Keystone Lamp Manufacturing Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1987

284 N.L.R.B. 626 (N.L.R.B. 1987)

626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Keystone Lamp Manufacturing Corp. and United
Steelworkers of America, AFL-CIO-CLC.
Cases 4-CA-12250, 4-CA-12307, and 4-RC-
14652
30 June 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 30 December 1982 Administrative Law
Judge Joel A. Harmatz issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed cross-
exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, fmdings, 1 and
conclusions as modified, 2 to modify his remedy,3
and to adopt the recommended Order as modified.
1. Contrary to the judge, we find that the Re-
spondent did not violate Section 8(a)(1) of the Act
on five occasions when it questioned open and
active union adherents. Instead, we find under all
the circumstances that these interrogations were
not coercive, following the standards of Rossmore
House.4
The judge found in section III,B,2 of the deci-
sion that on 6 April 1981 Executive Director of
Manufacturing Fisher asked employee DeLong
why she was wearing a union pin. DeLong did not
reply. The judge also found in section III,B,3,a that
on 3 April 1981 Director of Fabricating and Pro-
1 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings
In adopting the judge's decision in this case, we do not rely on his gra-
tuitous comments in fns 20 and 25, charactenzmg certain complaint alle-
gations as poorly drafted and certain representations in the General
Counsel's bnef to the judge as misleading, because these comments have
no bearing on our decision
In par. 2 of sec III,A of his decision, the judge incorrectly stated that
the union organizing campaign began in March 1980, rather than in
March 1981. We therefore correct this inadvertent error
2 In adopting the judge's decision, we find it unnecessary to pass on
the exceptions to his disposition of the interrogation allegations set forth
in sec. III,B,1,c and 1,d of the decision, involving conversations between
President Glover and employee DeLong, because any finding of an
8(a)(1) violation would be cumulative with no effect on the remedy in
this case
3 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U S C. § 6621
4 269 NLRB 1176 (1984), affd 760 F 2d 1006 (9th Cir 1985)
284 NLRB No. 74
duction Hawk lifted the lapel of employee De-
Long's jacket where she was wearing a union
button and asked her what the pin said, what it
stood for, and where he could get one. When
DeLong did not reply, Hawk laughed and walked
away. The judge found further in section III,B,3,b
that on 3 April 1981 Hawk approached employee
Zinggeler, referred to her union button, and asked
her where he could get one. Hawk then asked her
what this was all about and said, "What do you
people want: wages? benefits? Well, you are not
going to get it." Finally, the judge found in section
III,B,4,d that in mid-April 1981 Administrative As-
sistant to the President Kern observed employee
Eckhart's union button, which stated, "JOIN
UNITED STEELWORKERS," and asked her,
"Join? Join what?" When Eckhart responded, "The
United Steelworkers," Kern asked her what that
was. Eckhart did not reply.
The judge found that all four of these conversa-
tions were unlawful interrogations because the Re-
spondent questioned employees about their union
buttons for no legitimate purpose and without pro-
viding any assurances against reprisals, citing PPG
Industries. 6 We disagree. The Board overruled the
per se rule of PPG in Rossmore House and returned
to the Blue Flash 6 test for evaluating whether an
interrogation violates the Act: whether under all
the circumstances the interrogation reasonably
tends to interfere with, restrain, or coerce employ-
ees in the exercise of the rights guaranteed by the
Act. Here, the Respondent questioned active union
supporters who were wearing union buttons openly
at work, directing its questions only at the meaning
of the buttons and why the employees were wear-
ing them. As there were no other coercive circum-
stances surrounding these four interrogations, we
find the questioning did not violate Section 8(a)(1)
of the Act. Therefore, we dismiss these allegations.
The judge found in section III,B,5 of the deci-
sion that on 10 April 1981 Assistant Controller
Thomas summoned employee Elaine Ahner to his
office to present the Respondent's position on the
union organizing campaign and to discuss the me-
chanics of collective bargaining. During this con-
versation, Thomas asked Ahner what the Union
could do for her. Ahner responded that it could
provide "fair and honest representation." Thomas
then asked what she thought wages would be, and
Ahner replied, "Higher." At that time, Ahner had
already signed a union card, had attended several
union meetings, and had started wearing a union
5 251 NLRB 1146 (1980)
6 109 NLRB 591 (1954) See also Sunnyvale Medical Clinic, 277 NLRB
1217 (1985)
KEYSTONE LAMP MFG. CORP. 627
button to work three or four times a week. The
judge found that Thomas questioned Ahner about
what she expected to gain through union represen-
tation and thus violated Section 8(a)(1) of the Act.
We disagree. Thomas knew Ahner was an open
and active union supporter, and his questions were
directed only at discovering her reasons for sup-
porting the Union so that he could argue more ef-
fectively in presenting the Respondent's case
against union representation. The judge specifically
found that Thomas did not make any threats or
promises during this conversation. Under all the
circumstances, we find that the questioning did not
violate Section 8(a)(1) of the Act. Therefore, we
dismiss this allegation.1
2. The General Counsel has excepted to the
judge's failure to discuss whether or not the re-
marks made by Respondent Controller Gary Smith
in numerous conversations with employees be-
tween April and July 1981 violated Section 8(a)(1)
of the Act, as alleged in paragraph 6 of the com-
plaint. Based on an admission in Controller Smith's
testimony, we find that the Respondent unlawfully
created the impression that its employees' union ac-
tivities were under surveillance, as alleged in para-
graph 6(0 of the complaint. We find it unnecessary
to pass on the remaining allegations in paragraph 6
of the complaint, however, regarding unlawful in-
terrogations, threats, and promises of benefits, be-
cause any findings of 8(a)(1) violations would
merely be cumulative with no effect on the remedy
already ordered and would require a remand to the
judge for further credibility resolutions.
In his testimony, Controller Smith admitted that
sometime in May 1981 he had a conversation with
employee Phillips, a known union activist who
wore a union button to work nearly every day,
when she came to his office to deliver reports.
7 Chairman Dotson would not find that Bernice Kern, administrative
assistant to the president, in a conversation with employee Patricia Eck-
hart, unlawfully threatened that the Respondent might go out of business.
Shortly after a meeting on the rising cost of overhead, Kern conunented
to Eckhart, "Well, we can't stay in business forever." Eckhart asked
What she meant, and Kern replied, "Well I am afraid if the union comes
in, the company could go out of business." In no other conversation did
Kern or any other Respondent official allegedly threaten to close if the
Union won the election. Under these circumstances, Chairman Dotson
finds Kern's remark to represent an isolated expression of opinion by a
supervisor, who was concerned by the Respondent's acknowledged esca-
lating costa, and would dismiss the complaint allegation.
Similarly, Chairman Dotson finds lawful Personnel Director John
Lasky's remark to employee Ahner and Eckhart that the employees
should give the Respondent "a second chance" and that, if things did not
improve in a year, they could petition again for union representation The
two employees saw Lasky in the parking lot and mvited him to join their
convergation, and the three of them talked for about an hour, only a
small part of which was devoted to discussing the Union. Lasky m no
way threatened the employees during the conversation Under these cir-
cumstances, Chairman Dotson finds that Lasky's remarks constituted an
expression of his own opinion and, contrary to the finding of his col-
leagues and the judge, did not constitute an imphed promise of benefits.
Smith admitted saying, "I understand that your at-
tendance at your meetings is dropping," and testi-
fied that Phillips responded, "I'll never tell." Em-
ployee Phillips testified that this conversation oc-
curred the morning after a union meeting. By tell-
ing a union activist on the day after a union meet-
ing that he understood attendance at her meetings
was dropping, Smith clearly implied that the Re-
spondent knew what was happening at these union
meetings and created the impression that the em-
ployees' union activities were under surveillance.
Such a statement violates Section 8(a)(1) of the
Act. See Airport Distributors, 280 NLRB 1144
(1986), and David's, 271 NLRB 536, 552 (1984).8
3. We agree with the judge that the Respondent
violated Section 8(a)(3) and (1) of the Act by
laying off employees Elaine Ahner, Jeanette Eck-
hart, and Betty Lou Phillips. In the decision, how-
ever, the judge did not clearly identify the facts he
relied on to fmd a prima facie case supporting his
conclusion that these layoffs were discriminatory.
Therefore, we shall set forth the factual findings
necessary to support his conclusion on this point.
First, we find that Ahner, Eckhart, and Phillips
were open and active union adherents. Ahner
signed a union card in March 1981, attended union
meetings regularly after that, and wore a union
button to work three or four times a week from
early April until her layoff on 6 June 1981. Eckhart
was one of three employees who initially contacted
the Union in March 1981, signed a union card in
March 1981, attended the weekly union meetings
regularly after that, testified at the Board hearing
on the Union's petition in late April 1981, and
wore several different union buttons to work regu-
larly from early April until her layoff on 26 June
1981, including one large button that stated she
was a "VOLUNTEER ORGANIZER." Phillips
signed a union card in March 1981, attended union
meetings regularly after that, and wore a union
button to work almost every day from early April
until her layoff on 26 June 1981. The Respondent
admitted seeing these employees wearing union
buttons at work, and Controller Gary Smith testi-
fied that Phillips was known as "Norma Rae."
8 Chairman Dotson would not find that Controller Smith's comment to
employee Phillips created an impression of surveillance in violation of
Sec. kaX1). There is no evidence that Smith obtained his information
about the union meeting in a surreptitious or otherwise unlawful manner.
In fact, it is quite possible that the scheduling of the union meeting was
common knowledge at the plant and that Smith innocently learned about
the attendance of the meeting from an employee or other management
official. Further, Smith's offhanded comment to Phillips, a known prowl-
ion supporter and activist, about the attendance was unaccompanied by
any threat or other unlawful conduct. In these circumstances, Chairman
Dotson finds no basis for concluding that Smith in any way interfered
with, restrained, or coerced Phillips in the exercise of Phillips' Sec. 7
rights, and he would dismiss the complaint allegation
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We also find that the Respondent exhibited
animus toward its employees' union activities.
Thus, the judge found that in early April President
Glover ordered Phillips to remove her union
button whenever she entered his office. The judge
also found that the Respondent asked employees to
stay away from union meetings, threatened em-
ployees with reprisals if they attended union meet-
ings, and threatened to go out of business if the
Union won the election. Finally, the judge found
that in July, after Ahner, Eckhart, and Phillips
were laid off, Supervisor Foster asked union sup-
porter DeLong where her union button was and
told her she "would get the ax next, just like all the
others."
We further find that the Respondent selected
these three employees for layoff contrary to past
practice and using the implementation of the new
computer system as a pretext. The judge found that
in the past the Respondent had never laid off any
clerical employees even though clerical jobs had
been eliminated. Thus, in January 1981 several
clerical employees were reassigned to other jobs
when the new computer system began handling
production control and eliminated their jobs; and in
March 1981 Elaine Ahner was reassigned to an-
other job when the product line for which she did
cost accounting was discontinued. Moreover, the
Respondent restated this policy of reassignments
rather than layoffs at least twice during the union
organizing campaign. On 25 March 1981 President
Glover assured employees that they would have
job security and the Company would continue its
past practice of finding other work for them if
their jobs were eliminated, during one of his
speeches arguing against union representation. At
the Board representation case hearing in late April
1981, Supervisor Hinkle testified that although key-
punching would be eliminated under the new com-
puter system, the Respondent planned to find its
keypunch operators other work to do. Further-
more, the Respondent laid off Ahner, who had
been assigned to do keypunching 3 weeks before it
laid off temporary employee Meleski, even though
Meleski continued to perform keypunching after
Ahner's layoff on 6 June 1981 and it had told Me-
leski she would only work until 1 June 1981. Final-
ly, the Respondent recalled Melesld and hired a
new clerical employee in October 1981 without re-
calling either Ahner or Eckhart.
We also note that the timing of these three lay-
offs indicates they were discriminatory. Thus, all
three layoffs occurred in June, before the 28 June
cutoff date for eligibility to vote in the union repre-
sentatidn election and before the new computer
system was fully operational. Moreover, Phillips
was recalled to work on 20 August 1981, after the
election, although she had been told her layoff was
permanent.
Therefore, we agree with the judge that the Re-
spondent selected these employees for layoff be-
cause of their union activities, that there was work
available for them to do after their layoffs, and that
the new computer system was a convenient pretext
for their layoffs. The Respondent has excepted to
the judge's failure to discuss the testimony of Com-
puter Consultant Van Arsdale, who conducted a
study of the Respondent's operations in April 1981
and recommended that certain clerical jobs would
necessarily be eliminated under the new computer
system. The Respondent contends that the laid-off
employees' union activities could not have played
any part in its decision to select them for layoff be-
cause it relied on Van Arsdale's recommendations
in deciding which jobs to eliminate. We do not find
this argument persuasive, however, in view of the
judge's findings that the Respondent had a past
practice of reassigning clerical employees to other
work if their jobs were eliminated.
4. We also agree with the judge that the Re-
spondent did not violate Section 8(a)(3) and (1) of
the Act by laying off employee John Gellis. In
adopting this conclusion, however, we do not rely
on the judge's discussion of an agreement between
the parties, supposedly reached at the representa-
tion case hearing in late April 1981, that Gellis
would be excluded from the office clerical unit as a
plant clerical, because the record establishes that
there was no such stipulation. Although the Re-
spondent took the position at the representation
case hearing that Gellis was a plant clerical, his
status was not resolved until the Regional Director
issued a decision on 2 July 1981, finding him ineli-
gible. 9 In dismissing this allegation, we note that,
unlike the other three laid-off employees, Galas did
not wear a union button to work and only attended
one union meeting. Furthermore, there is no evi-
dence that the Respondent had a past practice of
reassigning its plant employees to other work in-
stead of laying them off if their jobs were eliminat-
ed, as it had for its office employees. Finally, we
note that the Respondent had sound performance-
related reasons for retaining the other two plant
clerical employees instead of Gellis when it select-
ed him for layoff.
9 In sec III,B,8,b of the 4decision, the judge also relied on this sup-
posed agreement that Gellis was ineligible to support his discrediting of
Gellis in connection with the dismissal of an 8(a)(1) allegation. In adopt-
ing the credibility resolution, we do not rely on the Judge's discussion of
this nonexistent agreement, but rather on the other independent factors
he used to male this credibility determination
KEYSTONE LAMP MFG. CORP. 629
5. The judge concluded that a bargaining order
was warranted to remedy the Respondent's exten-
sive and pervasive unfair labor practices in this
case. The judge found that the Union had obtained
signed authorization cards from at least 13 of the
22 unit employees by 6 April 1981, the date when
it demanded recognition from the Respondent. The
judge further found that the Respondent's unlawful
conduct had neutralized the effectiveness of con-
ventional Board remedies and had created an at-
mosphere in which it was unlikely that a fair elec-
tion could be held in the future, citing the test set
forth in NLRB v. Gissel Packing Co., 395 U.S. 575
(1969).
Although we agree with the judge that a remedi-
al bargaining order is appropriate in this case, we
note that the judge did not clearly place the Re-
spondent's misconduct in either of the two catego-
ries identified in Gissel as warranting a bargaining
order. Therefore, we shall do so. We find that the
Respondent's unfair labor practices fall into at least
the second category, which involves "less-extraor-
dinary cases marked by less pervasive practices
which nonetheless still have the tendency to under-
Mine majority strength and impede the election
processes."10
On learning that there was union activity among
its office clerical employees, the Respondent imme-
diately began an antiunion campaign designed to
discourage its employees from supporting the
Union. In the first 3 weeks of the union organizing
campaign, the Respondent threatened to go out of
business if the Union won the election, threatened
employees with reprisals if they attended union
meetings, asked employees to stay away from
union meetings, coercively interrogated two em-
ployees, ordered an employee to remove her union
button whenever she entered President Glover's
office on business, and distributed two question-
naires to all unit employees soliciting their griev-
ances under conditions implying that these griev-
ances would be redressed if the Union lost the elec-
tion. In the remaining 3 months before the election,
the Respondent promised employees that benefits
would be improved if the Union lost the election,
created the impression that employees' union ac-
tivities were under surveillance, laid off three em-
ployees because of their union activities, and
threatened to lay off other employees because of
their union activities."
