John Dory Boat Works, Inc.

National Labor Relations Board - Board Decisions

May 23, 1977

229 N.L.R.B. 844 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John Dory Boat Works, Inc. and International
Industrial Production Employees Union. Case 29-
CA-4537
May 23, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On June 14, 1976, Administrative Law Judge
Walter H. Maloney, Jr., issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and the
Respondent's statement and has decided to affirm
the rulings,' findings,2 and conclusions of the
Administrative Law Judge and to adopt his recom-
mended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, John Dory Boat
Works, Inc., Village St. James, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order,
except that the attached notice is substituted for that
of the Administrative Law Judge.
I In fn. 10 of his Decision the Administrative Law Judge denied
Respondent's posthearing motion to reopen the record for new evidence for
the stated purpose of testing the credibility of Galansky and other witnesses.
In affirming this ruling, we do not rely on the Administrative Law Judge's
statement that the substance of the new testimony concerns backpay which
is normally treated in supplementary proceedings.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions 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 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
I In view of the Administrative Law Judge's inadvertent duplication of
the second substantive paragraph in the notice attached to his Decision, we
shall issue a corrected notice.
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 parties had the
opportunity to introduce evidence, it has been
decided that we violated the National Labor Rela-
tions Act. We have been ordered to post this notice
and to carry out its terms.
WE WILL NOT interrogate employees concern-
ing their union sympathies and activities.
WE WILL NOT threaten employees with dis-
charge or plant closure in order to discourage
their support for the Union.
WE WILL NOT threaten employees with deporta-
tion or question their immigration status in order
to discourage them from giving testimony in a
Board proceeding.
WE WILL NOT request employees to furnish us
with copies of prehearing statements given to the
Board in the course of an investigation of an
unfair labor practice charge.
WE WILL NOT discourage membership in or
activities on behalf of International Industrial
Production Employees Union, or any other labor
organization, by discharging employees, changing
their working hours, or by any other discrimina-
tion in their hire or tenure. All of our employees
are free to become or remain members of this
Union or any other union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed to them by Section 7 of the
National Labor Relations Act. These rights
include the right to form, join, or assist a labor
organization, to bargain collectively with the
employer through representatives of their own
choosing, and to engage in other concerted
activities for their mutual aid and protection.
WE WILL recognize and bargain collectively
with International Industrial Production Employ-
ees Union as the exclusive collective-bargaining
representative of all of our production and
maintenance employees, excluding office clerical
employees, guards, and supervisors as defined in
the Act, and, if an agreement is reached, we will
embody the agreement in a written signed
contract.
WE WILL offer to Ronnie Galansky full and
immediate reinstatement to his former or substan-
tially equivalent employment, and we will make
him whole for any loss of pay with interest at 6
percent per annum.
229 NLRB No. 121
844
JOHN DORY BOAT WORKS
WE WILL offer all of our employees an
opportunity to resume working on a regular daily
shift between the hours of 6 a.m. and 2:30 p.m.
but we will not require employees to change their
working hours if they do not want to do so.
JOHN DORY BOAT
WORKS, INC.
DECISION
FINDINGS OF FACT
STATEMENT OF THE CASE
WALTER H. MALONEY, JR., Administrative Law Judge:
This case came on for hearing before me at Brooklyn, New
York, upon an unfair labor practice complaint,' issued by
the Regional Director for Region 29 and amended at the
hearing, which alleges that the Respondent, John Dory
Boat Works, Inc.,2 violated Section 8(aX1), (3), and (5) of
the Act. The amended complaint alleges that the Respon-
dent unilaterally changed the working hours of employees
without prior notice and an opportunity for bargaining,
interrogated employees concerning their union activities,
warned employees not to support the Union, and threat-
ened employees with discharge and plant closing if the
Union were successful. The amended complaint further
alleges that the Respondent threatened employees with
deportation if they testified at a Board hearing and
unlawfully requested employees to furnish the Respondent
with affidavits given to Board agents in the course of the
investigation of this case. It also alleges that the Respon-
dent discharged Ronnie Galansky because of his union
activities. The General Counsel seeks a so-called Gissel
remedy,3 by terms of which the Respondent would be
directed to recognize and bargain with the Charging Party.
The Respondent denies the commission of various inde-
pendent violations of Section 8(a)(I), asserts that the
working hours of its employees were changed on August 20
for various business reasons, that Galansky was not
discharged but quit his job voluntarily, and that a Board
election 4 rather than a bargaining order is the sole
appropriate vehicle for resolving any question concerning
representation in this case. The Respondent also asserts by
way of an affirmative defense that it should not be
subjected to a Board order because of certain alleged
misconduct on the part of Board agents in the prosecution
of the case. Upon these contentions the issues herein were
joined.5
I The principal docket entries in this case are as follows: Charge filed on
August 25, 1975, by the International Industrial Production Employees
Union (herein called Union); complaint issued on November 26, 1975;
Respondent's answer filed on December 18. 1975; hearing held in Brooklyn.
New York, on January 26-30 and February 3, 1975.
2 The Respondent admits, and I find, that it is a New York corporation
which maintains its principal place of business at Village St. James, New
York. where it is engaged in the manufacture, sale, and distribution of
fiberglass boats and related products. During the past year, the Respondent
manufactured boats at this location valued in excess of $50,000 which were
The Unfair Labor Practices Alleged
Since 1971, the Respondent has operated a small boat
manufacturing concern on Long Island where it specializes
in the production of fiberglass dinghies. Respondent is
owned by David and Miriam Finkelstein, who personally
handle all of the managerial and business functions of the
Company. Respondent employs about nine employees to
perform production and maintenance work, most of whom
are aliens who have recently arrived from Central America.
One employee who figures largely in this case is Ronnie
Galansky, a deaf mute who came from the Union of South
Africa and whose native language is Dutch or a variant
thereof. Galansky knows English but normally communi-
cates by sign language, lip reading, writing notes, and
uttering a few audible words from time to time. Galansky
has worked for about 9 years on Long Island for various
boat manufacturing companies but has always maintained
his residence in Manhattan. He began his employment
relationship with the Respondent in the fall of 1973,
working part time on Saturdays or during the week after
finishing the day with another employer, Seafarers' Yachts.
In early 1974, Galansky came to work full time for the
Respondent. Galansky has a long trip back and forth from
the city to Long Island each day and, when he arrives
home, he must perform certain household chores for
himself and his disabled roommate, Morris Zinman. Upon
coming to work full time at John Dory, he asked
Finkelstein if he could work from 7 a.m. until 3:30 p.m.
each day so that the traffic he faced during off hours would
not be as heavy and his lengthy drives shortened as a
consequence. Finkelstein agreed. Shortly thereafter, Robert
Szita, another employee, began working the same hours
with Finkelstein's permission. Szita's reason for seeking an
earlier workday was to enable him to have more of his
afternoons free to pursue his study of marine biology.
