Moldamatic, Inc.

National Labor Relations Board - Board Decisions

Apr 28, 1976

223 N.L.R.B. 1096 (N.L.R.B. 1976)

1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moldamatic, Inc. and International Society of Skilled
Trades. Case 4-CA-7158
April 28, 1976
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
On August 5, 1975, Administrative Law Judge
Anne F. Schlezinger issued the attached Decision in
this proceeding. Thereafter, General Counsel filed
exceptions and supporting brief and Respondent
filed cross-exceptions to the Decision and a response
to General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
We find merit in the exceptions raised by the Gen-
eral Counsel regarding the legality of Respondent's
interrogation of certain employees concerning their
receipt of union authorization cards and its treat-
ment of Kevin Konski.
On November 27, 1974, after William Spolar, pres-
ident of Moldamatic , Inc., had been given a union
authorization card and union button by Henry
Schickling, president of ISST, Spolar called a meet-
ing with three employees whom he believed had also
been approached by Schickling as they reported for
work. According to the Administrative Law Judge's
crediting of witnesses , Spolar proceeded to question
the employees, including Kevin Konski, about their
receipt of the union cards from Schickling, indicating
that he was chiefly concerned about where they had
received them. While stating that the cards were
"good union cards," as the Administrative Law
Judge found, and that the employees could sign or
not as they wished, Spolar ordered them not to en-
gage in any union activity on company time or prop-
erty, conduct similarly prohibited by newly posted
company rules,' and further threatened to lay off em-
ployees and replace them with supervisors, family
members, or friends, if they selected a union bargain-
ing representative.
The Board agrees that the statements restricting
1 The Administrative Law Judge found , and we agree, that the rules post-
ed by the Respondent interfered with , restrained , and coerced the employ-
ees in violation of Sec . 8(axl) of the Act.
union activities in the plant and the threatened possi-
ble result of the employees' selection of a union bar-
gaining representative violated Section 8(a)(1) of the
Act. We disagree, however, with the finding that the
interrogation as to where the cards were received in
the circumstances was not a violation as well. Stand-
ing alone the interrogation may have been permissi-
ble as an attempt to secure information about possi-
ble breaches of plant security, but coupling it with
clearly coercive statements discouraging union activ-
ity had the effect of removing from it whatever pro-
tection it might otherwise have had. Therefore, we
find that both the interrogation of the employees
about where they were given cards, and the coercive
statements that immediately followed, constituted vi-
olations of Section 8(a)(1) of the Act.
During the above-mentioned interrogation, Spolar
asked Konski where he had received his union card.
Konski answered that he had received it by the gate.
While momentarily accepting that answer, later that
morning Spolar approached Konski at his workplace
and again inquired where he had received the card.
Konski reiterated it had been given to him by the
gate. But , when confronted with information appar-
ently supplied by Spolar's son, Konski admitted hav-
ing actually received the card by the large bay door
of the plant. Konski testified that he had lied because
he was afraid of getting himself or Schickling in trou-
ble in view of the new rules.
On December 3, 1974, Konski was told to report to
the production office where Spolar informed him
that he was going to discharge him. Among the rea-
sons offered for the proposed discharge were that
Konski had lied about where he received the union
card and why he was present in the plant late the
night before. Konski's explanation for his presence
was that he had returned after music practice to pick
up a thermos bottle he had forgotten.' Both Konski
and Kenneth Jacobs, a foreman present on this occa-
sion, testified that Spolar stated that the reason he
disbelieved Konski's explanation was because of the
earlier lie about the union card. After employee Hel-
en Simpson interceded on Konski's behalf, Spolar
granted him an opportunity later that day for further
explanation. Spolar was unimpressed with Konski's
explanation. He testified that he told Konski that he
was not sure whether this was a permanent termina-
tion and that "even then I felt bad about the boy so
I asked him to come back to see me in about a
week," and offered to review the decision at that time
but Konski never returned 3
2 Konski lived next to the plant and had started doing odd jobs for Spolar
at an early age.
J An unemployment compensation form signed by Spolar reads: "Mr.
Konski was told at the time of his dismissal , to report back in I week for
review and possible rehire . Mr. Konski was told this without prejudice. Mr.
223 NLRB No. 166
MOLDAMATIC, INC. 1097.
