LIR-USA Mfg. Co.

National Labor Relations Board - Board Decisions

Feb 11, 1992

306 N.L.R.B. 298 (N.L.R.B. 1992)

298
306 NLRB No. 58
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. 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. With respect to the
judge’s dismissal of the allegations of constructive discharge of in-
spectors Rosario and Jansen, we agree with the judge that the evi-
dence relied on to find that any changes in the inspectors’ duties
were not motivated by antiunion animus, including the detailed testi-
mony of various witnesses she found to be credible, was more pro-
bative and outweighed Sanchez’ summary antiunion explanation for
the changes, which, as the administrative law judge found, was to
‘‘taunt’’ Rosario and Jansen. Accordingly, we find, as did the judge,
that Rosario and Jansen were not constructively discharged in viola-
tion of Sec. 8(a)(3).
Further, in adopting the judge’s finding that there was ‘‘no evi-
dence’’ that the Respondent denied bathroom privileges to employ-
ees, denied insurance coverage to employee Rosario, and promised
employees promotions if they abandoned the Union, we note the
General Counsel’s exception wherein he cites transcript pages re-
garding the above allegations. Concerning the alleged denial of bath-
room privileges and the alleged denial of insurance coverage to em-
ployee Rosario, we have reviewed the cited pages and find no merit
in the exceptions. Concerning the alleged promise of promotions, we
note that the General Counsel cites to testimony by former employee
Jansen. As an initial matter, we note the judge’s dismissal of that
allegation as to Jansen, on credibility grounds. Moreover, we have
reviewed the cited pages and find that Jansen’s testimony does not
support a finding of a violation.
Finally, regarding the judge’s finding that there was ‘‘no evi-
dence’’ that the Respondent ‘‘engaged in the myriad other violations
alleged,’’ we note the General Counsel’s exception that, while con-
cededly no evidence was presented on three of the allegations
(which the General Counsel listed), evidence was presented con-
cerning all of the other allegations and the instant case should be
remanded to the judge to, inter alia, make findings on these other
allegations. In light of the General Counsel’s failure to comply with
Sec. 102.46(b)(1) and (2) of the Board’s Rules and Regulations,
which require, inter alia, that each exception shall designate the par-
ticular matters being excepted to and provide precise citation to the
portions of the record relied upon, we deny the General Counsel’s
request to remand and adopt the judge’s decision.
LIR-USA Manufacturing Co., Inc. and Local Union
463, International Union of Electronic, Elec-
trical, Salaried Machine and Furniture Work-
ers, AFL–CIO. Cases 29–CA–13844, 29–CA–
13903, 29–CA–13929, 29–CA–14082, 29–CA–
14088, and 29–CA–14089
February 11, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On July 9, 1990, Administrative Law Judge Eleanor
MacDonald issued the attached decision. The General
Counsel filed exceptions and a supporting brief and the
Respondent filed a brief in opposition to the General
Counsel’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, LIR-USA Manufacturing
Co., Inc., Yaphank, New York, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Craig L. Cohen, Esq., for the General Counsel.
John M. Capron, Esq. and Edward L. Rouse, Esq. (Fisher &
Phillips), of Atlanta, Georgia, for the Respondent.
David Jaffe, Esq., of New York, New York, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in New York, New York, from October 23
to 27, 1989. The complaint alleges that Respondent, in viola-
tion of Section 8(a)(1), (3), (4), and (5) of the Act:
1. Promised its employees promotions, wage increases, re-
turn to former assignments, and unspecified improvements if
they abandoned the Union.
2. Threatened its employees with less desirable work, with
discharge and with a lawsuit if they supported the Union.
3. Interrogated its employees.
4. Circulated forms to resign from the Union and solicited
its employees to execute the forms.
5. Restricted the movements of employees, ordered its em-
ployees to refrain from talking to other employees, trans-
ferred employees, provided more arduous work, demoted em-
ployees, and terminated employees.
6. Denied union representation to employees for discipli-
nary interviews, disciplined, and terminated employees.
7. Unilaterally changed past practice by instituting a new
requirement that the Union give 24 hours’ written notice as
a condition of the right of access.
Respondent denies the material allegations of the com-
plaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel, the Respondent, and the Charg-
ing Party in February 1990, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent a Delaware corporation with its principal of-
fice in Yaphank, New York, is engaged in the wholesale
manufacture, sale, and distribution of plastic packaging com-
ponents for the cosmetic industry. Respondent admits and I
find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
299LIR-USA MFG. CO.
1 Apparently, most of the second shift work force was late that
day.
2 Rosario was active in bringing the Union to the plant. She was
an observer during the election and a member of the negotiating
committee.
3 Rosario’s request for a leave of absence stated that she was going
to the hospital for tests and visiting her mother.
4 Sanchez did not testify in this proceeding. He was discharged in
April 1989.
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
In May 1988, a number of Respondent’s employees in-
cluding Anna Rosario, Janet Peters, Migdalia Dilan, Alva
Diaz, Gloria Gerena, Marta Beronio, Helen Jansen, Peter
Sargeant, Joe Kilgore, and others, organized the plant. The
Union won the election, held in summer 1988, by a wide
margin, and a collective-bargaining agreement was signed on
October 18, 1988.
Roland Harmer became plant manager in June 1988, dur-
ing the Union’s organizing drive. The plant was in a state
of chaos, according to Harmer. There was no leadership:
management spoke French and most of the workers spoke
Spanish.
The bargaining unit consists of the following employees:
All full-time and regular part-time production and
maintenance employees, inspection employees, shipping
and receiving employees and warehouse employees em-
ployed by Respondent at its Yaphank facility; but ex-
cluding all office clerical employees, professional em-
ployees, guards and supervisors as defined in Section 2
(11) of the Act.
B. Alleged Demotion and Discharge of Employees
1. Anna Rosario
Rosario was hired by Respondent in 1986 as a machine
operator. A few months later, she was trained to be a quality
control inspector on the second shift. As part of her duties,
Rosario testified, she went to the machines where compacts
were being produced, took samples to the quality control
room, and checked them using specialized measuring de-
vices. If there was a problem with the goods being produced
by a certain machine, Rosario informed the foreman and if
the problem was the operator himself, then Rosario informed
the supervisor. Under a new quality control manager named
Gary Quillian, the quality control function was expanded.