Shortly after adopting a 7-to-3:30 workday, Szita and
Galansky felt it would be even more advantageous to begin
work at 6 a.m. and to leave at 2 or 2:30 p.m. Finkelstein
agreed to this further variation and gave them keys to the
plant so that they could let themselves in the plant each
morning and begin work in advance of the rest of the other
employees. In the spring of 1974, Finkelstein changed the
working hours of his entire crew, at their request, so that
they all came in at 6 a.m. and left at 2 or 2:30 p.m.,
depending upon whether an employee elected to take a
lunch break. This schedule continued throughout 1974
until August 20, 1975. In the months immediately preced-
ing the change of hours which took place on August 20, the
Respondent had two employees, Joseph Geraghty and
Jeffery Schneider, who worked an 8-to-4:30 shift despite
the earlier arrival of the balance of the work force.
shipped to points and places located outside the State of New York.
Accordingly, the Respondent is an employer engaged in commerce within
the meaning of Sec. 2(2), (6), and (7) of the Act. The Union is a labor
organization within the meaning of Sec. 2(5) of the Act.
3 N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
4 Following a demand by the Union and a refusal by the Respondent to
recognize the Union, the Charging Party herein filed a representation
petition in Case 29-RC-3135. The petition, which was filed on August 20,
1975, has been blocked by the pendency of the charge herein.
I Certain errors in the transcript have been noted and corrected.
845
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finkelstein arrived at the plant anywhere from 7 a.m. to 9
a.m.
Galansky was a member of the Charging Party Union
when he worked at Seafarers' Yachts. During the summer
of 1975, various employees at John Dory began to discuss
the desirability of having a union at the Respondent's
Company, so Galansky contacted the Charging Party to
suggest that it make an organizational effort. He first spoke
with George Ibanez, the vice president of the Union, and
obtained authorization cards and promotional literature
which he brought back to the plant. Galansky signed a
card and also signed up two English-speaking employees,
Geraghty and Schneider. He also asked Schneider to make
a phone call on his behalf to the Union to arrange a
meeting between union organizers and the Spanish-speak-
ing employees. Schneider went to the union office and
spoke with Gerald Lasky, the president of the Union, who
asked him a number of questions about the shop and how
it was run. Schneider arranged a meeting with the Spanish-
speaking employees after working hours on Friday after-
noon, August 8, at a delicatessen near the plant and
communicated the message to the Spanish-speaking em-
ployees through Noel Ruano.
The meeting in question took place in the parking lot
next to the delicatessen. Ibanez and Union Organizer
Joseph Marino attended. About seven or eight employees
attended. Several of the Spanish-speaking employees came
in a car together. Galansky arrived separately. Ibanez gave
them brochures with designation cards attached and
discussed the campaign with them. He told them in
Spanish that he needed a majority of the employees to sign
cards so he could be in a position to approach Finkelstein
and ask for recognition. He also told them that if they
obtained recognition and a contract the employees would
then be eligible to participate in the Union's health plan.
He asked one of the employees if there was any reason why
they might be hesitant to sign and was told that Finkelstein
had missed meeting the payroll on some occasions. Ibanez
told all who attended this informal gathering he would
return and meet with them again the following Monday.
When he returned on Monday, he obtained additional
signed cards both from the Spanish-speaking employees
and from Galansky, who had secured signatures from other
employees.
On Monday, August 18, the Union had nine designation
cards in its possession. All of the Respondent's employees
except Isabel Ruano, the father of Noel Ruano, and Szita
had signed up. About 11 a.m. Lasky and Ibanez went to
the plant and met with both Finkelsteins. After identifying
themselves, Lasky told the Finkelsteins that the Union
represented a majority of the employees and demanded
recognition. Thereafter, an acrimonious conversation
ensued.
Finkelstein told Lasky that he could not afford a Union.
Lasky suggested that Finkelstein first let the Union tell him
what they had in mind in the way of a contract and then
decide if he could afford one. Mrs. Finkelstein interjected
that the Company did not need a union and questioned
whether the Union actually represented the employees.
6 The above recitation of facts is taken largely from Finkelstein's own
testimony.
Lasky replied by fanning designation cards in front of her
in a manner suggesting that the cards established its
majority status. However, no examination of the individual
cards was undertaken. Finkelstein pointed to the experi-
ence which another company, Seafarers' Yachts, had with
a union and suggested that the union was responsible for
that company's plight in going into bankruptcy. Mrs.
Finkelstein told Lasky and Ibanez that right now the
Respondent could lay off all of its men at a moment's
notice and still continue in business since it did not have
enough work for them. Finkelstein added that, if the
Company had a union, they might as well close the
business and go to work for someone else. Lasky informed
the Finkelsteins that the men were principally interested in
having a hospitalization plan and that he could give them a
plan they could live with. Mrs. Finkelstein replied that she
had shopped around for an appropriate plan but found
that they all cost too much money. At some point in the
conversation, Lasky told the Finkelsteins that, if they did
not get his union, they would get the Teamsters, to which
Finkelstein admitted telling Lasky to "go -- himself."
After Finkelstein stated that he would not recognize the
Union, Lasky informed him that he would then resort to
legal remedies and advised the Finkelsteins not to do
anything they would regret later.
Finkelstein testified that he was both shocked and
angered upon receiving the visit from Lasky and Ibanez
and that his anger did not subside for a matter of days.
After Lasky left, he went out into the shop and told his
employees that he could not afford a union. He also told
them that if a union came in he would have to close the
shop and asked them to be reasonable. Finkelstein admits
going from employee to employee on this occasion and
asking eight of them angrily if they wanted the union.
From some he got affirmative answers; from others he got
negative replies. He asked Geraghty, who had recently
been hired, if he wanted a union. When Geraghty said yes,
he asked him, "How the hell can you organize my life when
you are only here temporarily'?" When Ruano replied that
he wanted a union, Finkelstein told him that if he wanted a
union he could go home and that if he wanted "a --
union," he could get a job in a union shop. After asking
Galansky if he wanted a union, Finkelstein told Galansky
that if he wanted a union he could go to work in a union
shop, and that he did not want a union in "this --
shop." 6
In the course of this confrontation, Finkelstein made
other statements which were recounted by the employees
who were present. As these statements were quite consis-
tent with the tenor and context of the version of this
episode related by Finkelstein, and are, in some instances,
corroborated by more than one employee witness, I credit
them. In the course of this series of brief conversations,
Finkelstein told his employees that if they wanted a union
he would close the plant and operate with only two people.
He suggested to Ruano, after Ruano told him that he
wanted a union, that if he wanted a union, he should not
come back to work and that possibly the union officials
could get him a job. He also told Geraghty that he would
846
JOHN DORY BOAT WORKS
not hesitate to let him go if Geraghty became involved with
the Union.
That evening Mrs. Finkelstein prepared a hand-lettered
sign in English and in Spanish and posted it. The sign
informed employees that, effective Wednesday, August 20,
working hours for all employees would be from 8 a.m. to
4:30 p.m. The sign contained no explanation as to the
reason for the change nor did Finkelstein give employees
any oral explanation of the reason for the change. When
Galansky arrived on Tuesday morning, he read the sign
and objected. He asked Finkelstein that he be permitted to
work from 7 to 3:30 p.m. since he could not work the new
hours indicated on the sign. Finkelstein refused,7 telling
Galansky that if he wanted to join a union he could look
for another job.8 Galansky repeated his request, but
Finkelstein stood fast. Galansky asked Finkelstein if this
meant he was laid off and Finkelstein replied no. Galansky
asked him to put his negative reply in writing, but
Finkelstein refused.
