I/O Optics Limited

National Labor Relations Board - Board Decisions

Aug 19, 1980

251 N.L.R.B. 300 (N.L.R.B. 1980)

300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I/O Optics Limited, U.S.A. and District 65, Distrib-
utive Workers of America. Case 2-CA-15163
August 19, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On December 28, 1979, Administrative Law
Judge Russell M. King, Jr., issued the attached De-
cision in this proceeding. Thereafter, the General
Counsel and Respondent filed exceptions and sup-
porting briefs, as well as briefs in support of parts
of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,' find-
ings,2 and conclusions3 of the Administrative Law
i Respondent contends that the Administrative Law Judge erred in not
permitting its designated representative to participate in the hearing and
assist its counsel in the preparation of a defense pursuant to Rule 615 of
the Federal Rules (of Evidence. Our review of the record herein reveals
that, at the hearing. Respondent designated as its representative its presi-
denr, Tripodi, and moved for sequestration of all other witnesses. Re-
sporident's motion was granted by the Administrative Law Judge. There-
after, Tripodi did not attend the hearing because of business commitments
and Respondent requested that its witness, Miele. who had been seques-
tered with the other witnesses, be permitted to participate in the hearing
or that, in the alternative, the hearing be adjourned for several days until
Tripodi returned from his business trip. The Administrative Law Judge
denied both Respondent's request to substitute the already sequestered
Miele for Tripodi as well as its request for an adjournment. Respondent
has excepted to these rulings by the Administrative Law Judge. We find
Respondent's exceptions to be without merit and we affirm the rulings of
the Administrative Law Judge. In so doing we note that Respondent had
sufficient notice in advance of the hearing to choose a representative to
assist its counsel, and when that representative was called away on busi-
ness. Respondent asserted that a witness sequestered by its own motion
was the only person competent to act as its representative. Respondent's
problem concerning a designated representative was of its own creation
and we find that the Administrative Law Judge did not abuse his discre-
tion in refusing to permit Miele to substitute for Tripodi and in finding an
adjournment unwarranted.
2 The General Counsel and Respondent have excepted t certain credi-
bility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an administrative law judge's esolu-
tions with respect to credibility unless the clear preponderance of all of
the relevant evidence convinces us that the resolutions are incorrect
Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing his findings.
3 With respect to the discharge of employee Fidel Lopez, the Adminis-
trative Law Judge stated he was unable to determine if Lopez had In fact
uttered the profanity which, according to Respondent's assistant man-
ager, Miele, was the cause of his discharge. However, we have examined
the record thoroughly and conclude that Respondent merely seized on
the alleged profanity as a pretext to cover the real reason for its dis-
charge of Lopez; naniely, his support for and activities on behalf of the
Union. Shattuck Denn Mining Corporation (Iron King Branch), 151 NLRH
1328 (1965), enfd. 362 F.2d 466 (9th Cir. 1966).
251 NLRB No. 37
Judge and to adopt his recommended Order, as
modified herein. 4
We find merit in the General Counsel's exception
to the Administrative Law Judge's finding that
Grande's credited testimony regarding Respondent
Manager Pavanello's alleged threat to withdraw
scheduled employee pay raises was insufficient to
establish a violation of Section 8(a)(1) of the Act.
According to the credited testimony of Grande,
during an antiunion tirade that included a threat to
close down the plant, Pavanello exhibited to a
group of employees a paper containing the names
of certain employees scheduled to receive pay
raises. The General Counsel contends that this
action by Pavanello was intended to create the im-
pression that acceptance of the Union would jeop-
ardize future pay raises for employees. We agree,
and find that Respondent impliedly threatened its
employees that continued union activities would
result in the loss of a scheduled pay raise in viola-
tion of Section 8(a)(1) of the Act and we shall
modify the recommended Order accordingly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
I/O Optics Limited, U.S.A., Dobbs Ferry, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph l(a):
"(a) Discouraging membership in or support of
District 65, Distributive Workers of America, or
any other labor organization, by threatening em-
ployees with plant closure, discharge, or denial of
scheduled pay raises, or by discharging employees
or otherwise discriminating against them with re-
spect to the terms and conditions of their employ-
ment."
2. Substitute the attached notice for that of the
Administrative Law Judge.
4 Member Jenkinls would award interest on hackpay in accordance
with his dissent in Olympic Medical Corporation, 250 NLRB No. 11
(1980).
1/0 OPTICS LIMITED, U.S.A. 301
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discourage membership in or
support of District 65, Distributive Workers of
America, or any other labor organization, by
threatening employees with plant closure, dis-
charge, denial of scheduled pay raises, or by
discharging employees or otherwise discrimi-
nating against them with respect to the terms
and conditions of their employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WILL offer Fidel Lopez and Dionisio
Corte immediate and full reinstatement to their
former jobs or, if such jobs no longer exist, to
substantially equivalent positions, without prej-
udice to their seniority or other rights and
privileges previously enjoyed, and WE WILL
make them whole for any loss of pay which
they may have suffered as a result of their un-
lawful discharge, with interest.
1/O OPTICS LIMITED, U.S.A.
DECISION
STATEMENT OF THE CASE
RUSSELL M. KING, JR., Administrative Law Judge:
This case was heard by me in New York, New York, on
June 19-22, 1978.' The charge was filed by District 65,
' This case was originally assigned to Administrative Law Judge Pla-
Ionia P. Kirkwood, who opened the hearing in New York on March 27,
1978. At the commencement of that hearing, the Respondent and the
Charging Union proposed a settlement, which was also approved by the
three discharged employees involved in the case Counsel for the General
Counsel approved some of the terms of the proposed settlement, but re-
fused to join in the settlement because of the amount of backpay pro-
posed regarding two of the discharged employees, and the lack of rein-
statement of one of these two employees. Notwithstanding the lack of the
General Counsel's approval. Administrative Law Judge Kirkwood ap-
proved the settlement, and the General Counsel appealed this approval
and the settlement to the Board On May 4, 1978. the Board granted he
appeal and remanded the case back for Hearing (Member Murphy dis-
senting). Thereafter. Administrative Law Judge Kirk;ood disqualified
herself because of her involvement in the prior settlement negotiations
and the case was thus reassigned. The above settlement issue as not
raised during the hearing of the case, except for historical documentation
appearing among the formal papers in the case, which were admitted
without objection. During the first day of the hearing (June 19, 1978), the
Distributive Workers of America (the Union or District
65), on September 27, 1977,2 and the complaint was
issued on November 30, by the Regional Director for
Region 2, National Labor Relations Board (the Board),
on behalf of the Board's General Counsel. The complaint
alleges a series of unfair labor practices committed by
the Respondent between August 25 and October 3 in
violation of Section 8(a)(l) and (3) of the National Labor
Relations Act, as amended (the Act), including threats to
withhold pay raises, to discharge employees, and threats
to close its plant, and further the improper discharge of
three employees because of their union support and ac-
tivities.3 In late July the Union was contacted by em-
ployer Graciano Grande and the first organizational
meeting was held July 29 at his home. Thereafter, out of
approximately 32 employees, 29 signed union authoriza-
tion cards were obtained, and on August 25, 3 union offi-
cials gathered with a group of employees at the Re-
spondent's plant, displayed the 29 cards to the Respond-
ent's president, and demanded recognition. Later the
same day, the Union filed a representation petition with
the Board. On September 12 an Agreement for Consent
Election was reached and entered into by the Respond-
ent and the Union, and the Board-conducted election
was held on October 4. The vote was 16 for and 14
against the Union. Although there were two challenged
ballots, the matter was subsequently resolved in favor of
the Union, which was later certified by the Board as the
bargaining representative of the employees. A contract
was later negotiated and entered into between the Union
and the Respondent, and that contract was in existence
at the time this case was heard.
Upon the entire record, including my observation of
the demeanor of the witnesses, 4 and after due considera-
counsel for the Respondent and the Union moved to refer the entire
matter to arbitration under the terms of the existing contract between the
Respondent and the Union. and the Respondent also moved to continue
the case after the first day of the hearing due to the need for the Re-
spondent's president to be out of town on business after June 19. 1978
The General Counsel opposed both motions, both were denied at the
time. Upon review and reconsideration. my disposition of these motions
again appears to have been justified and correct.