Quillian instituted the use of new forms to record the results
of inspections, he encouraged the inspectors to become
knowledgeable in the field of quality control generally, and
he seems to have inspired the inspectors with a feeling that
they were performing a highly skilled and vital function. In
June 1988, Quillian had an accident and was replaced by
Manager John Krumenacher. Krumenacher instituted new
forms and procedures for recording the results of inspections.
According to Rosario, in early October 1988, she went to
a union meeting and came to work late.1 When Plant Man-
ager Harmer asked why she was late, she told him she had
been at a union meeting.2 Rosario took her quality control
forms to the machines on the production line and began
checking the products. Then Harmer told her to go back to
the quality control room and stay there. According to
Rosario, she had no work to do that night. The next day,
Krumenacher told her not to antagonize Harmer. He told
Rosario that he would bring work for her to do and put it
outside the quality control room. He told Rosario to stay be-
tween the quality control room and the finished goods area
and not to go to the machines on the production line. Ac-
cording to Rosario, Krumenacher put ‘‘rework’’ out for her
to do. She stated that before October 1988, she had never
been assigned to do rework.
The question of ‘‘rework’’ is one of the areas of conten-
tion in the instant case. Rosario testified that rework denotes
going through a box of items rejected by a by customer and
culling the unusable items. Then the box is repacked with
items that are up to the customer’s standards. Rosario stated
that sometimes she repacked substandard goods on instruc-
tions of management. Harmer testified that rework involves
repacking a box of items that has been rejected by a cus-
tomer or has been rejected from the production line before
being sent to a customer. The bad items are removed and
then the box is filled with acceptable items. Harmer stated
that rework is quality control work. During the hearing, Gen-
eral Counsel took the position that rework was not quality
control work because it does not involve going to the ma-
chines on the production line and advising management that
there are problems before the goods are packed into boxes.
Rosario testified that one one occasion she was relaying a
message to a Spanish speaking employee: Harmer was stand-
ing close by and he yelled, ‘‘In English, I don’t want you
to speak any Spanish.’’ Harmer explained during his testi-
mony that although the plant does not have an ‘‘English
only’’ rule, he was concerned that management should be
able to understand what was being communicated at the plant
so that it could be aware of problems. He wanted conversa-
tions relating to work to be carried on in English when a
manager was present.
Rosario asked for and received a 2-week leave of absence
which ended on November 21, 1988.3 When she returned to
work, Rosario was told that she would be operating machines
while the operators were away on short breaks or for meals.
The practice of filling in for machine operators is known as
‘‘giving breaks.’’ Rosario testified that she had never given
breaks on the machines before this occasion. On November
23, while she was giving a break, Second-Shift Supervisor
Sanchez came to her and said, ‘‘look what happened to you,
you are not doing your quality control inspections.’’4
Sanchez said that he had spoken about Rosario to Lucien
Duranton, Respondent’s president, and that she should speak
to Duranton herself and tell him she was sorry and that she
would help him get rid of the Union. Rosario’s next sched-
uled workday was November 28, 1988. She called in sick
that day and for several days thereafter. Eventually, she told
Krumenacher that she was sick at the way she was being
treated and over the fact that she was not working as a qual-
300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 After Rosario left Respondent’s employ, Charging Party filed
certain of the charges alleging that she had been discriminated
against and constructively discharged by Respondent due to her sup-
port and activities for the Union.
6 Soon after this, Rosario saw Sanchez at her sister’s birthday
party. Sanchez told her that she was responsible for his being fired.
7 These are boards on which samples of production are mounted,
from the best to the worst.
ity control inspector. She was sick and tired and did not want
to go back again.5
Rosario held no communication with Respondent until she
was offered reinstatement to her position as a quality control
inspector by letter of March 27, 1989. The letter stated that
Respondent ‘‘acknowledges that it has a statutory duty to
make job assignments only for legitimate business reasons.
Job assignments will not be affected by an individual’s inter-
est in, and activities on behalf of, the Union. The Company
does, however, have the right under Article 29 of the agree-
ment to assign work without regard to classification, based
on business needs.’’ The letter noted Respondent’s awareness
of many complaints about Sanchez’ treatment of Rosario. It
assured Rosario ‘‘that statements and conduct attributed to
Mr. Sanchez were not authorized by, and that Mr. Sanchez
is no longer employed by LIR-USA Manufacturing Co.,
Inc.’’6 At about this time, Respondent sent two notices to its
employees informing them of their right to support the Union
and stating, in substance, that if Sanchez had violated the Act
it was not at Respondent’s behest and contrary to its instruc-
tions.
Rosario went back to work on April 17, 1989. Harmer told
her to check some products. Rosario testified that from this
time until she resigned on July 10, 1989, she checked pieces
rejected by customers and gave breaks to machine operators.
She did not work in the quality control room and she did not
go to the machines on the production line in order to remove
pieces for testing. Rosario used quality control inspection
forms to record her findings. Her affidavit given to a Board
agent states that in the past Rosario did inspection work at
the machines while the machines were running but that now
she did inspection work after the pieces had been boxed.
Rosario testified that she did what she considered to be true
quality control work for 1-1/2 to 2 hours daily.
The evidence shows that before the collective bargaining
agreement was executed, Respondent employed ‘‘lead la-
dies’’ whose duties included, inter alia, giving breaks to ma-
chine operators. The position of lead lady was abolished
under the terms of the contract.
Louis Passi, the purchasing manager of the Company, tes-
tified that his duties in purchasing, scheduling, and running
the warehouse require him to circulate around the plant.
Passi recalled that during the time between the signing of the
contract and the time that Rosario resigned for the first time,
he saw her giving breaks on the machines. Most of the time
Rosario was in the finished goods area checking out the fin-
ished products and at times she was in the quality control
room. Passi had a particularly impressive demeanor while
testifying and I credit his testimony.
Migdalia Dilan, a supervisor at the plant, testified about
the duties of quality control inspectors. Dilan stated that
Rosario was a quality control inspector both before and after
her first resignation in 1988. According to Dilan, Rosario had
the same assignments after she returned except that she no
longer went to check production at the machines.
Testifying in detail about Rosario’s duties in 1988, Dilan
stated that Rosario went around the production line and
checked items at the machines periodically. Although the
lead ladies usually gave breaks to machine operators, Rosario
would occasionally help out with breaks if necessary.