On Wednesday, August 20, the day on which the change
of hours was scheduled to begin, Galansky arrived at work
at 6 a.m. in accordance with his previous custom.
Finkelstein was there to meet him. Finkelstein told
Galansky that he had to begin his workday at 8 a.m. so
Galansky repeated his pleading of the previous day;
namely, that because of the traffic congestion during
normal rush hours, he could not work an 8 to 4:30 shift.
Again he offered to work an 8-hour shift beginning at 7
a.m., and wrote on slips of paper the various reasons which
prevented him from working the new hours. He argued in
writing to Finkelstein that he had to get to the grocery store
before 5 p.m. to purchase supplies, that he had to cook for
himself, and his roommate Morris Zinman after work, that
on Thursday he had to help Morris clean up and prepare
the house in anticipation of the forthcoming Sabbath, and
that he had to take Morris to schul after work on Friday.
He gave Finkelstein to know that he had worked early
hours for 9 years and that if he were forced to work an 8 to
4:30 shift, he would have to leave or "layoff' because of
the traffic problem. At the hearing Galansky estimated that
the change in hours would lengthen his daily trip to and
from the city from a drive of I hour in each direction to 2
hours in each direction. Finkelstein was unmoved.
The conversation terminated at this point but resumed
later on in the morning about 8 a.m. Galansky persisted in
wanting to work the earlier hours and insisted that he could
not work the hours posted on the bulletin board. Finkel-
stein insisted that he work from 8 to 4:30 or not at all. He
told Galansky in the presence of Szita that if he did not like
the new hours he could go elsewhere. At this point,
Finkelstein told Galansky that he was laid off, made a
gesture to that effect, and told him to go home. Galansky
insisted that Finkelstein provide him with documentation
that he was being laid off in order to protect his eligibility
for unemployment compensation. He repeatedly insisted
upon this documentation. Finkelstein ultimately agreed
and gave him two letters which were composed and typed
by Mrs. Finkelstein. One letter, addressed to the New York
State Unemployment Office, stated:
I Finkelstein denies that Galansky ever offered to work from 7 to 3:30. 1
discredit his denial. Finkelstein does admit that Galansky offered, in a
conversation on August 20, to work from 6 a.m. to 2 p.m.
This letter will serve to introduce Ronny Galansky who
has worked for our firm since January 1974. Unfortu-
nately a change in our working hours coupled with the
distance that Mr. Galansky must travel has made it
necessary for him to leave our firm.
Mr. Galansky is an experienced fiberglass worker
with a wide range of ability. He is a courteous and
intelligent man who is quick to learn any new
procedure that may be necessary. We recommend that
he be given a job as soon as possible.
An open letter of recommendation of a similar tenor was
given to Galansky by Finkelstein. In addition to the above-
cited matters, Finkelstein stated in that letter that Galan-
sky "will be a credit to any firm" and that he "works well
with his co-workers and is good-humored and courteous
... very understanding and knowledgeable." He also
stated that "[W ]e recommend him without any hesitation."
Galansky reported his termination to the union office,
whereupon Lasky telegraphed a protest to Finkelstein and
stated that he would file a charge directed to his action.
About 3 weeks later, Finkelstein and Schneider had a
conversation about the Union in the yard outside the plant.
Schneider asked Finkelstein if he wanted to know how the
organizational campaign got started. Finkelstein said yes.
so Schneider began to tell him. Shortly thereafter, Finkel-
stein, in the course of a second conversation that day with
Schneider, told Schneider that he did not have enough
money to operate with a union and that if the Union came
in he would have to close the shop.
A few weeks later, Finkelstein held an informal meeting
of his employees at the shop to discuss the question of
unionization. By this time, both the charge in this case and
the petition in Case 29-RC-3135 had been filed and
served. Finkelstein admits asking employees at this meeting
whether or not they wanted a union and asking what the
Union had promised them. One employee replied that they
would tell him in a couple of days. I credit Ruano's
statement that he told Finkelstein that he would stay with
him if he offered the same benefits the Union did.
Otherwise, he would stay with the Union. Finkelstein
denies that he made his employees any offer of benefits on
this occasion.
In October, Finkelstein permitted agents of Region 29,
whom he referred to as "case workers," to visit company
premises and take affidavits from employees. About a week
before the hearing began in this case, Mrs. Finkelstein
asked Szita to call all employees together. When they
assembled, she asked them to bring their affidavits so that
the Respondent's attorney could go over them. On the
following Tuesday, the Respondent's counsel visited the
premises in the company of a Spanish interpreter. On this
occasion, employees were asked again if they would
produce their affidavits. They replied that they did not
have to surrender their affidavits. In the case of Figueroa,
Finkelstein told him twice to give him the papers because
he needed them immediately. Figueroa finally did so,
8 Finkelstein admits that he "may have said" this to Galansky.
847
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
giving his pretrial statement to Finkelstein who in turn
gave it to the Respondent's counsel.
The Respondent's counsel interrogated Figueroa at
length in the Company's office. It is undenied that counsel
told Figueroa that he wanted to speak to him to prepare
the Company's defense at the forthcoming hearing, that
Figueroa could answer his questions or not as he saw fit,
and that the answers he gave would not be disclosed to the
Finkelsteins. Counsel also asked to read the affidavit that
Finkelstein had brought to him. Figueroa replied that he
thought that only Government agents and himself were
entitled to see affidavits. Counsel replied that he could see
it if Figueroa agreed. Figueroa then stated that counsel
might as well go ahead and read it again since he felt that
counsel had already seen them. Counsel glanced at the
affidavit in Figueroa's presence and then Figueroa pulled
the papers away from him.
Counsel asked Figueroa details concerning his assumed
name and where he came from. Figueroa replied that he
came from Guatemala. Counsel asked how long he had
been in the United States, where he studied, and where he
previously had worked. 9 Counsel asked Figueroa what the
Union had promised him before he signed the card and
learned that the Union had offered certain health benefits.
Counsel went into details concerning the time and place of
the signing of the card, asking whether Ibanez had
mentioned anything about an election to employees and if
he understood the meaning of the card. Figueroa replied
that the union men had read it to him and also stated that
the union men had made no threats. Counsel asked how
many employees had signed cards and Figueroa replied
that a substantial majority had signed.
I credit Figueroa's testimony that, a few days before the
hearing in this case, Finkelstein told him that if he
appeared at the Board hearing to testify he would be
deported and made a hand gesture to him to this effect.
Figueroa's reply was that, if he were deported, at least he
could get a free ride home. At the hearing, six Spanish-
speaking employees - Figueroa, Monroy, Ruano, Paz,
Espada, and Parada - appeared pursuant to subpenas of
the General Counsel to testify. They were sequestered in a
room adjacent to the hearing room. While waiting to
testify, the Respondent's counsel served on five of them
(excepting Ruano) his own subpoena duces tecun, requiring
each of the five to produce their passports, their I-151
Alien Registration Cards (green cards), and their I-94
Employment Authorization Cards. Witness fees in the
form of checks drawn by Mrs. Finkelstein were tendered.
