Codd who agreed, with the result
that Rossman’s remaining 20 hours were taken and he was
terminated. Like Hollern, he was called to Warner’s office
and read substantially the same letter.
Warner testified that since the terminations of Hollern and
Rossman, they have had no difficulty in performing the work
coming into the urethane plant with the remaining employ-
ees, i.e., Warner, Lindsey, and Carnell, although it does ap-
pear that in January, they worked 2 hours a day overtime for
5 days. In this regard, Carnell testified that prior to the lay-
offs, Warner and Lindsey, who were respectively supervisor
and leadman, spent most of the workday in the office but
that since the layoffs, both spent a majority of their working
day doing the production work previously performed by
Hollern and Rossman.
B. Discussion and Analysis
1. The 8(a)(1) violations
Having concluded that Warner, on July 30, threatened em-
ployees with elimination of overtime for having sought union
representation, I further conclude that such remarks constitute
unlawful coercion, despite Warner’s efforts to retract those
statements later on the same day. As noted above, Warner
also threatened that the plant would close if the employees
continued to seek union representation and relocate to an-
other State. Employees have the right to select union rep-
resentation, free from interference by the employer. Such
threats to their employment status clearly constitute coercion
within the meaning of Section 8(a)(1) of the Act.
As set out above in greater detail, during the month of Au-
gust, Warner, in conversations with Carnell, Hollern, and
Rossman, inquired about their having signed union authoriza-
tion cards. Such questioning by a supervisor with the dis-
charge authority displayed herein by Warner in the layoffs of
Hollern and Rossman, cannot be regarded as innocuous, and
I conclude that this interrogation was unlawful.
Also, on about August 10, Warner told Carnell that he sus-
pected two employees of signing union authorization cards,
but not Carnell or Lindsey. Obviously, this left only Hollern
and Rossman. Thus, having told Carnell, albeit inferentially,
that Hollern and Rossman were suspect, the impression is
necessarily conveyed that the basis for the suspicions came
from some prior surveillance of the organizational activities
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 In light of such convincing evidence, any previous general obser-
vations by Warner suggesting the possibility that overtime might be
reduced are not persuasive.
of Hollern and Rossman. These remarks are unlawfully coer-
cive since they imply to Carnell that Hollern and Rossman’s
union activities had been under surveillance.
2. Discrimination in the elimination of overtime
and terminations
a. Elimination of overtime
The record discloses that all four employees, except for
leadman Lindsey, were interested in joining the Union,
which already represented all 350 production and mainte-
nance employees at the main plant. All three signed union
authorization cards on June 18. Warner concedes that as
early as July 13 or 14, he was advised by McCoy that there
was a ‘‘chance’’ that Union cards had been signed in the
urethane plant. While it was clear that the employees were
engaged in union activity and were seeking union representa-
tion, the issue remains whether their discharges were moti-
vated by that activity.
The General Counsel takes the position that the elimi-
nation of overtime for the urethane plant employees was
prompted their union activity. Respondent argues that im-
proved production equipment and a reduced workload were
the cause.
The record discloses that the Union requested recognition
by letter dated July 24 and that Respondent rejected that re-
quest by letter of July 30. On July 25, McCoy eliminated
overtime in the urethane plant as of July 30. The record also
discloses that on July 30, Warner, in addressing the employ-
ees, made unlawful coercive remarks in violation of Section
8(a)(1) of the Act, including a statement that overtime would
be eliminated because of the union campaign. In addition to
constituting a violation of Section 8(a)(1), on the heels of the
Union’s demand for recognition, that statement, particularly
in a context of other unlawful coercive statements, provides
clear, direct and convincing evidence of motivation with re-
spect to the elimination of overtime.7
Respondent also argues that a nondiscriminatory, economic
motivation for both the elimination of overtime and the lay-
offs of Rossman and Hollern are made clear by the fact that
since July 30, even after the elimination of overtime and lay-
offs, the work in the urethane plant has been done without
working overtime. This appears to be accurate except for 1
week in January 1991 noted above. However, it also appears
that during this time Lindsey and Warner did production
work which had previously been done not by them, but by
Rossman and Hollern, and no longer spent their time in the
office as had previously been the case. In these cir-
cumstances, it would not be extraordinary for Respondent to
be able to perform the urethane plant work without substan-
tial overtime, particularly where Respondent was in a posi-
tion to control the flow of work to the urethane plant, and
the record contains no specifics to establish comparisons be-
tween the amounts of work done before the elimination of
overtime and the layoffs as opposed to after those events.