I All dates hereafter are in 1977 unless otherwise indicated.
3 The pertinent parts of the Act provide as follows:
Sec 7 Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or
other mutual aid or protection
Sec 8 (a) It shall be an uniair labor practice for an employer-
(1) to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in section 7,
(3) by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage
membership in any labor organization .
4 The facts found herein are based on the record as a 'whole and upon
my observation of the witnesses The credibility resolutions herein have
been derived from a review of the entire testimonial record and exhibits
svith due regard for the logic of probability, the demeanor of the wit-
nesses, and the leaching of NL.R.B. v. Wa/ron Manufacturing Company
and Loganvill Pantr Company, 369 U S 404, 408 (1962) As to those lesti-
fying in contradiction o the findings herein, their testimony has been dis-
Continued
I/O OPTICS LIMITED, U.S.A
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the briefs filed herein by the General Counsel and
the Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The pleadings and the admissions herein established
the following jurisdictional facts. The Respondent is, and
has been at all times material herein, a New York corpo-
ration, and maintains its principal office and place of
business in Dobbs Ferry, New York, the facility or plant
involved in this case, and where the Respondent is en-
gaged in the manufacture and nonretail sale of spectacle
frames. During the fiscal year ending April 1, 1977, a
representative period, in the course and conduct of its
business the Respondent realized gross revenues in excess
of $500,000 and during the same period the Respondent
purchased and received goods and services valued in
excess of $50,000 directly from points located outside the
State of New York. As admitted, it is thus found that the
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. As further al-
leged and admitted herein, it is also found that the
Charging Union is, and has been at all times material to
this case, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Summary of Evidence 5
Peter Irizarry was a District 65 union organizer. He
had been a union organizer for over 18 years. Irizarry,
credited either as having been in conflict with the testimony of credible
witnesses or because it was in and of itself incredible and unworthy of
belief All testimony has been reviewed and weighed in light of the entire
record.
The following includes a summary of the testimony of the witnesses
appearing in the case. The testimony will appear normally in narrative
form, although on occasion some testimony will appear as actual quotes
from the transcript. The narrative only and merely represents a s umnary
of what the witnesses, themselves, stated or related, and does not neces-
sarily reflect my ultimate findings and conclusions in this case. The ma-
jority of the Respondent's employees were Italian, although eight were
Spanish. Many did not speak English. Of the eight witnesses testifying in
this case, three testified through an Italian interpreter (employees Dioni-
sio Corte, Mrs. Edvige Corte, and Graziano Grande), and one through a
Spanish interpreter (employee Fidel Lopez), The three discharges in this
case involved employees Fidel Lopez, Dionisio Corte, and Maria Tarone
At the beginning of the case, counsel for the Respondent moved to se-
quester the witnesses, including the three discharged employees. After
rather detailed discussions with both counsel, on the record, I determined
that total or complete exclusion of all witnesses, including the three dis-
charged employees, was warranted, and the motion was thus granted.
The Respondent's sole witness in the case, Assistant Production Manager
Dominick Miele, was also excluded, although the Respondent's president
(Dimitre Tripodi) was allowed to remain. The Respondent's production
manager was Rizzieri Pavanello. Pavenello had been brought from Italy
to train Miele. The Respondent's owner also owned and maintained a
similar plant in Italy where Pavanello had previously worked, and to
which he returned on or about May 17, 1978, only I month prior to the
hearing. Although Pavanello was subpenaed by the General Counsel, he
did not appear and was not produced by the Respondent. The effect of
this nonappearance will be discussed later in this Decision. Pavanello's in-
vestigative affidavit taken by a Board agent was admitted into evidence
for the limited purpose of reflecting possible inconsistencies in what
actual witnesses testified were actions or remarks of Pavanello. The ad-mittance of the affidavit was over the strong objection of counsel for the
together with District 65 Vice President Julio Mojica,
was involved in the organizational campaign at the Re-
spondent's plant. Irizarry testified that employee Gra-
ziano Grande contacted Mojica sometime in July and
that the initial organizational meeting was held at
Grande's home on July 29. There were six or seven em-
ployees at this meeting and they included Grande and his
wife, Antoinette Georgio, and Maria Tarone. At this ini-
tial meeting the employees who were present executed
union authorization cards and several employees, includ-
ing Tarone, were given blank cards to hand out to other
employees. According to Irizarry, from July 29 on, and
until the election, he and Mojica met with various em-
ployees almost daily, either before work, at lunchtime, or
after work, and usually in front of the Respondent's plant
in the parking lot. At these gatherings, between 10 and
20 of the employees would usually be present, and Iri-
zarry further indicated that they met frequently with the
"active" supporters, including Grande, Tarone, Georgio,
Lopez, and Corte. According to Irizarry, during these
gatherings or meetings in the front parking lot of the Re-
spondent's facility they were observed on occasions by
the Respondent's production manager, Rizzieri Pavan-
ello, and Assistant Production Manager Dominick Miele.
All employees went on vacation for 2 weeks com-
mencing Monday, August 1, and, according to Irizarry,
on August 11 a further organizational meeting was held
at which supporters elected a "shop committee" or orga-
nizing committee composed of employees Grande, Corte,
Georgio, and Lopez. At a subsequent meeting late in
August, attended by a majority of the employees, Iri-
zarry related that it was decided that, on August 25, the
Union would approach management and ask for recogni-
tion. Irizarry testified that at approximately 10 a.m. on
August 25, during an employee break, he and Union
Vice Presidents Mojica and Briggs, together with ap-
proximately 10 to 15 employees, gathered in the plant
and approached Assistant Production Manager Miele,
who in turn referred them to Production Manager Pa-
vanello. The group then approached Pavanello and,
when the term "recognition" was mentioned, according
to Irizarry Pavanello ordered the group to leave the area
and directed them to the Respondent's president Dimitri
Tripodi, whose office was several floors above. The
group then dispersed but Irizarry, Mojica, and Briggs
went up to Tripodi's office. At that time, Tripodi was
not in and they returned in approximately an hour and
did speak to Tripodi, requesting recognition and also dis-
playing the signed union authorization cards. According
to Irizarry, Tripodi examined the cards, wrote down the
names of all the signators, and then replied that he knew
nothing about unions and that, before he talked to them,
he first wanted to consult with either an attorney or
someone who had knowledge about union activities.
They then agreed to meet again I week later, on August
31, and as the three were leaving the plant, two uni-
formed policemen arrived and inquired as to their busi-
Respondent who, at the end of the receipt of evidence in this case, took
an interim appeal to the Board regarding admittance of the affidavit On
August 23. 1978, the Board denied the appeal. The record was closed
upon disposition of the appeal, with no further evidence
-
- -
1/0 OPTICS LIMITED, I.S.A. 303
ness at the plant. Irizarry related that, after they ex-
plained their purpose, they left without further incident
and went immediately to the Board's Office and filed the
formal petition for election. The August 31 meeting was
later cancelled, apparently because the Respondent's at-
torney was scheduled to be out of town.
Subsequently, a conference at the Board's Office re-
garding the election petiton was set for September 12.
Irizarry testified that prior to this conference he had
been told by the members of the organizing committee
that they had received threats of discharge if they at-
tended the September 12 conference. With this in mind,
Union Vice President Mojica wrote the Respondent on
September 7, indicating that the Respondent would be
"in violation of the law" if any adverse action were
taken against the four committee members as a result of
their upcoming attendance at the conference. The con-
ference was held at the Board Office on September 12,
and the four committee members were present. At that
conference the Respondent agreed to a consent election
which was set for October 4. The result of the election
reflected that 16 votes were cast in favor of the Union
and 14 against. Union Organizer Irizarry ended his testi-
mony by indicating that all three of the discharged em-
ployees in this case, Tarone, Lopez, and Corte, were
active union supporters.