The General Counsel immediately moved to quash the
subpenas on the ground that the matters sought were
irrelevant and immaterial to the hearing and that an
inquiry at this point into the immigration status of these
witnesses would serve only to intimidate them. Counsel for
9 Counsel denies asking Figueroa where he came from, but admits
knowing that Figueroa had a problem concerning his immigration status
and admits knowing that Figueroa was working under another name;
namely, Santiago. He states that he got this information directly from
Finkelstein. I discredit his denial that he did not ask Figueroa about his
country oforigin.
10 After the close of a 6-day hearing in this case, which heanng was
punctuated by a 3-day recess preceding the final day of testimony, the
Respondent filed a posthearing motion to reopen the record to take
the Respondent argued that he needed these matters to
probe into their credibility. Specifically, he asserted that he
had reason to believe that some of them had committed
perjury by signing their affidavits under assumed names
and needed their travel documents to verify their true
names. During the course of the hearing, it appeared that
Luis Figueroa sometimes used the name of Santiago Avila
and that this fact was well known in the shop. His affidavit
is signed with the name of Figueroa. There is no suggestion
that any of the other employees so subpenaed were using
assumed names. No questions on these points were posed
by the Respondent's counsel when each of these witnesses
took the stand. The subpenas were quashed forthwith and
the order to quash was sustained by the Board when an
interlocutory appeal was taken.
Analysis and Conclusions
1. Independent violations of Section 8(a)(1)
occurring on August 18
Many of the violations of the Act supported by this
record are established by the testimony of the Respon-
dent's own witnesses and do not require any choice by me
between conflicting versions of the events in question.10
The statements made by Finkelstein and his wife to union
officials when they came to call on Monday, August 18,
display deep-seated and enduring animus. They told union
officials that they could not afford a union and that if one
came in they might as well close the plant and go to work
for someone else. They gave Lasky and Ibanez to
understand quite clearly that they were keeping employees
on despite a lack of business and could easily terminate
them at a moment's notice. His rejoinder renders unneces-
sary any elaboration or citation of legal authority.
Finkelstein admits that, following the departure of the
union officials on August 18, he was both shocked and
angry and went out in the shop to question his employees
concerning their union sentiments. He asked each of them
angrily whether they were for the Union. He got varying
replies from the employees questioned. Some who had
signed cards denied they had done so. Others gave truthful
replies. Such systematic and widespread interrogation of
employees constitutes a poll to ascertain union sentiments
which can be lawfully conducted only under the strict
safeguards announced by the Board in Struksnes Construc-
tion Co., Inc. 148 NLRB 1368 (1964). Finkelstein did not
attempt even colorable compliance with the Struksnes rule.
Accordingly, his interrogation of employees on this
occasion constituted a violation of Section 8(a)(1) of the
Act.
In the course of polling employees, Finkelstein also told
several employees that if they wanted the Union they
should not work at John Dory and should go to work in a
additional evidence. The substance of the new testimony related to matters
concerning backpay which are normally treated in supplementary proceed-
ings. The Respondent's announced purpose in requesting the reopening of
this record was to adduce more evidence herein relating to issues of
credibility of persons involved in this proceeding and specifically Galansky.
The motion is hereby denied since the extensive record already compiled
herein is quite adequate to resolve any conflicts in testimony which may be
material.
848
JOHN DORY BOAT WORKS
union shop. He also told them, as he had told the union
officials a few minutes earlier, that he could not afford a
union and would simply close the shop if the Union came
in. Such threats are manifest from the record and are clear
and serious violations of Section 8(aX I) of the Act.'1
2. The change of working hours on August 20
Finkelstein admits being upset for a period of days after
receiving the Union's demand for recognition, so upset that
he had to take a long walk on the beach on the evening of
August 18 in an effort to regain his composure. After the
close of the shift on that day, Mrs. Finkelstein prepared
and posted a notice on the bulletin board announcing a
change in working hours for all employees from 6 a.m. to
2:30 p.m. to 8 a.m. to 4:30 p.m., beginning Wednesday,
August 20. Except for Geraghty and Schneider, who were
already working these later hours, all employees affected
had been working a 6 to 2:30 shift for approximately 16
months. The institution of these earlier hours, which might
seem to some observers a bit inconvenient, was undertaken
by the Respondent in 1974 at the express request of its
employees - first by Galansky and Szita and then by the
others. The issue here is why, in the absence of any
employee requests, did Finkelstein change the hours, and,
more precisely, why did he decide to change them on
August 18.
Finkelstein first testified that the earlier hours were an
energy-saving measure, instituted by him to comply with a
request of the President of the United States to all citizens
to assist in the Government's energy conservation program.
This rationale hardly explains his decision on August 18 to
revert to a later starting time, since the President's energy
conservation program was not discontinued on that day or,
to my knowledge, on any other day.
Both Finkelstein and his wife also testified that the early
hours worked by its production unit made it more difficult
for the Company to conduct its business and that the
change imposed on August 18 was dictated by internal
business considerations. According to their testimony, Mrs.
Finkelstein was about to resume a teaching position at a
local university and was scheduled to begin this position
the following week. Her new post would necessitate her
absence from the plant until about 4:30 each afternoon.
Hence, on those occasions when her husband was also
away from the plant on sales or delivery trips, there would
be no one at the plant between 2:30 p.m. and 4:30 p.m. to
answer the phone, receive visitors, and accept deliveries.
They noted a complaint made in July by one potential
publicist of company products that he could not reach
them by phone during normal business hours. They also
suggested that, during the early morning hours of the 6 to
2:30 shift, employees were unsupervised and took advan-
tage of the situation by fudging on their reporting times
and occasionally by eating breakfast rather than working
after they had clocked in.
The Respondent did not explain the connection between
a shift in the working hours of production employees and
the revision of office coverage necessitated by Mrs.
I The commingling of threats with interrogation removes any conten-
tion which might be made under the Second Circuit's Bourne rule that
Finkelstein's questioning of employees might be considered noncoercive.
Finkelstein's decision to resume her teaching duties.
Production employees did not normally perform office
chores such as answering phones, interviewing editors of
trade publications, and receiving other visitors. Moreover,
the Respondent did not explain how the presence at its
plant during the middle and late afternoon hours of a
business day of a deaf mute and six Spanish-speaking
mechanics could in any way assist in alleviating its public
relations problem.
Mrs. Finkelstein also complained that the early quit-
ting hours of production employees often served to leave
her alone at the plant after 2:30 p.m. When her husband
was away, she would have problems in unloading delivery
trucks. Hence, a revision of working hours on August 18
was necessitated in order to insure that there would be help
in the plant from 2:30 to 4:30 to assist her in accepting
deliveries when her husband was not around for this
purpose. The timing of this change in working hours was
ostensibly prompted by Mrs. Finkelstein's prospective
absence from the plant until 4:30 p.m. each day, beginning
August 26, in order to attend to her teaching duties, so a
change in shift hours on August 18 would not serve to
assist her in unloading deliveries thereafter during this 2-
hour interim because after August 26 she would not be
around at all during these hours. More to the point, two
employees, Geraghty and Schneider, were in fact regularly
working an 8-to-4:30 shift before the August 18 change and
were available during the afternoon for such purposes as
described by Mrs. Finkelstein in her testimony.