Rosario spent a lot of time inspecting boxes of finished
goods. If there was something wrong, Rosario was supposed
to tell Dilan, but sometimes Rosario spoke directly to the
machine operators and she even stopped the production a few
times. On occasion, Rosario told operators that certain items
were unacceptable when Dilan thought that they met the ap-
plicable standards. Dilan instructed Rosario that she should
not tell the machine operators what to do; Rosario was sup-
posed to inform either Dilan or a mechanic if there was a
problem and let them exercise their supervisory authority.
Dilan testified that Rosario did not use the instruments in the
quality control room on a daily basis. Usually an experienced
person can tell by looking at an item and comparing it to a
range board of samples if it is acceptable.7 Dilan testified
that when Rosario left the second time, she was not replaced
immediately; about September 1989, Maria Della Rocca was
hired to do her work. Della Rocca helps with breaks and
checks boxes of finished goods. Concerning rework, Dilan
testified that both quality control employees and machine op-
erators do rework and sometimes they do it together.
In addition to the testimony of all the other witnesses,
Maria Della Rocca, a new quality control inspector at the
plant, testified about her duties. She stated that for 1 to 2
hours per day, she gives breaks to machine operators, she
fills out inspection reports, and she does rework. Della Rocca
stated that she does not use the instruments in the quality
control room and she has been instructed not to speak to the
operators about problems with production.
Harmer testified that before the collective-bargaining
agreement was signed, the lead ladies relieved operators on
the line, checked quality and quantity on the line, and
brought supplies to the line. Others who relieved machine
operators were quality control employees, supervisors, and
maintenance people. Now that the lead lady position has
been abolished, the quality control employees give breaks to
machine operators, but they do not perform any other work
that had been performed by lead ladies.
According to Harmer, after Krumenacher was fired in
April 1989, Fred Lloyd was hired as quality control manager.
Harmer instructed him that the quality control employees
were not to talk to the machine operators. This was to insure
that the operators have a single line of responsibility—to
management. Harmer’s aim in instituting this rule was to
avoid waste of time and confusion. Harmer testified that
since he took over the plant, production has increased and
profits have increased. He stated that he had improved the
organization at the plant, he halted the indiscriminate use of
bathroom privileges, and he restricted the quality control em-
ployees to advising management. Now that the quality con-
trol employees no longer go to each machine, they do not
halt the production line on their own and there is less confu-
sion. According to Harmer, the percentage of shipments re-
jected by customers is constant and has not been affected by
the change in the duties of the quality control employees.
301LIR-USA MFG. CO.
8 It was not explained how Jansen could operate a machine on the
production floor while being confined to the quality control room.
Harmer testified that the function of the quality control in-
spectors was discussed during negotiations and that the Com-
pany had told the Union their function was to advise man-
agement.
Harmer stated that when Rosario came back to work, she
inspected newly produced compacts, she used the quality
control room once or twice a week, and she provided relief
to the machine operators. It is not necessary to use the meas-
uring devices in the quality control room all the time; usually
one can tell by looking whether there is a problem with the
product, Harmer said, pointing out that the Company pro-
duces cosmetics containers, not spacecraft.
2. Helen Jansen
Jansen began as a full-time machine operator in 1987 and
then became a quality control inspector. She was active in
bringing the Union to the Company and she was a member
of the Union’s negotiating committee.
Jansen described her duties as consisting of checking pro-
duction at the machines, checking the pieces in the quality
control room using the various gauges and testing devices,
and informing supervisors of any defects. Jansen used forms
to record the results of her inspections. Once negotiations for
the collective-bargaining agreement commenced, according to
Jansen, her job changed. John Krumenacher told her that she
was going to do range boards. Jansen also did rework in the
quality control room. Jansen testified that in September 1988,
Harmer saw her walking out of the quality control room with
some boxes; he told her to get back into the room and stop
talking to the girls. Jansen stated that she was confined to
the quality control room. She also stated that she did ma-
chine operators work.8 In October 1988, Jansen testified, Su-
pervisor Janet Peters told her to stay in the quality control
room where she belonged.
Peters testified that before the collective-bargaining agree-
ment was signed, Jansen and Mary Jane De Maio were the
two quality control inspectors assigned to her shift. Peters
stated that these two inspectors checked production before it
went out, went around the production lines and checked the
pieces being made, gave breaks to operators, and made up
samples of pieces to send to customers. After the contract
was signed, there were no more lead ladies so Peters and the
quality control inspectors gave breaks.
Jansen stated that in late January 1989, Domingo, a pack-
er, told her that Peters said she had to sweep the floor and
then she was instructed to sort out cardboard and foam. Do-
mingo is not a supervisor and it was not explained how this
incident arose. Peters denied instructing Domingo to tell Jan-
sen to sweep the floor. According to Peters, machine opera-
tors are not assigned to sweep floors; the Company employs
people to do this. But, on occasion, a machine operator
might clean up around a machine if the machine is idle and
the operator has nothing to do. I find that Peters did not in-
struct Jansen to sweep the floor.
Jansen took a leave of absence due to personal reasons.
She was scheduled to return to work on March 15 or 16,
1989, but she did not return until March 19 at which time
she informed Personnel Manager Maureen Leverich that she
wanted to quit. Leverich told her that she was fired for not
returning on time. Jansen testified that she resigned because
she wanted to be a quality control inspector, not a machine
operator. Jansen began a training program for a new job at
a nursing home while she was on her leave of absence. Al-
though the training program was unpaid, it appears that at
the time of the instant hearing she was earning more at her
new job than she had while in Respondent’s employ.
3. Discussion and conclusions
I have studied the testimony of all the witnesses on this
subject. I find that both Rosario and Jansen exaggerated parts
of their testimony on this subject. Both testified that they no
longer did their quality control inspection jobs after a certain
time when the Union came to the plant. However, both were
later brought to concede that they did a certain amount of
work identical to what they had done before the Union.
Rosario did what she considered to be quality control work
several hours per day. Inspection reports were introduced
into evidence and other witnesses gave credible testimony
concerning their duties and use of the quality control room.
I find that Rosario and Jansen were not very reliable on the
subject of their job duties. Further, Jansen was confused and
angry on the witness stand. Her recollection seemed inexact
and she was unpersuasive.
