Fern Laboratories, Inc.

National Labor Relations Board - Board Decisions

Feb 1, 1979

240 N.L.R.B. 487 (N.L.R.B. 1979)

FFRKN LABORATORIES,_S INU.
Feri I ahoralori%. Inc. a.d Oil. ( iheical & A:lilic
W'orker Iternatllioial (!nionlA Ical 8-149
Fern I ahoralories. Inc. l .Jlac(lilline PI'lna. ( -,e
29) ( \ I " 2) 1R( 35 3. md 2 ( A\ 50338
I chtiai I 1979
I)lD( ISION \NI) O()R)lR
B1' (1 R\% J' \I\\ \\ 1 \lill RN JI \ Il\"
\\1i Ii Xi I IO
()On ()ctIhetl 13. 197.)7 \dinilniafS iti\.;j ,.liIuc
W'illi;itl I . Ja;cob, se I lucI t it Ie ttlchld I)ccil,oll iII
tlis proceed lln. Ihrl .cr. Rcspolndrltl filleld \cjp-
lion arnd a suippourmtit icf.
ill'Sil1lll o tl plo\iimoll, Of Scutioll 3(b) (1 [Ile
N.lioTtll .ahor Relations .Act. ats amitttded. thle \I-
tional Labor Relations Board his dlea ted its ;lu-
lil llt\r in Ilis p)occ)dill" lo ; ttrc-iclitbcl pia;l l.
'lihc Board hs conitldcr-cli tl r til.l 1i i thil t ;
tached I)Decisiorn in liih of the \ccplions iandl bfic.
;l1l It i delhcidd to ;iffrlrl til rlInr11Tl.s fiiliLN. I ;tlld
cotlCtl SIOlns Otf thl '\dlll ll'lti cu I .;t .1,, i1'c a Ill to
;liIpl hlis recommendedtlil ()rcl. is modllifiedl licrii.
O( 1I)I R
Purs antilt to SCtCilt II (C) of the Nalltii Il i 1 }hor
Relations A\cI. ;Ix ;llilcrddl. 1lc \;ll,,ml I l RC
Illiclis Is .il d;1 t1t>l'l, 1a IlS ()Ildl tIhe ', . t)llIll'Olldc j
()lrdt O Il th .\dliillis iitl\c i.;i\\ .Iiliu .. 1 rll(A, tiililcd
hcl.l\. ;11d lcll, (l'l s Ihlitl tlhc ROpelillcnt. I ('ci
lI;lbor;ris' 1 . allc.. stl-e il\c . o\ , ork is li-
C'. it 'elits. sNIlucctNSsoN . l n .l iN'sNi . ,hall tk. c t lh
;actionl t fortll i l l rctit lCcOll111cllidcd (),rdcl. ;IN (
111(i ficd:
\dd th flii it s jira-,lraph I h}:
"(1l) Il ;in\ll , otllcr l lltilil iittcril. ll itlh. iC1llill -
in,. r,, , cortill c pillN. in. lt lie \uci of ii lt
ll;rii tlCCL Il. l ttheil x1 StCC llo 7 of til. ,\tfl
II I II RIIII ()R IIK II) Ill M ll Ile I r p O.ccl ll I1I
(ast 29 R(' 330. be. and t.\ I1C-rch' ;I.. rclll;ld
Cd tIo the Rcl:onal I)ircltot fl' tlh prpoNc Of o'pii-
ill ad couiitin the hallol f I ancinc (ila. tIhl
issulance of , rise tl (t' lIJtNs 1111Ih t1i tI I-
priatc crtifica .tion.
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240 N.RB No. 78
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llcildt.d. hC efeinattel tlr iiut(Il clledI Ihc \,: h'., Jl'l llII ltrl
h1 l uSC .lrt[ iI I,' et ' lll o\cc I r'3i11lll ( Ii'li } t'1.,ttiit,'c t t h
$( I(IIIll ,d hth h1 LCt 1 i \ltI, It s clIl "ccx l it Illn Ic,,I
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I'oll t ill tl filnlg oft pCttIllolon h Ic I n(l, ii ll ( . isc
2' R(' 1q36 ;nld pu lsti lt to t Sltullunn tor C 1 ( llfl.i
11l I p1 ( 'ost'1lt ilcCtion u uI ul1 1 \(i t ii t[it 3 I 1t
t\ ;l111 hctenl R ,,ploriduil ;11a tlu I on 1 11 Ild i ; lpr \c kl
b thl Retioinal I)irclotr for Re'ni 2I. NtIlt-Ill4
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[io(I. th u N i Nm t, l.:Iicd tilt I ,Ilol i 1 RoC Ihlcl 1m Il
j,'o , ld lh l-,he I' I ntupcilsor al', ld tlh OIIiar JsTn tIT hd-
lcnvctl Itl hIlot 1of I la ,illt ( i ll .. 1 ' i ,lI lld ll'Cc n Il t"
2) ( \ 516(, hccatl l- i ;r lll 11 (il I t ppl'C; i 1iLt ch-
vbiliit list. I lhCrC ftcl . ;A iillll\ 0 u1ltioi n i s tiL fi tl \ RuC
spoHId l/ 1 I.
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sohdalcdiltt X`.l (':is.. mtid ('.\ il15, tr pulprl aq hIt'ldin
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488 I)I( SIONS OFI NAIION AI I AB()R RIA I I()NS BOA\RI)
tilc alleged thai n 'ariltlS dates Im ItICslI 1976. Rcspoi-
deilIt \ iiilted Sctiol X(;)( I) vlk I it tIII catened its cllpI o -
cc: ss ith plant closure and other rcprisals if thels becalme or
Cfi;tilled ilCiibCrs of tlie I lliioi o if the t g',C sssistlalce
or sulppnoi to it warned and directed is enploces to rte-
fllain ftll supporting or ssistlllng the l nion Interrogated
its cnlploeucs concerning their aici ties on hehailf of and
s\nliptlhies for the Illnioi: and polled its eriploees coBi-
cer-int their nmemibership l ;atid support for the t nion.
[he cnlsolidated ame;nded collplailit further alleged thal
Responde]nt iolatcd Section X8(a)( I) and (3) of the A\cI b,
disicrinlinatorils disclargting its emploec Jacqueline I'cnil
bhCluse of her llnion actllities. Respordent IIi its allsc to
thle consolidatted almendecd compllainlt denied tIhle cotli-
sion of a;Iv unfair labor practices.
Ihese consolidated cases werc heard before ie oin Il)e-
cember 5, 6 7 and 14, 1977. in Brooklyn, New York.
All parties were reprcsenlted ;t the hearing and were a -
forded full opportunity to e heard and present es idclcc
and argument. Respondent filed a brief. Upon the elitilre
record, mni observationl of the dleilCanor of the witnlesses
;Ind after giving due consideration to Respondent's brief, I
make the following:
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I 2' 1 'd IT Ig176). the Board f nild thi.l /e clt , I I : ik K
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(iX 1'?)) ~l,'lh'll ksL,,.L'
I IIII BI NI SS ()I Illi R S'()N ) N I
R,.')ptlldiit, at New' 'OrIk ctpnolrltilil. Is Cllgigd ill the
iiilllfaCtUll ' :,;ile. .1ld istr-ihutin o il natural org;anic cos-
inetlc ; nild related prloductl I in the Village olf Valles Stream.
coulilS ol N\;ssau Sl te of New York. During the year
inllllc iatCl!% precedlirg issuance of the collsolid itted
aiiiendcd ciilpinlim, tResplndlitcn il te ll s ire and coi-
duct O( its bhusness oilperatiiNls. sold and distributel d at it
V;allc Slrellnl plaill. priducts ,alhcidi ll excess of $50,()(0
of which productsl \ilicd ili excess of $5().((0() ver-c fur-
niSlhcd to m;il ordler ctillpalics ill New Y'ork State ech f
which colilpialnics has a;ul11 revenues in excess of
$500,()() ) fronii rltail sales and aniluall\ ships products val-
tied i excess of $50()()00 dircctli to customers located out-
sidl liec Sl;ate of Net York. I he comnplaint alleges, the
answer admits, and I find that Responden t is, and hs been
at ;ll liies material hereilln, an emploer enaged in conm-
nercce within the nieCaninig of Scction 2(6) and (7) of the
A\ct.
11 1 111 I AMR oR(,,N/,IO I () \1)
lie lionil is. nd has ben t ;ill times ;tecri;l fierein.
a lahir olr'ailil)I \ithii the illealling of Sctio)I 2(5) of
the Act.