Hopping from one pretext to another to explain a sudden
change in working conditions is, in and of itself, evidence
of a discriminatory motive, and this is what the Respon-
dent herein was doing in order to find some basis other
than antiunion hostility to explain its abrupt behavior on
August 18. The various reasons advanced for changing the
working hours of its employees - first a desire to comply
with a presidential directive and then certain reasons
related to business convenience both have utterly no
foundation in fact or rationality and serve only to
demonstrate that neither reason was what prompted the
decision in question. Neither these reasons nor any reasons
were given to their employees on August 19 when the
employees saw the notice announcing the change in hours.
They were left to speculate among themselves about what
brought about the sudden change in working conditions.
The timing of the decision - coming after 16 months of
operation of the early shift and on the same day as the
Union's visit and demand for recognition - taken together
with Finkelstein's confessed shock and anger with his
employees for signing union cards demonstrate clearly that
the Respondent revised the working hours of its production
employees to take reprisal on them for seeking union
representation. As such, its action violates Section 8(a)(1)
of the Act. As discussed infra, the Respondent has a duty at
this time to bargain with the Union concerning wages,
hours, and terms and conditions of employment. As it
failed to do so before changing the hours of its shift, this
N.LR.B. v. Bonnie Bourne, an individual d/b/a Bourne Co., 332 F.2d 47
(1964).
849
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action also constitutes a violation of Section 8(aX5) of the
Act.
3. The termination of Ronnie Galansky on
August 20
Galansky was more seriously inconvenienced by the
change of working hours than any other employee because
he had further to travel to get to and from the plant. He
had worked for various shipbuilding companies on Long
Island for nearly 9 years but had always commuted from
Manhattan. While his morning trip to the Island and his
evening trip home went counter to the bulk of the rush
hour traffic, rush hour tieups and congestion were
nevertheless a serious factor. For this reason, he always
began work at 7 a.m. or earlier and, upon coming to John
Dory, obtained permission to come in at 6 a.m. He
estimates that the difference between a 6 a.m. and an 8 a.m.
reporting time would mean a difference of I hour each way
in driving time.
Finkelstein was well aware of Galansky's predicament
and was quite willing to accommodate his requirements for
a period of 18 months, up to August 18, 1975. Both the
General Counsel and the Respondent produced evidence
tending to show conclusively that until this date Finkel-
stein did not run a "tight ship." In the spring of 1974, when
Szita and Galansky first hit upon the idea of a 6 a.m.
reporting time, they implemented the plan themselves
while Finkelstein was away from the plant on a business
trip without first consulting him. When Finkelstein came
back and learned about it, he simply ratified their action by
giving them keys to the plant so they could enter the
premises when they arrived. Finkelstein testified that it was
Galansky who normally opened the plant for him in the
morning. Moreover, all employees were given latitude as to
when they would take their lunch break or whether they
would take one at all. Any employee who elected not to
take a lunch break could leave half an hour before the
normal quitting time. Early morning production hours of
the Respondent went largely unsupervised for a long
period of time. As noted before, two employees, Geraghty
and Schneider, worked during different hours than the
balance of the work force, thus providing the employees
with a situation in which there were production employees
on the premises each day from 6 a.m. until 4:30 p.m. While
one ex-employee, Luis Mercado, testified as to certain
shortcomings of the early working hours, no employee
affected by the August 18 order gave any indication of
dissatisfaction with the earlier hours.) 2
When Galansky first saw the change-of-hours notice on
the bulletin board on Tuesday, August 19, he made his
protest known to Finkelstein and pressed it vigorously.
While Finkelstein denies Galansky's credited testimony
that Galansky offered to work a 7-to-3:30 shift, he does not
deny that on the following day Galansky insisted on being
allowed to continue on a 6-to-2:30 basis. In the course of
both days, Finkelstein denied each request, thereby
12 Mercado did not work for John Dory after mid-July 1975.
" Johnson Electric Company, Inc., et al, 196 NLRB 637 (1972).
A.L.W., Inc.. db/'a Kings Castle and Casino, 195 NLRB 537 (1972).
s Kent Corporation, 212 NLRB 595 (1974).
demonstrating a rigidity and an inflexibility in setting
hours which was wholly uncharacteristic of the Respon-
dent's operation until this date. Such a sudden change in
attitude is nowhere explained except by union animus.
On Wednesday, August 20, Finkelstein arrived at the
plant at 6 a.m. This hour was much earlier than his normal
time of arrival, even when plant operations began at 6 a.m.,
and is otherwise unexplained on the record. His early
arrival gives rise to an inference that he came early just to
see if Galansky was going to comply with his instructions
to start work at 8 a.m. Galansky did not do so, arriving for
work at his usual reporting time. There ensued the above-
recited argument between the two men in the course of
which Galansky insisted on continuing to go to work at 6
a.m. and set forth in writing the reasons which, in his view,
compelled this request.
In approaching the question of the constructive dis-
charge of Galansky, the Respondent seems to suggest that
Galansky was overdramatizing his predicament to his
employer. While the Respondent must concede that
Galansky offered to continue to work his normal tour of
duty, the Respondent contends that a finding should be
made that, once the argument was over and Galansky had
left the plant, Galansky should be regarded as a voluntary
quit because he could have made other arrangements to
accommodate to the other matters which were uppermost
in his mind; namely, his domestic chores and the
lengthened traffic pattern of a rush hour trip. In other
words, as there was no impossibility of performance by
Galansky of the new work schedule, and as there was no
proof that he was placed in an inextricable position by the
Respondent's action, Galansky's departure should be
regarded as wholly voluntary. Board law is to the contrary.
Where, as here, an event or requirement imposes on an
employee an onerous or burdensome choice between
remaining in employment or acceding to his employer's
request and such event or requirement is generated by an
employer's union animus, it does not matter how burden-
some is the choice or how convenient are the alternatives.
If the employee elects to leave under such circumstances,
his termination is deemed a constructive discharge. Thus,
the Board has found a constructive discharge where an
employee was given the choice between leaving a unionized
shop or continuing to work for the same employer in the
same shop under nonunion conditions; 13 where an
employee was discriminatorily transferred from night shift
to day shift 14 or from day shift to night shift; 15 where an
employee was told to come in early in a situation that
meant he would miss finishing an early morning summer
school course; 16 when an employee with many years of
service was required to quit or to accept a transfer to a city
some 300 miles distant; 17 where an employee was told to
stop moonlighting or forfeit his principal employment; 18
where an employee was goaded into quitting by the
16 L.H.C., Inc.-Fashion Furniture Company, d/b/a Carafiols, 195 NLRB
989 (1972).
7 National Grange Mutual Insurance Company, 207 NLRB 431 (1973).
'1 Great Atlantic and Pacific Tea Company, Inc., 210 NLRB 593 (1974).
850
JOHN DORY BOAT WORKS
assignment of delivery runs which would require him to
miss a regular Wednesday evening bowling engagement; 19
where a suspended employee was required to accept a 2-
week suspension without first being paid or being required
to sign a termination slip which entitled him to receive his
paycheck immediately; 20 where an overweight employee
who was afraid of heights was required either to quit or to
accept work on trailer roofs under conditions which
suggested a possibility that he might fall through a trailer
roof; 21 and where a married woman was required to
continue to work on the same shift that her husband was
working when she was no longer able to find a babysitter
for her four children and had to stay home to care for her
children.22 In all of these cases, it is not the aggravated
nature of choice imposed discriminatorily upon an employ-
ee that gives rise to a finding of a constructive discharge,
but the fact that any such choice was imposed at all for
reasons proscribed by the Act. While the Respondent
contests the discriminatory nature of the choice imposed
on Galansky, as found above, it does not contest the fact
that Galansky urged Finkelstein that he be allowed to
remain at John Dory under his former working conditions.