Maria Tarone was employed on May 15 and was dis-
charged on September 12 by the Respondent. During her
employment she worked as a machine operator, polishing
eyeglass frames. During most of her employment her su-
pervisors were Production Manager Pavanello and As-
sistant Production Manager Miele. Tarone was a strong
union supporter from the beginning, attended the first or-
ganizational meeting on July 29, and obtained several
signed union authorization cards on behalf of the organi-
zational campaign. She frequently attended informal
group meetings with the two union organizers outside
the plant, and acted as an Italian interpreter on behalf of
the Union as needed when dealing with Italian and non-
English-speaking employees. She was also among the
group of employees that gathered with the three union
representatives on August 25, when they came to the
plant to demand recognition, and at that time she began
wearing a union button, which she wore daily until she
was discharged on September 12. Tarone indicated that
most of the union supporters wore union buttons after
August 25 and during the rest of the organizational cam-
paign. Tarone further indicated that employee Lopez
worked only several feet from her machine in the plant
and that he would frequently "walk around the plant" to
aid other employees in the operation of their machines.
Tarone testified that, on August 24, Assistant Manager
Miele handed out Blue Cross insurance application forms
to the employees. She further related that, up until then,
employees had no insurance, although they had been
told earlier and by management that such benefits would
be furnished. Tarone testified that around the first of
June she asked Assistant Manager Miele for Wednesdays
off to attend the Fordham Beauty School in the Bronx,
and that after Miele had consulted with Manager Pavan-
ello, he reported to her that she could take the Wednes-
days off. She indicated that, commencing with June 1,
she did take seven consecutive Wednesdays off, and that,
in mid-August, she quit the beauty school and returned
to Wednesday work.
Tarone was in effect discharged on June 12, and gave
the following testimonial description of the events of that
day and the following day. She indicated that she report-
ed to work on June 12, 2 hours late, about 10 a.m., be-
cause she "didn't feel too well" in the early morning.
According to Tarone, neither Manager Pavanello nor
Assistant Manager Miele was in the work area when she
arrived, and she was thus unable to explain to either one
why she was late that morning, but that she did tell
"Frank," who was "in charge of [her] department," why
she was late, and that Frank responded, "It's okay." 6
Tarone went on to indicate that 30 minutes before the
end of [her] shift and about 4 p.m., Assistant Manager
Miele informed her that Pavanello wanted to see her in
his office. Upon reporting to Pavanello's office, and in
the presence of Miele, Pavanello asked why she was late
and why she had not contacted him when she did arrive.
Tarone testified that she gave the same explanation that
she had given "Frank," to the effect that she did not feel
well early in the morning. According to Tarone, Pavan-
ello then said that he did not like people "doing their
own things," cursed in Italian, and stated, "We don't
need you .... You can go right now." Tarone then
went back to her machine and was told by employee
Grande, another strong union supporter, not to leave
until speaking with the union representatives who would
arrive at the plant at 4:30 p.m. She then went back to
work on her machine, where she was seen by Assistant
Manager Miele, who said nothing about her continued
working. The following morning, September 13, Tarone
reported to work as usual, punched in and went to her
machine and found no work to be done. This was not an
unusual thing, and she then went to another department
and commenced working until approximately 10 or 10:30
a.m. when she was again summoned to Pavanello's
office. According to Tarone she had again been observed
working by Miele that morning and he had again said
nothing to her. In Pavanello's office, he again informed
her that she was fired, indicating to her that, if she con-
tinued to work, it would be "for free." Tarone testified
that she then left Pavanello's office and again went back
to where she had been working, whereupon employee
Grande again told her she should continue working
through the day. She then continued with her work until
about 11:30 a.m., when Assistant Manager Miele sum-
moned her to the secretary's office where she was again
confronted with Manager Pavanello. Upon arriving, she
was handed her final check and Pavanello told her to go
home. According to Tarone, she asked Pavanello the
reason for her discharge, to which Pavanello replied she
was late and failed to bring a doctor's note. She then re-
minded Pavanello that a note had not been required in
the past, to which Pavanello replied, "Well, from now
on, I'm doing [it] like this." In her testimony, Tarone ini-
tially indicated that she was only late three times that
she "could remember," but later in her testimony, she
" Frank" did not testify and was never further identified in the
record
I/O OPTICS LIMITED. U.S.A
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conceded that she was late five or six times other than
her late arrival on June 12, but that during these other
times she was only late 3 or 4 minutes. Her testimony
changed to concede additional late arrivals when she
was shown timecards for periods from early July to
August 10, which indicated 9 or 10 late arrivals. Also in
cross-examination, Tarone was asked whether or not she
recalled telling Pavanello that her late arrival on June 12
was because of something that had occurred between her
and her husband, to which she replied, "I don't remem-
ber."
Tarone conceded in cross-examination that neither Pa-
vanello nor Miele had ever spoken to her, or to other
employees in her presence, about the Union. She also in-
dicated that she and employees Corte and Grande were
the most active union supporters, and that three or four
other employees were also considerably active, including
Lopez, who initially was against the Union but later
changed and supported the Union.
Employee Fidel Lopez worked for the Respondent ap-
proximately 10 months prior to his discharge on Septem-
ber 21. His job was that of a machine operator, polishing
eyeglass frames, and his supervisors were Assistant Man-
ager Miele and Manager Pavanello. Lopez testified that
employee Grande initially asked him to support the
Union and that he subsequently met with Union Organiz-
ers Mojica and Irizarry "several times" outside the plant
and went to several meetings at the Grandes' home. He
was placed on the organizing committee, signed a union
card, and helped organize the "Hispanic" employees by
giving them union authorization cards and soliciting their
support. After August 25 he also wore a union button,
and was in the group of employees who approached
management for recognition on August 25 at the plant.
Lopez testified that sometime prior to the early
August vacation Miele approached him at his machine
and stated that "if we would not vote for the Union, he
[would] give us Blue Cross and Blue Shield." Lopez fur-
ther testified that on September 9 he was called to Tri-
podi's office, where also present were Pavanello and the
three other members of the organizing committee. Lopez
related that Tripodi announced that only two members
could go to the conference on September 12 at the
Board Office, and that if all four committee members
went, he would "perhaps" discharge them.
Lopez gave the following account of his discharge on
September 21. At 10 a.m. Pavanello approached his ma-
chine and told him to go help employee Grande. He had
been assigned to help Grande on occasions in the past,
but his job with Grande had consisted of only "filing the
corners." But this time, Pavanello also told him to "cut
the corners." Lopez then related that, later on, Pavanello
also told him to straighten and polish frames and then
give them to Grande, or in effect "do the whole job"
himself. Lopez testified that he had no experience in
straightening or "setting" frames, and that about an hour
later, at approximately 11:30 a.m., Pavanello again came
over, counted the pieces he had completed, numbering
100, and thereafter informed him that he was not pro-
ducing enough, threatening to fire him if he did not pro-
duce more pieces. Lopez then indicated that he contin-
ued working and that, at approximately 12:30 p.m., Pa-
vanello again came over, this time with Miele, and told
him "not to work anymore" because his production was
poor. Lopez responded by indicating that he was not
doing "piece work" but was working by the hour, and
then left for his 30-minute lunch break.7 Lopez testified
that he returned to Grande's machine at I p.m. and
Grande told him to remain there and sit down, to which
he replied that he did not think he should remain as he
had been fired. Grande insisted that he remain and short-
ly thereafter Pavanello appeared and told Lopez that, if
he continued to work, he would not get paid. Lopez
then left the plant. Lopez testified that he had not re-
ceived any complaints prior to the date of his discharge
regarding his production or work, and that "several
times a week" he would go to the machines of other em-
ployees to tend or adjust them, and that earlier Assistant
Manager Miele had authorized or instructed him to do
this. However, Lopez conceded in cross-examination that
Pavanello had earlier complained two or three times to
him that he was "wandering" and not working. Lopez
further conceded in cross-examination that Pavanello had
told employees "two or three times" that, if they were
late for work, they would be fired. He could not remem-
ber the date or dates when Pavanello made such remarks
and he further indicated that he, himself, would be late
"sometimes" at least once a month.