Respondent also contends that the elimination of overtime
was justified by the temporary transfer of some employees
out of the lathe department, which provides work to the ure-
thane plant, resulting in a loss of work to the urethane plant.
However, Respondent’s witnesses testified only in general
terms about the reduction of jobs going to the urethane plant,
failing to provide probative documentation or even testi-
monial specifics to support that position. Balancing such
vague and nonspecific testimony against the direct evidence
of unlawful motivation provided by Warner’s statements to
employees satisfies me that the elimination of overtime was
motivated by antiunion considerations and violates Section
8(a)(3) of the Act.
b. Terminations of Hollern and Rossman
Respondent, as noted above, engaged in unlawful coercion
of urethane plant employees by telling them that the plant
would close if the organizational effort continued, unlawfully
interrogated them and created among them the impression
that the union activities of others were being surveyed. In es-
sence, Warner identified to Carnell his suspicions that
Hollern and Rossman had signed authorization cards in mid-
August. All this was followed on August 24 by the layoff
of Hollern and reduction in hours and subsequent layoff of
Rossman on August 28.
As with the elimination of overtime, Respondent’s position
is that these layoffs were made for valid economic reasons
as a result of a reduction in the number of jobs going to the
urethane plant. Respondent points out that during May, June,
and July, improvements in certain machinery and equipment
in the urethane plant reduced the number of pieces being re-
jected and redone, and cites the continuing effect of the
transfer of employees out of the lathe department which had
provided work for the urethane plant. However, these asser-
tions are not substantiated by either specific testimony or
documentation. While Respondent did introduce a document
which it relied on in making the layoffs, purporting to show
the number of jobs currently ‘‘on the Board’’ in the urethane
plant, this document reveals only a job and a job number.
It tells nothing about the volume or man-hours that might be
required to do the job. In short, the list of jobs ‘‘on the
Board’’ as of August 24 is not probative as to the man-hours
of work in the urethane plant at that time.
Likewise, the general testimony of Warner concerning his
reviews of the workloads on August 27 and 28 offered as
justification for Rossman’s reduced hours and discharge was
vague and unimpressive, particularly since the reviews also
rely on Warner’s list of jobs ‘‘on the Board’’ in the urethane
plant, and are not an accurate reflection of work in the ure-
thane plant. General Counsel, on the other hand, presented
witnesses, including Carnell, who is still employed, who tes-
tified to the effect that while improvements have been made
in the machinery, the workload was not diminished and there
was plenty of work.
In connection with Rossman’s discharge, I find it incred-
ible that in a plant with only four employees, Warner would
forget that one of them, Lindsey, was on vacation, requiring
on his return a 20-hour reduction and on the following day
the discharge of that employee.
As with the elimination of overtime, Respondent argues
that since it has performed the urethane plant work with
three men, and mostly without overtime since the layoffs,
this supports its economic defense of decreased demand. As
noted above, when production work is now being done by
1087F. L. SMITHE MACHINE CO.
8 251 NLRB 1083 (1980).
9 Obviously, since I have concluded that Hollern and Rossman
were unlawfully discharged, they were entitled to vote in the Octo-
ber 5 election, and challenges to their ballots would normally be
overruled. However, since I am recommending that the election be
set aside, this issue is mooted.
10 NLRB v. Gissel, 395 U.S. 575 (1969).
11 While it is perhaps likely that overruling and counting the chal-
lenged ballots of Hollern and Rossman would have given the Union
a majority of the ballots cast, I cannot assume that result.
12 Respondent’s attempts to minimize the impact of the 8(a)(1) and
(3) violations by characterizing Warner as a ‘‘low level’’ supervisor
are not supported by the record. In fact, Warner was the immediate
supervisor of all four employees employed at the urethane plant. He
was the Respondent’s sole on-site representative in that plant and
was instrumental in effecting all of the discrimination found herein.
13BI-LO, supra at fn. 5.
a supervisor and a leadman, which was not done before, this
result is not extraordinary.