Hence, the events surrounding Galansky's departure
cannot be said to make his leaving a voluntary act in light
of the above-cited precedents. Such facts as found herein
supply all of the elements of a constructive discharge.
However, Galansky's termination need not be premised
on such a finding and I do not do so. It is clear that, on the
morning of August 20, Finkelstein took steps to discharge
Galansky and affirmatively did so. At one time Finkelstein
told Galansky that he was not laid off. After Galansky
persisted in his request to be allowed to continue his former
working hours, Finkelstein told Galansky "Laid off" and
made a gesture indicating that Galansky was out. The
Respondent's witness Szita lends credence to this version,
testifying that Finkelstein told Galansky that if he did not
like John Dory's hours he should go elsewhere. In the face
of the Respondent's contention that Galansky was seeking
a layoff, Szita testified that "Ronnie never said he was
quitting. He said he was laid off." At Galansky's insistence,
Finkelstein prepared a statement to the New York State
Unemployment Commission and a general letter of
recommendation, both of which suggest that the termina-
tion was a layoff rather than a quit. Galansky wanted to be
able to collect unemployment benefits on the basis of a
layoff rather than a voluntary quit and was understandably
happy that he was able to prevail on Finkelstein to treat his
separation in this manner. The Respondent is in no
position to treat Galansky's termination as a layoff for
purposes of paying unemployment compensation, and as a
voluntary quit for purposes of adjudicating the merits of an
unfair labor practice allegation.
The Respondent's true reason for terminating Galansky
is manifested by this record. Not only is the record replete
with evidence of general union animus, it also contains
uncontradicted evidence of animus directed specifically at
Galansky. Galansky was the prime mover of the union
effort at the Respondent's plant. It is hard to believe that,
in a small place such as John Dory where the personal
19 Donahue Beverages. Inc., 199 NLRB 581 (1972)
20 Motel 6, Inc.. 207 NLRB 473 (1973).
affairs of each employee were known to the president of the
Company, Finkelstein was not well aware of who prompt-
ed the union effort. However, whether or not Finkelstein
was aware of Galansky's leadership role, he was well aware
that Galansky was a union supporter, having told Galan-
sky during the course of the Monday morning mass
interrogation when Galansky indicated his union support,
and again on Tuesday, that if Galansky wanted a union he
should go to work elsewhere. In the light of these
circumstances, I conclude that the Respondent herein
affirniatively discharged Ronnie Galansky in violation of
Section 8(a)(1) and (3) of the Act.
4. Additional independent violations of Section
8(a)(1) of the Act
a. Following a discussion between Finkelstein and
Schneider which took place late in August in the yard
outside the plant, Finkelstein told Schneider on that day
that he could not afford a union and that, if the Union
came in, he would close the plant. This utterance is a
repetition by Finkelstein of a well-used theme and is not
denied. I conclude that the statement constitutes a
violation of Section 8(aXl) of the Act.
b. At a meeting held in September with employees at
Finkelstein's initiative to discuss the question of unioniza-
tion, he admits again asking them how they felt about the
Union and what the Union had promised them by way of
benefits. This mass interrogation constitutes another
violation of Section 8(aX)() of the Act.
c. Early in January, Finkelstein threatened Figueroa
with deportation if he showed up and testified at the Board
hearing. Finkelstein's statement is quite consistent with the
use by Finkelstein's lawyer at the hearing bringing into
question the immigration status of the Respondent's
employees as an intimidating weapon. Such a threat
constitutes a clear and aggravated violation of Section
8(a)(l) of the Act.
5. Respondent's preparation for hearing
The Respondent, through both of its principals, request-
ed employees to produce affidavits given to the Board in
the course of the investigation of the charge herein in order
to assist the Respondent's counsel in the preparation of his
case. One employee, Figueroa, produced his affidavit. The
others declined to do so. Two requests were made by Mrs.
Finkelstein through the intermediary of employee Szita
who apparently could communicate more easily with the
Spanish-speaking employees than she could. Finkelstein
also told Figueroa personally on two occasions to give him
Figueroa's affidavit. The Board has held that a request by
an employer to an employee to produce an affidavit given
to a Board agent in the course of an investigation is a
violation of Section 8(a)(1), even though assurances may
have been given against reprisal or efforts taken to make
the decision of the employee appear to be voluntary. The
rationale behind the holding is that such requests amount
to interrogation concerning protected activities which are
unjustified by any countervailing consideration since
21 Fugua Homes Missouri. Inc.. 201 NLRB 130 (1973).
22 Cone Mills Corp., Revolution Div.. 211 NLRB 475 (1974).
851
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pretrial statements must be made available to the respon-
dent by the General Counsel at the hearing for purposes of
cross-examination after a witness concludes his direct
testimony. Such requests not only have an intimidating
effect but amount to a back-door attempt to obtain pretrial
discovery, a procedure not available under Board practice.
W. T. Grant Company, 144 NLRB 1179, 1181-82 (1963);
Martin A. Gleason, Inc., 215 NLRB 340 (1974).23 The
Second Circuit takes a more flexible approach, holding that
a request by an employer to produce a pretrial affidavit
may or may not constitute a violation of Section 8(a)(l)
depending on the circumstances surrounding the request.
Henry I. Siegel Co. Inc. v. N.L.R.B., 328 F.2d 25 (1964);
N.L.R.B. v. Martin A. Gleason, Inc., 534 F.2d 466 (1976). In
the instant case, most of the witnesses interviewed by the
Board declined to produce their statements in response to
the employer's request, a factor relied on by the Second
Circuit in determining the intimidating effect of a request.
The statements made by Finkelstein to Figueroa were not
in the nature of dispassionate requests but were directives
to produce the affidavit. Figueroa's conversation with
Respondent's counsel in the Company's office concerning
the affidavits indicates a clear reluctance on his part to
permit the pretrial examination of his statement. Moreover,
the entire episode involving the pretrial request, produc-
tion, and examination of statements took place in a context
of egregious unfair labor practices on the part of this
Respondent. Accordingly, it is clear that the Employer's
request in this instance violates not only the Board rule but
also the less stringent court rule and is a violation of
Section 8(a)(1) of the Act.
6. Intimidation of witnesses by subpenas served
at the hearing
As recited above and as fully set forth in the record, the
Respondent's counsel served on five of the Respondent's
six Spanish-speaking employees subpenas duces tecum,
commanding them to produce travel and immigration
documents which they could only possess if they were legal
immigrants into the United States. The Respondent's
counsel admits knowing that all of these individuals were
aliens and admits that at least one, Figueroa, had a
questionable immigration status in this country. As found
above, Figueroa had already been threatened with deporta-
tion by Finkelstein if he appeared at the Board hearing to
testify. Counsel also knew, as did everyone at the plant,
that Figueroa was working at the plant under the assumed
name of Santiago Avila. The only excuse which counsel
could proffer for his action was that he wanted to test the
credibility of all those witnesses by calling into question
whether they signed their proper names on their pretrial
affidavits, so he needed each of these travel and immigra-
tion documents to ascertain their correct names. He asked
none of these witnesses any questions regarding their
names when they took the stand and when their affidavits
were produced. He offered no other evidence tending to
show that any one of them, other than Figueroa, was
working or testifying under an assumed name. His pretext
23 The Second Circuit has also held that there is no statutory or other
requirements obligating the Board to institute pretrial discovery procedures.