Employee Dionisio Corte testified as a present em-
ployee of the Respondent. He was also a machine opera-
tor. His work history with the Respondent began in Italy
under the same owner where he worked in 1941 and
1942, and then in 1970 to 1975. During this later period
in Italy, he in fact was supervised by Manager Pavanello,
who later became the facility manager in New York. Ac-
cording to Corte, he and Pavanello were "friends" and
had come from the same village, and Pavanello had fre-
quently dined in his home. In the United States, Corte
commenced his work with the Respondent in April 1976.
On February 14, 1977, he was discharged, by his own
account, because two coworkers had "bad words" with
his wife, and further because the plant lacked work. He
was rehired in May 1977, at Pavanello's insistence. His
next discharge occurred October 3, and is one of the
controversies in this case. He was again rehired on
March 28, 1978, prior to giving testimony in this case.
During the most recent periods, his wife has also worked
for the Respondent in the New York plant.
Corte testified that his first union involvement came
on August 1, after talking to Union Organizers Mojica
and Irizarry. He subsequently signed a union authoriza-
tion card and met with the two organizers "many times,"
also attending numerous union meetings and passing out
cards to fellow employees, along with other union litera-
ture. He was also a member of the organizing committee,
and after August 25, he also wore a union button. He
was also with the group of employees that requested rec-
ognition at the plant on August 25. Corte further testi-
fied that, late in the day on August 25, he was called to
Pavanello's office, whereupon Pavanello stated that he
7 In cross-examination, Lopez conceded he additionally asked for a
"lay-off," which Pavanello refused It was clear in Lopez' testimony at
this point that he understood he had been discharged.
1/0 OPTICS LIMITED U AA 305
"would have thrown [the union supporters] out, that
they are Mafiosi," further indicating that he was "aston-
ished" that Corte was "on their side." Corte further re-
lated that Pavanello said, ". . . they probably would
have closed down the factory . . . they absolutely didn't
want the people from the union. "Corte continued by re-
lating that later on that day, August 25, Pavanello came
to his work area where seven or eight other employees
were also present, and "yelling in a loud voice," he again
reiterated that he did not want the Union, and "one by
one all the people who wanted the union in the factory
would have [sic] thrown them out." Corte was also pres-
ent in Tripodi's office on September 9 when Tripodi
read the Union's letter about the Board conference and
made further remarks about the attendance of the four
organizing committee members."
Corte testified that at approximately 11 a.m. on Sep-
tember 13 Pavanello came to his machine and again
stated that he was "not supposed to be on the union
side," further downing the Union and threatening the
discharge of supporters, and stating that "he would have
moved the plant" if he (Corte) continued supporting the
Union, adding that Corte's support was "like hitting him
in the back." Corte further testified that on September 30
he was called to Pavanello's office, where Miele was also
present. Pavanello then accused him of threatening a
female employee with "harm" if she did not sign a union
authorization card. Corte denied this allegation and
asked to be confronted with the employee, and Pavan-
ello refused. Corte then returned to work.
Corte gave the following account regarding his Octo-
ber 3 discharge. At approximately 10:20 a.m., Pavanello
called him into his office and informed him that he was
discharged. Miele was also present and, according to
Corte, the reason given was the alleged threat to a
female employee mentioned earlier and on September 30.
Corte then asked that Pavanello prepare a letter, written
in Italian, explaining exactly why he was being fired. Pa-
vanello agreed and Corte went back to his work area,
and sometime later he was again called to Pavanello's
office and given two letters, one in English and one in
Italian. He indicated that he read the letter in Italian and
again denied its contents and allegations, indicating that
he was going back to his work station and wait for the
union representatives to arrive that afternoon.9 Corte
then returned to his work station and, approximately 5
minutes later, Miele approached him and stated that they
wanted him to leave and that two policemen had ar-
rived, whereupon Corte then promptly left the plant.
Graziano Grande was presently employed by the Re-
spondent and had been so employed continuously since
" Corte was not allowed to testify regarding these remarks as he had
received them secondhand. Corte himself did not speak or understand
English and, at this meeting. Tripodi spoke in English. Tripodi's remarks
were interpreted and related to him by one or more of the other employ-
es who were also present.
9 The English version of this letter indicated that Corte was being ter-
minated for the violation of a company directive regarding the harass-
ment and threatening of employees It also stated that Corte had "demon-
strated [a] lack of willingness to leave [the] Company premises We
want you to know the proper authorities will be contacted if you should
refuse to depart upon hand delivery of this memo." The letter ended hby
reciting, "We feel it is in our mutual best interest to avoid any unfrtu-
nate occurrences which later may become regrettable."
March 1977. His job was to file and adjust eyeglasses.
He was supervised by both Miele and Pavanello. Grande
was the main union organizer throughout, indicating that
in June or July he became dissatisfied with working con-
ditions, contacted the Union and organized the first
meeting at his home on July 29. Thereafter, he attended
numerous union gatherings and meetings at his home,
collected union authorization cards, and became a
member of the organizing committee.
Grande testified that on August 25 at II a.m. he was
called to a meeting in Pavanello's office. Also present
were Miele and two other employees, including Edvige
Corte (Dionisio Corte's wife). According to Grande, Pa-
vanello told them that the Union was "like Mafia, that
the Union is no good, and if the Union was accepted
inside the factory, he would have closed down the fac-
tory." Grande also related that Pavanello then showed
them "a paper" with the names of five empolyees which
he said were due to be given a raise on September 1.'°
Grande further related that, after August 25, and at var-
ious places in the plant, Pavanello made such statements
about the Union "many times." Grande was summoned
to President Tripodi's office on September 9 with the
three other organizing committee members, when Pavan-
ello indicated that only two members of the committee
could attend the Board conference on September 12. Ac-
cording to Grande, Pavanello told them that if they all
attended "he would fire us the next day." Regarding em-
ployee Tarone's discharge, Grande testified that, some-
time after 4 p.m. on September 12, Tarone informed him
that she had been fired, and that he then advised her to
remain the rest of the day and discuss the matter with
the union representatives who would be arriving at the
close of business. The following day, September 13, and
sometime after 10 a.m., Grande again saw Tarone, who
related that she had been in Pavanello's office again and
that she had, in fact, been fired. Grande again told her to
stay the rest of the day, but approximately one-half hour
later, Miele arrived and called her upstairs. Grande
never saw Tarone at work again. Regarding the dis-
charge of Lopez on September 21, Grande testified that
Lopez had been sent to work in his area or with him on
occasions prior to this date, and on these occasions
Lopez only had the job of filing corners. On September
21, Grande indicated that in addition to filing corners
Lopez was "adjusting" glasses and "pulled the templix."
Grande related that these two steps were normally done
by him, with Lopez only filing the corners after he fin-
ished the adjustment process. Relative to insurance bene-
fits, Grande indicated that on August 24 Miele ap-
proached him and gave him a Blue Cross-Blue Shield ap-
plication and asked him to complete it and turn it in.
Grande related that he never turned it in because the
Union had a majority and was giving the employees
"more benefits."
Employee Antoinette Georgio testified as a present
employee of the Respondent. She had supported the
1o This is the extent of Grande's testimony on the subject of pay raises
The subject was also bro ught up in cross-examination, but with little or
no clarification as to how Grande accepted these remarks of Pasanello.
or f 'asanello's intent or addilional remarks
I/O OPTICS LIMITED, U S A
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union from the beginning, signed a union authorization
card, attended numerous meetings, and was a member of
the organizing committee. After August 25 she also wore
a union button. Georgio was among the group of em-
ployees who met with union organizers and requested
recognition on August 25. She testified that, after the
union representatives left the area of Pavanello's office,
she overheard Pavanello state that "if the Union had
come in he would close the factory down and go back to
Italy." She also received an insurance application card
from Miele on August 24, and was present at the Sep-
tember 9 meeting in Pavanello's office when he indicated
that only two committee members could attend the
Board conference on September 12.
Regarding employee Tarone's discharge, Georgio tes-
tified that she herself had been late five or six times and
had never brought in a doctor's note, or never had been
told to bring in any such note. Georgio further related
that on September 12 she had lunch with Tarone, who
related to her that earlier that day Pavanello had threat-
ened to fire her if she were late again. According to
Georgio, Tarone further remarked that she "should quit
now . . . shouldn't make him fire me and . . . maybe I
can go and collect unemployment. Further, according to
Georgio, Tarone added that "she was going to leave
anyway in a week because she had to have a baby."