1 ° Id. at 613.
" Although, as stated supra, Chairman Dotson would not find all the
8(a)(1) violations found by his colleagues, he nevertheless agrees with his
Such highly coercive unfair labor practices were
likely to have had a profound impact on the em-
ployees. Threats of plant closure, termination, and
other retaliation against union activities are clearly
calculated to have a coercive effect that will linger.
The termination of three employees certainly
would have serious and prolonged consequences.
Furthermore, the unit was small, with only 22 em-
ployees; the violations were widely disseminated;
and the serious violations directly affected almost
one-third of the unit employees.
We conclude that the possibility of erasing the
effects of the Respondent's unfair labor practices
using the traditional Board remedies is slight.
Therefore, an election would not reflect uncoerced
employee sentiment. Although there has been a sig-
nificant passage of time since the violations oc-
curred, this does not warrant withholding a bar-
gaining order in light of the seriousness of the vio-
lations and their impact on the entire unit. Thus,
we conclude that the employees' desires for union
representation as expressed through the signed au-
thorization cards would, on balance, be better pro-
tected by a bargaining order.
Accordingly, we shall order the Respondent to
bargain with the Union as the duly designated rep-
resentative of the employees in the unit found ap-
propriate. The bargaining order shall be effective 6
April 1981, the date of the Union's demand for rec-
ognition, because this occurred after the Respond-
ent had embarked on a clear course of unlawful
conduct.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Keystone Lamp Manufacturing Corp.,
Bethlehem, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Order as modified.
1. Add the following as paragraph 1(1) and relet-
ter the subsequent paragraphs accordingly.
"(f) Creating the impression that employees'
union activities were under surveillance."
2. Substitute the attached notice for that of the
administrative law judge.
colleagues that a bargaining order is warranted to remedy the remaining
violations committed by the Respondent
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT coercively interrogate our em-
ployees about union activities.
WE WILL NOT ask our employees not to attend
union meetings.
WE WILL NOT order our employees to remove
their union buttons.
WE WILL NOT threaten our employees with re-
prisals if they attend union meetings.
WE WILL NOT threaten to go out of business if
the Union becomes our employees' bargaining rep-
resentative.
WE WILL NOT threaten to terminate our employ-
ees because of their union activities.
WE WILL NOT solicit our employees' grievances
under conditions implying that we will redress
these grievances if the Union loses the election.
WE WILL NOT promise our employees that their
benefits will be improved if the Union loses the
election.
WE WILL NOT create the impression that our em-
ployees' union activities are under surveillance.
WE WILL NOT tell our employees that we have
laid off other employees because of their union ac-
tivities.
WE WILL NOT lay off or refuse to recall any of
our employees because of their union activities, or
in any lother manner discriminate against our em-
ployees with respect to their wages, hours, or
terms and conditions of employment.
WE WILL NOT refuse to bargain in good faith
with United Steelworkers of America, AFL-CIO-
CLC as the exclusive representative for the pur-
pose of collective bargaining of the employees in
the appropriate unit set forth below. The appropri-
ate unit is:
All office clerical employees employed by the
Employer at its Slatington, Pennsylvania facili-
ty, including keypunch operators, order entry
clerk, computer operator, payroll clerk, and
time recordkeepers, and excluding production
and maintenance employees, shipping clerks,
production control employees, time study
technicians, managers, guards, and supervisors
as defined in the Act.
WE WILL NOT unilaterally change our unit em-
ployees' wages, hours, or terms and conditions of
employment without first notifying and bargaining
with United Steelworkers of America, AFL-CIO-
CLC.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Elaine Ahner and Jeanette Eck-
hart immediate reinstatement to their former jobs
or, if those jobs are not available, to substantially
equivalent jobs, without loss of seniority or other
benefits.
WE WILL make Elaine Ahner, Jeanette Eckhart,
and Betty Lou Phillips whole for any loss of earn-
ings they may have suffered by reason of our dis-
crimination against them, with interest.
WE WILL, on request, bargain with United Steel-
workers of America, AFL-CIO-CLC as the exclu-
sive representative of our employees in the appro-
priate unit set forth above, with respect to wages,
hours, and other terms and conditions of employ-
ment and embody any understanding reached in a
signed, written agreement.
KEYSTONE LAMP MANUFACTURING
CORP.
Gail Lopez-Henriquez, Esq. and Bruce G. Conley, Esq., for
the General Counsel.
Barry F. Bevacqua, Esq. (Pechner, Dorfman, Wolfe, Roun-
ick & Cabot), of Philadelphia, Pennsylvania, for the
Respondent.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. On an
initial unfair labor practice charge filed on July 13, 1981,
a consolidated complaint issued on August 31, 1981,
which, as amended, alleged that the Respondent engaged
in various independent violations of Section 8(a)(1) and
violated Section 8(a)(3) and (1) of the Act by several
acts of union-related discrimination. It was alleged fur-
ther that by virtue of the unfair labor practices, Re-
spondent violated Section 8(a)(5) of the Act by refusing
to recognize and bargain with , the Union as exclusive
representative of a majority of its employees in the ap-
propriate unit in accordance with the principles enunci-
ated in NLRB v. Gissel Packing Co„ 395 U.S. 575 (1969).
Finally, it was alleged that Respondent engaged in fur-
ther 8(a)(5) violations by effecting unilateral changes in
working conditions without, first, notifying and negotiat-
ing in good faith with the Union. In its duly filed
answer, Respondent denied that any unfair labor prac-
tices had been committed.
The aforedescribed complaint issued against a back-
ground showing that an election petition had been filed
by the Union in Case 4-RC-14652 on April 6, 1981.
Thereafter, pursuant to a Decision and Direction of
Election issued by the Regional Director for Region 4
KEYSTONE LAMP MPG. CORP. 631
on July 2, 1981, an election by secret ballot was conduct-
ed on July 20, 1981, in the unit determined to be appro-
priate. On conclusion of the election, the parties were
furnished a tally of ballots that showed that of 22 eligible
voters, 7 cast valid ballots for, and 12 against representa-
tion by the Union. There were three challenged ballots,
which were plainly insufficient to affect the results.
Thereafter, the Union filed timely objections to employer
conduct interfering with the election. Pursuant thereto,
on August 27, 1981, the Acting Regional Director issued
a "Supplemental Decision on Objections to Election" in
which it was concluded that Objections 1-7 and 131
were the subject of unfair labor practice charges in Cases
4-CA-12250 and 4-CA-12307, and, accordingly, as a
complaint was to issue on those charges, it was ordered
that the cases be consolidated for hearing, ruling, and de-
cision by the judge.
Pursuant to the foregoing, the matter was heard by me
in Bethlehem, Pennsylvania, on June 7, 8, 9, 14, and 15,
1982. On conclusion of the hearing, briefs were filed on
behalf of the General Counsel and the Respondent.
On the entire record in this proceeding, including
direct observation of the witnesses while testifying and
their demeanor, and consideration of the posthearing
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation engaged in the
manufacture of portable lamps from its facility located in
Slatington, Pennsylvania, the sole facility involved in this
proceeding. In connection with the operations, Respond-
ent, during the calendar year preceding issuance of the
complaint, sold and shipped products valued in excess of
$50,000 directly to points located outside the Common-
wealth of Pennsylvania.
The complaint alleges, the answer admits, and I find
that Respondent is, and has been at all times material, an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that United Steelworkers of America, AFL-CIO-CLC
is, and has been at all times material, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
This consolidated complaint arises from an initial orga-
nization campaign waged among Respondent's previous-
ly unrepresented office clerical employees at its produc-
tion facility located in Slatington, Pennsylvania. It ap-
pears that the production and maintenance workers at
that facility, a unit numbering about 350, had been con-
tinuously represented by the Union since 1962.
1 Objections 8 through 12 had been withdrawn by the Union
Organizational activity opened among Respondent's
clerical employees in March 1980, 2 when Anita Zing-
geler, Jeanette Eckhart, and Darlene DeLong discussed
that possibility with a union representative. Thereafter,
with the aid of a list of names and addresses submitted
by DeLong, blank authorization cards were mailed to
the clericals on March 19. Between March 20 and 25,
some 15 employees signed and returned by mail to the
Union their designations.3
Respondent was swift to respond, opening its counter-
campaign even prior to Mareh 25, when the employees
were assembled and addressed for the second time by
Walter Glover, Respondent's president, in connection
with the organizational effort. A third such meeting was
conducted by Glover and other management representa-
tives on March 30. This, despite the fact that the Union
made no attempt to contact Respondent until March 31.4
Later, on April 6, the Union by letter formally requested
negotiations as majority representative of a clerical-tech-
nical unit, 3 and filed an RC petition in Case 4-RC-
14652. It will be recalled that in that election held on
July 20 the employees in the appropriate unit rejected
union representation by a vote of 7 to 12.
The General Counsel alleges that the results of the
election were attributable to a pattern of unlawful con-
duct that precludes the holding of fair election in the
future even after the application of traditional Board
remedies. It is urged in this instance that the valid au-
thorization cards executed by a majority of the employ-
ees prior to the commission of any unfair labor practices
"provides a better test of employee representation than a
second election." Pursuant to NLRB v. Gissel Packing
Co., supra, the General Counsel argues that the "unfair
labor practices were sufficiently serious to warrant the
imposition of a bargaining order."
The claim for relief in this form is supported by a
complaint incorporating a plethora of independent 8(a)(1)
allegations, as well as four layoffs allegedly violative of
Section 8(a)(3). In this latter regard, Elaine Abner was
terminated on June 6 and Betty Lou Phillips, Jeanette
Eckhart, and John Gellis were laid off on June 26. By
way of defense, it is urged that no violations of Section
8(a)(1) were substantiated and that in each instance the
layoffs were uninfluenced by union activity or the im-
pending election, but occasioned solely by a lack of
work attributable to the installation of a new computer
system to which the Company had become committed
well prior to the advent of union activity.
In terms of remedy, the critical issues presented are
whether the General Counsel has substantiated the basis
for a Give' bargaining order under the auspices of Sec-
tion 8(a)(5) of the Act and, if not, whether the Union's
2 All dates refer to 1981 unless otherwise indicated.
3 The critical date, by virtue of the instant complaint, for assessment of
the Union's majority, is April 6 At the hearing the parties stipulated that
the appropriate unit as of that date consisted of 22 identified individuals.
No possible question concerning authenticity, eligibility, or validity might
be raised regarding 13 of the fully executed authorization cards presented
m evidence This of course represented a majority of employees m the
unit deemed appropriate by the Regional Director on July 2
4 See 0 C. Exh. 6(a).
5 See 0 C El& 7.
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
objections to the election in Case 4-RC-14652 have suffi-
cient merit to warrant a rerun election. Beyond that, sig-
nificance attaches to relief in the form of backpay and re-
instatement derived from the alleged 8(a)(3) violations
founded on the June layoffs.
B. Interference, Restraint, and Coercion
The independent 8(a)(1) allegations relate essentially to
(1) confrontations between rank-and-file employees and
supervisors, (2) alleged changes in personnel practices,
and (3) programs adopted by Respondent allegedly to
combat the Union. Thus, nine witnesses were presented
by the General Counsel to testify to allegedly unlawful
statements made by supervisors. The alleged violations of
Section 8(a)(1) were placed as occurring throughout the
preelection period, but most appear to have taken place
early in the campaign during March and April. In the
main, the issues presented here turn on credibility, but
admitted borderline conduct is also involved presenting
issues legal in nature.
1. By Walter Glover
(a) Walter Glover is Respondent's president and the
highest level operating functionary at the Slatington
plant. It appears that he learned of the union campaign
shortly after the Union mailed authorization cards to em-
ployees. It further appears that he addressed the clericals
concerning the organization effort on three occasions in
late March. His second speech, on March 25 was a hard
hitting, emotional plea for rejection of the Union. This
basic theme was carried forth to a third meeting held on
March 30, and an 8(a)(1) allegation, derives from re-
marks admittedly made by Glover on that occasion.
Thus, it is contended that Respondent independently vio-
lated Section 8(a)(1) because, at that time, Glover "solic-
ited employees grievances, thereby promising employees
increased benefits and improved terms and conditions of
employment in order to discourage its employees from
supporting the union." As was true of his March 25 ad-
dress, Glover's remarks on March 30 emphasized the ad-
verse effects of competition on the portable lamp indus-
try and the Company's record in the area of job security.
However, on the later date, Glover also argued the dis-
advantages of unionization, pointing out the expense of
dues and initiation fees, and the possibility of strikes. Fol-
lowing Glover's opening remarks, the assembled employ-
ees were then addressed by Gary Smith, Respondent's
comptroller, who explored the impact of enhanced costs
on the Company's welfare. Following this, Glover em-
barked on a review of existing company benefits. To il-
lustrate the desirability of Respondent's hospital plan,
Glover called on employee Pat Rehrig, who had just
given birth to a child, to express her evaluation of the
existing health program. However, she simply replied
that it was "Okay," a response that obviously was taken
by Glover as feint praise, causing him to react by stating:
"Okay. Just okay? I happen to know its damn good." At
this juncture, Glover continued on as follows:
All right. Apparently I touched a touchy subject
and I didn't mean to, I'm sorry. We will get into
that and see what the hell is wrong and try to
straighten it out for you. But this is the importance
of communication. Now, how much of this very
type of thing is in this room? This kind of feeling
'where people don't, really don't feel. We're not
being told how and the hell they feel. Here's young
lady with a problem. I didn't know she had a prob-
lem. But dammit I'm going to find out why and try
to do something for her. And the Union can't do
any more for her than we will do. Now, if we
haven't been aggressive enough, if my management
hasn't been aggressive enough to find out and help
you with these problems and explain it to you, then
danunit I told you the door is open. My door is
always open because I want you treated right. This
money is spent. I wanted to put out a booklet for a
long time spelling out how you should use your
Blue Cross, Blue Shield program. Because so many
people don't know the benefits that are there and
how to use them. Lots of people are still getting
taken on the program. They're not taking advantage
of what the hell is there for them. That goes for ev-
erybody throughout the plant. I put you all on a
higher, higher intellect level than a lot of our
people on the floor. And those people really need
help and if we're running into a situation like we
just ran into with Pat, then we need help in this
room too. All right. John, do you want to go
through those benefits.