I111 I 1 \I IR I All()R 'R \ I II S
A ,I Sl,'/'ioi.oi .SitlaIii tt Rm,' I'Pr ii
Ilie (inci;l ('ounsel alleges and R spdentltti ttenies
thlil Rose PIresti. a k. figure ill tile istaril case. is super-
isor ithin the ilmeannllg of tile Act. Ihe record reveals
thiit In NMa\ 1976 Jactqueline PIena. the other alleed dis
crinirlitCe Icereli. siu)tiglt ork through an ni elpi mcll
ionllc1 . V'il Perso n.l. She 'r;s ad'ised tto appl, for w:ork
;it Resplondeit's plice of business, to see oi e Rose Iresti.
iid 1to tll [t i thi;t she t1 hn sent bs 'iVal Pcr-onnel i,
"lkc Ippliictiiill fntr ellrplolllit.1 I!pon Illinllt at til1
it, she ,otrhlt out PIresti. did as directed b the iplo-
tIleIIt ;igiCic and s 'is nixcn ;il application bhs rci.
Whici.1 Pieni ;iskd 'lCti fr- ;I job, se ;It, ised her ta;t sie
lith not i srked fr 20 Pars. I)restl replicd that Pti
looiked like Strol ploi thalt t ld hindlu tie job w luch
IctiLled somnze ftiln of hea hboxes. She tIhen inflrtilled
Pcenia ibout the hoLurs aild pa scale. IPrest Ilirl., lfter brief-
s leial ng tilh office where the discussion iti as takilg place
iCelltrrned, ook PI t I's i i tour Ihriugli the plant. As she
"was lea itg tlc\ lappeled upo te pliant lllilaer. :aron
(icksbeig, w itho )l 1ct itrloduticed to Pcla. 'clial left aif-
Icr Cbeiln aLi sed hb I'rcsli thatl she w oild let her knowk
about lie job later since there wrec two ollther applicants
Ifr te lob anid she still ad Ito look )over i ;ippliicationls.
Xbotiut 2 or 3 dals LItr. n Sll1d;\. Ircsti cald Plli
I'sIl. Ikw 1 11 l'I1I it' J1 II ,h.,j 1 he~l/xcnl 1" lC i i . 1"''" Il'''" t ~X 'fi "
[ J 1 il t. 1`[ ,,hq t I x :hd l ,, / t'd i i1 1 11 11.11 th 1'.1~.,1~ 1 J l l I 1,,ll X n,.l k
FERN L.ABORATORIES, INC, 48'1
h\ telephone nd cud her that he as hired ad that she
was to rtport folr u ork the tollM\inl2 d;i. Pell, accrepted
the offer and hbegan aorkmin fr Respondentl that \loNmda
AccordinL to IPresti and (ick shere. the phone call. hough
imadc b\, Prsti. l uas ;t the behesl of (lickshTer Uhlo asked
P-esti t call ena hbccause hlie had heen unsuccessful Il hl
attcmpt to reach her himself. Presti testified that she made
no recommelcndall on with reg ard to the hire of PIena" c
that as it ial s. I find thatl since the inititalJ h ilb er le, , ;
conducted between Presti itld [ella ;s ias the telephotne
conversation durilng hicih Plla as told to report for
work, and (ilicksher took no part II the interliwm or
lillinlg process sland did n1ot, I 1 fact. peak to Pen; ecepl to
exchange lhelc(.s. Presti either hired or effeclisei, reconl-
mended the hiring of Pena.
I he record re eals that on June 26, 1975. Francine ('it-
era, one of the alleged discrimlinlees. toether with a
flienld. applied for uork,l at Respondent's place of busilness.
She spoke with Rose Prestl ad asked her if Respondent
needed help. Presti replied that no help uwas needed at hat
lime hut ad ised the two uaomen to fill out applications for
eniplo nlenl. wahich the\! did. D)urin the discussion (itlera
mentioned that she knewa ho to to pe. 11 his appeared to
interest Presti who then stated that although there waere Ito
lobs aailahble at thile molltltll if all tling becaime a Iailable
after vacation she would call (ictra.
About a month later Presti called ( itera and requested
that she report the following dl;, iol an riterie'. \Ihen
she did so, Presti took her for a tour of the plant and intro-
dIuced her to the other cmipl ee icludiing the plant man-
acer Glickshberg. Prest then took (' itra back to the office
uhere she ga;e her a tysping test. Presti checked over the
test and stilted that (itera had the loh and could start Uork
the following Molndal . Ste thicn infornmed ( iter;a about the
hours, pa. aid othelr conlltoltsl of enItplo nllent inludillt
the fact that she would he tlpginl and also ihelpinu with
production hencer rest i needed lctr.' Altlloigh PIresti
.II Rcsl', lcl. ll c 1.1.II, 1 c., l I l' 1, ,lie1 [ 11 1i 11 c l 1i ,.I'll 1 li, .I i I
It'c111 ; dilcl 1cti .l i 1 ict'qic 1,) 11 [ ( illt' 111. [Ic I tfIrl l . 11 , 1 11r' ll . 1,
(;I,1I 1 Clt , I 1 c,., I,. l'l ltc l Ilc ic' ill.lrl, i I III11 I I lI' ri 'r1 1 II ,I '
111., 1 i criln Icc i md()ll-I lj c1,l, ii!f [I. 11 ' l 1. \ 1. 1 1Ic.1 - 111I,-
(; ,t'l S ;Ix d.' ll11)ld 111 ()}1h.ak'stie1 1 h . ' 1 11111'1 \
II ,1 1.111S It'1,1 xCL.l 1 L-L dlhtl\ hl >t11 I1 1d 't1 1,t 1 , I
u11T1 .11 %'l[1I C Clll}t'l '1. l1 d11' .\ h l'CtIIh' 11C \ I'B 1 Cl 1t'l11it , I'll/ 11 11
( ItCIl 11JLd h nt' dx}iI Cd. 1'1Irt's11i s t d 1 1 '1. midl , t't,, 111 '1n tidc[~.! x]1,
k'lllp(.}t'k h tsc n (l'11-1 1 '1 1.1 .111 XI [/o III 11 1 kk IIIC1 :scr ,lli III ,
ticlprilla tbi Shlc IrlMlCO [. h111( 11 1 l OI}tC klcx, tJ/11 ( i11t'.1 \t.1t 11t' Il'
the Il)n lcale', f Iht unioin htliness th uh c:cl t'i rwds IIsI .i 1 .lXXhldt' li'l
h1oll1 hlc\1Ln ltll , a, s,
inljectcd herself into the convelsatiolln and asked these clm-
ploees,. "What do 'ou want? Do ou wanit carpeting on
the floor?" Some of tlhemi replied that thes wanted the
blinds fixed anld sufficient rags with which to work. Ihcen,
whell employee Pena also attemlpled t rellrs to I'resi's
question, Presti told her to shut up. tliat site had no right to
saI ainl\iinlg. 5 Pena argued that she had as iluch righl as
aIlNoine else to speak. Since i has behn founid that lrcstli
as a supervisor at tihe tinhe that tii discussion took plalce
hier tellinlg Pea to "shut up" ald statinig that she "had tlo
right to sa an thing" while other elplosces were permit-
tled frcel to discuss their workitnlIg onditioinsll s clearhl\ il-
terrercnce ithll her right to particp;lle iT concerted activit',,
Micil is plotccted hb lie Act. Respondent. Ilrough Plresti
therls \iolated Sleeion X(a;)( I). I lie incident also delnlon-
stra;its I'resti's UlliOll anillus. all attitude wdhiclh resti her-
self frecels admitted durling hcer tcstimon\ .
( '. 1/hr. I)ichl; ,ic o ( I'/ueri
I Ilt I )iischtarc
( itcla's dutlCs were primaril, cleriical in nature aolitul
site was required. fronl timle to titlie, to work in prodictlion.
lcer clerical duties cotnsisted in part of lpiing inL,oices, or-
Iders- and letlters. hllig customers, filing, aid a;l'IIS\eritig
the telephone. She also opened tlte mail and forAardcd
checks anld orders to other offices lcaled ill I arminigdle
and Nec York (ito. ()ticr ciriespondenc se lacedi oin
(;licheksbrg's desk or gave to rcsti.