In summary, I conclude that Hollern was discharged and
Rossman’s hours reduced and he was subsequently dis-
charged because of their union activity and not for any eco-
nomically justifiable reason. In applying the Wright Line8
theory to the allegations of discrimination in this case, I am
satisfied that, given the timing of the discrimination; the di-
rect evidence of discriminatory motive; the substantiated alle-
gations of coercion found herein which also provide evidence
of unlawful motivation; and the testimony of the General
Counsel’s witnesses, particularly Carnell, a current employee
testifying against the interests of his employer to the effect
that the work being done in the plant was undiminished; the
General Counsel has made out a prima face showing that
union activity was a motivating factor in the elimination of
overtime and in the terminations. Further, I am also satisfied
that Respondent’s vague and unspecific efforts to dem-
onstrate a lawful economic motivation are inadequate and
Respondent has failed to demonstrate that these actions
would have taken place even in the absence of the protected
concerted activity.
3. Objections and challenged ballots
Having concluded that Respondent violated Section 8(a)(1)
and (3) of the Act as set out above, I further conclude that
those violations, to the extent that they are coextensive with
the objections, warrant setting aside the election conducted
on October 5, 1990, which I hereby recommend.9
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent, as set forth in section III,
above, occurring in connection with the Respondent Employ-
er’s operations described in section I, above, have a close
and intimate 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 Respondent has engaged in and is en-
gaging in unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. I have found
that Respondent discharged Michael Hollern and Steve
Rossman for reasons which offended the provisions of Sec-
tion 8(a)(3) and (1) of the Act. I shall therefore recommend
that Respondent make them whole for any loss of pay they
may have suffered as a result of the discrimination practiced
against them. All backpay and reimbursement provided here-
in, with interest, shall be computed in the manner described
in New Horizons for the Retarded, 283 NLRB 1173 (1987),
and F. W. Woolworth Co., 90 NLRB 289 (1950). The Union
contends that under the authority of Gissel,10 the unfair labor
practices alleged herein are so serious and pervasive as to
warrant the imposition of a bargaining order on Respondent,
notwithstanding the absence of an election of established ma-
jority. I agree. In this regard, I note that as of June 18, when
Carnell, Hollern and Rossman signed authorization cards, the
Union enjoyed majority representation in the bargaining unit.
When Respondent unlawfully discharged Hollern and
Rossman for their union activity, Respondent destroyed that
majority, and precluded, on challenges to the ballots of
Hollern and Rossman, any possibility of the Union attaining
majority status through an election. Unlawfully discharging
half of the four man unit, together with election challenges
to those ballots, make it impossible for the Union to have
won the election.11 Other Respondent misconduct was also
destructive. As noted above, Respondent reduced the hours
of employees and threatened plant closure. Threats of plant
closure have long been viewed as flagrant since they rep-
resent a present threat of unemployment. International Door,
303 NLRB 582 (1991); BI-LO, 303 NLRB 749 (1991); Som-
erset Welding & Steel, 304 NLRB 32 (1991). In addition,
Respondent interrogated employees and created the impres-
sion among the employees that their union activities were
under surveillance. In such a small unit, the impact of this
unlawful activity is magnified.12 The Board has held:
Based on the totality of the Respondent’s unlawful con-
duct, we conclude that the lingering effects of the Re-
spondent’s unfair labor practices make the likelihood of
conducting a fair second election in the foreseeable fu-
ture so slight that, on balance, it is preferable to rely
on the majority employee preference expressed through
valid authorization cards.13
Those principles apply to the instant case, and, accordingly,
I shall recommend a bargaining order herein.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production and maintenance employed by the Em-
ployer at its R.D. 2, Duncansville, Pennsylvania facility; ex-
cluding all office clerical employees and professional em-
ployees, guards and supervisors as defined in the Act con-
stitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. On June 18, 1989, a majority of the employees of Re-
spondent, F. L. Smith Machine Company, Inc., in the above
appropriate unit, designated and selected the Union, Inter-
national Association of Machinists and Aerospace Workers
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
15 If 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
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
as their representative for the purposes of collective bar-
gaining.
5. At all times since June 18, 1989, by virtue of Section
9(a) of the Act, the above Union has been and is the exclu-
sive representative of the employees in the appropriate unit
for the purpose of collective bargaining with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment.