On consideration of the above in conjunction with the
aforedescribed allegation of the complaint, it is conclud-
ed first that Glover said nothing that reasonably could be
construed as a solicitation of benefits. He did not inquire
concerning employee problems or grievances nor did he
invite any open exchange of views in that regard. The
General Counsel does not expressly state that this was
the case, but seems to argue that the vice in Glover's
presentation was an implicit promise to remedy a griev-
ance held by Pat Rehrig. Contrary to the General Coun-
sel, unlike Rezair, Inc., 243 NLRB 876, 880 (1979), the
statements made by Glover did not in my opinion sup-
port a "compelling inference" that changes would be
made in the existing benefit structure to accommodate
Rehrig. See, e.g., Raley's; Inc., 236 NLRB 971, 972
(1978). His opening comment to Rehrig was obviously
made in the anticipation that she would reinforce his
own positive assessment of Respondent's existing hospital
plan. True he characterized her failure to respond favor-
ably as indicating that Rehrig had a problem, which the
Company could solve. That problem, however, was
clearly defined by Glover as a misunderstanding on the
part of Rehrig concerning the scope of Respondent's
Blue Cross, Blue Shield program. He is no way implied
or suggested either a possible modification of the cover-
age of that program or that special benefits would be
made available to Rehrig or any other employee. Glov-
er's clearly communicated position was that Rehrig did
not glow with enthusiasm concerning the plan because
she did not understand it, that management was responsi-
ble for not communicating the scope of the plan accu-
rately to Rehrig, that other employees might be laboring
under a similar misunderstanding, and that management
KEYSTONE LAMP MFG. CORP. , 633
would redouble its effort to avoid such misunderstand-
ings. To this extent, his remarks did not exceed an area
of employer antiunion propaganda, which has been ac-
knowledged as privileged. Thus, Board precedent con-
firms the employer's right to campaign on the basis of
existing benefits. 6 As an incident thereto, employers are
not only free to clarify the existing benefit structure but
to give assurances that it will continue to maintain an
educational dialogue along those lines in the future. For
these reasons, it is concluded that the allegation that Re-
spondent violated Section 8(a)(1) through Glover's
March 30 solicitation of grievances and implied promise
of benefits is not substantiated and shall be dismissed.
(b) The complaint further alleges that about April 6,
Glover prohibited an employee from wearing a pin
"which designated said employee's support for the
Union." It is undisputed that Betty Lou Phillips wore a
union pin from April 6 until her layoff on June 26. Also
clear is the fact that during the campaign, in April, she
delivered a report to the office of Glover while wearing
her union button. Glover, observing the button, asked
Phillips to remove it, stating "when entering through
that door, I want that pin removed. This is my office. Is
that understood?" Phillips apologized and never again
wore the pin within Glover's office. She admitted, how-
ever, that this limitation did not extend in other areas of
the facility where she freely wore her pin throughout the
campaign. The General Counsel argues that although
Glover's instruction was limited to the vicinity of his im-
mediate office, "it nonetheless created an atmosphere
which would tend to coerce the employee in her exer-
cise of a protected right." In my opinion, the question
presented is border line. It is true that the statement by
Glover amounted to a strong expression of distaste for
union activity and a desire to insulate his surroundings
from its trappings. Such expressions of union animus,
though perhaps coercive, would appear to fall with free
speech guarantees protected by Section 8(c). More sig-
nificantly, however, from a practical point of view it is
difficult to imagine how Section 7 activity would tend to
be either enhanced by intervention of the statute to guar-
antee Phillips the right to brandish union insignia within
her boss' office or impaired by this limited restriction
that plainly was inapplicable to areas frequented by em-
ployees. Nonetheless, it is my duty to apply Board
policy, which in this area is not only established, but
broad-brushed in terms of its proscriptive scope. Thus,
restrictions of this nature are unlawful absent a showing
of special circumstances indicating an interference with
production, discipline, or presenting a hazardous work
condition:7 No such showing having been made by Re-
spondent herein, the instruction by Glover to Phillips
violated Section 8(a)(1) of the Act.
(c) The complaint alleged that about April 3, 1981,
Glover "interrogated an employee regarding said em-
ployee's support for the Union." In this regard, DeLong
testified that although on a staircase leading to the em-
ployees' lunchroom, on April 3 she crossed paths with
'Arrow Elastic Corp, 230 NLRB 110, 113 (1977), and cases cited at fn
13 thereof
7 Hesse Corp., 244 NLRB 985, 987 (1979).
Glover, who while observing her union button, stated, "I
can't believe it. Why Darlene? Why did you let it get
this far/ You of all people. I just can't believe it." Ac-
cording to DeLong, Glover then asked, "What I had
against the company." 8 On the face of DeLong's testi-
mony, I am not convinced that a Glover engaged in co-
ercive interrogation. From her account, his remarks were
completely rhetorical and not of the type calculated to
elicit a response. Thus, her testimony does not indicate
that she made a response, or that she was given an op-
portunity to do so. Surprise is frequently couched in the
language of the interrogatory, though inquiry is by no
means intended. It was the General Counsel's burden to
establish that the employee was in fact "interrogated,"
and as this proof responsibility was not met here, I shall
dismiss the 8(a)(1) allegation in this respect.
(d) The final allegation implicating Glover in 8(a)(1)
activity pertains to a conversation with DeLong in his
office on the day of the election, July 20. DeLong had
previously been employed in the production and mainte-
nance unit, and decided to return to that unit after learn-
ing that the Union had failed in the election. Later that
day, but after the election, she was summoned to Glov-
er's office where she was told first that she had been a
good worker, and then asked by Glover "why did you
do it?" DeLong indicated that she wanted job security
whereupon Glover questioned this, asking whether she
was aware of "how many clerical employees had been
laid off?" According to DeLong, Glover also mentioned
that she was held in such high esteem that if her supervi-
sor had wanted to elevate her to the position of assistant
supervisor, he would have approved. Glover then asser-
tedly returned to a critical posture, stating, "The leader-
ship you had in this, you sit there and you don't have the
balls to give me an explanation. . . we people had hurt
him for the last time." Based thereon, the complaint al-
leged that Glover interrogated DeLong regarding her
union activities, and "implied a promise of promotion" to
her in order to discourage her union support. The testi-
mony of DeLong is too vague to support reasonable
construction that a union related promise of promotion
was made to her." It is clear, however, that Glover
questioned her concerning her union activity, that this
occurred without required safeguards, and hence that it
violated Section 8(a)(1). I so find.
8 Glover denied that he had any such conversation with DeLong He
admits to an exchange with employee Joanne Levandusky with a some-
what similar focus. I prefer the testimony of DeLong in this instance.
9 Glover admitted to such an encounter. He acknowledged that he ex-
pressed curiosity about DeLong's reasons for resigning from the clencal
unit in that her retransfer to the production and maintenance group ren-
dered her automatically subject to layoff Beyond that he could recall
none of the conversation. I credit DeLong.
is The reference to the fact that Glover would have approved a pro-
motion if recommended by a supervisor seemed purely hypothetical, and
was conveyed by DeLong in such cryptic fashion as to suggest nothing
other than Glover's recognition of her competence and outstanding per-
formance as an employee in the clerical unit. I simply did not take De-
Long's testimony to mean that Glover was thereby implying that his ap-
proval m any way hinged on her support, or lack of support for the
Union.
634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. By Donald Fisher
Fisher, at times material, served as Respondent's exec-
utive director of manufacturing. It is alleged that Re-
spondent violated Section 8(a)(1) through his interroga-
tion of an employee on April 6, and by his direction on
April 8, that an employee remove a union button.
Concerning the first incident, Fisher confirmed the tes-
timony of DeLong that on April 6 he "asked her why
she was wearing the pin." DeLong on that occasion af-
forded no response. The inquiry, having been made with-
out safeguards providing assurances against coercion,
and lacking in legitimate justification, was unlawful. I
find that Respondent thereby violated Section 8(a)(1) of
the Act. PPG Industries, 251 NLRB 1146 (1980).
With respect to the second incident, DeLong testified
that about 2 months later about June 8, she was called to
the office of Fisher. When he observed her union button,
he told her to: "Take it off." Although DeLong indicates
that this instruction was unqualified as stated, she contin-
ued to wear the button in work areas, but did not consid-
er this to be a violation of Fisher's instruction. Fisher, on
the other hand, denied ever having a conversation with
DeLong in which he prohibited her from wearing the
union pin in or out of his office. He testified further
without contradiction that DeLong during the entire
preelection period visited his office on a daily basis. In
this instance, the testimony of DeLong is considered un-
reliable. That of Fisher seemed the more probable when
viewed in the light of undisputed facts. Indeed, I consid-
er it entirely unlikely that Fisher would have elected to
make an issue over the insignia some 2 months after sev-
eral employees within the clerical unit began wearing
union buttons regularly. It was my overall impression
that in this instance DeLong was either confused or
failed to recall and relate all that actually transpired on
that occasion. In any event, her testimony is rejected and
accordingly, the evidence does not substantiate that Re-
spondent violated Section 8(a)(1) in this respect.
3. By Jim Hawk
(a) Hawk, at times material, was Respondent's director
of fabricating and production. According to the com-
plaint, Respondent independently violated Section 8(a)(1)
through his separate interrogation of employees concern-
ing union activity on April 3, and his solicitation of
grievances under conditions implying a promise of bene-
fit. The first was substantiated by testimony of DeLong,
who related that on April 3, Hawk lifted the lapel of her
jacket and inquired about ". . . what the pin said, what
it stood for, where he could get one." She went on to
indicate that Hawk "laughed and walked away" when
she refused to talk about it. 11 Although I have my own
views regarding this type of dialogue between a supervi-
sor and an employee who openly manifests union sup-
port, I am duty bound to adhere to Board precedent. In
this regard I fmd that Hawk's expression cannot be ex-
" In this respect I credited the testimony of DeLong Hawk did not
deny the inquiry I did not believe his effort to euphemize the conversa-
tion by indicating that DeLong frequently wore funny pins, that he had
no idea that the pm she was wearing pertained to the Union, and that
when he saw it he just bent down and asked her what it said
eluded from the all-inclusive holding of the Board con-
cerning "inquiries . . . [which] convey an employer's
displeasure with employees' union activity," whose "co-
ercive impact is not diminished by the employee? open
support of the union or by the absence of attendant
threats." 12 Accordingly, I find that Respondent violated
Section 8(a)(1) of the Act by this seemingly innocent in-
quiry about what the union button said.
(b) Hawk was implicated in a second incident on April
3, which was founded on testimony of Anita Zinggeler.
Consistent with the pattern of conduct related by
DeLong, Zinggeler testified that Hawk approached her
on that date and referring to her union button, asking
where he could get one. He went on to inquire about
what "this was all about" stating "what do you people
want: wages? benefits? well, you are not going to get it."
I prefer the testimony of Zinggeler, an encumbent em-
ployee at the time of the hearing, over Hawk's denial
that he ever discussed union buttons with her or ever
even observed her wearing such a button." On the au-
thority cited above, I find that Hawk's questioning of
Zinggeler concerning her union button, constituted coer-
cive interrogation and that Respondent thereby violated
Section 8(a)(1).
4. By Bernice Kern
Kern, during the organization campaign held the posi-
tion of administrative assistant to the president.
(a) It is alleged that Respondent violated Section
8(a)(1) by Kern's attempt to dissuade an employee from
engaging in union activity "by requesting said employee
not to attend union meetings." In this respect, testimony
was offered by former employee Patricia Eckhart to the
effect that on the day following "one of the first union
meetings," Kern inquired whether Eckhart had attended
the meeting and about what had transpired. Eckhart
claims that she did not respond. According to Eckhart,
Kern then stated, "I want to ask you as a personal favor
to me if you would please stay away from the union
meetings." Kern admitted to questioning Eckhart wheth-
er she attended, and also acknowledged that she ex-
pressed curiosity about what transpired at the meeting.
However, she denied having told Eckhart to stay away
from meetings. 14 The interrogation by Kern concerning
union activity as plainly coercive, and violated Section
8(a)(1). With respect to the alleged instruction that Eck-
hart refrain from attending union Meetings, as stated by
me at the hearing, the latter's testimony was merely in-
12 See Harrison Steel Castings Co., 262 NLRB 450 (1982), and cases
cited at ft, 5 thereof.
13 For reasons that should appear obvious, I dismissed at the hearing
the allegation that Hawk in this conversation , solicited grievances under
conditions implying a promise of benefit It is difficult to grasp just how
such an allegation might be maintained in the face of Zmggeler's testimo-
ny that Hawk said that no enhanced benefits would be achieved
'4 On balance, I regarded Eckhart as the more credible witness In so
rulmg, I have not overlooked the fact that, prior to the hearing, Eckhart
voluntarily quit her employment Eckhart also testified that about a week
after this meeting, Keen asked her if she was planning to attend the next
meeting. I am not entirely certain that this matter is embraced by the
complaint, but if it is, I consider it to be cumulative to the unlawful inter-
rogation already found against Kern and as having no effect on the
remedy.
KEYSTONE LAMP MFG. CORP. 635
dicative of a "non-instructive request." The parties were
informed that no violation would be predicated thereon
absent clear authority to the contrary. On further reflec-
tion, with the aid of legal arguments advanced by the
General Counsel, I regard Eau Claire Press Co., 260
NLRB 1072 (1982), as dispositive and conclude that the
Board has deemed such a request to have a tendency
reasonably to coerce. Accordingly, I fmd that Respond-
ent thereby violated Section 8(a)(1) of the Act.
(b) With respect to a further allegation, Eckhart testi-
fied that shortly after the meeting that had been held
concerning the "rising cost of overhead," 15 she was
proofreading orders with Kern in the latter's office,
when Kern interrupted to state, "Well, we can't stay in
business forever." Eckhart inquired about what she
meant Kern indicated, "Well I am afraid if the union
comes in, the company could go out of business."18
Consistent with the position of the General Counsel I
find this prediction did not satisfy the standard set forth
in NLRB v. Gissel Packing Co., supra, 395 U.S. at 681. It
was not "carefully phrased on the basis of objective fact
to convey an employer's belief as to demonstrably proba-
ble consequences beyond his control. . . ." Accordingly,
although the threat was seemingly an isolated expression
of a supervisor's personally held fear, which was prob-
ably inspired by recently held management meetings
stressing the problem of escalating costs in the highly
competitive lamp industry, it nonetheless tended reason-
ably to coerce and hence violated Section 8(a)(1) of the
Act.
(c) Zinggeler testified to a_ further conversation with
Kern that occurred in early April. Zinggeler described
the incident as follows:
I was standing at the coffee machine and she
came over to me and pointed to my button that I
was wearing that said "JOIN, UNITED STEEL-
WORKERS." And she said, "Join? Join what?"
And I said "the United Steelworkers."
And she said, "Oh, I like mine better." She point-
ed to her button that said "I'D RATHER BE ME,"
and that is all she said.17
Zinggeler acknowledged that, under the circumstances,
she was convinced that Kern knew full well what the
button meant and that Kern was not interested in Zing-
geler's response to her inquiry. 18 To label the incident
described by Zinggeler as interrogation is to succumb to
the 'entrancing notion that any statement that begins with
an "interrogatory pronoun" and ends with a "question
mark" is calculated to elicit a response. Dialogue is often
marked 13y rhetorical questions that are neither under-
" See Gr.0 Exh. 9(b)
16 Kern admitted to an observation that the Company could price
itself out of the market, but denied adverting to the possibility that it
could go out of business. I believe Eckhart.
' 7 A replica of the button appears as G.C. Exh 8(b). The "PD
RATHER BE ME" button was a response worn by those who opposed
the organizational effort.
18 Kern afforded a slightly different version of the conversation. Ac-
cording to Kern, she ran into Zinggeler and stated, "Where is your
button," While pointing to her own, and indicating, "I'm wearing mine,
where is yours?"
stood as, nor conveyed with the intention of, seeking in-
formation from the listener. This is precisely what oc-
curred here. If a violation has been established in this ex-
change, it must be founded on the view that during an
organization campaign supervisors may not lawfully
make smartalecky comments about an employee's openly
declared union sympathy. Although one might say that
Kern's conduct was tantamount to an expression that she
did not like the fact that Zinggeler was proration, with-
out more, authority does not compel a conclusion that
such an intimation violates Section 8(a)(1). The allegation
predicated on Zinggeler's testimony in this respect shall
be dismissed.