()O August 13, the unlionI denl;lld letter was rccci cd h\
Respolndent I, aind on August 17. I a letter from the Na-
titithal l.ahi r l iiti s;1d rcci c on iifirniini t thal
the u 1o k 5;] clilllnllc ilcpre,,Cnt!.ltiol;i stltls. ( itelCI'a ss 1
had beenl ;IhclI 1ti l. pr'i .t)lls I tli;i\ . ll J[t (ICltlillI(
]ccl ; , TILs r\cIl tI Resl)0itlln' t ,ificC. r-cc \cd.
open1'cid, and mgllid ' et Imle 1r I11om the Nalionatl a;1bor
iRelalliolls iird.. llsti ;1 s hi t ,h c id , II, I ;Ill done tin pc i-
otils cCasioll ll .lien icil.Ir d letters were receised I(
lIate tat da, ( li bek,crg,. ppmrcntl, altmtoed \til ('icrli
fol opllipn lic llc. atiulSed cr of readting the letter,
stilthl tllllt Ie fooulld it H]lld Ito belcl that shie could illav
oltipiCd i l ;aLn lt icad it. (iliksberc lestlified that lie told
lie that l;l he 1s 11]t I Iltlholied to opel Il ii l othel i ltih;
thilt s. Itch he ca\e hl to oipel id t I licr operlt Lg I[ t lie
lettel Io1l te NI.RB 11as ione of the s'. eral re stions IoI
11hCl disctlrEc.
()it luMlda, Aist 3 t abiout 4 p.m. (lickbcr
called ('itcra tio li i o1fice aild told hc' Ill hct 1itd 1-
I 1. l, ' l s .lIh I, 1. 11 1CI t l'dlh!
~
,1 1[ (11-1:1 ,t'] . 1 ]ll J 1 1h
II ]/k d it, i 't t'l t1, IIi [iihc ! ,ih ui . ii ut'Ntii i d I Ni r
ii I i 111 I t .1,1i I.It[ ll F t . I I l r I .1 l I 'IC IL 'Itlll. I 11i[ I I t LCII' I
~11 VL I 11 I , 1 , 1, Rl,,lil -'11i , 1ti)1 t Ii II , ' i c II '1 N'l!c
i-(,[ likdI tU 1-t1 lt1d TIldl I 1 rt'1 .]l.] I q r . , l1{F11, bll% tllICI I,11 ,I 1 11 s
I,~k 1(' 1 1· (11 ,1 1 \l s l l / 1,1 illknbdll/:'l '.lc h1e Io (~I ); 11 1J t'11.. . (t 1 1I( 1 ltl '
"' Kcr. )I l >.M c / Ihl 1 c 1,J 1 1. I l le 1 ',Hhll j I/ 1 /t'd 111· h '1 I C I ll I
1% 1 R II ().~ tl.. , ,mL I lm [h {· [', tll11 cl ilt. IC 'II k1 tlo11r I l, i .1l lLf ;1 C .I t 11
,.L. .1kti% 10 %Jl}J iii111 11111h111.111116
FERN LABORATORIES, INC 491
tended to fire her the previous FIridaI but that it had slip-
ped his mind. lie then told her that she was fired. When
('itera asked why she witas fired, he replied that it was be-
cause she was absent a lot.' lie also reminded her of the
fact that she had opened up the Nl RB letter without au-
thorization .2' As she went to get her coat. her husband
came in the door to drive her home. When she told hini
that she had just been fired, he asked Gilicksherg why his
wife had been fired. (;licksberg replied. "Oh. I really don't
remember." I find Gilicksberg's cavalier remark to Citera's
husband indicative of a termination steeped in animus
rather than reflective of a termination based upon legiti-
mate. albeit unfortunate, circumstances such as excessive
absences. It seems to me that if an emplover is asked to
explain to a man why his wife has just been fired, and the
termination were, in fact, for legitimate reasons, he would
most naturally inform the man of the circumstances with
some degree of sympathy, such as "I'm sorry, but the comn-
pany simply cannot function properly with Francine being
absent as much as she is." But when C('itera's husband
asked (ilicksberg why she had been fired and (ilicksberg
replied. "Oh I really don't remember." when, in fact, just a
minute or two earlier, he had told her that it was for exces-
sive absenteeism, his explanation smacks strongly of vin-
dictive sarcasm reflective of a motivation based on animus.
According to Glicksberg he fired Citera for two reasons.
One, was the fact that she was late frequently. fhe other
concerned an incident involving a warning note. In further
explication. Glicksberg testified that on Thursday. August
12, Citera asked for 2 hours off to consult with her attor-
ney. This was the third week of vacation for Presti and
Peterson?2 and for that reason Respondent was shorthand-
ed that week. He testified that he had told Citera that he
expected to be shorthanded that week and to please watch
her attendance because she had been "constantly late or
absent." Despite being shorthanded, however. Glicksberg
granted Citera the 2 hours requested with the admonition
to be certain to come in to work the following day. The
1 Responden t's records id ical that ( ier.a had he rl .ihcili 12 niie,
since the beginning if the car tier last .Ihcnce prior i., her dill.lrc. h.Jd
occurred Augusl 13. 10 da,,s hefo(re. I redl (C'ir1ea'x ri ll ll\ II, th.i
(iicksherg did. n fact. .late during ( era'i eit nterl ic. tha her ecixt.
absenteeism wa, he rean for her dlschairge
I" (ih cksherg tesified thai during he exit nler'ie, he .l c. o InicIitiiic t,
C'iera th:at she hd been late that i/ozrnlng I tIl ic denled h\ ( i.a l cih,
teslified thalt he had onlt hbeen i:lrd; on a fe , occamosis. thai chie 11til lie Li
been docked for being lard. and thatll liiksherg had ne er dlilcu.iCed Jlr
tardiness i ith her. (ickhbelrg testified
I oIld her about the fcl halt he u.is a. .l a , tlie ,ct tha.t Ic w1c,, Ilie
that d. the prcilou u ccek before the people lii h id thre. e lvc eek
\:;catllrt ca;rim haCk and I uold tier Ihibol .111 .CCtIlliti i].lliii) f (ldiflCll
things hut the i1ain I o tIhing llls .ra the le tr ir.llld he ilC Ih. ul l .i 1
abh,en( an.id ia bilnch oi ac icunllililn a ll h il t l le pciic .i,,llJ Cii i C-
cl.1,il Ile pri a't lll )ithl (Or [~*% hcfIIrc .\ .ll.t l th tii I t ni1llliC .I.ii1' 1 1c .
such .a hecr woirk .ll't f the rcilet
I on.. idr (iickcere's tei ili\ n czl cerrlllr Ic e.a i ict ilict ci ,rltI ( lt.i.
dl.l tclllcid. cnfuiied lind c'hols l.ackii in licbcll\ Ii.ll dlii.. ,l lld
lcik ofi caiind r tIong w t1hl Ils belated hlit ii n eliii ii cll, . III c -,il.
curiicLU nie till ci here ill, deis. rilpti. u f tlhe :cr Ii i i .11 cdl, ii tlh
ILIt Ocf (itCl. 11l. IIc.uldJ he. dilsrctied
l Il lpcec ,C 1111() lC.it' ,Ci isriC. rcrt. awarded an extra l eeks ,
tiocn the c, ek cnling i \U 1gll 13 c11, l; 11II .Idfl clliti 1 t ' 2\ k.
;ILacltl l frni tiul\ 2 throuh l i \t iclt 9 c. 1li .IIll ellllp] C .\,ce c1 I)C.1 .i1ld
dturini vl ch Ihtc pltnL u..i .i-Cd
nest Iday. Friday . A.u\gust 13. (itera failed to report for
wolrk which. according to (ilicksberg made him furious.
She did not call in to advise (ilicksberg that she i ould not
be in. nor did she offer an explanation the following Mon-
day as to why she had not reported to work the previous
F;ridav. On previous occasions ('itera had been absent
without calling in. Glicksberg characterized her failure to
give an explanation concerning her absence on Frida). Au-
gust 13 as reflecting her "arrogant attitude."
On Monday. August 16.22 according to Glicksber he
gave ('itera a warning note 2 in Presti's presence. in
which he complained bitterlx about her absence. her late-
ness, and the importance of her being on time. In the past
he had given her several verbal warnings for her lateness.
lie asked ('itera to read and sign the note, but she refusced
stating that she would not sign anything. Glicksberg stated
that it was "just a warning that you have been late and I
just want you to sign that you have been warned." Citera
replied. "No I am not signing it" and pushed the paper
awa,. Glicksberg characterized her attitude as snipp.
Gilicksberg was angry, but did not want to show it. so he
left the office. Later he returned and asked Citera where
the note was and she replied that she did not have it.
(;licksberg again walked out of the office but then after
asking Presti if she had the note, and after she denied ha:-
ing it. he told Presti to check with Citera to find out what
she had done with the note. Presti testified that when she
went in and asked Citera about the note. Citera. after first
denying that she knew where it was, then stated that she
had destroyed it. Later. Presti reported this to Glicksberg.2 s
Citera declared flatly during her testimony that she nev-
er received any written warning concerning either her ab-
sence on August 13 or on any other occasion.