Employee Edvige Corte was presently employed by
the Respondent and had been since October 1976. She
was the wife of employee Dioniso Corte, who had been
discharged October 3. Mrs. Corte was a union supporter
and was in the group of employees who gathered on
August 25 to demand recognition, and while in the hall
outside of Pavanello's office, she overheard him yelling
that he did not want the Union and whoever joined the
Union "would have been thrown out of the factory."
Mrs. Corte further related that sometime thereafter,
either later that day or the following day, she was called
into Pavanello's office where also present were employ-
ees Grante and Francesco Corente. At this time Pavan-
ello said he did not want the Union, that the Union "was
the Mafia," and that "one by one he would have thrown
us out."
Regarding the discharge of her husband, Mrs. Corte
testified that, on September 30, she was not feeling well
and remained at home, when Pavanello called her by
phone and asked her if she knew her husband had
"threatened" a girl because he wanted her to vote for
the Union. Pavanello then added that he would send her
husband to jail for what he had done, explaining he felt
that her husband had "hit [him] in the back" with his
union support. With this remark, Pavanello indicated
that he would call her back, and then hung up. Subse-
quently that day, Pavanello failed to call back and later
Mrs. Corte, in turn, telephoned him at the plant and
during this conversation she requested that Pavanello not
do anything to her husband as he was not in good
health. According to Mrs. Corte, Pavanello replied,
"Don't worry because we already spoke and everything
'l Counsel for the General Counsel claimed surprise in this testimlony
and argued that the witness had become hostile. He further requested
leave to examine the witness as a hostile witness under Fed R Evld
611(c). This request was denied.
is clear now." With this, the phone conversation ended.
Mrs. Corte related that the following Monday, October
3, her husband was fired but refused to leave the plant
and the police were then called. After the police arrived,
but before her husband left, Mrs. Corte testified that she
went to Pavanello's office and told him that he "went
crazy" and would "pay dear for this," to which Pavan-
ello replied, "If I made a mistake, I will pay for it."
Dominick Miele began his employment with the Re-
spondent on December 1, 1976. In March 1977, Pavan-
ello arrived at the plant from Italy, and at that time
Miele became a supervisor and commenced a training
period under Pavanello. He has since (and on April 1,
1978) become the actual production manager in place of
Pavanello, who returned to Italy approximately May 17,
1978.
Miele testified that the plant was closed for the first 2
weeks of August for summer vacation and that, until the
August 25 confrontation with the union representatives,
he had no knowledge of the union organization or activi-
ties that had been ongoing with some employees. Ac-
cording to Miele, about 10 a.m. on August 25, the union
representatives, together with a group of employees,
came to his office and he referred them to Pavanello.
When Pavanello arrived on the scene, Miele acted as an
interpreter since Pavanello spoke only Italian. Miele tes-
tified that Pavanello told them they would have to go
upstairs and talk to the Respondent's president, Tripodi.
The union representatives then went upstairs in the plant,
but soon came back down and left the building, having
learned that Tripodi was not in.
Miele testified that he never talked about the Union
with employees and that he never threatened employees
with discharge, the plant closing, or any reductions in
pay if they continued in their union support. Regarding
the insurance, Miele related that in early spring (1977)
Tripodi had indicated to him that he was "thinking" of
getting health benefits for all employees. Miele indicated
that he soon thereafter handed out Blue Cross-Blue
Shield cards to all the employees, but that many employ-
ees failed to fill out and hand in the cards. Thus, he
handed these same cards out to all employees again in
August, when they returned from their summer vacation.
Regarding Tarone's discharge on September 12, Miele
testified that she "usually came late every morning, but
that morning she came in real late." He asked her why
she was so late, and Tarone replied, in a "laughing . . .
like joking" manner, that "my husband fell on me."
Miele related that he then told Tarone to try to be on
time but immediately reported her lateness to Pavanello,
who requested Miele to call Tarone to his office. Tarone
reported to Pavanello's office and Pavanello then told
her that, if she was late again, she would be fired. Ac-
cording to Miele, Tarone then said, "You don't have to
go through the trouble of firing me, this is my last day
.I'm not going to be working here any longer." Pa-
venello then said, "Fine . . . [i]f you decide that way, it's
going to be that way." Tarone then left the office. The
following day Tarone did come to work, and upon her
arrival Miele asked her why she had reported to work
since she had quit the previous day, to which Tarone re-
I/O) OPTICS LIMITFD, US.A. 301(7
plied simply "she decided to come back to work." Miele
then told her not to go to work because "he didn't want
to get blamed from Mr. Pavanello for something," but
Tarone started back to work anyhow. Miele related that
he then told Pavanello of Tarone's return, and Pavanello
then went to Tarone himself and told her to go home
"because she had quit the day before and he didn't want
her back." Soon thereafter Tarone left the plant. Tracing
back Tarone's work history, Miele testified that during
the second week of June, Tarone approached him and
asked if she could take off each Wednesday to go to
beauty school. Miele then discussed the matter with Pa-
vanello who approved the request. Miele went on to tes-
tify that subsequen°'y. and on several occasions, he dis-
cussed absences rd lateness with Tarone because "she
took off Wednesday and sometimes she was out for half
a day or she came in late." Miele testified that he also
told Tarone that, snce they had given her the day off on
Wednesdays, it w.ls not fair for her to continue to be
late. 2
Regarding Lope ' discharge on September 21, Miele
testified that Loper w is normally a polisher, cleaning the
nose of the frames, bu' that sometimes he was assigned
to help employee Grance by filing the corners of frames.
Grande's job, on the ther hand, was to adjust or to
"give the temple a certtin inclination" and also to file or
sand the corners. Graide used a hand file, but when
Lopez helped Grande, he filed on a machine which, ac-
cording to Miele, was faster and did a better job. The
plant overall produced nywhere from 750 to 900 frames
per day. Later on in Miele's testimony, and somewhat in-
consistent with his prior testimony, he indicated that
when Lopez worked with Grande he did the same thing,
and that Lopez actually produced more frames than
Grande. Miele testified that, near the beginning of July,
Lopez' production went d wn and he "was walking
around the factory a lot." lIiele indicated that he spoke
to Lopez three or four times in July about his reduced
production, asking him to remain in his department, but
Miele indicated that the problem continued. He conced-
ed, however, that Lopez did legitimately go to other
areas of the plant approximately twice a day to "change
the wheel" for female employees who were not strong
enough to use the wrench required for his procedure.
Miele testified that early on the morning of September
21 he told Lopez to help Grande "filing the frame." At
II a.m., Pavanello approached Miele and told him to
12 Employee time records admitted into evidence in this case reflect
the following. In additon to the 7 Wednesdays Tarone was absent from
work attending school. she was also absent on 3 other days. was late by
4-1/2 hours on I day, and on September 13 (the date of her discharge)
she was late 2 hours. This late entry appears (in September 13. hen in
fact the testimony in this case would appear to indicate that this entry
should have appeared on the timecard for Monday. September 12. It as
on Tuesday. September 13. that Taronle attempted to return to wsork, but
was told to leave This discrepancy is never clarified in the record Addi-
tionally, the employee records also indicate that she was also late a total
of eight times. on the following number of days by the following number
of minutes: I day, 13 minutes I day, 5 minutes I day. 4 minutes I das. 3
minutes; 2 days, 2 minutes, and 2 days, 1 minute Tarone's employment
commenced on May 15, and ended ilh her discharge on September 12
The Respondent's late procedure 'as to "dock" an employee 15 minutes
of pay when an employee was late arri ing by no more than 15 minuti'e.
or less In all instances of late arrivals, the records reflect that Tarorne
was in fact so docked in accordanlce with this policy or procedure
"take a look at what Mr. Lopez did in the last 3 hours,"
whereupon both Miele and Pavanello went to Grande's
work area where Lopez was helping, and Lopez had
produce "sixty pieces. filing these frames in 3 hours."