The Administrative Law Judge found that Konski
was discharged as the result of an accumulation of
plant rule violations but that, although his lie about
receipt of the union card was among the reasons giv-
en, its inclusion did not show discrimination to dis-
courage union activity. We do not agree with these
conclusions. In the first place, we view the discipli-
nary action taken against Konski to have been in
reality in the nature of a disciplinary suspension rath-
er than a permanent discharge. And we note that,
though finding Konski evasive and unconvincing, the
Administrative Law Judge did not discredit his testi-
mony that he was aware of the no-solicitation and
no-distribution rules, which in agreement with the
Administrative Law Judge we find unlawful, and was
fearful for himself and Schickling if he told the truth.
That lie played an additional part in the action taken
by Spolar who did not believe the otherwise plausible
reason Konski gave for entering the plant late the
night before.4 Thus it appears that a moving consid-
eration was the lie connected with his union activity
in receiving a union card on November 27. In the
circumstances we find this suspension during the or-
ganizing campaign, following so closely upon
Konski's receipt of a union card, constitutes a viola-
tion of Section 8(a)(3) and (1) of the Act.'
Member Jenkins objects to limiting Kevin
Konski's remedy of backpay to 1 week, because in
his view the termination was a permanent discharge.
In our view the record also supports the equally rea-
sonable inference that Spolar's action was essentially
in the nature of disciplinary suspension. We believe
the second conclusion is the more appropriate in
view of all the circumstances, and are, therefore, led
to the further conclusion that Konski should have
returned to the Respondent as requested, if he is to
be granted backpay for the entire period. His failure
to do so without explanation justifies the limiting of
backpay in this case to 1 week.
As Member Jenkins posits, the traditional remedy
for an unlawful discharge includes backpay until the
discriminatee receives a clear, unconditional offer
of reinstatement. While the Respondent used such
language as "discharge" in the interviews with Kon-
ski and stated in its answer that it discharged and
refused to reinstate him,6 the record is replete with
Konski did not come back . The reason for his dismissal was as follows .. .
(penalty dismissal ) for I week . Subject to review upon return."
Spolar told Konski in both interviews that he had "tarnished his reputa-
tion for truthfulness" when he admittedly lied about where he got the union
card. (ALJD, fn. 7).
5 Inasmuch as Konski was told to return in a week but failed to do so
apparently of his own accord , we shall limit the amount of backpay to the
period of a week plus whatever time elapses from the date of application by
Konski for rehire until the application is accepted by the Employer , assum-
ing the application is made within a reasonable time.
A literal interpretation of the answer presents problems inasmuch as,
evidence that Spolar viewed his action as a discipli-
nary suspension rather than an outright termination.
Spolar testified he never decided in his own mind
that the separation was permanent.. Both Spolar and
Konski testified that Spolar told Konski to report
back to him for reconsideration. Additionally, Spolar
wrote the unemployment office that Konski was dis-
missed as a penalty for 1 week subject to review upon
return.
While Spolar's underlying. antiunion motivation
for penalizing Konski cannot be justified, it is clear
that Spolar was concerned about Konski 's welfare
during his prospective unemployment and wanted
him to return after the 1-week period. This is sup-
ported by Spolar's testimony that "even then I felt
bad about the boy so I asked him to come back and
see me within a week or two-a week I think it was-
I'm not sure." Konski himself stated Spolar ex-
pressed concern that he,be able to collect unemploy-
ment compensation until he returned or got another
job. "And he said. that instead of firing me, he dis-
missed me with prejudice so that I would be able to
collect unemployment. And he also told me to come
back in a week or a month, or after I find another
job, if I don't like that job, to come back and he
would reconsider."
In Member Jenkins' view, Spolar's remark was
nothing more than an invitation to explore possible
reinstatement under terms and conditions that were
far from clear. But such an interpretation takes no
account of the context of the unusual employee-em-
ployer relationship in which it was made. The Ad-
ministrative Law Judge felt the remark and the rela-
tionship were both worthy of serious consideration.
The Administrative Law Judge specifically noted
the particular relationship between Spolar and Kon-
ski, including Konski's growing up next door to the
plant, his early employment at the plant at age 11, his
recall to work from an economic layoff before others,
and his prompt recall (the next day) from a discipli-
nary layoff in November. On the basis of these inci-
dents and especially the fact that Spolar had told him
to come back in about a week, the Administrative
Law Judge concluded Spolar had no malice toward
Konski. It was to a significant extent because of
Spolar's request that Konski return, "in all relevant
circumstances," that the Administrative Law Judge
concluded. that Spolar had not discharged Konski to
discourage union organization of his employees.