Glicksberg testified that although he decided to fire Cit-
era because of the incident involving the warning note he
determined not to do so until the end of the week so that
Presti. who had been on vacation, could pick up the loose
ends from Citera. thus permitting a smooth turnover. The
end of the week was Friday, August 20. the day Respon-
dent received the notice of hearing from the National l.a-
bor Relations Board. According to Glicksberg, he received
an important phone call Friday afternoon which kept him
buss until after Citera and the other employees had left so
that he never got around to terminating her as he had in-
tended.
il(;lhk .hcr .dcie. ti.l e C:l\e ( itcl.li he rilinun [tlic miit ..lile d.i
th.l tue letter hilI the \.tiitl. h .il Rclalliii B a1rd .rr\ cid hich %g:i.
I ncl.id , c i. iii I'
lie iiic urnpan r,,is Rcsp t \It 4 kept h i Presii. wich record .ah-
ceicec ,iid lJ c-teil icleit Ili (;hckhcr2 'pukc to i'era cii I id.ic
>catsl 17t. I.c rdin herl itpur ,ciedJ bein l e that d. I lie r Ii. tl.ti
Xit_,Jl\ 171 d rc riot IutCllh nili .l I lltl e or il c.iliilll lit heIIIC11 .ubcCi I1t
\'c'.c t ' I iil \,11Ci1 I I. h it 1 t 1 ( it ,ll rueIIIIlt e l ICItII [oe Ill.
\I RIt
- (illc1,kcel[t cu1tetd li1t , pluruslx IC uckcd tr C h, h p l 1ithn
he t ( Iice.i tIre c LrIti ' litie hc i.iuc e ic ..llllr J ii' . itIIC tc1 IcilIfICI
th.lt ll I e. ti tilt e ic l p .lle 1i1l.e lit11. tl i,,rkel p ic,lcx.
I IexiIlc Il 111 tICtlllrlrl IT'hlll I.. lr l c IIc lt ll fti IIC1. 1 ll l)i P lil.
(,I k c" rit ,it li,.t ( iCt. i .,1itllll C )1 t1 d I etl ii 1 1 tI. li, hl C .l ci
tt11 ccd II rls T, .
492 DCF.( ISIONS OF NATIONAL. LABOR iKLATIONS BOARD
2. Respondent's reasons for discharging Citera
a. ic'1 twarnling tol inlsubordination
As noted above one of the reasons that Respondent cites
for terminating Citera concerns her requesting 2 hours off
to see a lawyer on August 12. then failing to report for
work on August 13 when Respondent was shorthanded.
Citera denies that she requested 2 hours off on August 12
and states that the only time she took off from work be-
cause of a legal problem occurred a couple of months be-
fore her discharge when she was forced to take off for 3
days to appear in court. The records supplied by the com-
pany which are used for payroll purposes bear numerous
notations concerning employees who had taken off early
and therefore owed time to the company. The records con-
tain no such notation indicating that Citera took off 2
hours on August 12. On the other hand the records show
that Citera took off 3 days in late June. I therefore credit
Citera, as supported by the records, over Glicksberg with
regard to this matter. I conclude that Glicksberg inserted
the matter concerning Citera's request for 2 hours off to see
a lawyer simply to embellish his story concerning her tak-
ing the following day off without permission.
As to Citera's alleged absei,ce on August 13. Glicksberg
testified that she was absent that day but probably not
thereafter. Citera denied that she was absent during the
week prior to her discharge. She was not quite so emphatic.
however. with regard to the preceding week, which includ-
ing Friday, August 13. When asked if she had been absent
during the week ending August 13 she replied, "I don't
think so, no." 6 The time book shows a checkmark in the
space for the date Friday. August 13. next to Citera's name
indicating that Citera advised Respondent on the previous
day that she intended to report for work on Friday.27 In
addition to the checkmark however, there appears the
word "out" 2 written in the same space indicating that Cit-
era did not work on Friday, August 13. Based upon these
records and the payroll records - supporting Respondent's
position I find that Citera was absent on Friday, August
13.30
2' Though (Ctera olunteered that she had her check stuhs lt honte .hitch
would prove her presence or absence during certain da,. he (;enerall
Counsel did not produce them.
7 This was the usual procedure utilized to enabhle Respondentl pa.lll
office to, prepare the emploees checks n a.dlunct
2 Presti testified that the word "out" vis probahl\ rittcn n h Juli
Seargeni. though she appeared as a witness for the (ienel.l ( unsel .and
admitted keeping the attendance records during the eek orf August 1.
Seargent was never specificall 5 asked if she als he indisldull hiso role
the word "out" in the book.
2' The payroll records indicate thai (llera was paid fr rid r . u Xgust 13.
since she had indicated that she .ould he presenl. I le forllovsl.g eek.
however. Ihough she worked ai full 40-hour usrk week she as oil\ p ll
32 hurs,. apparently being docked for Iridas. ugust 13 Site vais also puid
4 hurs sowed Ito her froin the week of Juls 23. for a total if 3 hours
3" Julia Se;argent testified that ( itera advised Ihe ,other cplsoc, tha.t Ilhe
letter from the Inion had arrived on ugust 13 Repllmgi ti .1 leadtine
question on cross examinatllln, wlch questlln supplied the dlate. Sealent
stilted that (Citera informed the oither emploses ,, on -'rsd,. Ituts!u / thilt
the letter had arrived that et d If this were true. the inipica.in isi ti1
(itera was appa.renlI at work on I-rida'. August 13. jlust i se esic,,fie,.
and the ahbsenee records kept itl .arstl1nigd.le . it oulld 1ise tO hc .SUlliCd.
were r:alstied Ifor use in the isllti prleeding .I ir nol klig t i ti.keC Iitl
As noted above. (ilicksberg testified that on Monday.
August 16, the very next work day following the Friday
which Citera took off, and which action, Glicksberg testi-
fied. made him furious, he gave Citera a warning note.
Presti's testimony fully supports that of Glicksberg. It
stands to reason that if (ilicksberg were, in fact, angry over
Citera's absence the previous Friday, he certainly would
have taken the action which he testified to, and just as
quickly. If on the other hand, Citera's Friday absence was
not so serious a matter as Glicksberg said it was, he prob-
ably would not have gone through the trouble of writing
out a warning note for that reason. Records 'I supplied by
the company indicate that both Citera and other employ-
ees had in the past indicated an intention of working the
following day, and subsequently failed to report. No one
ever received a warning for this or any other type of absen-
teeism before.
Despite Glicksberg's and Presti's statements that the
warning note incident occurred on Monday. August 16.
immediately following itera's absence and right after
Presti returned from vacation, as noted above, there is evi-
dence in the record to the contrary. Thus the company's
own attendance records for the week of August 20 bears
the notation: "Fran 15 min. late on Tues.-spoken to by
Mr. B." Tuesday would have been August 17. If Citera
were given a written warning on Monday, August 16, con-
cerning her absences and lateness. particularly her absence
on August 13. at which time a serious confrontation sup-
posedly took place, the company's attendance records
would certainly have reflected this fact, assuming that such
notations were made in the ordinary course of business.
C'ertainly. if there were two warnings, one written warning
on Monday following the confrontation already described
and one verbal warning on Tuesday as mentioned in the
company records, the former. more significant event,
would not have been completely ignored while the "spoken
warning" concerning an alleged 15-minute tardiness was
recorded. If, on the other hand, the notation contained in
the record refers to the warning notice testified to by
Glicksberg and Presti, it reflects adversely on their descrip-
tion of events. First of all. the note in the book describes a
verbal notice while their testimony concerns a written no-
tice secondly the note mentions only a 15-minute tardi-
ness while the testimony concerns absences as well: finally,
whereas the note stated that the warning was delivered on
Tuesday, the testimony of Presti and Glicksberg places the
warning as having been delivered on Monday. If the warn-
ing took place on Tuesday as the notation states and con-
cerned a discussion of Citera's absence the previous Fri-
day. though not specifically mentioned in the notation,
.assuripin. RaiSher I conclude ilat t ontrar to S.algent's testinloiN if
('ter; acre Ihe onle al h did, i] fact,. .ad ise Seargenlt land the other emplo -
ees thai the t 'niit', detnand letter had arrised, she did so the folloaig
lid.a a thest. I is igreed bs il parties she was t l , ark [ his colltlslin
is .si,1 suppelted, in part. h he facl that ('iter; credlhls testified that she
wals . llthilr l/ed I1 open up the mi l atd sign fli cerified sr registered
letters If lhe .ere pre,entl .1 work oin Autguls 13, she ssould hec signed for
the enn,11 s dml and letter I lie return receipt for 1ith letter. li hecer. .sa
slglnedts b '5h .r.lloVsl/,. lts (' esa lie esidenc is qIronsg li ('ltcr. was
ti l ` ork Iss ALIgUlt 1
I hlie c.'uids refle .a inumbihel tf illtal.ics lcc bhoth check and thi
,irFk ",tit" p le.r li lls tiIlc.ttlli circitlnlsllnLcs Sllll.r ,. It llt lbeing dis-
..iscl ]CICItI
FERN LABORATORIES, INC.. 493
then clearl (Glicksberg was not as furious about the ab-
sence as he testified since he Awold not have waited
through all of Monday before bringing it to Citera's atten-
tion on luesdaN.