(d) Jeanette Eckhart afforded somewhat similar testi-
mony in support of a further 8(a)(1) allegation. The latter
related that in mid-April, Kern observed Eckhart's union
button and said, "Join? Join what?" Eckhart responded,
"The United Steelworkers." Kern inquired about what
that was. Eckhart did not answer." In this instance, I
find that Kern's statement did constitute "interrogation"
and shall sustain the 8(a)(1) allegation to this effect,
(e) The final allegation implicating Kern in coercive
interrogation was based on testimony of Betty Lou Phil-
lips, which in its entirety is set forth below:
GENERAL. COUNSEL: Are you acquainted with
Bernice Kern?
PHILLIPs- Yes.
GENERAL COUNSEL: And who is she?
PHILLIPS: Supervisor of the Main office.
GENERAL COUNSEL: Did you have a reason to
have contact with her in the course of your work?
PHILLIPS: Yes. I was giving reports, also. Noth-
ing further.
GENERAL COUNSEL: During the same time
period, do you recall any conversations with her?
PHILLIPS: There again, it is the same as with
Hinkle. I mean, it was no big deal. We just laughed
it off, really.
GENERAL COUNSEL: What was said?
PHILLIPS: The company had put out pins that
said "I'D RATHER BE ME" and Ms. Kern hap-
pened to be wearing the company pin, and I had
the union pin on, and she said "Where is your pin?"
and I said "I have mine on," and that was it.
GENERAL COUNSEL: That was the whole conver-
sation?
PHILLIPS: Yes. It was nothing.
It was the sense of Phillips' testimony that since April
6 she wore a union button everyday. It is also clear from
the record that the "I'D RATHER BE ME" buttons did
not appear until after the dissemination of unionpins.
Phillips acknowledged that there was much "kidding"
about the Union between supervisors and herself, and she
acknowledged that had Kern been observed without her
pin, she might have made the same reference to Kern as
Kern had made to her. It is difficult to conceive that this
19 Kern denied any such conversation, asserting that she did not get
along with Eckhart and hence avoided her. Consistent therewith, evi-
dence reveals ill will existed between them, but I credit Eckhart.
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
incident could have any real impact on the propriety of a
bargaining order or that considering its cumulative
nature, it could be of any remedial significance whatever.
Nonetheless, the evidence is just as worthy of analysis as
any other violation charged by this complaint. It is my
impression from a composite of the testimony of Phillips
and Kern that the latter's statement was calculated and
understood solely to draw attention to Kern's own an-
tiunion medallion. I find that Kern's comment on the oc-
casion had no reasonable tendency to coerce and, ac-
cordingly, the 8(a)(1) allegations based thereon shall be
dismissed.
5. By Preston Thomas
At times material, Thomas was Respondent's assistant
controller. The complaint alleged that about April 10 he
coercively interrogated an employee, threatened the em-
ployee with a loss of benefits, and offered a permanent
position to an employee if she withdrew support of the
Union. The employee in question was Elaine Ahner,
who at the time held the position of keypunch operator.
According to Ahner's testimony, she was called to a
conference with Thomas that he opened by inquiring
how she liked her new assignment to keypunch. Accord-
ing to Ahner, he then asked, "What could the union do
for me?" She replied, "Fair and honest representation."
When next he inquired about what she thought wages
would be, she replied, "Higher," while observing that
there would be a "written guarantee of our benefits."
Thomas then assertedly stated that "benefits would have
to start from scratch, from the bottom, that we would
have to start all over with our benefits; that we wouldn't
get what the union had." According to Ahner, he indi-
cated variously that if the Union came in employees
would not have the same benefits as now, and that bar-
gaining would have to start from scratch or at the
bottom. Ahner also testified that Thomas indicated that
because she was at the bottom of the seniority list, she
would probably be laid off in August when the computer
system was to be placed on line. Ahner also claims that
in reference to her vulnerable position as a keypunch op-
erator, Thomas stated that he would offer her "a perma-
nent position at Keystone, if I would change my mind
about the Union." She claims to have looked at Thomas
and replied, "Well, I don't know." Thomas assertedly
then indicated "would you think about it?" Ahner indi-
cated 'maybe."
Thomas acknowledged that he met individually with
Ahner to present the Company's position in connection
with the union campaign. He claims to have proceeded
in accordance with a preset "agenda" given to him by
Gary Smith. He acknowledged that he discussed the me-
chanics of collective bargaining, but denied stating that
the Company would come in "at the bottom." Instead he
claims to have stated that if higher wages were sought
the Union might have to trade off some benefits, going
on to point out that the Company would come forth
with a proposal, which was not necessarily at the
bottom, and from that a compromise would be negotiat-
ed. He denied ever having used the word "bottom," but
admitted to indicating that existing company benefits
were subject to negotiation. He denied offering Ahner a
permanent position. He did admit to asking Ahner if the
fact that she would be eventually laid off had bearing on
her "making an objective decision on union representa-
tion." According to Thomas, when Ahner answered at-
firmatively, he decided that there was no point to con-
tinuing and he terminated the conference.
Although Thomas did not strike me as an impeccably
credible witness, Ahner did not impress as capable of
giving an accurate accounting of the precise words used
by Thomas in describing the give and take aspects of
collective bargaining. Furthermore, I did not believe her
testimony that she was offered a permanent position if
she signified a withdrawal of union support. The latter
struck as too pat, while lacking a truthful ring. On the
basis of credibility, I reject the allegations that Thomas
either threatened loss of benefits if the Union were desig-
nated, or offered a permanent position if Ahner with-
drew her support from the Union. Nonetheless I am in-
clined to find that Thomas questioned her concerning
what she expected from the Union, and by virtue there-
of, Respondent violated Section 8(a)(1).
6. By Ron Hinkle
The complaint alleged that Respondent violated Sec-
tion 8(a)(1) through Ron Hinkle's offer to consider
changing an employee's work hours if she ceased activity
on behalf of the Union.
In this connection, it appears that Jeanette Echkart in
January 1981 was reclassified to the position of payroll
clerk. Previously, she had worked as a "timekeeper" and
worked from 7 a.m. to 3:30 p.m. Hinkle, her supervisor,
did not arrive until 8 a.m. In February, after Eckhart
became payroll clerk, Hinkle told her that he wanted to
change her time to 8 a.m. to 4:30 p.m. Eckhart protested,
indicating that the proposed change was "inconvenient"
because it would interfere with her ride to work. She
continued to report at 7 a.m. It is the sense of Eckhart's
further testimony that, about March 27 "before 7 a.m.,"
Kern came walking through the office, and observed
Eckhart, Zinggeler, and computer operators Bob Dieter
and Bill Balliet engaged in conversation. Later that day a
memo came out indicating that her time had been
changed, and she met with and was informed by Hinkle
to the effect that henceforth she would work from 8 a.m.
to 4:30 p.m. Eckhart assertedly asked Hinkle whether
there was a possibility that she could have her time
changed back to 7 a.m. to 3:30 p.m. According to Eck-
hart, Hinkle responded, "When all this is over, we will
see what we can do about it." There is no evidence that
Respondent suspected or knew of Eckhart's proclivities
toward the Union as of March 30. In any event, Hinkle's
account struck as the more probable. He admitted that
he changed Eckhart's hours about March 30, but with
little fanfare. He testified to simply having explained to
Eckhart that because of the incident witnessed by Kern
earlier that morning and the fact that during the first
hour, Eckhart was unsupervised, he had been instructed
to change her starting time to 8 a.m. Hinkle denied
having made any statement to the effect that this deci-
sion would be reviewed in the future. Considering the
fact that Hinkle previously sought this change in Febru-
KEYSTONE LAMP MFG. CORP. 637
ary, and Eckhart herself concedes to the incident ob-
served by Kern that morning, it is entirely likely that the
shift in hours was made by Hinkle pursuant to instruc-
tion from higher levels. In these circumstances, I consid-
er it most improbable that Hinkle, whose role in the an-
tiunion campaign appears to have been quite limited,
would have made any comment holding out any possibil-
ity that this determination might be reversed or reconsid-
ered after the union campaign. Accordingly, I shall dis-
miss the 8(a)(1) allegations based on Eckhart's testimony
in this respect.
7. By Horace Brobst
Brobst is Respondent's director of shipping, ware-
house, assembly, receiving, and salvage. Obviously, his
jurisdiction includes the shipping department that is sub-
ject to the immediate supervision of Keith Cebrosky. Ac-
cording to shipping department employee John Gellis,
Brobst in early April came into his work area and stated
that he had heard that there was a union meeting the
night before. Gellis answered, "Yes," whereupon Brobst
allegedly asked if Gellis had attended. Gellis again an-
swered in the affirmative, whereupon Brobst assertedly
asked whether Gellis was for or against the Union. Gellis
indicated that he did not know and was not sure. At this
point, a coworker, Linda Schuler, expressed her own
opinion about why employees might be for the Union,
including the fact that many, with seniority, were con-
cerned that the new computer system would eliminate
their jobs.
Brobst could not recall having such a conversation
with Gellis, while explicitly denying that he questioned
Gellis about union activity or that he ever inquired con-
cerning Gellis' feelings in that regard. In this instance, I
am willing to give Respondent the benefit of the doubt
and shall reject the uncorroborated testimony of Gellis
The allegation that Respondent violated Section 8(a)(1)
in this respect shall be dismissed.
8. By Keith Cebrosky
(a) As indicated, Cebrosky was the front-line supervi-
sor in the shipping department, who reported to Brobst.
Gellis testified to several encounters with Cebrosky, his
immediate supervisor. Gellis first related that in April, on
the day of a union meeting, Cebrosky came to his desk
and stated, "You are not going to that union meeting to-
night, are you?" Gellis failed to respond, whereupon Ce-
brosky allegedly injected, "cause if you are, I will be
very angry and you won't like me in the morning."
Geilis asserted that Linda Schuler heard the statement,
and in a raised voice rejoined, "No one is going to tell us
what to do."
Cebrosky appears to deny questioning Gellis concern-
ing the meeting, but admits to the balance of Gellis' ac-
count of that conversation. Cebrosky claims, however,
that this was just an extension of the kidding that took
place between him and Gellis every morning. However,
he acknowledged that his remark was taken seriously by
Gellis. It is noted in this connection that, according to
the account of Gellis, Schuler reacted as if she, too,
failed to take Cebrosky's remark in a jolting matter. I
credit Gellis, and find that Respondent violated Section
8(a)(1) by Cebrosky's coercive interrogation concerning
Gellis' plans to attend the union meeting, as well as his
further statement warning that unspecified reprisals
might be taken against Gellis were he to attend.
(b) Although Cebrosky testified that he never again
discussed the Union with Gellis, the latter testified that
following the preelection hearing on April 28 or 29, he
and coworkers Schuler and Gayle Pope met with John
Lasky, Respondent's personnel director, and Gary Smith,
the comptroller. Apparently, Respondent sought to ex-
clude all three from the unit, and at this meeting sought
to explain to them what had transpired in this regard at
the aforesaid hearing. According to Gellis, the three em-
ployees manifested disinterest. Apparently, at the end of
work that day, Cebrosky was summoned to Glover's
office. Gellis, apparently connected the two and asked
Cebrosky whether he had gotten into trouble because of
the behavior of the employees at the meeting. Cebrosky
allegedly responded that he had in fact been called in be-
cause Glover learned that employees were bored at the
meeting, and Glover "wanted to know what was going
on." Cebrosky assertedly told Gellis that he then in-
formed Glover concerning his suspicions concerning the
union sentiment of Schuler and Gellis, informing Glover
that Gellis "is a young guy and he is not getting paid
very much. . . . He had been here almost 3 years, and
Gayle Pope has only been here 2 years. . . . He was
here a year longer and she is getting paid more than him,
and why wouldn't he be for the union?"
Cebrosky admits to being called to Glover's office,
and to Gellis' having inquired whether he was in any
kind of trouble with Glover concerning the Union. Ce-
brosky claims that he informed Gellis that he "was
called up to Mr. Glover's office and it wasn't even any-
thing about the union." He went on to explain that he
simply had been "chewed out" by Glover because of a
job discrepancy. In this instance, the testimony of Gellis
is rejected. Thus, Gellis indicated that a determination
had been made pursuant to agreement of the parties at
the preelection hearing that he was ineligible to partici-
pate in the election because he held the status of a plant
clerical, rather than an office clerical. He indicates that
at least by May 1 he knew of his ineligibility. It is fair to
infer that Glover and Cebrosky were equally mindful of
this fact and in the light thereof Genie allegiances would
have been academic at the time of this alleged conversa-
tion. His account is deemed improbable. Accordingly, I
shall dismiss the allegation that Respondent thereby cre-
ated the impression that union activity was subject to
surveillance.20
20 This allegation exemplifies a counterproductive effort to compart-
mentalize alleged misconduct within conventionally accepted descriptions
of unfair labor practices. Contrary to the relevant allegation in the com-
plaint, were Gellis' testimony credited, the comments imputed to Ce-
brosky mvolved a direct acknowledgment, rather than creation of any
"impression," that Gellis' union leanings were under discussion Further-
more, it is difficult to imagine about how, on Gals' account, one could
deduce that surveillance was in any sense the source of management's
knowledge in that regard. The tactic of the General Counsel whereby in-
cidents are placed under familiar per se labels might well be a substitute
for thoughtful analysis at the prosecutorial level, but hardly enhances ef-
ficiency within the overall administrative process.
638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9. By Fred Foster
(a) It is alleged that Respondent violated Section
8(a)(1) through Fred Foster's coercive interrogation and
threat of discharge. Darlene DeLong was offered to sub-
stantiate the charges implicating Foster. The latter appar-
ently was a low level supervisor, who recently had been
upgraded from quality control inspector to a supervisor
in the production and maintenance unit in December
1980. 21 DeLong, who before becoming an office clerical,
had a long history of employment in the production and
maintenance unit, and who was friendly with Foster, tes-
tified that during the second week of July 22 Foster ap-
proached her at her work station and inquired about
where her union pin was, going on to state that DeLong
". . . was the next to go, that. . . [she] would get the ax
next, just like all the others." Foster conceded concern-
ing the possibility that if DeLong was not wearing her
pin, he might have asked her where it was. He denied
using the words, "you are the next to go," but explained
his belief about what was said as follows:
There was a whole lot of kidding going on between
some of the girls and some of the supervisors. And
I believe I made a statement that she better watch
that she doesn't get the axe next. It was laid off or
fired. The rumor was sort of who was going to get
the axe.
I credit DeLong. It will be recalled that as of June 26 at
least three members of the office clerical unit had been
laid off. The fact that Foster and DeLong enjoyed a
longstanding friendship and from his perspective the
remark was in a kidding or teasing vein does not remove
the sting from his expressed view that DeLong was to be
singled out to join those clericals already terminated in
the wake of the new computer system." Based on the
credible testimony of DeLong, I find that Respondent
violated Section 8(a)(1) through Foster's coercive inter-
rogation, and his threat implying that DeLong could be
selected for termination because of her union activity.
(b) By virtue of an amendment to the complaint, it is
further alleged that Respondent violated Section 8(a)(1)
in late April or early May when Foster informed an em-
ployee that another had been laid off because of union
activity. DeLong attested to this mid-April encounter.
Despite its seriousness, unlike other matters to which
DeLong testified, this allegation was not included in the
complaint initially but added some 10 months later. In
any event, in this respect, DeLong testified that although
she and Foster were having coffee in the employee lunch
room, DeLong asked, "What happened to your buddy?"
a reference to Foster's friend, Glenn Shoff, a quality con-
trol inspector who had been laid off on the previous
21 Quality control as a separate department was phased out in April
1981.
22 The plant was closed during the first 2 weeks of July. DeLong,
however, was among certain clericals who worked during the shutdown.
23 Respondent sought to mitigate Foster's remark through an observa-
tion that it somehow related to the phasing out of the quality control de-
partment. It will be recalled that the quality control function ceased to
exist after April 8, 1981, and DeLong had been removed from that de-
partment in the spring that year.