The Administrative Law Judge refers to the action
taken by Spolar as a discharge, but it should be noted
that, because of her decision that the action was not
a violation, it was not necessary for her to reach the
specific question of the nature of the action or the
based on Konski 's testimony, there was no refusal to reinstate.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate remedy to be given Konski in view of his
failure to return as specifically requested.
Member Jenkins also questions the adequacy of
Spolar's offer in that he finds it "general" and
"vague." Since we view this case as involving a ]-
week suspension, rather than an outright discharge,
we find that the primary burden of Konski's contin-
ued unemployment rests on him for his failure to
return as requested. This is not a case where the em-
ployee had to formally reapply. It is true that Spolar
spoke in terms of "review" or "reconsideration," but
because of the relationship between Spolar and Kon-
ski, we cannot find that these expressions were suffi-
cient to negate the impact of the offer. It should be
noted in this regard that Spolar's request was not
conditioned upon or otherwise limited to any act of
Konski's, except that he return.
The instant case is distinguishable from Van Deu-
sen,7 cited in the dissent, in that the discriminatee was
suspended for only I week (for which period full
backpay has been awarded) and that, unlike the Re-
spondent in Van Deusen, Spolar did not wait until the
Board hearing or proceeding to make his offer of
reinstatement . On the contrary , Spolar made his offer
contemporaneously with the disciplinary action it-
self. We view this request as a good-faith expression,
albeit in a context of discrimination, that Konski
would be returned to his former status without con-
dition or concession.
To award backpay for the entire period involved,
if this is to be considered a discharge rather than a
disciplinary suspension , seems unjustified in the total
context, including the ease with which Konski could
have returned to the plant next door to check with
the man who had in many ways befriended him. This
decision should not be read as an indication to em-
ployers that they can limit their liability for their un-
lawful acts by making similar requests . Rather, this
decision should be considered in the narrowness of
the facts presented, and be read only as standing for
the proposition that the Board necessarily takes into
account record facts in awarding "traditional" reme-
dies.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for paragraph 3 of the
Administrative Law Judge's Conclusions of Law:
"3. By promulgating and maintaining employee
rules prohibiting solicitation and distribution of liter-
ature on company time or property, by ordering em-
ployees not to engage in any union activity on com-
7 N.L.R.B. v. Maynard K. Van Deusen, 138 F.2d 893 (C.A. 2. 1943), enfg.
45 NLRB 679 (1942).
pany time or property, by interrogating employees
about their union activities, and by threatening to lay
off employees and replace them with supervisors,
family members, and friends if the employees select-
ed a union bargaining representative, the Respon-
dent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in
Section 7 of the Act."
2. Renumber paragraph 4 as 5 and insert the fol-
lowing:
"4. By suspending Kevin Konski on December 3,
1974, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of
the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent Molda-
matic, Inc., Penndel, Pennsylvania, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the International
Society of Skilled Trades, or any other labor organi-
zation, by suspending, discharging, or otherwise dis-
criminating against any employee with respect to his
hire, tenure, or any other term or condition of em-
ployment.
(b) Promulgating and maintaining employee rules
prohibiting solicitation and distribution of literature
on company time or property, ordering employees
not to engage in any union activity on company time
or property, threatening to lay off employees and re-
place them with supervisors, family members, and
friends if the employees select a union bargaining
representative, and interrogating employees about
their union activities, in order to discourage union
membership and activity.
(c) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer to reinstate Kevin Konski, upon applica-
tion, to his former position or, if that position no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges.
(b) Make whole Kevin Konski for any loss of
earnings he may have suffered by reason of the un-
lawful action taken against him for the period of I
week immediately following his suspension, and for
the period beginning from the date of Konski's appli-
cation until the offer of reinstatement, as set forth
MOLDAMATIC, INC. 1099
above, in the manner provided in F. W. Woolworth
Company, 90 NLRB 289 (1950), together with interest
at the rate of 6 percent per annum to be computed in
accordance with the formula prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its plant in Penndel, Pennsylvania, cop-
ies of the attached notice marked "Appendix." 8 Cop-
ies of said notice, on forms provided by the Regional
Director for Region 4, after being duly signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
MEMBER JENKINS , concurring and dissenting in part:
I agree with my colleagues in all respects, except
that I find that discriminatee Konski was perma-
nently discharged, as the Respondent has indeed ad-
mitted and as the Administrative Law Judge found,
and not merely "suspended," as my colleagues assert.