Both Rosario and Jansen testified that they could not stand
the way they were treated on the job and that they were
forced to quit. Their alleged constructive discharges were
based on changes in the content of their job duties as well
as on their working conditions. Rosario and Jansen testified
that they were no longer doing quality control inspector du-
ties. It is uncontroverted that they were no longer inspecting
the compacts as they were being manufactured on the ma-
chines. Both Rosario and Jansen were told, sometime in the
fall 1988, that they would no longer inspect the products on
the production line, but that they would inspect them in
boxes. The inspections were carried out either in the quality
control room or in the nearby finished goods area. In addi-
tion, when Krumenacher replaced Quillian in the summer
1988, he began replacing the forms that Quillian had used
for quality control inspection reports with new forms of his
own devising. Further, when Krumenacher left Respondent’s
employ in April 1989, Harmer took over some aspects of
quality control supervision while a new manager was being
trained. At this time, the job changed again. I credit Harm-
er’s explanation that he decided to have quality control in-
spections carried out away from the machines and to prohibit
the quality control inspectors from speaking to the machine
operators about their work in order to prevent disruptions to
the production line. Harmer wanted the inspectors to offer in-
formation to management so that management could decide
what action to take; he did not want the inspectors to have
the authority to stop the production line because they per-
ceived a problem with the quality of the production. The
record establishes that all quality control inspectors were
given these instructions, not just Rosario and Jansen. Further,
although it is clear that Rosario and Jansen did not use the
instruments in the quality control room as often as they did
at the beginning under Quillian’s direction, it is clear that
none of the inspectors do so. I find that management
changed the duties of the quality control inspectors in accord
with its perception of the best way to conduct its business.
302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 The term ‘‘loose cannon’’ dates from the days of wooden war
ships when muzzle loading cannon, mounted on heavy wooden
wheels called ‘‘trucks,’’ were controlled by a system of ropes and
pulleys. The cannons were moved forward to extend the muzzles
through gun ports for firing. After being fired, the cannons were re-
tracted to give the gun servers access to the muzzles in order to
swab the barrels—killing any live sparks—before reloading with
powder and shot. Then, the cannons would be rolled so that they
again projected through the gun ports. On occasion, the ropes used
to pull a cannon back and forth would part or be burned, and the
men serving the cannon would be unable to control or restrain it.
The cannon would then roll uncontrollably around the gun deck,
changing direction with each roll of the ship. Such a loose cannon
was virtually unstoppable and highly destructive to anything on the
gun deck, especially the men.
10 There is no reliable proof that such an offer was made. It seems
likely that Kramer heard that certain red circled titles were to receive
a signing bonus under the newly executed collective-bargaining
agreement and that she misunderstood the information.
The duties of the inspectors also changed in that they were
required to give breaks to machine operators for a certain
time during the day. The lead ladies who used to give these
breaks are no longer employed at the plant. As a result, both
supervisors and inspectors give breaks to the machine opera-
tors. The evidence establishes that Rosario and Jansen were
not singled out in this respect; all inspectors give breaks for
1 to 2 hours per day since the discontinuance of the lead
lady position. Further, I do not credit the testimony of
Rosario and Jansen that before the signing of the collective-
bargaining agreement they never gave breaks. Rather, I credit
Dilan, Harmer, and Peters that quality control inspectors used
to give breaks on an occasional basis before the Union came
on the scene.
Both Rosario and Jansen obviously resented doing ‘‘re-
work,’’ that is, culling unacceptable compacts from a box of
finished goods and repacking the box with usable items.
Both Dilan and Harmer credibly described this task as part
of the quality control inspectors’ duties. I agree. Rework in-
volves a decision whether a compact meets the buyer’s
standard. No reasoned argument has been made to show why
this work, which involves the application of quality control
judgment, is different from the other duties performed by the
inspectors. The fact that the compacts may already have been
packed in a box is irrelevant.
I cannot find that Rosario and Jansen were confined to the
quality control room as a punitive measure. The facts do not
support such a conclusion.
The Board has stated its standards for a finding of con-
structive discharge in EDP Medical Computer Systems, 284
NLRB 1232, 1234 (1987):
it must first be proven that the burdens on the employee
caused, and [were] intended to cause, a change in work-
ing conditions so difficult or unpleasant as to force the
employee to resign. Second, it must also be shown that
these burdens were imposed because of the employee’s
union or other protected concerted activities.
In the instant case there was no reduction in the pay of
either Rosario or Jansen. There was no testimony comparing
the machine operator job with the quality control job that
would tend to show the relative merits of each job. No facts
were presented to show in what way, if any, relieving opera-
tors for their breaks, doing rework, and inspecting compacts
away from the machines rather than at the machines were
tasks that were difficult or unpleasant. It seems to me that
the unspoken content of Rosario’s and Jansen’s testimony
was that they perceived some power or prestige in the ability
to inspect compacts at the machines and in the more frequent
use of the measuring devices in the quality control room.
Further, Quillian had obviously inspired them with a sense
of the importance of their mission, and they disagreed with
any alteration in the regime he had instituted. While the dili-
gence and pride in their work of Rosario and Jansen is admi-
rable, it was not unlawful for the Company to change its em-
ployees’ job duties according to the needs of the organiza-
tion. Thus, the facts do not support a finding that Rosario
and Jansen were constructively discharged and that Rosario
was not returned to her former position on her reinstatement
in April 1989.
Although Sanchez’ comments on the subject of the change
in duties of quality control inspectors were unlawful, as will
be discussed below, I do not find them dispositive on the
issue of constructive discharge. Sanchez voiced his strong
antiunion sentiments without restraint, but he was not shown
to have any role in deciding the specific duties of quality
control inspectors. The slight probative value of his com-
ments is far outweighed by the evidence I have considered
concerning the reasons for the various changes in the duties
of inspectors as well as the evidence showing what those du-
ties were before the signing of the collective-bargaining
agreement.
C. Alleged Threats, Promises, and Solicitation
1. The facts
About October 5, 1988, according to Rosario, Foreman
Sanchez saw her doing rework and asked her how she felt
not doing quality control inspection. He said, ‘‘That fucking
union of yours is doing all this’’; later he told her that Harm-
er was making plans to get rid of all the union activists be-
cause they were responsible for bringing the Union to the
plant.