Friday. In response Foster assertedly stated, "He wore a
union pin. That's why they got rid of him. They didn't
lay him off because they eliminated his job."24
Foster admitted to a conversation in April after Shoff
was laid off. He claims that it centered on the fact that
Shoff was the last of the inspectors employed and the
fact that Foster was pleased that he had moved into su-
pervision when he did because, if not, he would have
suffered the same fate as Shoff. Foster denied any refer-
ence to union buttons and further denied having made
any statement that Shoff was fired because he wore a
union button. In this instance, the testimony of Foster is
preferred as the more probable. I credit his denials and
shall dismiss the somewhat belated allegation that Re-
spondent violated Section 8(a)(1) through any statement
on the part of Foster that an employee had been termi-
nated because he manifested union support.
10. The parking lot incident
The complaint alleged that Respondent violated Sec-
tion 8(a)(1) about May 1 by John Lasky's solicitation of
employee grievances, thereby promising increased bene-
fits and improved conditions of employment to discour-
age employees from supporting the Union. The allega-
tion was subject to substantiation through testimony of
Elaine Ahner and Jeanette Eckhart. Both testified that
after work in early May they were in the parking lot
when they spotted Lasky, and invited him to join them.
A composite of the testimony of Eckhart and Ahner in-
dicates that the conversation lasted about an hour and
that all three at some point embarked on a discussion of
the Union, with Lasky making the appeal that the Com-
pany be given "a second chance," while arguing that if
things did not improve in a year, the employees could
petition for the Union again, adding that in such a case
the chance of success would be greater. Other than the
fact that Gary Smith later joined them, there appears to
be nothing of further significance to have transpired
during this conversation. Lasky acknowledged that the
Union was discussed on that occasion, though a very
small segment of the entire conversation. He acknowl-
edged that he discussed the mechanics of collective bar-
gaining and that Eckhart repeatedly indicated that she
felt that she was underpaid. In this latter respect, Lasky
indicates that he informed Eckhart that her rate was in
conformity with area wage surveys prepared by neutral
agencies. He denied asking her what she felt was a good
"raise" 25 and denied ever having made a statement ap-
24 The quality control inspectors were excluded from the production-
maintenance unit, historically, represented by the Steelworkers.
25 According to Eckhart, Lasky inquired both about what the Compa-
ny could do to improve itself and what she thought would be a good
raise. Ahner was the first to testify Unlike Eckhart, her testimony fails to
impute any statement to Lasky that could be construed as a "solicitation
of grievances." In this respect I credit Lasky and reject the uncorroborat-
ed testimony of Eckhart I would note in connection with this issue of
credibility, that the brief filed by counsel for the General Counsel in-
cludes a representation that "Ahner corroborated Eckhart's testimony."
In this respect, the General Counsel's observation is at odds with my
reading of the record. However, because of this misstatement, I was im-
pelled needlessly to reread the entirety of Ahner's testimony three times
to assure myself that my own reading was accurate and that the corrobo-
Continued
KEYSTONE LAMP MFG. CORP. 639
pealing that the Company be given a second chance and
things will improve or to have suggested that if this
were not the case a petition could again be filed in 12
months. I credit the testimony of Eckhart and Ahner to
the extent that it is mutually corroborative. 26 Thus, I
find that Lasky 'did appeal that they give the Company a
second chance, thereby implying that benefits would be
forthcoming if the Union were defeated. Accordingly, in
this respect, I find that Respondent violated Section
8(a)(1).
11. The questionnaire
Lasky admitted that on March 31, he distributed a
questionnaire among clerical unit employees. That docu-
ment was of his personal design and its opening para-
graph recited as follows:
Listed below are a number of questions that will
help the Management formulate Company policies.
Answer the questions and deposit the questionnaire
in the Question Box located by the badge rack. Do
not sign your name. It is not mandatory that you
complete the Questionnaire. What you say or don't
say will not be used to reward or punish you. The
questions are being asked only for the purpose of
what is good or bad about the Company.
The questionnaire consisted of nine multiple choice ques-
tions that probed the quality of employee relationships
with supervision and other conditions of work and also
afforded an opportunity for employees, if they chose, to
make "any other comments." 2 7
Lasky conceded that a week after the distribution, he
met with those who cooperated by completing the ques-
tionnaire, and on that occasion, reviewed the answers.
He indicates that although he expressed the Company's
position on the issues raised and the results, he refrained
from making "any promises to the people."
Lasky went on to testify that on April 6 he distributed
a second questionnaire and followed basically the same
procedure with respect to employee responses in connec-
tion therewith. 2 8
In testifying about the origin of the questionnaires,
Lasky admitted that he received no guidance from any
procedure utilized by the Company in the past, but drew
exclusively on his experience and background as an in-
ration was not buried somewhere in her extensive testimony I cannot
imagine why any party would choose to make more difficult the task of
ferreting out and assessing facts in a case involving so many allegations
and diverse incidents by careless and misleading representations.
26 Lasky did not impress me as entirely trustworthy His indication
that he would not have made allegedly unlawful statements to either
Ahner or Eckhart because of their manifest union support left me unim-
pressed Any sensitivity to possible commission of unfair labor practice
charges did not prevent his admitted participation in conversations con-
cerning the Union with these individuals. Indeed, as a general proposi-
tion, I was not persuaded by Respondent's arguments founded on alleged
instructions issued to supervisors from attorneys, and from higher levels
of management that they refrain from involvement with the organization
drive. Such directives, if made, admittedly went unheeded on a number
of occasions. Accordingly, the mutually corroborative testimony of the
General Counsel's witnesses in this respect is credited.
27 See G.C. Exh. 13.
28 See G.C. Exh 19.
dustrial psychologist. There is no evidence that the Com-
pany had employed such a procedure in the past. Lasky
admitted that the questionnaires were distributed solely
to the clericals, and not to represented production and
maintenance employees. Lasky denied that he informed,
either directly or indirectly, employees that the Compa-
ny would take action to correct discrepancies between
any position expressed by employees and company
policy.
Consistent with the contention of the General Counsel,
the conduct of Lasky with respect to the questionnaire
entailed an unprecedented inquiry concerning potential
grievances held by the employees. It was timed to sug-
gest that it constituted a precipitant reaction to union ac-
tivity and was confined to those employees about whom
the Union had manifested an organizational interest. Al-
though there is no evidence that specific promises were
made, the implication to employees was clear enough.
Thus, I agree with the observation by counsel for the
General Counsel that as was true in Gordonsville Indus-
tries, 252 NLRB 563, 568 (1980), the survey conducted
herein was "a specific, calculated response to the em-
ployee-union organizational campaign, [and] there can be
little doubt that the purpose of this extraordinary and un-
precedented action was to convey employees that the
days of benign neglect were over." Thus, in the circum-
stances presented here, employees would necessarily
assume that Lasky's sudden concern for 29 their views
had been awakened by union activity and that the stated
purpose of the questionnaire to ascertain "what is good
and what is bad about the company" involved "some-
thing more than a sterile fact finding venture." See Arrow
Molded Plastics, 243 NLRB 1211, 1215 (1979). In sum,
the entire issue falls squarely within the framework of
Reliance Electric Co., 191 NLRB 44, 46 (1971), in which
the Board stated as follows:
Where, as here, an employer, who has not previ-
ously had a practice of soliciting employee griev-
ances or complaints, adopts such a course when
unions engage in organization campaigns seeking to
represent employees, we think there is a compelling
inference that he is implicitedly promising to cor-
rect those inequities he discovers as a result of his
inquiries and likewise urging on his employees that
the combined program of inquiry and correction
will make union representation unnecessary.
29 Cf Jeffco Mfg. Co., 211 NLRB 787 (1974), in which the Board dis-
missed an 8(a)(1) allegation founded on the solicitation of grievances.
There, however, management's action was merely an implementation of
established employer policy memorialized in writing Also inapposite are
cases where employees themselves created the impetus for an airing of
their complaints and those in which an employer expressly disavowed
that it would rectify any grievances or revise its basic personnel policies
as they impacted on the employees. Uarco Inc., 216 NLRB 1 (1974), and
Hayes Albion Corp, 237 NLRB 20,24-26 (1978) Consistent with the con-
tention of the General Counsel, I agree that Respondent's statements that
accompanied the questionnaires did not disavow an intention to favorably
resolve grievances. The statement "no one will be rewarded or punished
for participating or refusing to participate in this survey," as the General
Counsel observes, relates solely to the question of employee participation,
and does not reach the question about what action the Company intended
to take with respect to breakdowns m its policy reported by the partici-
pating employees.
640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Accordingly, I fmd that on March 31 and April 6, Re-
spondent violated Section 8(a)(1) of the Act by utilizing
the questionnaire and follow-on meeting& with individual
employees whereby their complaints were solicited
under conditions affording a "compelling inference" that
inequities would be resolved in the manner favorable to
the employees on dissipation of the restraints created by
union activity.
12. Publication of work rules
By another somewhat belated amendment to the com-
plaint, it was alleged that Respondent violated Section
8(a)(1) of the Act by, on April 7, 1981, threatening to
"more rigorously enforce and discipline its employees for
violations of its Work Rules and Discipline schedule, in
order to discourage its employees from supporting the
Union." It is undisputed in this regard that on April 7 a
copy of work rules was distributed by mail to all em-
ployees at the Slatington facility, including management,
supervision, production and maintenance, and clerical
employees. Accompanying those rules was a letter over
signature of Donald Fisher, which recited as follows:
Enclosed are Keystone Plant Work Rules which
are necessary for the orderly operation of the plant.
Each employee is required to read, understand,
and comply with the Plant Work Rules.
Effective April 13, 1981, these rules will be rigor-
ously enforced and disciplinary action will be taken
if violations occur. This .gives you one week to
digest and understand the Work Rules„
The work rules as distributed were identical in context
to those that had been published throughout the plant
through bulletin board postings prior to the advent of
the Union. 30 Furthermore, John Lasky testified credibly
that determination to distribute the work rules on the
above basis had been arrived at well prior to the advent
of union activity and was spawned by widespread cheat-
ing in connection with the incentive system covering
production and maintenance employees. My belief of this
testimony warrants the conclusion that Respondent has
met its burden of showing that the conduct complained
of here was merely an exercise of supervisory authority
disassociated from organizational activity. Accordingly,
the allegation that Respondent thereby violated Section
8(a)(1) of the Act shall be dismissed.
13. The evaluation system
The complaint alleged that Respondent attempted to
discourage union support in violation of Section 8(a)(3)
and (1) of the Act by June 1981, implementing a formal
"evaluation system for its employees . . . ." In this re-
spect it is noted that historically, Respondent's clerical
employees were subject to annual evaluations. In June
1981, Respondent for the first time used a formal apprais-
al form in connection with employee evaluations con-
ducted at that time. See General Counsel's Exhibits 11,
15, and 16. The forms rated employees on a qualitative
basis in various employment areas, including attendance
3 ° See Budget Rent-A-Car System, 237 NLRB 1294, 1303-1304 (1978)
and punctuality. Opportunity was afforded to supervisors
to make specific notations concerning strengths and
weaknesses with recommendations for improved per-
formance. The new form in a completed state was of-
fered for review by the employee at the time of the eval-
uation. In the past the supervisors took notes but failed
to utilize any formal document in effecting the periodic
reviews.31
As I understand the General Counsel's position in this
regard, it is argued that the 8(a)(1) and (3) violations
derive solely from the fact that this represented a change
in working conditions implemented during the preelec-
tion period. Although this is so, I am not entirely certain
whether introduction of the evaluation sheet would be
viewed by employees as advantageous or detrimental,
but I would surmise that opinions in that regard prob-
ably would vary among them. In any event, here again I
am convinced that the Respondent has met its burden of
disassociating the change from union activity. Based on
the credited testimony of Lasky, I find that the "per-
formance appraisal form" was devised by Lasky in De-
cember 1980 on suggestion of Glover, and it was at that
time determined that it would be utilized on review of
the clerical employees scheduled for June of that year.
As this determination was made well prior to the advent
of the Union, I fmd that it in no fashion related to the
organization campaign and simply reflected what the
Employer would have done had the employees not en-
gaged in union activity. See Famous-Barr Co., 174
NLRB 770, 771 (1969). Accordingly, the allegation that
utilization of the new employee appraisal form violated
Section 8(a)(3) and (1) of the Act shall be dismissed.
C. The Layoffs
1. Preliminary statement
In June, during the critical preelection period, Re-
spondent laid off four employees, each of whom is al-
leged to have been terminated in violation of Section
8(a)(3) and (1) of the Act. The first took place on June 5
and involved Elaine Ahner. The complaint avers that
Respondent "timed and implemented" the action in view
of Anher's support of the Union. The remaining individ-
uals named as discriminatees by this complaint are Betty
Lou Phillips, Jeanette Eckhart, and John Gellis, all
whom were terminated on June 26. Respondent, in the
case of Gellis, as was true of Almer, is alleged to have
"timed and implemented" the layoff in retaliation for his
union support Unlike the others, Phillips was reinstated
on August 20, and her layoff during the interim is al-
leged to have been inspired by union considerations. In
the case of Eckhart, Respondent is alleged simply to
have terminated her union activity.
Basically, Respondent defends on grounds that the ter-
minations were economically oriented, disassociated from
union activity, and specifically caused by elimination of
their work through installation of a new computer
system.
3i An exception to this practice existed with respect to the evaluation
afforded employees at the completion of their initial probationary period.
A wntten form was used historically m that connection
KEYSTONE LAMP MFG. CORP. 641
2. The foreground to the economic defense
Prior to 1980, Respondent's computerized operations
depended on an outmoded system that functioned
through dated computer language, was slower, and re-
quired labor intense, keypunch operations. The inefficien-
cy in the existing system was called to the attention of
Walter Glover by Controller Smith, and the latter em-
barked on a studied effort to upgrade the system during
the first quarter of 1980. In April 1980, a decision was
made to lease an IBM "System 34," a modernized com-
puter with greater functional capacity. The lease was
formally executed on April 16, 1980, and delivery was
scheduled for September of that year. It was anticipated
that Respondent's existing production control, order-
entry, and payroll functions would be adapted to the
new computer arrangement.
Preliminary to the computer going on line to service
any of these three areas, extensive work was required to
develop data base information that had to be processed
in a form enabling it to be fed into the new computer.
Files had to be built incorporating this data, which then
had to be keypunched prior to entry on the new system
through a terminal, with the visual aid of a CRT screen.
To handle these efforts, Respondent in September and
October 1980, utilind its own personnel as well as tem-
porary employees hired from a manpower contractor.
On January 1, 1981, the new computer system went on
line but solely with respect to the production control
area. After production control went on line, the comput-
er was made available for initial consideration of the ad-
aptation of the accounting functions. Early in 1981, how-
ever, it was decided that the IBM MAPEC32 software
package would not accommodate that end of the busi-
ness, and therefore Respondent elected to custom tailor a
software package specifically for the order- entry billing
system. To do so, Respondent retained an outside con-
tractor with expertise in the computer field. The latter
on April 30, 1981, presented a report reflecting cost sav-
ings to be realized by placing the order-entry billing
system on the System 34. In that document it was ob-
served that the impact would result in definite elimina-
tion of one position in the shipping office and two in the
tabulating department, at a total labor cost savings of
$27,872 annually. On a tentative basis it was indicated
that three other positions in the shipping office and one
in the main office could be eliminated. 33 In May 1981,
Respondent elected to go ahead with the contractor's
recommended package. The target date for actual imple-
mentation of the reprogramed order-entry system was set
for the close of the annual plant shutdown in July. As of
July 13, when plant operations resumed in full, the
order-entry system joined production control as a com-
pletely online computerized system.