In light of the discrepancies between the notation in the
company's attendance records and Glicksherg's and
Presti's testimony when considered in light of the fact that
Citera flatly denied that she ever received any warning
notice. I reject the entire line of testimony concerning the
alleged written warning notice as proffered by Glicksberg
and Presti. as a fiction." I cannot believe that with the
emphasis placed on this warning notice episode b Re-
spondent, that it would have made no record of its occur-
rence, though it claims to have done so with regard to far
less important matters.
b. ('ierals absence.s in gen'eral
One reason for Citera's discharge. according to
Glicksberg, was her record of excessive absenteeism. Al-
though the company's records indicate and Citera freely
admits that she was absent approximately 12-13 times in
1976, 12 of these absences were during the period January
through June. The single absence which occurred during
the months of July and August occurred on August 13, an
instance fully discussed infra. Despite the fact that Citera
was absent 8 days in the first quarter of 1976 and on three
occasions during the first half of 1976 she was absent for 3
days at a time, it is admitted that neither Glicksberg nor
Presti ever disciplined, complained to. or even discussed
with Citera her absences until the alleged warning note
incident which I have found did not occur at all and which,
if it did, in fact, occur, occurred on August 17 as reflected
by the notation in Respondent's attendance records, on the
same day that Citera received, opened, and was criticized
for opening the letter from the National Labor Relations
Board.
It is patently clear from the record that throughout her
employment at Respondent's plant. Citera's excessive ab-
sences, if that is the correct term, were condoned by Re-
spondent and that no action was taken against her because
of her absenteeism until the advent of the Union. I find
that excessive absenteeism, as a reason for Citera's dis-
charge, was a mere pretext utilized by Respondent to cover
its true motivation in discharging Citera.
c. Citera' s record of tardiness
Another basis proffered by Respondent as a reason for
Citera's termination was her alleged excessive incidence of
tardiness. To give proper consideration to this matter one
must first consider Respondent's attitude toward tardiness
('nerd inlpressed mc ., .i torthrieh. l. .id d h-iict -iIiC-
ihr ,tughoui her estrinion
t11 i noted hat (;lickhbcrg hId eimpiecc Se.lrcni thIat hti hII.d ] iic
('ltera .a di.ciphinar letter Since io timlic fr.ailC a, I.,lihli,hed ,..i thl,
coinflert;iIl. I onsider (Gihckher> ,ta.icnitnill of 1 Ctidlcilltlr %iltiC
e. S rgnt tc tifielt that ('lltcr. Il c d I l rx I rs ii the r ipti, .itht-
out calhn f in and Pre l slaild that he t ii. t lli 1 i. nlC I illin tl t r I'I11 i
,he finall rerporltd t.. ork [htr I no cdl rlnc, hC t[. 1lut[ .111Xh111 I
a. I1 f;(1 dlCII
in general. First it is noted that the plant has no time clock
oin which employees punch in. According to (Glicksherg's
ouwn testimonN, when Presti takes the attendance of the
employees, she just checks to make certain that the, a;re
there for the day and the records kept do not reflect the
actual reporting and departure times of the employees.
These are not important so long as employees put in their
hours. When Glicksberg arrives an hour or an hour .and a
half after the rank-and-file employees' starting time. he
simply notes the checks after their names and assumes that
they are present. tie cannot tell b the records kept %what
time they arrived. From Glicksberg's testimony, it is clear
that Respondent generally did not particularly care when
an employee reported for work just so long as that employ -
ee put in a full day. In further clarification, or perhaps in
contradiction of this testimony. however Glicksberg testi-
fiecu that a timebook )" is kept by Presti who enters in it the
number of minutes an individual arrives late for work. If
Glicksberg finds no such entry, he assumes that the indi-
vidual arrived for work on time at 8 a.m. licksbher elabho-
rated by stating that in cases where the privilege is abused.
he would tell Presti to note how much and with what fre-
quency an employee is late. lie added that when Seargent
kept the books, before Presti was assigned this duty. she
followed the same procedure. As to how Glicksberg would
know when employees would report late, he testified that
he learned this from the book or from other people who
complained about employees coming in late. He denied
that Presti ever complained about Citera coming in late but
admitted that she kept the records. With regard to Citera,
Glicksberg testified that she was late innumerable times
and was the only employee who was abusing the privilege.
Presti testified that she was responsible for keeping the
timehook and first began doing so in May 1976. Prior to
that time Seargent performed this duty. Keeping the time-
book consists of placing a check mark after each
employee's name for the particular date to show that he
was in attendance on that date. She also notes overtime in
the book by placing a + I in the appropriate box to indi-
cate one additional hour of overtime worked. Presti further
testified that she would place a small 10 or 15 in the upper
right hand corner of a box to indicate 10 or 15 minutes late
that day. At the bottom of each weekly sheet Presti would
note any warnings for lateness issued to an employee.
With regard to Citera's record of tardiness. Presti testi-
fied that Citera had always been late, even from the begin-
ning of her employment, but that her lateness had never
been entered into the books until August 1976. It was at
this time, according to Presti, that Glicksberg found out
that Citera was constantly coming in late. that other em-
plovees were irritated because of it, and that for this reason
he asked Presti to start making notes in the book. Presti
stated that before this time, Glicksberg had not known
about Citera's record of tardiness because Presti ne er told
him, ' She then testified that when she found out that the
other employees were irritated about Citera's reporting
late, she told Glicksberg who told her to make note of her
tardiness.
lP . L s I ctx% rk t trllcd Il ltalgle I C, e lltlmld llt, h..k . r 1c.od,.
I Isc hcl I))c,1 oiil,1t tied herstlf and tetified il.i (d,,k.-Cr,. '.,
.1LX.,II' .'1 ( I1t'1.1x { lstelp', 1d .llned 1h., ;ib- l I{ it kc it I ,111
'
,
FERN LABORATORIES. IN.
_ _ .
494 DI)ECISIONS OF NATIONAL. LABOR REL.ATIONS BOARI)
I find Presti's testimony with regard to these matters to-
tally incredible. First, the time book indicates that no nota-
tions concerning tardiness were entered for any employees
by Presti 7 in the manner she described where a small
number was placed in the daily blocks opposite any
employee's name until Tuesday June . Prior to that date
no indications appear in the record book that ('itera had
been late. This is contrary to her testimony that the new
system of marking down Citera's lateness was initiated in
August. Beginning Tuesday. June I. according to the rec-
ord book, Citera was late between 5 and 40 minutes every
single morning without exception through the week of July
23, the last week of work before vacation and the last week
of work before the August 10 union meeting. Throughout
this entire period no similar notation was made in the rec-
ord book for any other employee. Thus, there is an incon-
sistency between Presti's testimony where she stated that
she first started making these tardiness notations in August
when told to do so by Glicksberg and the record book
which indicates that she began making these notations on
June . Since Presti testified that she did not make these
notations of tardiness until told to do so by Glicksberg and
Glicksberg testified that he looked at the book when he
came in at 9 or 9:30 a.m. to see who was present, he would
have been aware from looking at the book, assuming the
notations were made on the days indicated, that Citera was
late every single day from June I through the week ending
July 16, six full weeks before Citera was warned about late-
ness. It was on the page in the timebook covering the week
ending July 16 that the first notation of a warning to Citera
is indicated. Despite the notation of a warning having is-
sued at this time, Glicksberg did not testify to having is-
sued it, and Presti denied ever warning Citera about her
lateness herself, although she did complain to other em-
ployees about Citera's tardiness without, however. taking
any action against her.
It appears patently absurd that Glicksberg would have
given the order to Presti as of June I to keep track of
Citera's record of tardiness, then observe her being tardy
every day without exception for from 5 to 6 weeks if, in
fact, he was legitimately concerned with her tardiness. Cit-
era denies that she ever received any warning concerning
her tardiness. The record reflects that following the alleged
warning of Citera during the week of July 16 Citera contin-
ued to be late each and every day without exception until
vacation time, indicating an incredible lack of concern on
her part for her job.