As is more fully described below, Respondent contends
that it told the Union and employees that Sanchez was a
‘‘loose cannon’’ whose statements it disavowed.9
After the contract was signed in mid-October 1988, ac-
cording to Harmer, an employee named Helen Kramer told
him that employees were being offered $200 or $250 for
signing a union membership card.10 Harmer testified that he
spoke to Rosario and told her that she was an agent of the
Union and could be held responsible if someone decided to
take action. Harmer stated that other employees besides Kra-
mer had complained to him, but he was unable to recall their
names. Rosario testified that Harmer came up to her on this
occasion screaming that it was all her fault, ‘‘You and your
damn Union.’’ He took her to his office and told her she
would pay, ‘‘I’m going to see that the company sues the
Union and you and I will see that your job is terminated
here.’’ Harmer denied that he threatened to discipline or dis-
charge Rosario, he only gave her a warning that she might
be held responsible for misrepresentations by the Union. Re-
spondent has offered no theory under which Rosario could
have been held responsible even if a misrepresentation had
303LIR-USA MFG. CO.
11 I note that there is no credible evidence to show that this is true.
12 Sanchez had collected eight signatures on the forms given to
him by Harmer.
13 Diaz is Spanish speaking and testified through an interpreter.
14 Rodriguez is Spanish speaking and testified through an inter-
preter.
15 Ocasio is Spanish speaking and testified through an interpreter.
been made; Harmer did not contend that Rosario herself was
making any misrepresentations. Thus, Harmer’s version of
the conversation is suspect. I shall credit Rosario’s testimony
that Harmer threatened to terminate Rosario and threatened
to involve her in a lawsuit because of her activities on behalf
of the Union.
Jansen testified that in September 1988, Harmer spoke to
her in his office and offered her a position as a junior super-
visor. When Jansen asked how this would affect the Union,
Harmer said she could not be in the Union if she accepted
this position. According to Jansen, Harmer said if she told
anyone about the conversation he ‘‘would slash my tongue.’’
Harmer testified that although he offered Jansen a promotion,
he did not threaten her. I credit Harmer.
In late October 1988, Jansen saw Sanchez at a super-
market. He asked her why she joined the Union. Jansen said
it was to make things better. Then Sanchez said the Union
couldn’t help her and that he would try to get rid of every-
one who started the Union. In November 1988, Jansen met
Sanchez in the cafeteria. Sanchez told her that the Union
could not do anything for her and asked how she liked being
on a machine. When Jansen replied that she would rather be
doing quality control, Sanchez said there was nothing the
Union or anyone else could do. Sanchez was not Jansen’s su-
pervisor. Jansen had been told by Respondent during the ne-
gotiations that Sanchez was a loose cannon and that he did
not speak for the Company.
Harmer testified that in November 1988, some employees
wanted to know how to resign from the Union.11 According
to Harmer, Sanchez asked him how employees could resign
from the Union. Harmer told Sanchez that he could not ap-
proach the employees, but that if they approached Sanchez
he could give the employees a form. Harmer told Sanchez
to have people sign the form and give the original back to
the employees after having made a copy for management.
The evidence shows that on November 11, 1988, Sanchez
approached a number of employees on the plant floor and
asked them what they thought of the Union. Sanchez also
told these employees that if they wanted to avoid problems,
they should sign a paper which he then presented to them.
Sanchez did not allow the employees to read the paper either
before or after they signed it.
The form which Sanchez apparently asked employees to
sign had a place for the employee’s name and the date. The
text was as follows:
It has been reported to me, that you asked the following
member of Management lllllll, if you could
be fined by the Union, in the event of a strike, for
crossing the picket line, because you signed a Union
form.
The following is our reply:
1) We do not know what form you signed, and cannot
therefore comment on its content.
2) However, if you write a letter to the Union, couched
in the following language you will eliminate any obli-
gation to them, and remove any possibility that they
can fine you:
Local 463
IUEESMFW
87-80 Parsons Blvd.
Jamaica, N.Y. 11432
Date:
Gentlemen:
I hereby withdraw any application for membership I
may have made, and resign membership status if I am
a member.
Very truly yours,
3) The Company cannot offer any assistance to you in
writing, typing, copying or mailing your letter to the
Union, but you should make two copies, retaining one
yourself.
4) Please sign this form to acknowledge that you ap-
proached us on this matter, and that no approach was
made by a member of Management.
Harmer testified that when Sanchez was discharged in
April 1989, the originals of the forms were found among his
papers; it then became clear to Harmer that Sanchez had not
followed his instructions about returning originals to the em-
ployees. Harmer denied that he had received any signed
forms from Sanchez and denied that he had instructed
Sanchez to go out on the floor and collect signatures.12
Alba Diaz testified that when Sanchez approached her he
said that President Duranton had sent him over to ask her
opinion of the Union.13 He also said that Duranton wanted
to get rid of the Union. Then Diaz signed the paper which
Sanchez said was necessary to avoid any problems.
Migdalia Carrion Rodriguez testified that when Sanchez
came to her machine and told her to sign the papers, he
would not tell her the purpose until after she had signed.14
Then Sanchez said the purpose of the papers was to get rid
of the Union and that Duranton had provided the papers.
Sanchez never showed Rodriguez the text of the document
she had signed.
Gloria Ocasio testified that Sanchez came to her machine
and asked her to sign a paper.15 Ocasio did not see what was
written on the paper but Sanchez told her that if she signed
it would protect her job. Sanchez also asked Ocasio what she
thought of the Union. Ocasio signed the paper for Sanchez.
Harmer testified that during the negotiations in October
1988, the Union complained about various actions and state-
ments by Sanchez. Respondent’s representatives told the
Union that Sanchez did not represent the Company, was not
authorized to speak on its behalf, and that he was viewed as
a madman. On April 3, 1989, when Harmer discharged
Sanchez, he admitted guilt to at least two of the unfair labor
practice (ULP) charges filed against the Company: he admit-
ted the incidents with Jansen and Rosario and to making
them miserable on the job. At the exit interview with
Sanchez, Harmer told him that he was loyal and hard work-
ing and that he did a good job. He told Sanchez that he
304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Respondent was cited for several OSHA violations as a result
of the complaint and the inspection. Two of the citations resulted
from Jansen’s complaint that she had been injured: Respondent was
cited for a problem with a heating coil and for uninsulated wires
hanging down.
could not criticize him for his antiunion stance, but that he
had warned him several times about Rosario and that he had
to be careful what he said to unit employees. Harmer gave
Sanchez 3 weeks’ pay and a reference to another plastics
company. Harmer testified that he had kept Sanchez on the
payroll as a supervisor from October 1988 until April 1989,
even though he was a ‘‘madman’’ because he was hard to
replace.