According to Miele, Pavanello was "mad" at them both,
mad at Miele for lack of supervision of Lopez, and mad
at Lopez for his alleged low production. Miele testified
that. as a result of these events, he was "surprised,"
"mad," and "ashamed." Lopez was then asked why he
did not produce more, and according to Miele, he re-
sponded that he was "working by the hour, not by the
pieces" Lopez also stated that "if you don't like it give
me a layoff and I'll go home, so I can collect." Pavanello
refused to grant the layoff, but Lopez insisted. Accord-
ing to Miele, as Pavanello turned and started to walk
away, Lopez said, "Go -- yourself." Then, according
to Miele, Pavanello "got really mad," turned around, and
told Lopez to go home. Lopez soon thereafter left the
plant.
Miele's testimony, regarding the discharge of Corte on
October 3, went as follows. Corte was fired on October
3 because he "harassed a few people in the plant." One
employee who had complained was Emme Ruffino.
during the "last days of August." Miele was not present
when Ruffino had complained to Pavanello. and he
learned about the incident from Pavanello, after the fact.
Shortly after he learned about the complaint from Pa-
vanello, he confronted employee Ruffino, a "sixty year
old lady," and who in fact confirmed that Corte "was
harassing her, that she was going to lose her job if she
didn't sign for the Union." 3 Miele testified that he was
also familiar with the complaint of two other employees
regarding Corte. In mid-September, employee Raphael
Cordoba complained to Pavanello, in his presence. that
Corte threatened him with the loss of his job if he failed
to "sign for the Union." In late September or early Octo-
ber, and on the Friday prior to the Monday discharge of
Miele on October 3, a 20-year-old female employee
named Miriam Parrales complained to him that Corte
had threatened to put her in his "black book" unless she
"signed for the Union." Miele indicated that he immedi-
ately reported this last complaint to Pavanello, and that
soon thereafter they both talked to employee Parrales to-
':' Ilvanello did not testify in this case, although he was summoned
Pa'sanello's nonappearance will be discussed at some length later in this
Decision. Employee Emma Ruffino also did not testify and. for reasons
ntl reflected in the record, her testimony s as not sought O()er the ob-
ectilon of counsel for the General Counsel. I allow ed Miele's initial testi-
mony regarding the fact that Pavaaello had told him about the harass-
menl complaint. only to reflect what he had been told b Pasanello. and
not as es idence of proof that such a complaint (or complaint,) had actu-
ally been made However. and surprisingly. there was no objection by
counsel fr the General Counsel to Miele's testimony regarding what em-
ployee Ruffinio actually related to him when he later approached her
about the matter It should he further noted that. on or about August 2,.
the Respondenl distributed and posted a notice to the employees. Which
was admillted into evidence in this case That notice indicated that man-
agement had been advised that individuals not supporting the nlion had
been "harassed and otherwise hassled by those in favor" The notice
went on to stale that under no circumstances ould the Respondent
permit prounion or antiunion activities during wsorking hours. and ssould
not olerate "harassment of any employee pro-unilUn. anti-union or for
ani oher reas,on " Miele was not certain, hut thought his knovsledge of
the hara,smlent complaint and his conl:ersatlloln llh eniployee Ruffino
came before the notice came out
I/O OPTICS LIMITFD, U.S.A. 7
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gether. According to Miele, Parrales appeared "scared
and started crying," confirmed Corte's threat, and there-
after left early and went home. " Miele then related that
later that day, both he and Pavanello confronted Corte
with Parrales' complaint and told Corte that if it hap-
pened again, he would be discharged. According to
Miele, Corte responded by stating that whatever he had
told Parrales "was only a joke."' The following
Monday, Pavanello then approached the Respondent's
president, Tripodi, and told him about the Parrales com-
plaint of the previous Friday, whereupon Tripodi in-
structed Pavanello to discharge Corte immediately. "i A
short letter of discharge was prepared and signed by Tri-
podi, and was then handed to Corte. This letter in part
recited: "This is to confirm your termination this morn-
ing for violation of a company directive regarding ha-
rassment and the threatening of 1/O Optics Ltd. U.S.A.
Employees." According to Miele, upon Corte's receipt
of this discharge letter, he refused to leave the plant and
the police were then called. When the police arrived,
Corte and Pavanello started "screaming to each other"
and the police had to "force" Corte to leave.17
B. Evaluation of Law and Evidence and Initial
Conclusions 8
1. Alleged threats of Production Manager Pavanello
in late August and early September
Paragraph 6 of the complaint alleges that on various
days in late August and early September, including
August 25 and September 13, Pavanello threatened to
close the plant, deny scheduled pay raises, and to dis-
charge employees if they continued in their support of
the Union. In support of these allegations, the General
Counsel relied primarily on the testimony of employees
Graziano Grande and Dionisio Corte and his wife.
Grande initiated the original contact with the Union
and was the Union's most active supporter. However, I
credit his testimony completely in this case, and of all
the witnesses who testified, his demeanor and character
appeared as the highest. Although Grande remained em-
ployed by the Respondent, his testimony in many areas
proved damaging, and I conclude it was truthful and ac-
curate. After the August 25 group meeting resulting in
the Union's request for recognition, Grande was called
into Pavanello's office with two other employees, includ-
ing Corte's wife. Pavanello then commenced to down
the Union, indicating that it was like the "Mafia," that it
14 As in the case of the first allegedly threatened employee (Emma
Ruffino), there was nio objection by counsel for the General Counsel to
Miele's testimony about these two additional complaints when Miele had
talked to the complaining employees themselves and neither of these two
employees testified nor was their testimony sought
i" In his testimony, Cortc denied the threats to all three eriployees.
1' According to Miele, on the Friday of the Parrales complaint. Tri-
podi was out of the office the entire day.
z' Corte testified that on the morning of his discharge, he wras calm
'i The record in this case does not reflect that counsel for the Re-
spondent "rested" his case but my hearing notes reflect that in fact the
Respondenit did rest its case This fact should have appeared in the offi-
cial transcript where there is reflected a brief recess for a "tape chanige"
This record was initially taken hby direct audio means. on recording tape
Thus there appears. and also from the typed transcriptl to be a definite
gap at the point where the Respondent rested
was no good, and that if the Union were successful he
would close down the plant. Grande further testified that
after August 25, and in the plant, Pavanello made such
statements about the Union "many times." Grande was a
member of the organizing committee and further related
that, on September 9, all four members of the committee
were called into Pavanello's office, whereupon Pavanello
indicated that only two of their number would be al-
lowed to attend the Board conference on September 12,
and that, if all four attended, they would be fired the fol-
lowing day.
Employee Dionisio Corte I found to be somewhat less
reliable than Grande, although I do credit most of his
testimony. Corte was also a strong union supporter, was
on the organizing committee, and was discharged the
day before the election (October 3). Corte indicated that
sometime on August 25 he was called into Pavanello's
office, whereupon Pavanello made similar remarks to
those indicated by Grande. Corte further related that Pa-
vanello later on August 25 approached a group of seven
or eight employees in the plant and again downed the
Union, "yelling in a loud voice." Further, and according
to Corte, a similar incident occurred on September 13,
when Pavanello approached his machine and again made
disparaging remarks about the Union, including threats
to discharge supporters and to move or close the plant.
Corte's wife also credibly corroborated Grande's testi-
mony regarding Pavanello's August 25 remarks, as did
employee Antoinette Georgio.
Pavanello was obviously disturbed when approached
by the union representatives and employees the morning
of August 25. He made it clear that he did not want the
Union and in effect ordered the group to leave his area,
indicating that any further discussions should be had
with the Respondent's president. I am admittedly influ-
enced considerably by Pavanello's failure to be present
and to testify in this case. Pavanello, I conclude, was
definitely under the control of the Respondent, and the
cost of bringing him from Italy to testify in this case
does not serve to temper the influence of his lack of
presence. I thus conclude and find that Pavanello did in
fact threaten plant closure and the discharge of employ-
ees if they continued in their support of the Union.