Also noteworthy is evidence that prior to the advent
of the Union office clerical employees generally were
aware of the threat posed by the new computer system
32 The software provided by IBM for use with the System 34 of rel-
evance here, is called MAPEC According to testimony of Gary Smith,
this was a pseudonym for "manufacturing, accounting, production, inven-
tory control system" or "something like that"
s3. See R. Exh. 9.
to their jobs. 34 Consistent with these fears, it is urged by
the Respondent that the layoffs under scrutiny here were
prompted exclusively by the elimination of positions dic-
tated by implementation of the System 34, as distin-
guished from considerations proscribed by the Act.
3. The individual cases
a. Elaine Ahner
Ahner was initially employed in January 1979. On her
employment application, it was signified that she was
hired to perform cost-accounting on the "Fulton" line.
Fulton was a marketing line at one time produced in a
separate facility owned by the "Kiddie Group," a con-
glomerate of which Respondent is also a segment. That
production facility was located in Burwick, Pennsylva-
nia. In 1978, Burvvick manufacturing operations were ter-
minated. However, the Fulton line and marketing capa-
bility were retained. Production thereof was transferred
to Respondent's Slatington plant. This arrangement
lasted for 3 years until February 1981, when the Fulton
line was fmally terminated.
There is little basis for questioning Respondent's obser-
vation that in consequence of the elimination of the
Fulton line, four positions were eliminated in February
1981. Because the Fulton line enjoyed its own independ-
ent marketing showroom, a vice president in charge of
that operation, as well as his assistant, was terminated."
In addition, the job of a "designer" at Slatington was
eliminated, but the occupant thereof was retained to re-
place a Keystone designer who retired. Finally, the cost
accounting position held by Elaine Almer was eliminat-
ed. However, Ahner was not terminated. Instead, on
March 30, she was reclassified as a keypunch operator in
the tabulating department." In her new position, Ahner
did keypunch work in conjunction with the effort to
build up data base files for input into the new computer
system. She worked under the supervision of Ron
Hinlde. She acknowledged that at the time of her trans-
fer to keypunch everyone in that department was inse-
34 See testimony of Betty Lou Phillips
35 Karen Eaton, the assistant to the vice president of Fulton, did not
leave Respondent's employ until May 22, 1981 The Fulton vice presi-
dent, Arnold Mems, was terminated on June 30, 1981
36 The March transfer of Abner occurred within the 6-month period
prescribed by Sec. 10(b) of the Act. However, this action was not chal-
lenged specifically by the complaint Nonetheless, the General Counsel
seems to argue that the transfer was founded on illicit considerations.
Firstly, I note that the matter was not fully litigated In any event, the
transfer occurred before Respondent is shown to have had knowledge of
Ahnees union sentiment, and is found to have been triggered purely by
economic considerations. I note in this regard that Abner was not viewed
as an entirely trustworthy witness It was my impression that she deliber-
ately understated the extent of her performance on the Fulton line prior
to the March transfer, and that her expressions that thereafter her work
remamed in tact were no more than unreliable, self-serving argumenta-
tion. Instead, I prefer the testimony of Preston Thomas, which to an
extent is confirmed by that of Gary Smith, that as early as February,
Abner was informed that the decision had been made by management to
eliminate the Fulton line and that anyone specifically hired to service the
latter would have to be laid off. Thomas went on to testify credibly that
because Abner was recognized as a good worker, he, on that occasion,
indicated that he wanted to give her an opportunity to find a job else-
where before laying her off.
642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cure in that the keypunch position eventually would be
eliminated by the new system.
After the transfer, according to Preston Thomas, he
had a conversation with Ahner in April in which Abner
asked how long she would be employed by the Compa-
ny. To this, Thomas responded that he could not make
any promise concerning specific length of employment,
but that the possibility looked good that she would be
employed through May, but that June and July would be
questionable and she definitely would be laid off in
August sometime. It is noteworthy that although Abner
was laid off before Elaine Meleski, a keypunch operator,
Data Processing Manager Hinkle, on April 28 at the
preelection hearing, testified both that Meleski was spe-
cifically informed that her eniployment would end on
June 1 and that there was no chance that she would be
retained on a permanent basis.
On May 11, Abner was again transferred, this time
from keypunch to the main office under the supervision
of Bernice Kern. Gary Smith explained the transfer as
having been triggered by a medical leave of absence that
was taken by an employee in the personnel department.
The latter was replaced by a main office clerical, thus
creating a temporary vacancy in the main office, which
was filled by Abner. According to Smith, at the end of
May, the individual who had gone on medical leave re-
turned. Accordingly, on June 1, her replacement re-
turned in the main office, thus, bumping Ahner. 37 Abner
was permitted to work the balance of that week but was
laid off on Friday, June 5. According to Smith, follow-
ing elimination of Ahner's cost accounting job in March,
the Company needed spare hands, but as of June 5, there
was nowhere else to assign Ahner.
The General Counsel contends that the above explana-
tion for the layoff of Ahner was pretextual, and that in
reality Miner was laid off because of her support of the
Union and in order to prevent her from voting in the
election. Consistent with the General Counsel's position,
Almer was a known advocate of the Steelworkers. She
executed an authorization card, and attended union meet-
ings. Her sympathy was overtly manifested by the fact
that she wore union insignia three to four times a week
commencing in April and continuing right through to
the termination of her employment."
b. Betty Lou Phillips
Phillips had been employed by Respondent since May
1962. Excepting a 5-year period commencing in 1963,
37 The testimony of Gary Smith in the above respect is not lacking in
confirmation from Ahner. Thus, Ahner acknowledges that when trans-
ferred to Kern's office, she inquired of Gary Smith regarding the reason
for the transfer Smith, according to Ahner, informed her that Zunlin
was out sick, and that Cindy Babyak would replace the latter in person-
nel, going on to explain that it was necessary for Abner to replace
Babyak. Beyond this, Smith's testimony concerning Zimlm's return and
Babyak's restoration to her Job in the main office was allowed to stand
uncontradicted. It is credited.
35 Although Anita Zmggeler and Jeanette Eckhart named Ahner as
having attended the initial meeting with Union Representative Al Ca-
valla, Ahner's own testimony does not disclose that she was present on
that occasion. On the contrary, she indicates that her first contact with
the Union was when she received the blank authorization card in the
mail. Ahner would be the most reliable source in this particular area.
she worked continuously for Respondent until her layoff
on June 26, 1981. At the time, Phillips was a keypunch
operator in the tabulating department under the supervi-
sion of Ronald Hinkle.
Throughout the period prior to her layoff, Phillips had
openly manifested union support by wearing a union
button, a fact that drew the attention of Glover, Hinkle,
and Kern. Indeed, Gary Smith acknowledged that Phil-
lips wore a union button just about everyday, that her
union sympathy was well known to Respondent, and
that among the clerical people she was referred to as
"Norma Rae."
June 26 was the last workday prior to the 2-week July
shutdown. Following the shutdown, the order-entry bill-
ing system was scheduled to go on line. However, with
respect to payroll it does not appear that the system had
been turned over for preliminary action to place that
process on the computer, a step then scheduled for Sep-
tember. 3 9
As indicated, I have little doubt the order-entry billing
system, when placed on line on July 13, was expected to
render obsolete the functional element of Phillips' previ-
ous job. In support of the defense, Gary Smith claims,
that on consultation with Ron Hinkle, the latter recom-
mended that Pat Rehrig, a former payroll clerk, who
was skilled in segments of computer operation, be re-
tained as the sole employee in data processing. 4 ° Hinkle
recommended that Phillips be let go, commenting "she
really did not make any effort to learn any other job [sic]
in make any effort to learn any other job in the depart-
ment."4 ' In addition, Hinkle recommended that Elaine
Meleski, a keypunch operator who was hired to work on
a temporary basis, be laid off.
Shortly before her termination, Phillips, on June 11,
was given a business-as-usual, annual evaluation by
Hinkle. Her undenied testimony establishes that she at
that time was informed that her work was good, that she
did not make many errors or need assistance with her
job, and that her record for absenteeism and lateness
"was excellent." 4 2
33 The facts bearing on the staged out adaptation of the new System
34 to various accounting systems appears to suggest that there would be
a need for a ugh volume of keypunch work during the period after June
26, in connection with data accumulated via the July inventory and in
ultimately placing the payroll system on line It is also noted that the
work previously performed by Phillips included responsibility for manual
operations in connection with a segment of the order-entry billing
system. As of June 26, even if the need for her skills and experience re-
mained, it is clear that if all went as expected, functionally her position
was destined for elimination after the July shutdown. On the other hand,
underlying her separation was on assumption by management that the
newly devised system would be functionally effective after going on line,
or m other words, no emergency would arise that would require stop-gap
manual performance of order-entry until the validity of the new program
was proven through sustained operations.
40 Rehrig was skilled in the operation of computers and was capable of
performing some programming. There was evidence that Rehng was also
among those who wore a union button. When, and for how long, she did
so was not developed on the record. In any event, the special skills that
Rehng possessed would have insulated her from layoff no matter what
the degree of her union activity.
41 There is no indication that Phillips was encouraged or afforded an
opportunity in this regard
42 See G.C. Exh 11.
KEYSTONE LAMP MPG. CORP. 643
On June 26, Phillips was informed of her discharge by
Gary Smith, in the presence of John Lasky. According
to Smith she was told that "her particular job had been
eliminated . . . we didn't have anymore work for her,
and she was *being laid off at the time." When Phillips
charged that she was being laid off because of her union
activity, this was denied by Smith who indicated "this is
what the order entry system has done to the company
and you're particularly [sic] function that you were
doing has been eliminated."'" Phillips was told at that
time that her layoff was permanent.
However, as matters turned out the treatment ultimate-
ly extended in her case suggested that Respondent was
not rigidly bound to the view that it had no place for
those whose jobs were eliminated by the new computer
system. Thus, about 1 month after the election on
August 20, Phillips was recalled. According to Glover,
he intervened and recommended her recall because of
her considerable service with the Company and because
a vacancy emerged by virtue of a resignation. On recall,
she was not placed in the tabulating or data processing
department, but was first assigned to the main office
where she performed miscellaneous clerical functions, in-
cluding proofreading, filing, and teletype for a 6-week
period. At the end of that period, she was assigned to
production control and continued to work in that area as
a computer terminal operator.44
c. Jeanette Eckhart
Jeanette Eckhart was hired in March 1978 as a time-
keeper. At the time of her layoff, however, she was a
payroll clerk.
Her reclassification to payroll clerk took place in 1980
when Pat Rehrig, the incumbent in that job, was sched-
uled for maternity leave. Rehrig began training Eckhart
in October 1980. Eckhart did not formally assume her
new position until January 1, 1981.
Eckhart was among the clericals who made the initial
contact with Union Representative Al Cavalla. She
signed an authorization card, attended union meetings,
and most significantly, wore the various union buttons
including a relatively large pin of 2-1/4 inch diameter
that in highly visible lettering dubbed her a "VOLUN-
TEER ORGANIZER."45 Lasky and Smith acknowl-
edged that they were mindful, at an early stage in the
campaign, that Eckhart was a protagonist of the Union.
Respondent's defense is that the layoff of Eckhart
"was based solely on the impact of the new System 34
computer."'" Two weeks earlier, Eckhart, on June 11,
had received her annual evaluation. 47 Furthermore, nei-
43 The foregoing is based on the credited testimony of Gary Smith.
44 The only evidence bearing on her postrecall work history seemed at
odds with testimony that Phillips was rehired to fill a vacancy, Nonethe-
less, it remains a possibility that Glover's testimony was accurate in this
respect, and Respondent shall be given the benefit of doubt. However,
the record fails to suggest that Phillips was any more competent to per-
form office functions or to operate a computer terminal after her layoff,
than she was prior thereto.
45 See G.C. Exh. 8(a).
45 See R. Br. 23.
47 See G C Exh. 16.
ther the functions nor skills of the payroll clerk had been
outmoded or displaced by the production control, order-
entry billing, or any other system to be placed on line
within reasonable proximity of her layoff. Nonetheless,
as I understand Respondent's testimonial explanation for
her layoff, Eckhart was "bumped" out of her position as
payroll clerk by her predecessor in that position, Pat
Rehrig. According to the testimony of Gary Smith and
Ron Hinkle, the latter recommended replacement of
Eckhart with Rehrig, because Rehrig did not have
enough to do, and was an experienced computer techni-
cian, who was familiar with the language used by the
System 34 and had engaged in some programming on the
new equipment. Accordingly, it was recommended that
Rehrig be retained as the "all around more capable indi-
vidual." Nonetheless, Smith, who according to Respond-
ent, "thought Eckhart should have the job," testified
concerning his deliberations concerning Hinkle's recom-
mendation as follows:
MR. BERACQUA: Did you argue for Ms. Eckhart,
or did you just agree with Mr. Hinkle's choice
when he asked for that, between Rehrig and Eck-
hart?
MR. SMITH: I couldn't argue with Ron. I knew
he was right. I felt very badly, because at the time
that Pat Rehrig left for pregnancy leave I was
under the impression she was not coming back. She
was going to start a family and not come back to
work. We had three timekeepers at the time, two
timekeepers. One would fill in as a floater. The two
timekeepers were Jennie Eckhart and Joanne Le-
vandusky, and Anita Zinggeler filled in for them
and knew the job. Of the three I picked Jeannie as
the best one and the one that I thought would do
the best job out of the three. It was a natural step
up from a timekeeper up into a payroll clerk's posi-
tion. And I chose Jeannie for that job. I recom-
mended her for it, and all during this time she was
having a rough time of it with Kern who was re-
viewing her work. When Pat Rehrig came back to
work, she felt insecure about it. She didn't know
where she stood at the time, and I reassured her
that, Jeannie, this your job. You have it, we will
find other work for Pat. And now it was time that I
had to make some hard decisions based on recom-
mendations by the managers to me.
But I knew that Ron was giving me the best rec-
ommendation. Pat was an all around more capable
individual. I had a responsibility to the company to
make that—to go with that recommendation. But I
did feel like hell, because I was really backing Jean-
nie on this payroll clerk's job all the way. But I did
decide to go with that recommendation.
On his own testimony, it is clear that Smith, in allegedly
accepting Hinkle's recommendation, had gone back on
his word to Eckhart. Furthermore, despite his expressed
concern for Eckhart, he also elected not to reclassify
Eckhart to her original position as timekeeper. His expla-
nation for this appears below:
644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
No, there was no other positions [sic] available at
the time. With Jeannie, she was a former timekeep-
er. The decision between Jeannie and Pat, it was
just the right business decision to go with Pat. With
Jeannie, I compared Jeannie with the timekeepers
and thought about transferring her back into being a
timekeeper, which means that one of the other time-
keepers would have had to go. But at the time they
were set in their positions.
They both had more time than Jeannie did in the
jobs, and we still had the payroll application to
transfer over to the new system. And at the time
we believed that we would eliminate the timekeep-
ing position with a new data collection system that
was being installed for payroll purposes. So if I
would have transferred her over to timekeeping, it
would have been a matter of three or four months
down the road and I would have had to lay her off
later.48
From the foregoing, it is apparent that the action taken
with respect to Eckhart involved a reversal of form. She
had received assurances that she would be retained as
payroll clerk even if Rehrig returned from maternity
leave. It is also apparent from the evidence that in the
position of payroll clerk, Eckhart survived a rocky be-
ginning, including a personality conflict with Office
Manager Kern. Later the quality of her performance as
payroll clerk began to show progress. Indeed, Gary
Smith himself testified that on the day of the layoff he
mentioned to Eckhart "that she was really starting to
learn her job."
d. John Gellis
Gellis was hired in September 1978. At the time of his
layoff, he was employed as a shipping clerk under the
immediate supervision of Keith Cebrosky, who reported
to Horace Brobst, the director of the shipping operation.