2. Discussion and conclusions
As discussed above, in October 1988, Harmer blamed
Rosario for statements he suspected some union supporters
had made to employees. His blame of Rosario was based
only on the fact that Rosario was a known supporter of the
Union and that she was on the negotiating committee. He
threatened to institute a lawsuit against her and to see that
she lost her job. By these statements, Respondent violated
Section 8(a)(1) of the Act.
It is undisputed that Sanchez taunted Rosario and Jansen.
He told them that it was because of the Union that their du-
ties had been changed and he told them that the union activ-
ists would all be fired. Sanchez saw Rosario at a machine
giving breaks and taunted her again; he told her he had spo-
ken to Duranton and that she should apologize to Duranton
and help him get rid of the Union. Respondent violated Sec-
tion 8(a)(1) of the Act when its supervisor threatened that
nion supporters would be fired, when he suggested that their
duties had been changed because they supported the Union,
and when he tried to coerce Rosario into helping to get rid
of the Union by implying that such help might result in the
assignment of different duties to Rosario.
Contrary to Respondent’s position, I find that Rosario and
Jansen had no reason to doubt that Supervisor Sanchez spoke
for Respondent. On one occasion, Sanchez cited Company
President Duranton as authority for his statements. Although
both Rosario and Jansen were members of the negotiating
committee and had been told during the negotiations culmi-
nating in October 1988, that Sanchez was a ‘‘madman’’ and
‘‘loose cannon’’ and that he did not speak for management,
he was not discharged until April 1989. The notice posted
by Respondent disavowing Sanchez’ actions was not posted
until April 1989. In Broyhill Co., 260 NLRB 1366 (1982),
cited by Respondent, the Company posted the notice repudi-
ating its supervisor’s conduct as soon as it learned of it.
Here, the Company by its own admission, knew as early as
the contract negotiations of fall 1988, that Sanchez was a
‘‘madman’’ and yet it did nothing to rein him in or to let
all the employees know by a formal notice that he did not
speak for management on labor relations. Employees on the
negotiating committee, knowing that Respondent was on no-
tice that Sanchez’ conduct was objectionable, could reason-
ably conclude from the fact that Sanchez was still employed
and still engaging in unlawful conduct that Respondent was
not serious in October 1988, when it disavowed his activi-
ties.
I also find that Respondent was fully responsible for
Sanchez’ actions in soliciting employees to resign from the
Union in November 1988. Sanchez approached employees on
the shop floor while they were working, he asked them what
they thought of the Union, he told them that Duranton had
sent him over to obtain their help in getting rid of the Union,
he told them that they had to sign a paper to avoid problems,
and he said signing the paper would protect their jobs.
Sanchez was interrogating the employees concerning their
union sympathies, he was coercing them into helping the
company president get rid of the Union, and he was threat-
ening them that if they did not sign their jobs were not pro-
tected. Respondent violated Section 8(a)(1) of the Act. It is
of no moment that none of the employees were actually
shown the document they were asked to sign. Sanchez’ mes-
sage was clear; the employees knew they were signing some-
thing to protect their jobs and get rid of the Union.
In Brunswick Food & Drug, 284 NLRB 663 (1987), the
Board affirmed the administrative law judge’s ruling that
‘‘an employer may . . . inform employees of [the right to
revoke their authorization cards], even if employees have not
solicited such information, so long as the employer makes no
attempt to ascertain whether employees avail themselves of
this right nor offers any assistance nor otherwise creates the
impression that employees are in peril by refraining from re-
voking their cards.’’ 284 NLRB at 673, citing Mariposa
Press, 273 NLRB 528 (1984). In the instant case, Sanchez
clearly gave the employees the impression that their jobs
would be in peril if they did not sign the forms he gave
them. Further, he did not inform the employees of their right
to revoke their authorization cards; he told them to sign a
paper to help Duranton get rid of the Union.
D. Alleged Denial of Union Representation
1. The facts
Jansen testified that in January 1989, while she was work-
ing on machine No. 1 she received a static shock and a burn
from the machine. She told a supervisor named Nick and he
said he would tell electrical technician Harry Wu to check
it out. According to Jansen, she also told Peters about the in-
jury. Then she called William J. Monahan, business agent for
the Union. Monahan filed a complaint with OSHA.
On February 6, 1989, Jansen, Union Shop Steward Peter
Starken, and Harmer walked around the plant with the
OSHA inspector. Jansen pointed out the machine that had
given her an injury.16
On February 7, Jansen was called to the conference room
where she met with Harmer and Maureen Leverich, the then
personnel manager. According to Jansen, Harmer asked Jan-
sen what had happened on the machine when she was in-
jured. Jansen asked for union representation by Monahan and
then she asked for and received permission to leave the
meeting. Later that day she was again called to a meeting.
This time Harmer and Leverich had been joined by Super-
visor Peters and Shop Steward Starken. Harmer told Jansen
that he wanted ‘‘to find out what had happened to [Jansen].
With the investigation with OSHA.’’ When Jansen again said
that she wanted Monahan present, Harmer told her that
Monahan was not available within 5 minutes, and, as pro-
vided by the contract, he had asked Starken to attend instead.
Jansen asked what her rights were. Harmer said that if she
did not comply with the OSHA law she would be rep-
305LIR-USA MFG. CO.
17 Starken left Respondent’s employ in August 1989, to accept
other employment.
18 I note that Jansen testified that she notified both Harry Wu and
a supervisor named Nick of the shock she received from the ma-
chine. Although Wu testified that Jansen never told him of the con-
dition, Nick did not testify and his failure to do so was not explained
by Respondent.
rimanded. Jansen repeated that she wanted her union rep-
resentative present and then asked if she could speak to
Starken. Harmer said no. Starken said that they were getting
nowhere because Jansen did not understand what Harmer
was saying. Leverich then said ‘‘we want to find out if what
happened to you was the truth or a lie.’’ Harmer repeated
that Jansen had to comply with the OSHA law because she
had initiated the complaint. He told her that if she did not
cooperate, she would be penalized. Jansen said that she was
willing to cooperate, but only with Monahan present.
Starken testified that he was called to a meeting on Feb-
ruary 7, 1989, and told that he was to represent Jansen be-
cause Monahan was not available.17 Harmer told Jansen that
he had to conduct an investigation and that he needed her
cooperation. He said that if Jansen did not cooperate, the
Company would take disciplinary action against her. Starken
said that Jansen wanted Monahan, but Harmer said that
Monahan was not available. Later Starken repeated that Jan-
sen wanted Monahan and he asked if he could go outside
and talk to Jansen. Harmer refused. Then Leverich asked
Jansen a question about the inspection the day before, but
Jansen refused to answer. Leverich said that the investigation
was to find out if, in fact, there had been an accident, if Jan-
sen had notified anyone from the Company, or if Jansen had
made it up. Jansen refused to answer and she kept insisting
that she wanted Monahan present.