N.L.R.B. v. Interboro Contractors, Inc., 432 F.2d 854 (1970); see also the
recent case of Title Guarantee Co. v. N.L.R.B., 534 F.2d 484 (1976).
for seeking these documents for this purpose was a
transparent fiction.
The subpenas were quashed and the order to quash was
sustained, but the effect upon the General Counsel's
witnesses of this wholly irrelevant probe into their
immigration status which I observed at the hearing ranged
from unsettling to devastating and certainly affected their
ability to testify. While paragraph 15(b) of the amended
complaint was further amended to delete specific referenc-
es to the Respondent's attorney by name or title, the
portion of the amended complaint still extant is sufficiently
broad to justify a finding that the service of subpenas, as
discussed herein, by the Respondent constitutes a violation
of Section 8(a)(X 1) of the Act.
7. The Union's status as bargaining agent
Nine of Respondent's employees took the stand and
personally identified union designation cards which they
signed at times prior to the date on which Lasky made a
demand on the Respondent for recognition. All of these
cards (except for the first of two cards signed by Geraghty)
were submitted by Lasky to the Board on August 20 in
support of the representation petition which he filed on
that date. They bear a time-date stamp of Region 29 which
I officially notice.24 The cards in question are conventional
general purpose designation cards which state on their
face: "I hereby apply for membership in International
Industrial Production Employees Union, and authorize
and designate the Union to represent me for collective
bargaining with my employer."
The only objection advanced by the Respondent to the
use of these cards to establish the Union's majority status
which gives any pause at all is the contention that some of
the Spanish-speaking employees did not understand the
meaning and purport of their cards since the cards were
printed in English. Ibanez, a Spanish-speaking union
official, met with the Spanish-speaking employees before
they signed the cards and explained to them in Spanish
that he needed the signatures of a majority of the
employees so he could approach the employer to gain
recognition. He said that only in the event that recognition
was denied would he use the cards in support of a
representation petition. When questioned as to their
understanding of the meaning of the cards, all of the
Spanish-speaking employees gave testimony indicating that
they understood what they were doing when they signed
cards. Ruano testified that he could read English and read
the card. Paz testified that Ibanez explained to him that he
would bring the Union in at the factory if all the employees
signed cards. Figueroa testified that a union agent read the
card to him and that he understood it, that if any
employees signed cards they were indicating that they
wanted the Union, and that he understood what the word
"authorized" meant. Monroy testified that he felt the
purpose of the card was to permit the Union to represent
the employees. Parada testified that Ibanez said that, by
signing a card, he was becoming a member of the Union.
Espada testified that he understood that the Union was
24 Fabricators, Incorporation, 168 NLRB 140 (1967); Area Disposal, Inc.,
200 NLRB 350 (1972).
852
JOHN DORY BOAT WORKS
giving him the card so he could join. Such testimony makes
it clear that the Spanish-speaking employees knew when
they signed the cards that they were authorizing the Union
to represent them in dealing with their employer. Accord-
ingly, these cards constitute a sufficient basis on which a
finding can be made that, on August 18, 1975, and
thereafter, the Union was designated and did in fact
represent these employees for purposes of collective
bargaining. I also conclude that the other authorization
cards introduced into evidence also support the Union's
claim for majority status on and after that date.
The Board held in the Trading Port, Inc., 219 NLRB 298
(1975), that, in card majority cases in which a bargaining
order is issued, majority status should be determined and a
bargaining order issued as of the date on which the
employer embarked upon a course of illegal conduct which
gives rise to the Gissel remedy. In this case, the Respondent
began to commit a series of unfair labor practices on
August 18, 1975, the date on which the Union made a
demand for recognition. Accordingly, the Union's majority
status and the bargaining order herein should speak as of
that date.
Only two of the employees on the Respondent's payroll
as of August 18 did not sign cards. They are Szita and
Isabel Ruano. As it is unnecessary to determine whether
Geraghty and Mercado should properly be on the
eligibility list as of this date, I make no finding in this
regard and will exclude both of them in the computation of
majority status. Therefore, I conclude that, as of August 18,
1975, the Union was designated as the exclusive collective-
bargaining agent by 8 out of 10 of the Respondent's
production and maintenance employees and was therefore
the majority representative of the Respondent's employees
employed in that unit.25
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following:
CONCLUSIONS OF LAW
1. John Dory Boat Works, Inc., is now and at all times
material herein has been an employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. International Industrial Production Employees
Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed by the Respondent at its Village St. James, New
York, plant, excluding office clerical employees, guards,
and supervisors as defined in the Act, constitute a unit
appropriate for collective bargaining within the meaning of
Section 9(b) of the Act.
4. Since August 18, 1975, the International Industrial
Production Employees Union has been the exclusive
representative within the meaning of Section 9(a) of the
Act of all of the Respondent's employees employed in the
25 In par. 8 of the complaint, the General Counsel alleges that an
appropriate bargaining unit should be one which is composed of all of the
Respondent's production and maintenance employees, exclusive of office
clerical employees, guards, and supervisors. Though it entered a formal
denial of par. 8 in its answer, the Respondent made no other contention that
unit found appropriate in Conclusion of Law 3 for
purposes of collective bargaining.
5. By refusing to recognize and bargain collectively in
good faith with the International Industrial Production
Employees Union as the duly designated collective-bar-
gaining representative of its employees in a bargaining unit
found appropriate in Conclusion of Law 3 herein, and by
unilaterally changing the working hours of its employees
without bargaining collectively with the Union, the
Respondent has violated Section 8(aXS) of the Act.
6. By changing working hours of employees on August
20, 1975, and by discharging Ronnie Galansky in order to
discourage membership in International Industrial Produc-
tion Employees Union, the Respondent herein has violated
Section 8(a)(3) of the Act.
7. By the acts and conduct set forth in Conclusions of
Law 5 and 6; by polling and otherwise interrogating
employees concerning their union sympathies and activi-
ties; by threatening employees with discharge and with
plant closure if they continue to support the Union; by
requesting employees to produce for the inspection by the
employer or his attorney copies of statements given to
Board agents and threatening deportation if they appeared
and gave testimony at a Board hearing; and by subpenaing
travel documents and immigration papers of aliens sum-
moned to testify by the General Counsel and otherwise
probing into their immigration status in order to dissuade
them from giving testimony under the Act, Respondent
herein has violated Section 8(a)(l) of the Act.
8. The aforesaid unfair labor practices have a close,
intimate, and adverse effect on the free flow of commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent herein has engaged in
certain unfair labor practices, I will recommend that it be
ordered to cease and desist therefrom and take other action
designed to effectuate the purposes and the policies of the
Act. As the unfair labor practices found have been serious
and pervasive and go to the heart of the Act, I will
recommend the adoption of the so-called broad 8(a)(l)
order, requiring the Respondent to cease and desist from
engaging in any violations of that section of the Act. J. C.