But what if Presti's testimony was correct that she was
not told to keep track of Citera's incidence of tardiness
until August and did not do so until that time? Then all of
the notations in the time book would have had to be en-
tered ex post. facto. 38 If this were the case, it would explain
I len Scirg'rcl kept the books She nidcd her rl dkad; clidcrilt, t
tardiness with an iditc.llll hetthletr he prtlried to be do.tkcd ol I k i c
up the work
; Ihis tolcluioII I, ;llo supported h, I'rc "n , *oltlllctolle iC 111111.11\
during wlvhich he tiled thlil llt ug thl e ta nll litl1C U I is l , l lhe dllid
nou l;ike .ittenld.lnce l it thit ltitle hc.iii tle frltll tt11iIg tlllne. it .Ih,I l 2'
tIIlllI C% elch tllirn ig. theit I tt ellli.cI llCln duril t hl I ll 1i11 11i i b1
quickl filled witih creilie. Slit estified l1a11 the .lilte 1,ti]n l A111c IIi (cl i-
ien s., possibls half anl 1ti1Ml. hefort I;lkine ;Ittendilllc e If 1ill, sCIe Iit'
the uniformity of the entries, i.e.. Citera late every day
without an exception. and not a single incident of lateness
for anyone else. It would also lend credence to Citera's
testimony that she was never warned about her lateness
prior to her discharge. For if she had been warned as indi-
cated by the record book during the week ending July 16. it
would seem probable that she would have reported to work
on time immediately thereafter, at least for a few days.
There being no apparent effect on Citera of this alleged
warning, and there being a singular paucity of testimony as
to how and by whom this alleged warning was issued.39 I
find, in light of Citera's credited testimony, that no such
warning was ever issued. It follows then that the entry con-
cerning the warning during the week ending July 16. as
well as all of the se. post facto entries purportedly indicating
Citera's incidence of tardiness, were falsified.
If. as found here, Glicksberg first told Presti to begin
making notations on C('itera's tardiness in August and she
did so, at that time, even going so far as to make ex post
facto entries in the timebook, the question arises, why was
this done? Presti testified that the notations were made, on
order of Glicksberg. only after the girls became irritated
over Citera's habitual tardiness. However, when asked
which of the girls had complained about Citera's tardiness.
Presti replied, "No one complained to me. It was a general
thing." When the General Counsel persisted in demanding
to know precisely who had complained about Citera, Presti
stated, "several people said it." When challenged to name
them, Presti offered the names of four employees, none of
whom were called to substantiate Presti's story. I found
Presti, with respect to this portion of her testimony, singu-
larly unconvincing and reject her proffered reason for sud-
denly changing the bookkeeping system and her general
attitude toward Citera's habitual tardiness. What seems
perfectly clear is that it was August 10 that the employees
held their union meeting and signed cards immediately
upon return from their vacation; that shortly thereafter
Citera was accused by Presti of starting the Union, and
that it was at that time that Glicksberg told Presti to keep
track of Citera's record of tardiness. The cause and effect is
patently clear. Although Citera admittedly reported late,
according to Presti's own testimony. since the very begin-
ning of her employment. nothing was done about it until
she became involved in the union campaign after which,
and because of which, Presti was told to keep track and
make notations concerning her lateness. Thus, it is obvious
that Respondent sought to use Citera's record of tardiness
as a pretext and undertook to build a case against her
based on her record of tardiness, later to pretextually ter-
minate her, in truth, because of her union activity. I find.
however, that since Respondent had been aware of Citera's
propensity for tardiness since the beginning of her employ-
Ii-o;,c . 1II1l d 'P, tI ami eC htln L ti 11t f ll 2) 1IIILICL to i h ll 1ll Iu In lhe
pll tlol :lei ] /o kiid s iL tell v, Jln ( iela reported Col work in the
il1ce r Ic1c1ll J'lsli ,Illttd A nus olltl \ Ihle rol te ploduclt n ae l.l I Iot
l11hl. .llld rltllk¢ 111the ilt.ll ll S 1 1 h tnice hok hlh i ldltlc tat
( Itdl.i hI l tII 1111 ii1 C ( .I ,i ( I2iiiltC HIt w lel she' : ~.dS Ilil.l ThC to eCC
Jtct Cm e III Att ItI/c C IIInC
~
1, Pt' l ttihcd Il (ollckx}~ci~ issued 111e g%:trilitig At I adinv'ised d
iC'x 1'tldl cn bl ' 11.j (,ilkl\ % l[/ j
lteSlilll Is supported hs thal. t I (;li Lk cll 1 11d Pc t 1,lls ,k i .s1) lctIir 1i
Ihat if Seargeni. theirs is hkesisc dllcli tcl d
t Pena testified that she could Itl ce;tIll so .tkcd the ql rlCiiI hui
could distinlctl, remember that s11c liphcd . N. .. " ()tlhl klli.sc. tcstl
tied in support of ScarcIit. hIA 11 s .-l te., "l, 1 I tL .-sked illI l,
I ltliecdi atel\ itetrl replill tO Ihl lt'l (re ll ilsti \, hi c c lr II It I1i1cd SC rIIIt'111
contrlln inllo Ihe work area follioced hx (Ih,..shc ,\lihoil, i) or1 ic clec
notllcel (ilicksherg's presenle. I credit 'cna .l , I-i thie tic 11.1r Ic ,t.ls 1)1h s
ent aid hteard /hat eCli oitn. P'ettIs tCesllIoll, ctelltIt/ (Ihk, cr .' ple
eCInc Is stippred bh tletllnoll,\ o othi.l 1 IIC\Is e lstill t Ill s t ljlt.lll
c( r it Iitiil h t\ll teho h e) ll Icit I hi e h attl "[[ C I 'eh SClCI[. SC. I I 1 H di d
tlot ]noice lici reL'%LtIC dlllli tis Lt e 1 \L'1' lIs r1 x Ith i )P llI iltt ] d ILt' t c'
c*'lI ii cc
aid the hoic idea should therefore he dropped since the
UInion had lost two votes. Seargent continued on to the
back office and told Backstrom that it appeared as though
the Union had lost two votes and that the situation was in
the (ompany's favor. Backstrom replied that he had to be
sure, and asked her if she could give him any count of how
many pro and how many con? Seargent replied that it had
come out to one vote in Backstrom's favor. Backstrom an-
swered that he needed a majority of two or more and asked
Seargent if there was any way she could help him out. He
said that he needed more than a one vote majority; that he
needed a definite lead, a larger number in order to be posi-
tive that he did not have to have a lawyer. Glicksberg, who
was present throughout this discussion, then stated, "Well,
I'll tell you now, I wasn't going to say anything but I can
tell you now that if the Union comes in, that I am going to
leave. I won't work with this Union." Seargent then left.
I find Glicksberg's statement that he would not work
with the Union, and would leave before doing so, a threat
violative of Section 8(a)(l), since Presti had earlier stated to
the employees that neither she nor Glicksberg needed their
jobs and if the Union came in, the plant would close down.
Moreover, standing by itself, the statement is clearly in
violation of the Act, since it implies that even if the Union
should gain representational status, Respondent's officers
would resign before bargaining with the Union, thus signi-
fying the futility of union organizational activity.
After Seargent once again left the back office, she decid-
ed to check out Peterson's story about him and Trotta
changing their minds about wanting the Union. When she
subsequently discussed the matter with Trotta, he denied
having had any discussion with Peterson about "a change
of mind." Seargent then returned to Backstrom, told him
that her earlier report was not ell-founded, and stated
that the election was still on.
On September 22 the election was conducted by the Na-
tional Labor Relations Board. Of II valid ballots cast, 6
were cast for and 5 against the Union. There were two
challenged ballots. Petitioner challenged Presti's ballot on
the ground that she was a supervisor. The Board agent
challenged Citera's ballot because her name was not on the
eligibility list.
Following the election Presti, on several occasions,
blamed Argondizzo. stating that she had ruined everything.
She told her that if she had voted "in favor of the compa-
ny." Respondent would have won the election, but it had
not because it did not have a majority. Presti's statements
to Argondizzo clearly reflect her, and therefore Respon-
dent's, displeasure with the outcome of the election.
Also subsequent to the election both Presti and
Glicksberg discussed the Union with Seargent. s reiterating
some of the things stated prior thereto. Glicksberg told her
that he would quit if the Union came in. Backstrorm would
then have no manager, the plant would close, and the em-
ploees ould all be out of work. Ile told her that (itera
and Irotta had been the ringleaders and reiterated this
statemlent on several occasions. Presti also engaged Sear-
cinlt and the other eplohees in convrsation about the
I I1 Cts it' klln rs.l111 ti s . r11 .I .,ctk 1. ,l[t titell 11Ji ,t:liti t 1-11111 11it i1i
S t'NIL 1 itII
FERN LABORATORIES, INC. 499
Uinion, telling them that (ilicksherg could find a ob an-
time, that she, Presti. did not have to work. and that it was
the employees who would suffer because the place was
going to close. I find these statements b Glicksberg and
Presti coercive and violative of Section 8(a)( I) of the Act.