The Respondent in its answer admitted, as alleged
in the complaint, that:
On or about December 3, 1974, the Respondent
discharged or terminated its employee, Kevin
Konski, and, at all times since then . . . has
failed and refused, and continues to fail and re-
fuse, to reinstate Kevin Konski to his former or
substantially equivalent position or employ-
ment.
And Respondent President Spolar's own testimony
that he "discharged" Konski removes all doubt on
the matter.9 Yet my colleagues find otherwise, relying
on Spolar's further testimony that at the time of the
termination "I wasn't sure this was-whether his
8In the event that 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."
9 Thus, Spolar substantially corroborated Konski 's testimony that Spolar
"dismissed me with prejudice so that I would be able to collect unemploy-
ment."
would be a permanent termination." But there is no
record evidence that Spolar ever shared these views
with Konski; indeed, as my colleagues concede,
Spolar's doubts about the permanence of the dis-
charge existed only "in his own mind." Therefore, as
Konski could not divine Spolar's hidden inten-
tions, I am compelled to find, as Respondent has
admitted, that Konski was discharged.
The traditional remedy in such unlawful discharge
cases has always included, inter alia, backpay until
the discriminatee receives a clear, unconditional of-
fer of reinstatement to his former job, or to a sub-
stantially equivalent position, without prejudice to
seniority or other rights and privileges. See, e .g., New
York Handkerchief Manufacturing Co., 16 NLRB 532,
559-560, fn. 24 (1939), enfd. 114 F.2d 144 (C.A. 7,
1940), cert. denied 311 U.S. 704; N.L.R.B. v. May-
nard K Van Deusen, etc., 138 F.2d 893, 895 (C.A. 2,
1943), enfg. 45 NLRB 679 (1942).
In my view, my colleagues have departed from the
foregoing principles by initially tolling backpay for
Konski at 1 week after his discriminatory termina-
tion, solely because during the course of the Decem-
ber 3 discharge interview President Spolar remarked
that Konski could "come back and see me in about a
week" for a review of the matter.10 To me, Spolar's
statement is at best nothing more than an invitation
to Konski to explore possible reinstatement under
the terms and conditions that are far from clear.
Such "general" and "vague" remarks hardly satisfy
the specific requirements of the valid offer of rein-
statement to which Konski is lawfully entitled.
N.L.R.B. v. Van Deusen, supra. Thus, I can attach no
significance to Konski's unwillingness to respond to
faint overtures of "possible rehire" . . . "Subject to
review" . . . "in about a week," or "a month." For
from the very beginning the Board has held in like
situations that unlawfully discharged nonstriking em-
ployees need not apply for nor seek the terms of their
own reinstatement. See Pennsylvania Greyhound
Lines, Inc., 1 NLRB 1, 38 (1935), enfd. in pertinent
part 91 F.2d 178 (C.A. 3, 1937), enfd. in full 303 U.S.
261 (1938).
Moreover, I find unpersuasive the exception my
colleagues make to the foregoing principles. True,
Konski, 18, lived next door to Respondent's plant,
and Spolar had occasionally befriended him since he
was first employed at age 11. But, as they agree, this
"particular relationship" neither prevented Spolar
from unlawfully discriminating against Konski nor
impelled Spolar to offer, by way of remedy, more
than a "reconsideration" or "review" of his own mis-
10 According to Konski 's testimony, Spolar "told me to come back in a
week or a month , or after I find another job , if I don 't like that job , to come
back and he would reconsider."
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct. Bluntly stated, I think that this preoccupa-
tion with a past friendship only serves to confuse the
fact that statutory rights were violated and, as yet,
have not been vindicated.
Because I view Konski's termination as a dis-
charge, as shown, and the remedy wholly inadequate
to meet the violation committed, I respectfully dis-
sent.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT discourage membership in the
International Society of Skilled Trades, or any
other labor organization, by suspending, dis-
charging, or otherwise discriminating against
employees with respect to their hire, tenure, or
any other term or condition of employment.
WE WILL NOT promulgate or maintain employ-
ee rules prohibiting solicitation and distribution
of literature on company time or property, order
employees not to engage in any union activity
on company time or property, threaten to lay off
employees and replace them with supervisors,
family members, and friends if the employees
select a union bargaining representative, or in-
terrogate employees about their union activities,
in order to discourage union membership or ac-
tivity.