Regarding the allegation pertaining to the denial of
scheduled pay raises, the only supporting testimony is
that of Grande, when he testified that Pavanello, in his
office on August 25, showed the employees gathered "a
paper" with the names of five employees due to be given
a raise on September 1. Although I have credited
Grande completely, his testimony regarding the pay raise
allegation stops short of providing substantial evidence
that a threat was intended. No other witness gave testi-
mony regarding the denial of pay raises and I am unable
to conclude, on the basis of the record before me, that
Pavanello's brief remarks constituted an unlawful threat
as alleged. Although I have no great doubt that the re-
marks were intended as threatening in nature, I simply
feel that the record lacks the substantial evidence neces-
sary to conclude that in fact a threat was made or con-
veyed. Thus, I conclude that Pavanello's alleged threat
1/0 OPTICS LIMITED, US.A. 309
to deny scheduled pay raises lacked testimonial support
and was not proven.
2. The alleged threats of Assistant Production
Manager Miele and his offer to provide medical
benefits
Paragraph 7 of the complaint alleges that, on August
26, Miele threatened employees with discharge, plant
closure, and reduction in pay. There is simply no evi-
dence in the record to support these allegations. Further,
the General Counsel's brief is moot regarding this allega-
tion. Thus I find no violation as alleged in paragraph 7
of the complaint.
Paragraph 8 of the complaint alleges that Miele im-
properly and unlawfully offered, on behalf of the Re-
spondent, to provide employees with medical benefits if
they did not select the Union in the upcoming Board-
conducted election. The original complaint alleged that
this conduct took place on or about October 1 to 3, and
during the Hearing the complaint was amended to allege
the date of on or about September 14. To substantiate
this allegation, the General Counsel relies on the sole tes-
timony of employee Fidel Lopez. Lopez was discharged
on September 21, and initially testified that a "short
time" before he was discharged Miele approached him at
his machine in the plant and stated that he would give
the employees Blue Cross and Blue Shield if they would
not vote for the Union. However, in cross-examination
he changed this date twice, first indicating that the con-
versation took place prior to the August 25 group con-
frontation, and next (and again) changing the date to be
sometime prior to the start of the August vacation,
which involved the first 2 weeks of August. Other wit-
nesses, and Miele himself, confirmed that the insurance
application cards were handed out to all employees on
August 24. Miele denied the remarks and no other wit-
ness indicated that Miele made such remarks when he
handed the cards out for the individual employees on
August 24. I discredit the testimony of Lopez here. He
was uncertain and changing, in the same manner as much
of his other testimony in this case. Further, it would
follow that, if Miele's intent were to make clear through
such remarks that the benefits would not be given if
union support continued, at least one other witness
would have remembered such remarks. Miele, himself,
was somewhat in the middle in this case. He appeared as
mild-mannered and appreciative of the opportunity to
become a supervisor. However, his demeanor conveyed
the impression that he wanted to carry off his responsi-
bilities in a competent and straightforward manner. In his
status, under Pavanello and in training, he obviously had
no responsibility, or desire, in dealing with the Union,
and his primary goal during the period involved in this
case appeared to be the gaining of the respect and admi-
ration of both the employees and his superiors. In the
main, I credit much of Miele's testimony in this case, and
in my opinion, he only rarely shaded the truth, and then
with few exceptions, only where he felt that no unde-
served detriment would occur to any employee. I find
and conclude that in fact Miele did not, on September 14
or August 24, or any other date, hold out insurance
benefits in return for employee rejection of the Union.
3. The discharge of Maria Tarone on September
13'9
Maria Tarone was a union supporter, and the only dis-
charged employee who was not a member of the orga-
nizing committee. She was discharged, according to the
Respondent, for her tardiness and absenteeism record.
Her record in this regard is set out in detail earlier in this
Decision. To summarize, in addition to the 7 Wednes-
days she attended beauty school, with consent, the rec-
ords reflect that she in fact was late 9 different days and
was absent or failed to report on 3 additional days.
Seven out of the nine late arrivals involved between I
and 13 minutes. She was 4-1/2 hours late on one occa-
sion and, immediately prior to her discharge, she was ap-
proximately 2 hours late. She was employed for 4
months, including the 2 weeks' vacation period. Tarone
testified that she arrived late September 12 because she
was not feeling well, and that upon her arrival neither
Miele nor Pavanello was in the area to receive this ex-
planation. Miele testified that Tarone usually came late
"every morning" and on the morning in question,
Tarone "laughingly" gave him the excuse that her "hus-
band fell on [her]." Later on that day, she was called to
Pavanello's office and, according to Miele, Pavanello
only threatened to discharge her if she were late again,
to which Tarone responded that she was quitting
anyhow, and she left the office. Tarone denied making
such remarks but employee Antoninette Georgio testified
that Tarone, at lunch that same day, remarked that "she
should quit now . . . shouldn't make him fire me . .
maybe I can go and collect unemployment," finally re-
marking that she had planned to leave in a week anyway
because she was going to have a child. Georgio's testi-
mony seemingly corroborates Miele's rendition of the in-
cident and I credit Georgio's testimony completely in
this case. Although Georgio was presently employed by
the Respondent, she was a union supporter from the be-
ginning and other portions of her testimony were also
adverse to the Respondent in this case. Regarding Tar-
one's tardiness and absenteeism record during her 4
months of employment, there is little in the record from
which one can measure its severity, especially in light of
the Respondent's rather loose and uncertain personnel
practices. During cross-examination, when Tarone was
asked about her statement to Miele concerning an early
morning occurrence with her husband on September 12,
she simply replied, "I don't remember." Somewhat quiz-
zical in this incident is the fact that Tarone maintained
that her first and only conversation in Pavanello's office
about her lateness earlier that day was approximately 4
to 4:30 in the afternoon. However, her remarks to em-
ployee Georgio were made at lunch, long before she
claimed to have been discharged. Further, Tarone was
never asked whether she made such remarks to Georgio,
although she was called in rebuttal. Additionally, she
was never really called upon to testimonially deny her
remarks to Pavanello, as indicated by Miele.
9" All three (f the alleged discrimIlator discharge, in this casc wvcrc
the subject if par 9 of the complaint
I/O OPTICS LIMITED USA
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For whatever reason or reasons Tarone left, in my
opinion the record in this case does not support the con-
clusion that she was discharged, even in part, because of
her union support and activities. My conception of her
discharge was simply that, because of her somewhat bor-
derline attendance record, when Tarone offered to quit
or explained that she had planned to leave, Pavanello
took the opportunity to accept her plans or offer, and
thus prohibited her return the following day.2 0
4. The discharge of employee Fidel Lopez on
September 21
Lopez was a union supporter and a member of the or-
ganizing committee. He had been employed by the Re-
spondent for approximately 10 months, and the Respond-
ent's alleged reason for his discharge was a reduction in
his production, caused, in part, by his unwarranted wan-
derings through the plant. During the morning of Sep-
tember 21, Lopez was assigned to help employee
Grande. Lopez testified that later on Pavanello ap-
proached him and asked him to commence straightening
and polishing frames in addition to filing corners. Lopez
indicated that he had little or no experience in the
straightening or "setting" of frames, and that approxi-
mately I hour later Pavanello approached and counted
the pieces that he had completed, thereafter informing
him that he was not sufficiently producing, and further
threatening to fire him if he did not produce more.
Lopez then indicated that, approximately an hour later,
Pavanello again approached him, this time with Miele,
and told him "not to work anymore" because his pro-
duction was poor. Lopez also testified that, up until this
point, he had received no complaints about his work or
production, and that several times a week he would go
to other machines to help the employee-operators. Lopez
conceded, however, that Pavanello had complained to
him about his "wandering" several times prior to Sep-
tember 21. Lopez also conceded that, in response to Pa-
vanello's directions not to work anymore, he asked for a
"lay-off," which was refused. Miele essentially corrobo-
rated the incident as described in testimony by Lopez,
but indicated that, when Pavanello questioned his pro-
duction, Lopez responded by stating "If you don't like it,
give me a lay-off and I'll go home, so I can collect."