Penney Co., 172 NLRB 1279 fn. 1 (1968); Adam & Eve
Cosmetics, Inc., 217 NLRB 1317 (1975). The recommended
Order will also provide that Respondent be required to
offer to Ronnie Galansky reinstatement to his former or
substantially equivalent employment and to make him
whole for any loss of earnings which he has suffered by
reason of the discrimination practiced against him, in
accordance with the Woolworth formula,2 6 with interest
thereon computed at the rate of 6 percent per annum.
The unlawful discriminations found herein include a
change of working hours from 6 to 2:30 to 8 to 4:30 which
was designed to punish employees for their support of the
Union and to discourage their further support. In order to
this unit was inappropriate and suggested no alternative unit. As production
and maintenance units in a manufacturing plant are normally found to be
appropriate, I find that it is so in this instance.
26 F W Woolworth Company, 90 NLRB 289(1950).
853
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remedy this violation, I will recommend that Respondent
be ordered to reinstitute its former shift hours and that it
give its employees the option of continuing to work at the
new hours or in accordance with the schedule which was in
effect before August 20, 1975.
The most controverted aspect of a proposed remedy in
this case is whether Respondent should be required to
recognize and bargain with the Union on the basis of the
card majority which the Union achieved on or before
August 18. This remedy was authorized by the Supreme
Court in the above-cited Gissel case. It has been ordered by
the Board and enforced by the courts in a host of cases
which have been decided since that time.2 7 As a decision to
issue a bargaining order rather than to direct an election is
a remedial question, the determination of which course of
action is appropriate is a matter conferred by statute to the
administrative expertise and the sound discretion of the
Board. In outlining the options available to the Board to
remedy unfair labor practices, the Supreme Court in Gissel
divided cases involving possible bargaining orders into
three categories depending upon the seriousness of the
violations of the Act which were committed therein by an
erring employer. In my estimation, the actions of this
Respondent place this case in the first category of cases
discussed by the Court; namely, those cases in which
"outrageous" and "pervasive" unfair labor practices have
wholly negated the possibility that an election could ever
be held under the "laboratory conditions" the Supreme
Court said were necessary to enable such an election to be
used as a reliable indicator of employee sentiment.
In this case, Finkelstein repeatedly told both union
representatives and his employees that if a union came in
to the plant, he would close it. He told employees that if
they wanted to work under union conditions, they should
leave and go to work at a union plant. Such threats in and
of themselves have been held to be sufficient to warrant the
issuance of a bargaining order. Ruby Concrete Company,
213 NLRB 724 (1974). Finkelstein went beyond mere
words and translated his feelings into action, first by
changing working hours to punish his small employee
complement for their transgressions and then by discharg-
ing union activist Galansky when he predictably declined
to go along with the change. Thereafter, Finkelstein
continued to tell employees the same thing he did on
August 18; namely, that union support would result in a
loss of employment. When brought to book for his actions,
he attempted to thwart the enforcement machinery of the
Board by intimidating his employees from coming forward
to give testimony under the Act. Such behavior leaves no
room for doubt that Finkelstein would continue to leave no
stone unturned to defeat the possibility of a free and fair
election and to ignore its results if an election should not go
17 Byrne Dairy, Inc. v. N.L.R.B., 431 F.2d 1363 (C.A. 2, 1970): N.L.R.B.
v. International Metal Specialties, Inc., 433 F.2d 870 (C.A. 2, 1970); N. LR.B.
v. Marsellus Vault & Sales, Inc., 431 F.2d 933 (C.A. 2, 1970); MPC
Restaurant Corp. and Hardwicke's Plum Lid d/b/a Maxwell's Plum v.
N.L.R.B., 481 F.2d 75 (C.A. 2, 1973); N.L.R.B. v. Scoler's, Incorporation, 466
F.2d 1289 (C.A. 2, 1972); N.L.R.B. v. Hendel Manufacturing Company, Inc.,
483 F.2d 350 (C.A. 2. 1973); N.L.R.B. v. V & H Industries, Inc., 433 F.2d 9
(C.A.2, 1970).
12 Respondent attempts to defeat the imposition of a bargaining order by
claiming to be the victim of threats and vandalism which occurred after the
Union made its demand for recognition on August 18. However, Respon-
in his favor. Under such circumstances, the conduct of an
election would amount to nothing more than a meaningless
gesture on the part of this Agency because it would be
treated by this Respondent with the same contempt and
disdain it has already exhibited for the Act, for the rights of
its employees, and for the processes of the Board.
Accordingly, I recommend that the Board provide herein
for a Gissel remedy and direct Respondent to bargain
henceforth with the Union as the bargaining agent of its
employees.2 8
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record herein
considered as a whole, and pursuant to Section 10(c) of the
Act, I make the following recommended:
ORDER 29
The Respondent, John Dory Boat Works, Inc., Village
St. James, New York, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Refusing tg recognize and bargain collectively with
International Industrial Production Employees Union as
the exclusive collective-bargaining representatives of all of
its employees employed in a bargaining unit composed of
all production and maintenance employees, exclusive of
office clerical employees, guards, and supervisors as
defined in the Act.
(b) Discouraging membership in, or activities on behalf
of, International Industrial Production Employees Union,
or any other labor organization, by discharging employees,
changing their hours of work, or by any other discrimina-
tion in their hire or tenure.
(c) Interrogating employees concerning their union
activities or sympathies.
(d) Requesting employees to produce copies of pretrial
affidavits given to Board agents.
(e) Threatening employees with discharge or with closing
of the plant in order to dissuade them from giving support
to the Union.
(f) Threatening employees with deportation or calling
into question their immigration status in order to discour-
age them from giving testimony under the Act.
(g) By any means or in any manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative actions designed to
effectuate the purposes and policies of the Act:
(a) Recognize and bargain collectively with International
Industrial Production Employees Union as the exclusive
collective-bargaining representative of all of its production
and maintenance employees, excluding office clerical
dent was unable to produce any evidence of any kind linking the Union
herein to the threats and vandalism which occurred. Accordingly, this
defense is without any foundation. Donelson Packing Co., Inc. and Riegel
Provision Company, 220 NLRB 1043 (1976).
29 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
854
JOHN DORY BOAT WORKS
employees, guards, and supervisors as defined in the Act,
and, if an agreement is reached, embody said agreement in
a written signed contract.
(b) Offer to Ronnie Galansky full and immediate
reinstatement to his former position, or, in the event that
his former position no longer exists, to substantially
equivalent employment, without prejudice to his seniority
or other rights previously enjoyed, and make him whole for
any loss of pay suffered by him by reason of the
discrimination found herein, in the manner described
above in the section entitled "Remedy."
(c) Restore a regular daily work shift at its plant between
the hours of 6 a.m. and 2:30 p.m. and offer each of its
employees the opportunity to work on this shift; provided,
that no employee shall be required to discontinue working
the shift between 8 a.m. and 4:30 p.m.
(d) Preserve and, upon request, make available to the
Board or its agents for examination and copying all payroll
'0 In the event the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
and other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Post at Respondent's place of business at Village St.
James, New York, English and Spanish copies of the
attached notice marked "Appendix."30 Copies of said
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by a representative of
Respondent, shall be posted immediately upon receipt
thereof, and shall be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
855