Harmer gave yet another version of the second meeting of
February 7. According to Harmer, he was concerned about
the uninsulated wires hanging down because they belonged
to a component of the machine that had been taken out of
service previously. When the component had been discon-
nected the wires had been fastened in such a way that they
were inaccessible; Harmer clearly believed that the wires had
been deliberately tampered with so that they hung down
from the machine and created a serious hazard. In fact, Re-
spondent’s position is that Jansen never notified it of the haz-
ard and that the hazard had to have been created deliberately,
although Respondent has not suggested who may have been
responsible.18 Harmer testified that he interviewed a number
of employees to find out how long the wires had been hang-
ing down and that no one knew anything about it. When he
tried to interview Jansen, she refused to cooperate. Harmer
testified that he told her that he had an obligation to try to
protect employees from hazards and he asked her if she had
previously reported the hazard to management. Harmer also
stated that Starken told Jansen that the Company had an obli-
gation under OSHA to investigate and find out why a hazard
went unreported. Harmer denied that he told Jansen that the
law required her to cooperate and he did not tell her that if
she refused to cooperate she would be subject to discipline.
Harmer also denied telling Jansen she could not confer with
Starken.
On February 10, 1989, Harmer called Jansen in to a meet-
ing where Monahan was present and told her that he was
issuing a verbal warning to her for refusing to cooperate in
the investigation. When Monahan asked to confer with Jan-
sen prior to the issuance of the warning, Harmer said that
was not necessary under Weingarten. See NLRB v.
Weingarten, 420 U.S. 251 (1975).
2. Discussion and conclusions
As I noted above, Jansen was not the most accurate of
witnesses. In addition, I observed during the hearing that
Harmer felt deep antipathy to the Union and its representa-
tives. Further Starken did not impress me as an accurate wit-
ness. Jansen’s and Starken’s testimony establishes that Jansen
was determined to take no action and make no statement un-
less Monahan was present, and Jansen was not prepared to
rely on Starken. I have studied the testimony of these witness
carefully and have concluded that when Harmer sought to
question Jansen, he did his best to state his purpose accu-
rately and explain that OSHA required that he conduct an in-
vestigation. I find that Harmer told Jansen that she might be
disciplined if she did not cooperate. I find, based on the
uncontradicted testimony of Jansen and Starken, that Per-
sonnel Director Leverich told Jansen that the purpose of the
investigation was to determine whether Jansen was lying
about having been injured by the hanging wires. I also find
that there was no request by Jansen or Starken that they be
allowed to confer; Jansen wanted only her ‘‘Union rep,’’ that
is she wanted Monahan. Indeed, the complaint itself alleges
that on February 7, Jansen requested union representation
and on February 10, Respondent refused to permit Jansen to
confer with Monahan. There is no allegation that Respondent
refused to permit Jansen to confer with Starken on February
7.
The parties agree that Respondent could not deny Jansen’s
request for union representation at an investigatory interview
which she reasonably believed might result in disciplinary
action. NLRB v. Weingarten, supra. Indeed, Respondent
ended the first interview of February 7, 1989, as soon as Jan-
sen said that she wanted a union representative, namely
Monahan. General Counsel concedes that by providing
Starken, who was available, instead of Monahan, who was
not readily available, Respondent fulfilled its obligation to
provide Jansen with union representation at the second inter-
view of February 7. General Counsel argues that the facts
show that Respondent refused Jansen’s request to confer with
Starken before the interview. I have found above that Re-
spondent did not refuse any request for such a conference;
Jansen and Starken did not request to confer. Jansen was ad-
amant that only Monahan would do and she refused to par-
ticipate in the investigatory interview unless Monahan was
present. Thus, Respondent did not violate the act on Feb-
ruary 7, 1989. General Counsel also argues that on February
10, with Monahan present, Respondent again violated the
Act by refusing to let him confer with Jansen before the
interview. The facts convince me that the meeting of Feb-
ruary 10 was not investigatory, but rather that it was solely
for the imposition of previously decided on discipline. There-
fore, Respondent did not violate the Act on February 10,
1989. Baton Rouge Water Works Co., 246 NLRB 995, 997
(1979).
306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
E. Alleged Unilateral Change
1. The facts
Article 15 of the collective-bargaining agreement provides,
in relevant part:
(d) Duly accredited representatives of the Union will be
permitted to visit the plant for the purposes of admin-
istering the contract provided the following conditions
are met:
. . . .
(iv) the Union must give at least twenty four (24)
hours written notice of such visit;
Article 26 of the collective-bargaining agreement provides
in relevant part:
Step One
(a) In the event any employee or the Union has a griev-
ance, the aggrieved employee, or Union Steward . . .
shall within three (3) working days of the date of the
incident . . . file . . . a grievance.
Step Two
(b) If, within three (3) working days of the Company’s
receipt of the grievance, there has been no resolution
. . . the Union may . . . notify the President or his
designee that it wishes to discuss the matter. Said noti-
fication shall be in writing, and shall be submitted no
later than three (3) working days of any written Com-
pany response to the grievance, or if no such response
is made within the time set forth above, no later than
six (6) working days from the date of the initial filing.
(c) The Company shall offer to meet . . . with the
Union for the purpose of discussing the grievance. The
Company shall designate three (3) meeting times . . .
and dates. . . . The Union shall select one of these
times and dates.
Monahan testified that the Company always furnished its
three suggested dates by mail for a Step 2 meeting and the
Union responded by mail. According to Monahan, he did not
submit any additional request to attend a Step 2 meeting
other than his written acceptance of one of the dates pro-
posed by the Company. Concerning plant visits, Monahan
stated that he always submitted a written memo giving 24
hours’ notice of such a visit and that lately the Union has
used a fax machine to give such notices.
Monahan testified that he submitted a grievance on behalf
of employee Barbara Johnson on April 11, 1989, concerning
an incident that occurred on April 7, 1989. No response
being forthcoming from Respondent, Monahan requested a
Step 2 meeting by letter of April 19, 1989. On April 20,
Harmer replied by letter to Monahan, stating that although
the request for the Step 2 meeting had not been received
until the 20th and was thus untimely, Respondent was never-
theless willing to meet for further discussion of the matter.