Miele further testified that, upon Pavanello's refusal of
the layoff, and as Pavanello started to walk away, Lopez
said, "Go -- yourself." According to to Miele, Pavan-
ello then "got really mad," turned around, and told
Lopez to go home. Lopez testimonially denied the pro-
fanity statement or remark to Pavanello. Grande testified
that, when Lopez worked with him in the past, his sole
duty was to file corners but, on the day in question, he
was given the additional duties of "adjusting" the glasses
and pulling the "templix." Grande further related that
these two steps were normally accomplished by him,
with Lopez accomplishing only the filing after he com-
pleted his work on the frame.
20 When Tarone testified in this case, she was definitely "With child"
and testified that she was scheduled to give birth in approximately a
month (July 29). She also testified that she first discovered that she was
pregnant on or about November 13. and I month after the September 12
lunch with employee Georgio and her termination.
My determinations regarding the Lopez discharge
have given me the most difficulty in this case. As indi-
cated earlier, in my opinion, certain portions of Lopez'
testimony were not creditable. Further, and in my opin-
ion, it is regarding his own discharge that Lopez' testi-
mony becomes somewhat suspect. I am thus virtually
unable to determine or conclude whether or not the pro-
fanity was actually used by Lopez. 2' As indicated earli-
er, Lopez had worked for the Respondent for approxi-
mately 10 months. The only complaints that he had re-
ceived about his work were in regard to his wandering
or traveling to other machines in order to aid the opera-
tors of those machines in changing a part. The record re-
flects that no other employee normally was about the
plant in this fashion. Unfortunately, Grande either did
not hear the interchange between Lopez and Pavanello
or, for some reason, he was not questioned about the
same during his testimony. Perhaps of some significance
here is the fact that Grande spoke only Italian, as did Pa-
vanello. On the other hand, Lopez spoke only Spanish,
which was understood by Miele only. The major thrust
of the Respondent's defense to this discharge involved
the production of Lopez. Considering the relevant testi-
mony, the record as a whole, the setting and abruptness
of the discharge, I conclude with some difficulty that
Lopez was discharged substantially by virtue of his
union support and activities. 22
5. The discharge of Dionisio Corte on October 3
Corte first became employed with the Respondent in
April 1976. He was rehired by the Respondent March
28, 1978, and testified as a present employee of the Re-
spondent. With the exception of the 5-month period fol-
lowing his October 3 discharge, and an additional 3-
month period in earlier 1977, Corte worked continuously
at the Respondent's plant. The Respondent defends this
discharge on the grounds that Corte had threatened or
harassed three other employees regarding the signing of
the union authorization cards. According to Miele, the
first incident occurred in the middle of September and
involved employee Raphael Cordoba, the second oc-
curred in late August and involved Emma Ruffino, and
the third took place the last Friday of September and in-
volved employee Miriam Parrales. On August 26 the Re-
spondent distributed and posted a notice condemning ha-
rassment. According to Miele, it was the third and last
incident that actually precipitated Corte's discharge the
following Monday. Corte testimonially denied the harass-
ment and I am herein confronted with deciding the issue
on the basis of the testimony of Corte and Miele alone.
Miele was not present during the alleged threats or ha-
rassment, and learned only about them after the fact and
from the alleged victims (according to his testimony).
Counsel for the General Counsel in this case voiced
strong objections to Miele's testimony regarding what
2 In the setting of this plant, it would not strike me as unusual for
such remarks and language to be made and used. Further, both Lopez
and avanellio were obhiously mad at each other
22 Had I been able to cnclde that the prfanity was in fact used, in
this setting it would have been difficult to attribute such remarks as the
sole cause of the discharge.
1/0 OPTICS LIMITE. UI.S A. II
Pavanello had told him relative to the complaints of the
employees involved. However. as to Miele's testimony
regarding what the alleged victims related directly to
him, there was no objection. Notwithstanding the lack of
such an objection, I am still confronted with Miele's se-
condhand testimony, without further corroboration.
What is most perplexing to me in this case is the fact that
the Respondent failed to call any one of the three alleged
victims, at least two of whom remained in the Respond-
ent's employ at the time of the hearing. It was the Re-
spondent's president, Dimitri Tripodi, who actually dis-
charged Corte, and he also failed to testify in this case.
Tripodi apparently acted on information he received pri-
marily from Pavanello, who of course also was not avail-
able for testimony in this case. Even assuming that Tri-
podi acted in good faith, in my opinion the record lacks
the proper supporting evidence from which to assume or
conclude that Pavanello or the victims acted in good
faith or with veracity. There is no firsthand evidence
upon which to conclude that the threats or harassments
actually occurred. The situation that I am confronted
with does involve a longtime employee, but one who
was an active and strong union supporter, and a a
member of the organizing committee. I am further con-
fronted with the fact that not only was Corte's wife
maintained in her employment. but Corte himself also
was rehired some 5 months later. It should be noted also
that two of the alleged incidents occurred subsequent to
August 25, at which point signatures on at least 29 cards
had been obtained. Thus, it could be said that, subse-
quent to August 25, there was no reason for any such ha-
rassment as only two or three employees had failed to
execute cards. Additionally, the timing of Corte's dis-
charge only hours before the election, together with the
manner of his exodus from the plant, under the threat of
police action, is of some further significance in this
matter. Based on the foregoing, and again together with
the record as a whole, I conclude that Corte's discharge
was motivated by his union support and activities, and
thus I find that his discharge was violative of the Act as
alleged in the complaint.
Upon the foregoing findings of fact and initial conclu-
sions, and upon the entire record, I hereby make the fol-
lowing:
CONCI USIONS Oi LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2). (6), and (7) of
the Act.
2. The Charging Union is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent, in 1977, and by and through its
agent and production manager, Rizzieri Pavanello, vio-
lated Section 8(a)(1) of the Act on August 25 and on
various days thereafter, including September 9, and
through and on September 13, by threatening employees
with plant closure and discharge if they supported and
voted for the Union in an upcoming election, and if the
Union prevailed in said upcoming election.
4. The Respondent, in 1977, violated Section 8(a)(3)
and (1) of the Act by discriminatorily discharging em-
ployee Fidel Lopez on September 21 and employee
Dionisio Corte on October 3, because of their protected
concerted activities in supporting the Union.
5. The Respondent has not otherwise violated the Act
6. The improper and unlawful acts and conduct found
herein and concluded in paragraphs 3 and 4. aho\c.
affect commerce within the meaning of Section 2b) and
(7) of the Act.
THE RI[.(iI)m
Having found that the Respondent has engaged in cer-
tain unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act, I shall recommend that it
cease and desist therefrom, 2: that it post an appropriate
notice, and that it take certain other affirmative action as
set forth below designed to effectuate the purposes and
policies of the Act.
Having found that the Respondent violated Section
8(a)(3) and (1) of the Act by unlawfully and discrimina-
torily discharging employees Fidel Lopez and Dionisio
Corte, I shall recommend that the Respondent offer
them immediate and full reinstatement to their former
positions or, if such positions no longer exists, to subtain-
tially equivalent positions, without prejudice to their sc-
niority or other rights and privileges previously en joyed.
I shall further recommend that the Respondent make
employees Lopez and Corte whole for any loss of earn-
ings they may have suffered as a result of the discrimina-
tion against them by payment of a sum of money equal
to that which they normally would have earned from the
date of their discharge to the date of its offer of rein-
statement, less net earnings, with interest hereon to be
computed in the manner prescribed in Ft : I Wlfo/wortl
Company, 90 NLRB 289 (1950). and f1lorida Stel Corpo-
ration, 231 NLRB 651 (1977)1.24
It will also be recommended that the Respondenit pre-
serve and make available to the Board. upon request. all
payroll records, social security payment records, time-
cards, personnel records and reports. and all other rec-
ords necessary and useful to determine the amount of
backpay due and all the rights of reinstatement under the
terms of these recommendations.
Upon the basis of the foregoing findings of fact, coln-
clusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the follosx ing
recommended:
ORDER 25
The Respondent, I/O Optics Limited, U.S.A. Dobbs
Ferry, New York, its officers, agents, successors. and as-
signs, shall:
1. Cease and desist from:
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