WE WILL offer Kevin Konski, upon applica-
tion, immediate and full reinstatement to his for-
mer job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice
to his seniority or other rights and privileges,
and WE WILL make him whole for any loss of
pay he may have suffered by reason of our dis-
crimination against him for the 1-week period
immediately following his suspension, and the
period extending from the date of his applica-
tion for rehire until we make such offer of rein-
statement.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed in Section 7 of the Na-
tional Labor Relations Act.
DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Administrative Law Judge: Upon
a charge filed on December 4, 1974, by International Soci-
ety of Skilled Trades, referred to herein as the Charging
Party or the Union, the General Counsel, by the Regional
Director for Region 4 (Philadelphia, Pennsylvania), issued
a complaint and notice of hearing on April 30, 1975. The
complaint, as amended at the hearing, alleges in substance
that Moldamatic, Inc., herein called the Respondent, inter-
rogated employees with regard to union activities, threat-
ened to close the plant down or operate solely with family
members if the employees selected the Union as their bar-
gaining representative, promulgated and maintained a rule
prohibiting union solicitation and distribution of union lit-
erature on the Respondent's time or property, and dis-
charged or terminated employee Kevin Konski on or about
December 3, 1974, and at all times since then has failed
and refused to reinstate him, because of his union activity,
and thereby engaged in unfair labor practices in violation
of Section 8(a)(1) and (3) of the National Labor Relations
Act. The Respondent, in its answer duly filed, as amended
at the hearing, admits some of the factual allegations of the
complaint, but denies that it engaged in any conduct viola-
tive of the Act.
Pursuant to notice, a hearing was held before me at Phil-
adelphia, Pennsylvania, on June 9 and 10, 1975. All the
parties appeared at the hearing and were afforded full op-
portunity to be heard, to examine and cross-examine wit-
nesses , and to introduce relevant evidence. Subsequent to
the hearing, on or about July 16, 1975, the General Counsel
and the Respondent filed briefs which have been fully con-
sidered.
Upon the entire record in this case and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times material
herein , a Pennsylvania corporation engaged in the manu-
facture of plastic component parts at its sole facility in
Penndel , Pennsylvania . During the past year , the Respon-
dent sold products valued in excess of $50,000 directly to
customers located outside the Commonwealth of Pennsyl-
vania . During the same period , the Respondent purchased
goods valued in excess of $50,000 directly from sources
located outside the Commonwealth of Pennsylvania. The
complaint alleges , the Respondent in its answer admits,
and I find , that the Respondent is, and has been at all
times material herein , an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
MOLDAMATIC, INC.
It. THE LABOR ORGANIZATION INVOLVED
The complaint alleges , the Respondent at the hearing
amended in its answer to admit for the purposes of this
MOLDAMATIC, INC. 1101
proceeding, and I find, that the Union is, and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges , and the Respondent in its answer
admits, that William Spolar is president of the Respondent
and an agent and supervisor within the meaning of Section
2(11) of the Act. The record shows, as Spolar admitted,
that his son and Jacobs, a foreman, are also supervisors
within the meaning of the Act. The supervisory status of
DiCampello and Smith, operating setup men, was disput-
ed.
The complaint also alleges, and the Respondent in its
answer admits, that the Respondent on or about Novem-
ber 18, 1974, promulgated and at all times thereafter main-
tained a rule prohibiting solicitation for union membership
and distribution of union literature "on company time or
property." The complaint further alleges that Spolar or-
dered employees not to discuss, solicit, or campaign for the
Union on company time or property, and to put union
authorization cards and pins in their pockets and take
them home. The Respondent's answer admits that Spolar
told employees to take the cards home, but denies the other
allegations in this matter, and avers that Spolar told the
employees they could do as they wished regarding a union,
that membership was a matter of right protected by law,
and that he in no way sought to inhibit union discussion on
company property during working time. Further, the com-
plaint alleges that Spolar on or about November 29, 1974,
interrogated employees concerning whether they had been
handed union authorization cards and where they had re-
ceived the cards, which the Respondent in its answer ad-
mits; that he threatened employees that the plant would be
closed down or operated solely with Spolar family mem-
bers if the employees selected the Union as their represen-
tative, which the Respondent's answer denies; and, by
amendment at the hearing, that on or about June 2 and 6,
1975, a few days before the hearing herein, he harassed an
employee because of the employee's anticipated testimony
at the hearing, in an attempt to discourage the employee
from testifying, which the Respondent denies. The Respon-
dent in its answer admits the allegations that it discharged
or terminated Konski on or about December 3, 1974, and
thereafter failed and refused to reinstate him, but denies
the further allegation that it did so because Konski sup-
ported and was active in behalf of the Union.