The duties of Gellis included various clerical functions,
including the matching of existing production to orders
and assisting other clericals in typing bills of lading and
manifests. He also maintained a filing system.
Gellis signed a union card and attended at least one
union meeting, However, unlike the other alleged discri-
minatees, he did not wear a union button, or otherwise
openly manifest union support. Furthermore, according
to his own testimony, as early as May 1, he was aware
that as a plant clerical, he had been declared ineligible to
vote in the ensuing election.49
42 Smith's reasoning in this latter regard did not pan out. As of the
date of the instant heanng, the original timekeepers remained m Respond-
ent's employ Also noteworthy N an inconsistency between Smith's testi-
mony in this regard and the finding of the Regional Director in his Deci-
sion and Direction of Election, dated July 2, 1981, p. 3, based on evi-
dence developed at a hearing on April 29 and 30, that the duties of
"timekeepers" were to be modified but not eliminated. See G C Exh. 3.
It is also noted that a temporary employee, Meleski, was recalled to per-
form keypunch work on October 7. However, after keypunch was elimi-
nated, Meteslu worked 4 hours a day entenng payroll information on the
CRT screen and making adjustments to payroll under the tutelage of Pat
Rehrig. Eckhart was not offered recall when this opportunity arose
42 I reject the representation by the General Counsel that "at the time
of his discharge, it was still unknown whether or not Gel's would be in
the bargaining unit." I am aware of the finding made by the Regional
As was true of Jeanette Eckhart and Betty Lou Phil-
lips, Gellis received his regular employment appraisal on
June 11, 1981. At that time, his strong points were listed
in the area of cooperation, quality of work, and job
knowledge. His weak points and criticism were limited
to shyness, fear of making errors, and reluctance in seek-
ing assistance of supervision. The appraisal form of
Gellis included notations concerning Gellis' complaints
concerning his wage rates in relation to both Gayle
Pope, another clerical, and an unnamed newly trained
auditor. 5° Furthermore, in the course of the evaluation
interview, Brobst stated that following the July shut-
down, he would receive a raise.51
It is also noted that Gellis testified credibly and with-
out contradiction that in mid-April, his immediate super-
visor, Cebrosky, informed him that he had been instruct-
ed by Preston Thomas to tell Gellis ". . . that even after
the computer did come in, that there would be 90 per-
cent chance that I would still have a job." According to
Respondent, "Gellis was laid off by the company be-
cause his key punching job in the shipping department
had been eliminated by the System 34 computer." 52 I
have no doubt that a significant and preponderant seg-
ment of the duties performed by Gellis were eliminated
under the new system. In addition, I also believe that it
absorbed other duties previously performed on a manual
basis by other clericals in the shipping department.
As for the selection of Gellis, it appears that three
clericals were assigned to his department; namely, Gellis,
Linda Schuler, and Gayle Pope. Brobst testified that in
early or mid-June Smith informed Brobst that a cutback
was necessary in his department. Brobst, who had antici-
pated that a substantial amount of work would be elimi-
nated by the computer, claims to have previously decid-
ed to layoff Gellis, for reasons set forth below:
MR. BERACQUA: Who did you decide on?
MR. BROBST: I had decided on Mr. Gellis.
MR. BERACQUA: And can you tell us why?
Mn. BROBST: Yes. There are three people work-
ing in the shipping office: Linda Schuler, John
Director after the discharge of Gellis in the Decision and Direction of
Election. See G.C. Exh. 3, p 3 Nonetheless, this findmg is not necessari-
ly inconsistent with the clear, unambiguous testimony of Gellis, which
was left to stand unexplained on this record as follows
MS. LOPEZ-HENRIQUEZ Were you eligible to vote in the election
on July 20?
MR GELLIS: No.
MS. LOPEZ-HENRIQUEZ. Why not?
MR. GELLIS: Because at the hearing they had ruled that I was in-
eligible because I was plant clerical and not office clerical
JUDGE HARMATZ: Now, when was that determination made? Was
that determination made pursuant to agreement of the parties at the
R-case heanng?
MR. GELLIS. Yes.
JUDGE HARMATZ So that would be sometime m April, at the end
of April—at least by May first, you already knew that you would be
inehgible to vote in that election?
MR GELLIS Yes.
The above segment of the transcript appears with corrections by me. The
changes relate solely to nonsubstantive matters
5° See G.C. Exh 15
51 The above is based on the credited, uncontraclicted testimony of
Gelhs
52 See R Br 26.
KEYSTONE LAMP MFG. CORP. 645
Gellis and Gayle Pope. Because of the way we are
structured there with our supervision, if someone is
missing or if someone is out for any reason you
have to have someone to take over the duties, cer-
tain responsibilities there to deal with the people.
Gayle Pope was the person who we had used in
that respect several times, and she did a very good
job. I felt that Gayle was potentially management
material, and she had proven that by being aggres-
sive in the past. Whereas on the other hand, Mr.
Gellis was very shy and timid and just, in my opin-
ion, could not work with the people on the floor.
That was my opinion.
MR. BERACQUA: You said that Ms. Pope filled in
or substituted for a supervisor. Can you explain
that?
MR. BROBST: Yes. You have to understand the
different job titles there. Gellis was primarily cleri-
cal. Gayle Pope worked with the card file and in-
ventory system whereby she would deal with the
people on the floor constantly working with the lift
operators, not being their immediate supervisor, but
she had to deal and work with them. They respect-
ed her and worked with her.
At times when someone was missing, she would
serve as the dock supervisor when someone was
missing.
MR. BERACQUA: How old is Ms. Pope?
Mn. BROBST: I'm not exactly sure. I think she is
around the mid 30's or somewhere in there. I'm not
really sure. I would judge her to be that.
BERACQUA: The recommendation, then, that
you gave M. Smith in early to mid-June, or if you
recall it, was who?
Mn, BROBST: I told him that I wanted to retain
Gayle Pope for the reasons that I just gave, and
that if anybody had to leave it had to be Gellis, No.
1.
. „ .
.11UUGE HARMATZ: How about Schuler?
MR. BROBST: Linda Schuler was a long time em-
ployee who filled in for the man who does all the
routing of the orders, who was also a salaried em-
ployee. When he was out on vacation or reserve
duty which he had twice a year, she would fill in
for him
4. Concluding analysis regarding alleged
discrimination
As heretofore indicated, there is no reason to question
the fact that computerization of production control and
the anticipated adaptation of the order-entry billing to
the System 34 forbode an elimination of jobs. Nonethe-
less, this fact does not end the inquiry. For the allega-
tions of discrimination herein require assessment of
whether Respondent would have elected to avoid lay-
offs, and to defer cost savings by reducing the work
force over a period of time on the basis of attrition, had
the alleged discriminatees not engaged in organizational
activity.
In this respect it is noted that Respondent's economic
defense is interposed in the context of a strong prima
facie case to the effect that office clericals Abner, Eck-
hart, and Phillips were singled out for discrimination.
The elements of timing, knowledge, and animus combine
in their cases persuasively to suggest that their layoffs
were interwoven into an overall campaign of intimida-
tion designed to assure a defeat of the Union at the polls.
Thus, the appropriate unit consisted of 22 employees. By
virtue of the layoffs, the voting group was substantially
reduced under circumstances unambiguously prejudicial
to the organizational effort. For Ahner, Eckhart, and
Phillips were known union activists, who on a continu-
ous basis openly manifested their union support. There
was no doubt of their sentiment from beginning to end.
The continuity with which they wore union buttons
amounted to conduct that drew attention, if not the rath,
of management representatives on several occasions.
Respondent's union animus is evident on a broadened
scale through other conduct as well. Most telling to the
instant analysis was the reaction to the Union by Re-
spondent's highest ranking official at the Slatington
plant, Walter Glover. Thus it took only a few days for
Glover to respond personally to the Union's initial
thrust. His several meetings with employees included ses-
sions as early as March 25 and 30, during which he per-
sonally delivered hard hitting, though legitimate, antiun-
ion speeches stressing the precarious competitive posture
of the Company. Glover argued against union represen-
tation by exalting present benefits enjoyed by the cleri-
cals, while warning that the Union could call strikes but
not prevent layoffs. He even went so far as to voice the
opinion that employees who sign union authorization
cards "signed away their rights."
Beyond that, however, Glover's zeal to influence em-
ployees carried his discourse into an area that seriously
beclouds the defense. Thus, at the antiunion meeting of
March 26, Glover discussed the effects of computeriza-
tion, an issue that furnished substantially, if not entirely,
the initial impetus for unionization. The commitment per-
sonally expressed by Glover at that time is difficult to
reconcile with the layoffs of the three office clericals. In
this regard, Glover stated as follows:
Now, another point I want to bring up. Seniority,
job security, the computer, I made references to this
the other day. We are a company [sic] with a heart.
Now, we have reached a point in production con-
trol where we no longer needed Wilma. She could
go. We no longer needed a Bobby Scott, he could
have gone. So I said no. These people have tenure
with this Company, they have time with the Com-
pany. We find a place for them. We put them into
other jobs. We'll find, we'll train, we'll retool for
these people to fmd a place for them. Reathie, I'm
very concerned about you, you've got 25 years
with the Company and you know here you see your
job may be possibly disappearing, but I don't want
you to have insecurity. I'm gonna, you're not gonna
be hurt, I'm gonna find some damn place for you.
But don't take that power away from me.
646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This view was carried forth by Ron Hinkle, at least
with respect to keypunch, when, at the preelection hear-
ing held on April 29 and 30, he testified as follows:
Q. And you said that Reathie Ahner was a key
punch operator, you have Rehrig as a key punch
operator, and Elaine Ahner?
A. Right.
Q. Okay, that's the three?
A. And, Elaine Meleski—well, she's a part-time.
Yes, you're right.
Q. Now, those are three full-time permanent key
punch operators; correct?
A. Yes.
Q. You said that when you have the new system
functioning, key punching is eliminated?
A. That's right.
Q. What's going to happen to those three people?
A. We are going to try to find other positions for
these people, as far as I understand.
Q. Is it the current plan to retain them in the data
processing department?
A. No.
Q. No. So, they will no longer be in the data-
processing department?
A. No.
Q. But the company will attempt to fmd them
other positions?
A. Yes.
Q. And you don't know where?
A. No.
Q. Who does know that, do you know?
A. No, I don't know.
Q. No final plans have been made, yet?
A. No.
Consistent with the foregoing there is no evidence that
at any time prior to June 5, 53 a single office clerical at
Slatington was terminated because his or her job had
been eliminated. 54 In contrast with treatment accorded
Ahner, Eckhart, and Phillips, as stated by Glover on
March 26, layoffs had been avoided when the System 34
was placed on line to handle the production control
function in January 1981. In this regard, Glover named
two employees who no longer were "needed" at that
53 I am not unmindful of testimony to the effect that Ahner had been
told in April that there was a possibility that she would be laid off in
June or July but definitely in August. Although the matter is not free
from doubt, on balance, it is concluded that the clear assurances afforded
by Respondent's president, Glover, ought be given primacy over the
speculation by his "lieutenants"
54 The ternunation of Gellis presents a distinct issue. He, like Quality
Inspector Glen Shoff, was not within the clerical unit and it does not
appear that the policy expressed by Glover on March 26 concerning Job
security applied to those outside the voting group Furthermore, it is my
conclusion that the overt support of the Union manifested by Ahner,
Eckhart, and Phillips constituted a contimung thorn to Respondent, and
unlike Gellis, who did not wear union insignia, who did not otherwise
openly proclaim his sentiment, and who was known to be ineligible to
vote in the election, Respondent was plainly on notice that the three
office clericals were unwavering votes for union representation. In short,
though Gellis might have been a suspected union adherent, his case lacks
the attributes of chscnmmation deemed controlling with respect to the
office clericals. I shill dismiss the 8(a)(3) and (1) allegations based on the
layoff of Gellis.
time, going on to state that a place was found for them
and they were put in other jobs. Glover underscored the
lengths to which the Company would go to avoid layoffs
by stating: "We'll find, we'll train, we'll retool for these
people to find a place for them." Going on to describe
the Company as possessed of "a heart" and one that
would treat employees fairly, Glover's assurances were
in no sense conditioned on the availability of work. The
only limitation was his plea that the employees not take
this "power away."
The defense offers no explanation reasonably tending
to reconcile its position in June that continued employ-
ment would depend on work availability, on the one
hand, and Glover's message to employees in March that
the System 34's threat to office clericals would be ab-
sorbed without impairing their job security. Why this re-
versal, and just who made the decision to do so is a
matter left open by the Respondent's evidence. On the
other hand the assurance against layoff and Glover's plea
that employees not remove his authority to make good
thereon were registered prior to the appearance of union
buttons. Later, however, Ahner, Eckhart, and Phillips
defiantly and on a regular basis used such insignia to
openly manifest their prounion sentiment until the date
of their terminations. Their conduct in that regard was a
direct betrayal of Glover's March 26 appea1 55 that they
not "take that power away." Indeed, the terminations
were not inconsistent with the proclivity suggested by
Glover's remark to Darlene DeLong on the day of the
election to the effect that union supporters "had hurt him
for the last time."
In the light of his prior comments concerning job se-
curity and personally conveyed union animus, it is not
surprising that Glover's testimony sought to mitigate his
role in connection with the June layoffs. Thus, Glover
denied that he was present in the plant during June and
July." And although further denying that he participat-
ed in the decision concerning who would be laid off, he
claims to have been informed in this respect as "the deci-
sions were made." By implication, Respondent thereby
was in a position to place responsibility for the reversal
of Glover's announced policy in other unidentified man-
agement representatives. However, I believe Glover's in-
volvement was far greater. As the highest ranking man-
agement official at Slatington, and having laid his own
record for fairness on the line 57 in professing concern to
employees for their job security, I am convinced that,
contrary to his testimony, Glover, if not the architect,
was directly involved in deliberations both to effect the
June layoffs, and regarding who would be included
therein.
The Spector of discrimination also appears in Respond-
ent's action with respect to postlayoff vacancies. Al-
though Phillips was reinstated after the unfair labor prac-
55 The depth of Glover's animus toward such activity is evident
through his admitted inability to tolerate the wearing of prounion insignia
within the confines of his office
56 It is clear, however, that he was present on July 20, the day of the
election, at least long enough to coercively interrogate Darlene DeLong.
51 In his March 30 speech adverted to his "track record" reflecting
that he had ". . . run a pretty damn fair company."
KEYSTONE LAMP MFG. CORP. 647
tice charges were filed, Elaine Ahner and Jeanette Eck-
hart were passed over during this period. Instead, in Oc-
tober, Respondent recalled Elaine Meleski to perform
keypunch work. The latter had less service with the
Company than Ahner, who as will be recalled had also
been trained in keypunch operations. Furthermore, Me-
leski, who had also been laid off on June 26, previously
was considered merely as a temporary, part-time employ-
ee. After her recall, however, Meleski was removed
from keypunch, and without affording Eckhart recall,
she was trained to enter payroll data on a CRT screen
under scrutiny of Pat Rehrig. In a similar vein, Respond-
ent hired Bonnie Hewitt on October 5 to perform gener-
al office duties, for which Abner and Eckhart could
qualify. Hewitt had not worked for Respondent for 4 or
5 years. According to Gary Smith, Hewitt was hired on
a recommendation of Barbara Meinhart, a supervisor.