On Tuesday October 5, as Pena was leaving the plant for
the day. Glicksberg stopped her and told her that he no
longer could use her because the chemist 5s had left and
there would not be much work. Though Pena. the full-time
employee with the least seniority was laid off at this time.
Respondent continued to emplo 3 part-time employces.
These part-time employees had been working for Respon-
dent before Pena was hired. When Pena was laid off. she
was advised that it was because of a lack of work. She was
not discharged or given an, reason to belie'e that her work
was unsatisfactory. In fact. her work performance was nev-
er criticized nor was she reprimanded. disciplined. nor
threatened with such during her employment period.
The records reveal that during the week of October 8.
the week of Pena's layoff. fewer production hours were
worked at the plant than were worked for several months
previous, even taking into account the 40 hours usuall
worked by Abramowitz, as well as the hours which Pena
would have worked had she not been laid off. But the slow-
down in production was clearly a very temporary one and
Glicksberg must have known that at the time. OhviouslN
someone would have to replace the chemist and mix the
product if the Company was to stay in business. Whether it
was going to be Glicksberg himself who would do the work
previously done by the chemist, or it would be done out-
side the company, to stay in business Respondent had to
have the product mixed before it could be packed. labeled.
and sold. Thus, within 2 weeks of Pena's layoff. production
was back where it was prior to her layoff and Respondent
was forced to hire a new employee?6 Presti worked 10
hours of overtime. Two weeks after that, production in-
creased further and still another employee was hired. '7 The
following week a third new employee was hired. 8 These
employees, Rieg and Fox worked in the production area as
had Pena.
Right after Pena was laid off, according to Orishak.
Glicksberg came over to her and complained that Pena had
no right to say anything about the Union or anything be-
cause she had not been working there long enough. Hie
confided to her that he had heard Pena say "No wav!" the
day before the election when the employees were asked by
Backstrom to reconsider their decision to obtain union rep-
resentation. He also stated at this time that he had laid off
Pena because "it was slow." Glicksberg testified, however.
that prior to the layoff of Pena, whenever production was
slow, his policy had not been to lay off a single employee
indefinitely but to send home the production employees for
a few hours or a few days until theN were again needed as
production demands again increased. Similarl. (ilickshberg
" hrdlllll ll /'i ,ll
i 'i U N l (H i c Il, I II l\ ( I h 1 i t II L'IkI
[tllis retemplo.cdt l I \, t'rihcr 1)17' 11 .i p,lrl-lll'L tL.If r
lrhllb;ll Slraiuc hc.tlnr u-llik ).tohcr I, X ,1 d -e, Lk'di 411 11iL , I. J
twItll\r O iC lil(i ll Il .MCn.Illlhln h lr' 1hi , Icpl.l-.C ( 1i. 1 , lkc. 1 ri
khl .lV 11 III h.1 l ,t l U k .l , J IIIIILLtI 1'd 1111 E Jt'lx.J lilt'.
Mhar Rsl- hc[di l wi. lk \N-t,'. l l-l .
' Ki, J ,I hCis rl ; ..\k dll 1111 lile t' 1'~ l. l1L 1/'
testified that since Pena's la, off he has followed his ell-
established policy of sending his production employees
home for short periods when production is slow. Thus. the
record indicates that Pena's lasoff *,,is a uniquely institut-
ed procedure never used b Respondent before or since her
laxoff.
Glicksberg testified that Pena was laid off because of a
shortage of supplies which made it impossible for his em-
ployees to pack and meet outstanding orders. Elsewhere.
he testified that Pena was laid off because orders "ad
slacked off and in fact, the stores. the franchises weren't
doing well." Still elsewhere. Glicksberg testified that Pena
was laid off because Backstrom had told him not to over
produce. I find (;licksberg's testimony contradictor at
some variance with the reasons which he gave 'Pena for her
layoff, and not to be credited.s
Some time after her layoff. Pena contacted Orishak hb,
telephone to advise her that she had broken her foot. Ihe
lay after hearing about Pena's broken foot. when Orishak
reported to work she told Glicksberg and the other em-
ployees about Pena's accident. Subsequently on October
22. (ilicksberg sent Pena a letter asking her to report for
work the next working day after receiving the letter. (lear-
I. hen Glicksberg sent the letter to Pena offering her
reemployment. he was already aware that she was unable
to report for work because of her broken foot. When she
received the October 22 letter. Pena. unaware that
ilicksberg had already been told of her injur, called
(ilicksberg and told him that she had fallen and broken her
foot and would not be able to go back to work until she got
an okay from her doctor. Glicksberg. carrying out the cha-
rade. told Pena that it was too bad about her foot but that
he needed the help and suggested that she keep in touch.
Pena later called Orishak to advise her that she had re-
ceived the letter from Glicksberg. During this conversa-
tion. Orishak informed Pena that Glicksberg had known all
along about Pena's broken foot because she, Orishak. had
told him about it the day after she learned about it from
Pena.
Glicksberg testified that he sent the letter of October 22
recalling Pena by registered or certified mail to make cer-
tain that she received it.' He denied already knowing at
the time that Pena had broken her foot and would not be
able to work. He testified that production had increased in
the week during which he sent the letter and that the addi-
tional work required the hiring of additional employees.
He therefore sent the letter of recall to Pena. He testified
that when he determined that Pena would not be available
for weeks or months, he decided to hire new employees. It
would seem. however. that Glicksberg really had no inten-
tion of recalling or even contacting Pena until he heard
from Orishak that she had broken her foot and would hbe
unable to report for work if recalled. For it was not until
after he heard that she v\as incapacitated that he sent her a
I' J tllJ - Ir filld (1i uk'Il, .,i o'.,1 5 .c'. I . tC \ i.111. ii ' ,, i.ld *I t, ,c
.lsl[ll11' llq l .0>,tnd tIIldlkhlkrri . 5C I 11 l 11 1. is t -1%l,11/t,
,,thor '1< h , k i l . . ll, t iI1 Filet 1 [ kl i o.,. , , i r . 1 ' rI d ,i t er' ltt t-
I,.H~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~r .I r .
FERN LABORATORIES, INC. 499
. _ ,
500 )E('ISIONS OF NATIONAL. I.ABOR RELATIONS BOARD
registered letter of recall rather than simply telephoning
her, mentioning that he knew of her injury, and asking
her
if she could work. When asked why he bothered to send
a
registered or certified letter rather an contacting lena by
phone, he replied. "Well, there was a lot of things happen-
ing at the time. I figured I'd better start doing things
the
proper way." This, I translate to mean that there was an
outstanding charge based on the discriminatory discharge
of Citera and since there might ery well be another
charge
filed shortly thereafter on Pena's behalf, it would benefit
Respondent's position to have an offer of reinstatement
onil
record. Thus, the certified letter. Glicksberg's effort at sub-
terfuge with regard to the recall letter calls into question
Respondent's motive.
After her accident, which she places about October 16.
Pena was required to stla in bed for 10 days. Two weeks
after her accident she again visited the doctor who told her
that she could put a little weight on her foot if she used
crutches, which she subsequently did. About a week later
she visited the doctor once again. his would have been
approximately November 5. During this visit, the doctor
told Pena that she could go back to work if she were sitting
down. Since some of the work that she had been doing.
such as capping and labeling, could e done while sitting
down.5' she once again called Glicksberg. Glicksberg told
Pena that she could not have a sit-down job because it
would not be fair to the other employees who were putting
in a full day's work
2 lie also told her that he did not want
her back if she was on crutches or in a cast because she
could slip on the spillage which is on the floor and perhaps
have another accident." tie again told her to keep in
touch. She said that she would be out for 5 or 6 weeks and
he replied that he could not wait, that he needed help
right
away.
Some time, apparently after these telephone conversa-
tions between Pena and Glicksberg, Pena visited the
plant
on two occasions. The first time to request an insurance
form, the second time to pick up the form which, in
the
meantime, had been sent for by (Glicksberg. On both occa-
sions she spoke with (ilicksberg. Her foot was still in a cast
at the time of these visits and (ilicksherg did not offer her
employment but rather again told her to keep in touch.
Toward the end of November the doctor told Pena that she
could return to work. Pena called Glicksberg and told him
that she could return. Glicksberg, however, said he did
not
need her. tier foot was still in a cast at the time. Though
Respondent was in need of additional help in late Decenm-
her 1976 and recalled Siracuse '$ to work at that time,
no
effort was made to contact Pena Other employees were
subseqlently hired with no apparent attempt to contact or
recall Pen a.