6. By threatening employees with reduced hours and plant
closure for supporting the Union, Respondent violated Sec-
tion 8(a)(1) of the Act.
7. By interrogating employees concerning the union activi-
ties of themselves and other employees, Respondent has vio-
lated Section 8(a)(1) of the Act.
8. By creating the impression among its employees that
their union activities were under surveillance, Respondent
has violated Section 8(a)(1) of the Act.
9. By reducing work hours and terminating employees,
Respondent has violated Section 8(a)(3) of the Act.
10. By refusing, on or about July 30, 1990, to recognize
and bargain with the Union as the exclusive collective-bar-
gaining representative of employees in the unit described
above, Respondent violated Section 8(a)(5) and (1) of the
Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondent, F. L. Smithe Machine Company, Inc.,
Duncansville, Pennsylvania, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Threatening employees that their hours would be re-
duced if they supported the Union.
(b) Threatening employees that the urethane plant would
close if they supported the Union.
(c) Interrogating employees about their union activities and
the union activities of other employees.
(d) Creating the impression among employees that their
union activities were under surveillance.
(e) Reducing the hours of work of employees because of
their activities on behalf of the Union.
(f) Discharging employees in order to discourage their ac-
tivities on behalf of the Union.
(g) Refusing to recognize or bargain collectively in good
faith, on request, with the Union as the exclusive collective-
bargaining representative of the employees in the appropriate
unit set forth in paragraph 3 of the conclusions of law set
out above.
(h) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and bargain collectively with the Union as
the exclusive representative of the employees in the appro-
priate unit, set forth above, with respect to rates of pay,
hours and other terms and conditions of employment, and, if
an understanding is reached, embody such understanding in
a signed agreement.
(b) Offer to Michael Hollern and Steve Rossman imme-
diate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent employment
and make them whole for any loss of pay they may have suf-
fered as a result of the discrimination practiced against them
in the manner set forth in the remedy section of this deci-
sion.
(c) Remove from its files any reference to the discharges
of Michael Hollern and Steve Rossman, and notify them in
writing that this has been done and that evidence of their un-
lawful discharges will not be used as a basis for future per-
sonnel action against them.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records and all other records nec-
essary to analyze the amount of backpay due herein.
(e) Post at its facilities at Duncansville, Pennsylvania, cop-
ies of the attached notice marked ‘‘Appendix.’’15 Copies of
the notice, on forms provided by the Regional Director for
Region 6, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten employees that their hours will be
reduced if they support the Union.
WE WILL NOT threaten employees that the urethane plant
will close if they support the Union.
WE WILL NOT interrogate employees about their union ac-
tivities and the union activities of other employees.
WE WILL NOT create the impression among employees that
their union activities are under surveillance.
WE WILL NOT reduce the hours of work of employees be-
cause of their activities on behalf of the Union.
WE WILL NOT discharge employees in order to discourage
their membership in or activities on behalf of District Lodge
1089F. L. SMITHE MACHINE CO.
No. 98, International Association of Machinists and Aero-
space Workers, AFL–CIO.
WE WILL NOT refuse to recognize or bargain collectively
in good faith, on request, with International Association of
Machinists and Aerospace Workers, AFL–CIO as the exclu-
sive collective-bargaining representative of our employees in
the appropriate unit. The unit is:
All production and maintenance employed by the Em-
ployer at its R.D. 2, Duncansville, Pennsylvania, facil-
ity; excluding all office clerical employees and profes-
sional employees, guards and supervisors as defined in
the Act.
WE WILL NOT in any other manner interfere with, restrain,
or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL recognize and bargain collectively with the
Union as the exclusive representative of the employees in the
appropriate unit, set forth above, with respect to rates of pay,
hours and other terms and conditions of employment and, if
an understanding is reached, embody such understanding in
a signed agreement.
WE WILL offer to Michael Hollern and Steve Rossman im-
mediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent em-
ployment and make them whole for any loss of pay they may
have suffered as a result of our discrimination against them.
WE WILL remove from our files any reference to the dis-
charges of Michael Hollern and Steve Rossman, and notify
them in writing that this has been done and that evidence of
their unlawful discharges will not be used as a basis for fu-
ture personnel action against them.
F. L. SMITHE MACHINE COMPANY, INC.