Smith claims that he accepted the recommendation be-
cause Meinhart knew what had to be done in the main
office and felt that Hewitt could do the job. Smith's testi-
mony was unsubstantiated and suspect. There is no indi-
cation that the job for which Hewitt was employed in-
volved unique capabilities or expertise. The preference
afforded Hewitt at the expense of Eckhart and Ahner
not only reflects adversely on Respondent's basic deci-
sion to effect the layoffs, but also is deemed to be an ex-
tension of the unlawful discrimination against them
Also tending to support the view that the continuing
union activity on the part of Almer, Eckhart, and Phil-
lips furnished the supervening cause for Respondent's
change in attitude towards job security, is evidence sug-
gesting that the System 34 remained in a transitional
state as of June 26. Thus, the possibility is suggested that
the layoff might well have been premature, when consid-
ered in the light of Respondent's assigned justification. In
this connection, it is noted that consistent with Glover's
March 26 assurance, Elaine Ahner was not terminated
when her job was eliminated, but on March 30 was
simply assigned for training in a different classification.
Smith explained this action as due to the fact that "we
were in the middle of the transferring from one type of
computer setup into a new computer system. . . we had
a lot of things in the state of flux, and we needed person-
nel from time-to-time to do. . . the ordinary type work
that was necessary to help in the transition." However,
Respondent's own evidence suggests that the transition,
as of June 26, had not concluded and indeed, that at least
with respect to the payroll area "things" remained in a
state of "flux." At that time, the order-entry billing
system was 2 weeks away from actual operation, and
was yet to be tested on a functional basis as an online
system. In addition, payroll was not scheduled to go on
line until September 1981. Indeed, it does not appear that
the computer had been released for preliminary payroll
applications as of June 26. Furthermore, Smith described
the payroll application as "involved" because the data
collection system required information to be collected di-
rectly from the production floor. In this regard, Reathie
Abner initially performed the keypunch in connection
with payroll, but later was transferred to a different area,
whereupon Meleski was recalled in October as her re-
placement. At this point, payroll data remained to be
keypunched, and after this work was exhausted, Meleski
continued to enter payroll information on a CRT screen
and terminal. The totality of the circumstances, suggest
that the transitional period, and the work generated by
the transition between systems was in an indefinable, un-
predictable state at the time of the June layoffs.
For the above reasons, parol testimony to the effect
that, at the time of their layoffs, no work was available
to which Ahner, Echkart, and Phillips could be assigned
was not believed. In any event, even were I to accept
such evidence, the management policy declared by
Glover on March 26 to the effect that layoffs would be
avoided was not conditioned on the availability of work.
On the totality of the credible proof, I remain convinced
that Glover abandoned this stance in the case of Ahner,
Eckhart, and Phillips out of frustration with their con-
tinuing overt manifestation of union support. It is con-
cluded that the System 34 afforded a convenient pretext
for confirming the point made earlier on March 30 by
Glover himself that "no union can prevent a layoff" and
as an object lesson reemphasizing his warning of March
26 that employees not take "away" his "power" to be
"fair." Accordingly, it is found on balance that Respond-
ent has failed by credible proof to demonstrate that
Ahner, Eckhart, and Phillips would have been laid off
"in the absence of protected conduct." Wright Line, 251
NLRB 1083, 1089 (1980). Hence, I find that Respondent
violated Section 8(a)(3) and (1) of the Act by laying off
Ahner on June 5 and by taking similar action with re-
spect to Eckhart and Phillips on June 26.
IV. CASE 4—RC-14652
As is accurately stated in the Acting Regional Direc-
tor's "Supplemental Decision on Objections to Election,"
the objections to employer conduct interfering with free
choice in the July 20 election are coextensive with cer-
tain alleged unfair labor practices set forth in the instant
complaint. Furthermore, by virtue of findings heretofore
made, the subject matter of Objections 4, 5, and 6 (dis-
crimination) and Objection 13 (interrogation) have been
substantiated as unfair labor practices within the meaning
of Section 8(a)(1) and/or (3) of the Act. Accordingly,
the objections are sustained and based thereon it shall be
recommended that the election be set aside.58
V. THE REMEDY
A. The Alleged 8(a)(5) Violation
1. Preliminary statement
The General Counsel in the face of the Union's failure
to receive majority designation in the course of the elec-
tion conducted on July 20, urges nonetheless that Re-
spondent be found to have violated Section 8(a)(5) and
(1) of the Act on the strength of authorization cards exe-
cuted by a majority of the employees. In this regard, the
General Counsel seeks to bring this case within NLRB v.
58 As I have concluded that the evidence does not substantiate the un-
lawful conduct specified in Objections 1, 2, and 3 These objections are
hereby overruled.
648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Gissel Packing Co., 395 U.S. 575 (1969), where the Su-
preme Court authorized the issuance of a bargaining
order if necessary to remedy collateral unfair labor prac-
tices in cases falling within either of the following classi-
fications:
1.Where an employer's unfair labor practices are
"outrageous," "pervasive," and "of such a nature
that their effects cannot be eliminated by the appli-
cation of traditional remedies with the result that a
fair and reliable election cannot be held," or
2. Where an employer's unfair labor practices are
"less pervasive," but have the "tendency to under-
mine the majority strength of the Union and impede
election processes," "if . . . the possibility of eras-
ing the effects of past practices and of insuring a
fair election (or a fair rerun) by the use of tradition-
al remedies, though present, is slight and . . . em-
ployee sentiment once expressed through cards,
would, on balance be better protected by a bargain-
ing order. . . ."59
2. The appropriate unit
The complaint alleges that the following employees of
Respondent constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act:
All office clerical employees employed by the em-
ployer at its Slatington, Pennsylvania facility, in-
cluding key punch operators, order entry clerks,
computer operator, payroll clerk and time record-
keepers, and excluding production and maintenance
employees, shipping clerks, production control em-
ployees, time study technicians, managers, guards
and supervisors as defined in the Act.
In its duly filed answer, Respondent denied this allega-
tion. The denial, however, was unsupported by any evi-
dentiary presentation. On the other hand, the above-de-
scribed unit was found to be appropriate after a hearing
in the Decision and Direction of Election issued by the
Regional Director on July 2, 1981. The election conduct-
ed on July 20, 1981, was held in the unit, and it does not
appear that the Employer sought review of the Regional
Director's unit determination. Accordingly, under estab-
lished Board policy, the Regional Director's finding is
entitled to conclusive weight in this proceeding. See Sec-
tion 102.67(0 of the National Labor Relations Board
Rules and Regulations. See also Pittsburgh Glass Co. v.
NLRB, 313 U.S. 146, 162 (1941). On this basis, it is con-
cluded that the unit set forth above constitutes the ap-
propriate collective-bargaining unit herein.
3.The request for recognition
By letter dated April 6, 1981, the Union, over signa-
ture of Nicholas Sava, requested recognition as the ex-
clusive bargaining representative of a unit of office cleri-
cal and technical employees. Although the unit defined
therein was not coextensive with that ultimately deemed
59 395 U.S. at 614-615.
appropriate, the demand for bargaining was legally effec-
tive. Pilot Freight Carriers, 223 NLRB 286, 304 (1976).
4. The Union's majority
As of April 6, the appropriate collective-bargaining
unit set forth above consisted of 22 employees. Credible
testimony on this record shows that as of that date the
Union possessed authorization cards that validly mani-
fested a clear, unambiguous designation of the Union on
the part of at least 13 employees."
Accordingly, I find that as of April 6, the Union had
been designated by a majority of Respondent's employ-
ees in the appropriate unit.
5.The refusal to bargain
The findings heretofore made attest to the fact that
Respondent during the critical preelection period en-
gaged in serious unfair labor practices including coercive
interrogation, instructing employees to remove union in-
signia, requesting that employees refrain from attending
union meetings and threatening unspecified reprisals if
they chose to do so, threatening that Respondent might
go out of business if the Union were designated, stating
that an employee might be terminated because of her
union support, implying that benefits would be forthcom-
ing if the Union were defeated, soliciting employee
grievances under conditions implying that management
would take favorable action on them, and terminating,
for discriminatory reasons, three known supporters of
the Union. These unfair labor practices not only depleted
the ranks from which the Union surely would be expect-
ed to draw support, but signaled to all employees in the
appropriate unit the lengths to which Respondent would
go to thwart organization. Moreover, the Respondent's
unlawful use of questionnaires conveyed to every
member of the collective-bargaining unit the implied
message that management policy would be reshaped to
conform to their criticism on the Union's demise, and
amounted to an unfair labor practice that would continue
to stir the imagination of employees even after applica-
tion of conventional Board remedies. In sum, this combi-
nation of unlawful intimidation, discrimination, and in-
dustrial bribery, sufficed to neutralize the effectiveness of
conventional Board remedies to create an atmosphere in
which it could be considered likely that a fair election
could be held in the future. Accordingly, it is found that
Respondent by refusing to recognize the Union as the ex-
clusive representative of employees in the appropriate
unit on and after April 6, 1981, violated Section 8(a)(5)
and (1) of the Act.
The complaint further alleged that Respondent violat-
ed Section 8(a)(5) and (1) of the Act by unilaterally im-
plementing the evaluation system without notifying and
60 This group mcluded William Balliet, Barbara Jean Skrapits, Pat
Rehr's, Jacqueline Ruch, Deanna Gombert, Dom DeFuso, Anita Zing-
geler, Joanne Levandusky, Melissa Horvath, Pat Eckhart, Betty Lou
Phillips, Elaine Almer, and Jeanette Eckhart As there is no basis for
challenging the effectiveness of these designations, and as they represent
a clear majority of employees m the appropriate unit as of April 6, It is
unecessary and I do not pass on the cards of Reathie Ahner, Cynthia
Babyak, and Mary Rodenbach
KEYSTONE LAMP MFG. CORP. 649
first consulting and negotiating with the Union. This alle-
gation relates to the appraisal forms that have been pre-
viously discussed in connection with an 8(a)(1) allega-
tion. As the appraisal forms would affect conditions of
work and hence constitute a mandatory subject of collec-
tive bargaining, Respondent, further violated Section
8(a)(5) and (1) of the Act by unilaterally implementing
the new appraisal form, without first negotiating and bar-
gaining with the Union. A similar allegation with respect
to the distribution of Respondent's work rules is dis-
missed on the ground that the evidence failed to disclose
that Respondent thereby effected any change in prexist-
ing conditions of work.
B. General Remedial Recommendations
Having found that Respondent has engaged in certain
unfair labor practices, it shall be recommended that Re-
spondent cease and desist therefrom and take certain af-
firmative action deemed necessary to effectuate the poli-
cies of the Act. Respondent's overall unlawful campaign
included a comprehensive pattern of intimidation that
not only threatened the existence of employee rights, but
reflected a proclivity to violate the Act to a degree war-
ranting a broad cease-and-desist order. Accordingly, it
shall be recommended that Respondent be ordered to
cease and desist from "in any other manner" interfering
with, coercing, or restraining employees in the exercise
of their Section 7 rights. See Hickmott Foods, 242 NLRB
1357 (1979).
Having concluded that Respondent unlawfully and for
discriminatory reasons laid off and failed to reinstate
Elaine Ahner and Jeanette Eckhart, it shall be recom-
mended that Respondent offer each of these employees
immediate reinstatement to her former position, or if not
available, to a substantially equivalent position and make
each whole for any loss of earnings she may have suf-
fered by reason of the discrimination against her by pay-
ment of a sum of money equal to the amount they nor-
mally would have earned from the date of discharge to
the date of a bona fide offer of reinstatement, less net in-
terim earnings during that period.
It having been found that Respondent discriminatorily
laid off Betty Lou Phillips on June 26, 1981, it shall be
recommended that Respondent make her whole for earn-
ings lost from June 26 to her reinstatement on August 20,
1981, less net interim earnings.
All backpay due shall be computed on a quarterly
basis in the manner prescribed in F. W Woolworth Co.,
90 NLRB 289 (1950), and shall include interest as speci-
fied in Florida Steel Corp., 231 NLRB 651 (1977).61
CONCLUSIONS OF LAW
1. The Respondent Employer is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Petitioner-Charging Party is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent independently violated Section 8(a)(1)
by coercively interrogating employees concerning union
65 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
activity, by requesting that employees not attend union
meetings, by threatening them with unspecified reprisals
if they attend union meetings, by instructing an employee
to remove union insignia, by soliciting employee griev-
ances under conditions implying that they will be re-
dressed if the Union were rejected, by implying that ben-
efits would be forthcoming if the Union were rejected,
by informing an employee that another had been termi-
nated and that she too would get the axe because of her
union activity, and by threatening to go out of business if
the Union were designated.
4. Respondent violated Section 8(a)(3) and (1) of the
Act by, on June 5, 1981„ terminating Elaine Abner, and
by, on June 26, 1981, terminating Betty Lou Phillips and
Jeanette Eckhart, to discourage union activity.
5. All office clerical employees employed by the Em-
ployer at its Slatington, Pennsylvania facility, including
keypunch operators, order entry clerks, computer opera-
tor, payroll clerk and time recordkeepers, and excluding
production and maintenance employees, shipping clerks,
production control employees, time study technicians,
managers, guards and supervisors as defmed in the Act
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
6. The Union, since April 6, 1981, is, and has been at
all times material, the designated representative of the
majority of the employees in the unit described above
and is the exclusive bargaining representative of the em-
ployees within the meaning of Section 9(a) of the Act.
7. Respondent, since April 6, 1981, has refused to bar-
gain in good faith with the Union as the exclusive repre-
sentative of employees in the unit described in paragraph
5 above with respect to their rates of pay, wages, hours
of employment, and other terms and conditions of em-
ployment.
8. The Respondent violated Section 8(a)(5) and (1) of
the Act, by about June 11, 1981, implementing a formal
evaluation system for appraising job performance of its
employees without first notifying and bargaining in good
faith with the Union as exclusive representative of em-
ployees in the aforedescribed appropriate unit.
9. The unfair labor practices found above have an
affect on commerce within the meaning of Section 2(6)
and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed6 2
ORDER
The Respondent, Keystone Lamp Manufacturing Cor-
poration, Slatington, Pennsylvania, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning
union activity.
62 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Requesting that employees not attend union meet-
ings, and instructing them to remove union insignia.
(c) Threatening employees with reprisals if they attend
union meetings.
(d) Telling an employee that union activity led to an-
other employee's discharge and could lead to termina-
tion.
(e) Soliciting grievances of employees under condi-
tions implying that they would be redressed in the event
that the Union is defeated, and otherwise promising ben-
efits to discourage employees from supporting the Union.
(1) Threatening to go out of business if the Union were
designated.
(g) Discouraging membership in a labor organization,
by laying off, refusing to reinstate, or in any other
manner discriminating against employees with respect to
their wages, hours, or tenure of employment.
(h) Refusing to bargain in good faith by declining to
recognize the Union as majority representative of em-
ployees in the appropriate collective-bargaining unit as
their exclusive representative and by unilaterally chang-
ing a condition of work without notification or prior
consultation and bargaining with the Union.
(i) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Elaine Ahner and Jeanette Eckhart immedi-
ate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make them whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the decision.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) On request, bargain with the Union as the exclusive
representative of employees in the unit defined below,
respecting rates of pay, wages, hours, and other terms
and conditions of employment and if an understanding is
reached, embody it in a signed, written agreement. The
appropriate unit within the meaning of Section 9(a) of
the Act consists of the following:
All office clerical employees employed by the em-
ployer at its Slatington, Pennsylvania facility, in-
cluding key punch operators, order entry clerks,
computer operator, payroll clerk and time record-
keepers, and excluding production and maintenance
employees, shipping clerks, production control em-
ployees, time study technicians, managers, guards
and supervisors as defmed in the Act.
(d) Post at its facility in Slatington, Pennsylvania,
copies of the attached notice marked "Appendix."'"
Copies of the notice, on forms provided by the Regional
Director for Region 4, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the election con-
ducted on July 20, 1981, in Case 4—RC--14652 be set
aside.
63 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."