, u ld il -, 1 i , c l d I, IAt ll I I ll I t1d
hi l l hr l,
' lilcr I i,,i c~lk ldcnlc I 11 [11
,lhei tllltl ,)cc * ,cC1 tIs,, 11tdl .,lh
1 1,lld
1I) [hII c Ill .IICr
l'cr. t' lIadllltlctd 1th1 lhc[
I %1, Ia,2 Il 1111e t lit .,
1 'l''pl i .1..
,1h. t 1 ,, d:Hlc rotls 111hC
p1mtl
t ;\' ,li i. I ICV ezlle l t',c\ s ; k.c
l lct] . ill ()t ,bl IS .ldl \ ci1
itl _I,
iil 12 SI.icutc I,, c lefi hc implo',
Rc.l.> ctit , \ -t.,xr i I '.
ICcnl, p]ls;.d I)cctclh 28
' Slfittti'. ( I rt'r1'x [c1, lt'
. ,-ttrtil dll h*+ tillk dS LILI1r1
IIll ,,
.flt lal,, I O7)
After Pena recovered from her broken foot she obtained
employment i a plant across the street from Respondent.
Though G(licksberg was aware that Pena had fuli re-
covered, was capable of w orking, and was employed across
the street, he did not offer her reinstatement. On the con-
trar. ini a discussion with Orishak concerning Pena's em-
plo)yment at the plant across from his own place of busi-
ness, (licksberg once commented that he saw Pena
working there and that he ought to go across the street and
tell them "what kind of a troublemaker she is." 7 Orishak
replied. "There's already a union there." Glicksberg then
walked away. I find the incident indicative of
Respondent's continued antipathy toward Pena and her
activities on behalf of the Union and evidence that it had
no intention of rehiring her at the time.
On (Christmases prior to 1976 Respondent was in the
practice of giving its employees C hristmas bonuses. In 1976
no bonuses were given. Argondizzo. angry at not having
received a bonus. walked out of Respondent's Christmas
party. Subsequently Presti made a speech in which she
criticized Argondizzo for walking out. She stated that she
could understand what Argondizzo had done, but it was
her own fault because if she had believed Presti when she
said she was sincere with her and tried to talk with her.
then this would not have happened. She told Argondizzo
that she had "put the company down the drain." I find
that
Presti was referring to her previous union related discus-
sions with Argondizzo during which she used similar lan-
guage. The tenor of Presti's speech clearly indicates contin-
ued animosity toward the prounion employees.
In Ma) 1977 Pena filed her charge in Case 29 CA 5638
alleging her discriminatory layoff because of her activities
on behalf of the Union. Following the filing of this charge,
according to Seargent, she and G licksberg were convers-
ing about a number of things including an incident involv-
ing Citera's husband and union matters in general
when
the subject of Pena was brought up. (ilicksberg then
told
Seargent that although she did not know it, he had fol-
lowed her out of the back office the day before the election
when she returned to ask the employee s to reconsider their
decision to bring in the Union. and he heard Pena reply
to
Seargent's request, "No way." I find Glicksberg's state-
ment to Seargent. in the context of an apparent review of
union related matters occurring months after the incident.
ain admission that Pena's "No way" statement was of great
significance and extreme importance to (;licksberg, other-
wise he would have long since forgotten it. This fact when
considered in light of declarations by both Presti
and
(ilicksberg that Pena had no right to have a say in the
' An emploee named tDes; wa;l hired April 4,
1977; an clmplih.ee
11"11t1 d ( IulrlnwI -Lt Id \
1 rl 18. 1:7 I 1lnpl1ohcc, hlll ned
rhd1,l
\ t ,]lct l t .Il, I I11 d )I/ \
I. / " ,t i [h cx Cillp[l, ",Cle 1illl *d
(hC td I, l, cticd Il IiIiL , it t i, , .1trI
1 I,'IrIC d [1 aI ll .ti I 1 iI II. t kl
r I i1 l, . Itlt i , ti . ic.l i hi\, l tc tlnd O c d1 cs
hi ll llid i l tl , tI tI l it I rxi
it t, ,t i, rd ,l ., l]tIl },d h
cerl d, fcil, d 1. (ihck,be lgv ',1,lCr
nlll
h -. 1 h'> r X1t'/ \, Nd ll ll i"
d ,e hd (oIdt-C -hws 1,t 1I
I I d
1l 11 I11 Cllllt' t.1i' l.l, x 1h,'11
h'c.1 11,l (.i, bc1l:. .k - l" c ,1 t'Cl.I ' ",sA, \ 1C '' il.1 t' llt lll ,! it , X1k rh q
c 1 ;H.' !14, t' xll
lidit ll i1 lt'l d 1[)'11l
II
FERN LABORATORIES, INC. 501
matter of union representation at Fern because she had not
been there that long, plus the strenuous obiections raised
by Presti to the union meeting which had been held at
Pena's home and to which she. Presti. had not been invited
convinces me that Pena was terminated for engaging in
those activities protected bh the Act. In summary, the ei-
dence reflects that Pena was active on behalf of the Union
and openl' declared her prounion sympathies: that Re-
spondent was aware of these s mpathies and just as openl
objected to Pena's prounion statements: that Respondent
laid off Pena in an unprecedented fashion shortly after the
NLRB election and thereafter refused to make a legitimate
offer of recall. even contriving to make it appear through
duplicity that such an offer had been made: and finallN.
that through various conversations between (ilicksberg
and rank-and-file employees. Respondent virtually admit-
ted that the reason Pena was laid off, more precisely. termi-
nated. was her union activity and in particular. her refusal
to agree in her "No wax," 70 statement to reconsider the
decision to go forward with the plan to seek union repre-
sentation at the plant. I find, therefore. that Pena was ter-
minated in violation of Section 8(a)(3) of the Act.
On October 4, 1977. Seargent quit working at Respon-
dent. On October 6. 1977. G(licksherg sent another certified
letter to Pena stating:
We are considering taking on addititonal help at this
time.
Kindly phone me immediatel, if ou are availahle
and able to work starting \Mondan (October 10. 1977.
In any event. we would like to hear from ou one
wa,; or the other.
Thank you.
Upon receipt of this letter on Monday October 10. Pena
called (ilicksberg " and told him that she was presently
emplo)ed at another company and had to give notice
which would take a couple of days. She stated that she
would call him. Glicksberg then asked her when she would
call him. She replied that she would contact him by the end
of the week. Glicksberg insisted that he required a specific
date when she would call and she stated that she would call
him on Thursday. Glicksberg agreed. On Wednesday, how-
ever. Glicksberg contacted Pena and told her that he could
not wait anv longer. that he had to hire someone else I
find (licksherg's offer to Pena tentati,e at best since the
letter stated only that Respondent was "onwioderng takinlL
on additional help" and in an! case was wilthdrawn with-
out giving Pena sufficient time Ito consider and ict upon
the offer.
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503Ft-RN LABORATORIES, INC.
AI''! NIl)IX
P( i I11 I (O R iR ()I I i
NiioN x IN.\()R Rf I I1s RI)
Anll A\enle of the nited St;tes (iovxernmuii
We hereby notify our employees that the National labor
Relations Board has found that we iolated the lay, and
has ordered it us to post this notice.
The Act gives all our employees these rights:
To organize themselves
To form, join. or help unions
To bargain as a group through representatives
they choose
To act together for colleciive bargaining or other
mutual aid or protection
To refuse to do an' or all of these things.
In recognition of these rights we hereby notik our
employees that:
Wi all. NI interrogate employees concerning their
union activities.
Wi wit I N threaten employees that the plant will
close if a union comes i.
WI: wi.,i N(,o give employees the impression that
their union activities are under surveillance.
VWi ul I Nol promise a;1il threaten emplosees that if
they ote against the JUnion. they will receive help but
if they do not. the\ ill not receive help.
WVI a' ii ot poll our emploees as to their Ul1ion1
s? m1pathies.
WI AII x1)I attenlpt to) convex to eplosees the
mpression that tllinion representatiolln ould be futile.
WVl ui i oT ill a other innllelrF interfere ith,
restCalin, or coerce eployees in the exercise of righits
vluaraniteed to themi bh Section 7 of the Act.
WI 'Al i No01 discourage membership in Oil. (hemi-
cal & Atomic Workers International Union. Local 8
149 or any other labor organization by discriminato-
rily discharging any of our employees or discritninat-
ing in any other manner with respect to their hire or
tenure of employment or any term or condition of em-
ploymen t.
WI xanL offer Francine Citera and Jacqueline Pena
immediate and full resinstatement to their former jobs
or, if such jobs no longer exist. to substantially equiva-
lent jobs. and make them whole for any loss of pay.
with interest, that they may have suffered by reason of
our discrimination against them.
All our employees are free to become or remain, or re-
frain from becoming or remaining members of a labor or-
ganization.
FIRN LB()R,()RIIS IN(