Harmer’s letter offered to meet on April 25, 26, or 27 at 8
a.m. Monahan received Harmer’s letter during a plant visit
on Friday, April 21. On Monday, April 24, he called Nancy
Kuehne, the newly appointed personnel director, and told he
her would accept the date proposed for the next day, April
25. Monahan testified that Kuehne said the response had to
be in writing and had to give 24 hours’ notice; then
Monahan changed his testimony to say Kuehne did not men-
tion 24 hours’ notice. Monahan told Kuehne that he would
deliver his written acceptance later that evening; he did in
fact give an employee at the plant a letter for Harmer stating
that he would be at the plant on April 25 at 8 a.m. Monahan
testified that when he presented himself at the plant the next
morning, Harmer would not admit him for the meeting be-
cause he had not given 24 hours’ notice.
Kuehne testified that she was new to her job on April 24,
1989, when Monahan called her to say he would come the
next day for the meeting. After she spoke to Monahan on the
telephone, she reported her conversation to Harmer who told
her that Monahan had to give written notice. Kuehne then
telephoned Monahan and informed him that written notice
was required. When this second conversation was reported to
Harmer, he told Kuehne that it was too late for Monahan to
give the Company 24 hours’ written notice because Monahan
proposed to meet the next day at 8 a.m. Kuehne then made
another call to Monahan and informed him not to come to
the plant the next day.
Harmer testified that since the execution of the collective-
bargaining agreement, union representatives have never come
on the plant property without giving 24 hours’ notice. Re-
spondent submitted into evidence a number of plant visita-
tion notices from the Union together with some grievance
documents. These show that grievance meeting dates pro-
posed by Respondent were always accepted at least on the
day before the meeting was scheduled to be held. However,
since they bear only a time stamp and no testimony was of-
fered to show whether they were stamped immediately on re-
ceipt or whether they were held for several hours before
being stamped received, I cannot find that these documents
show conclusively that the acceptance was received at least
24 hours before the meeting was to be held. On the other
hand, I credit Harmer’s uncontradicted testimony that union
representatives have never been on the premises without hav-
ing given 24 hours’ notice.
2. Discussion and conclusions
The contract language quoted above is clear and unambig-
uous. It provides that union representatives may visit the
plant for the purposes of administering the contract on 24
hours’ written notice. Manifestly, the grievance procedure is
part of the administration of the contract. There is nothing
in the language of the grievance steps to negate the require-
ment of 24 hours’ notice. Where the contract is clear, it is
unnecessary to consult the bargaining history or past practice
at the plant. However, I note that the testimony establishes
that, in practice, union representatives have never entered the
plant without giving 24 hours’ notice.
General Counsel’s brief seems to rely on a distinction be-
tween the presence at the plant of union representatives for
plant visits and for Step 2 grievance meetings. General
Counsel apparently argues that when union representatives
are at the plant for a grievance meeting they are not there
for a plant visit. But the collective-bargaining agreement
does not make any such distinction. It speaks only of plant
visits for the purpose of administering the contract. There is
307LIR-USA MFG. CO.
19 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
20 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
no way to read this contract so that conducting a grievance
meeting does not constitute administering the contract.
I find that Respondent did not unilaterally institute a new
requirement of 24 hours’ notice before conducting a griev-
ance meeting by refusing to meet with Monahan at the plant
on April 25, 1989.
F. Other Allegations of the Complaint
The complaint alleged other violations. No evidence was
adduced concerning some of these, and as to others, General
Counsel seems to have abandoned the allegations at the time
of writing the brief. I find no evidence that Respondent de-
nied bathroom privileges to employees, denied insurance
coverage to Rosario, promised its employees promotions if
they abandoned the Union, nor that it engaged in the myriad
other violations alleged.
CONCLUSIONS OF LAW
1. 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 full-time and regular part-time production and
maintenance employees, inspection employees, shipping
and receiving employees and warehouse employees em-
ployed by Respondent at its Yaphank facility; but ex-
cluding all office clerical employees, professional em-
ployees, guards and supervisors as defined in Section 2
(11) of the Act.
2. At all times material, the Union has been the exclusive
representative of the employees in the appropriate unit de-
scribed above for the purposes of collective bargaining with-
in the meaning of Section 9(a) of the Act.
3. By threatening its employees that it would file a lawsuit
against them and that they would lose their jobs because of
their support for and activities on behalf of the Union, Re-
spondent violated Section 8(a)(1) of the Act.
4. By informing its employees that they had been given
different job duties because of their support for the Union
and by promising employees assignment to new job duties if
they abandoned the Union, Respondent violated Section
8(a)(1) of the Act.
5. By coercively interrogating its employees concerning
their support for the Union and by threatening employees
that if they did not sign a paper to get rid of the Union their
jobs would not be protected, Respondent violated Section
8(a)(1) of the Act.
6. General Counsel has not shown that Respondent en-
gaged in unfair labor practices other than those found herein.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended19
ORDER
The Respondent, LIR-USA Manufacturing Co., Inc.,
Yaphank, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening employees that Respondent will file a law-
suit against them and that they will lose their jobs because
of their support for and activities on behalf of the Union.
(b) Informing employees that they have been given dif-
ferent job duties because of their support for the Union and
promising employees assignment to new job duties if they
abandon their support for the Union.
(c) Coercively interrogating its employees concerning their
support for the Union and threatening employees that if they
do not sign a paper to get rid of the Union their jobs will
not be protected.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its plant in Yaphank, New York, copies of the
attached notice marked ‘‘Appendix.’’20 Copies of the notice,
in English and in Spanish, on forms provided by the Re-
gional Director for Region 29, 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. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten our employees that we will sue
them or discharge them because of their support for and ac-
tivities on behalf of Local Union 463, International Union of
Electronic, Electrical, Salaried Machine and Furniture Work-
ers, AFL–CIO.
WE WILL NOT inform our employees that they have been
given different job duties because they support the Union
and WE WILL NOT promise them assignment to new job du-
ties if they abandon their support for the Union.
WE WILL NOT coercively interrogate our employees con-
cerning their support for the Union.
WE WILL NOT threaten our employees that their jobs are
not protected unless they sign a paper to get rid of the
Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
LIR-USA MANUFACTURING CO., INC.