B. The Respondent's Employee Rules
The Respondent, a custom molder jobbing shop, makes
plastic components under contract with various manufac-
turers including government agencies. It began in about
early September 1974 producing for the Navy Department
imprinted plastic windshield ice scrapers that were given
away in recruiting programs. The Respondent has frequent
production peaks and valleys depending on its current con-
tracts, and lays off employees when production drops, so
its employee complement fluctuates frequently, ranging
from approximately 3 to 22. The Respondent has no recall
policy, and may, when production increases, recall laid-off
employees whose work was satisfactory or hire new em-
ployees. The Respondent operates at various times with
two or three shifts, and some employees work split shifts.
Spolar testified that the Respondent had verbal rules in
effect for some time, but posted written rules on November
18, 1974, because 22 complaints had been filed with OSHA
that resulted in the Respondent being fined, these condi-
tions would not have existed if employees had complied
with the rules; employees, for example, failed to wear safe-
ty glasses although he furnished them, and OSHA recom-
mended posting the rules and enforcing them, if necessary,
by termination. Spolar did not distribute copies but told
each employee to go and read the posted rules, which pro-
vide that violation of any rule may cause dismissal. The
rules under the heading "SOLICITATION" prohibit:
1. Soliciting employees on Company time or prop-
erty.
2. Membership in or support of any organization.
3. Money
4. Signatures on any document.
5. Selling or offering for sale any merchandise or
property.
6. Distributing written or printed material.
Spolar testified that he intended the no-solicitation rule
to apply to employees in work areas of the shop, that he
was not concerned about solicitation in nonwork areas or
on nonwork time if it did not cause loud arguments, but
that, as he had no occasion to implement this rule, he never
conveyed these views to the employees nor specifically told
employees they could talk about a union when not on work
time . The evidence shows that the employees did not en-
gage in union discussion or other union activity in the
plant.
Spolar testified that the Respondent had serious security
problems because there were burglaries, pilferage, vandal-
ism, and trespassers at the plant and in the vicinity, it had
dangerous and costly plant equipment and sensitive gov-
ernment blueprints and materials, and there were many
competitors in the area. He testified further that employees
had therefore been directed to enter and leave the premises
by the door marked for employee use, and that employees
had been told there was plant rule prohibiting them from
being in the plant when not on their work shift. In this
regard Spolar pointed to written rules prohibiting employ-
ees from entering a restricted area without permission,
from using unauthorized exits or entrances, and from vio-
lating safety or security regulations.
The complaint alleges that the Respondent on Novem-
ber 18, 1974, promulgated, and at all times thereafter main-
tained, a rule prohibiting solicitation for union member-
ship and distribution of union literature on company time
or property. It is undisputed that employee rules prohib-
iting solicitation of employees "on Company time or prop-
erty" and the distribution of written or printed material
were posted in the plant on or about November 18, and
that the Respondent at no time thereafter notified the em-
ployees of any limitation on this broad prohibition with
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regard to union solicitation or distribution.' I find, there-
fore, that the Respondent promulgated and maintained
rules prohibiting solicitation and distribution of literature
on company time or property, and thereby interfered with,
restrained, and coerced its employees in violation of Sec-
tion 8(a)(I) of the Act.2
C. Organization of the Union
Employees of the Respondent who were interested in
organizing a union held a meeting of the Glass and Ceram-
ic Workers Union at the home of Gloria Croce, who was
then an employee, on about October 26, 1974. The employ-
ees present included Karla Stein , Helen Simpson, and
Konski . Schickling, president of the Union, attended on
behalf of the representative of the Glass Workers who was
not available, and answered questions about unionization .3
In November 1974, several employees, including Konski
and others who were at the organizing meeting , were laid
off. Schickling heard of this and held a meeting at his home
on about November 24. Konski, who was present, testified
that this was not a meeting on behalf of the Union or of the
Glass Workers, but merely to discuss the layoff . Konski
was recalled to work in a few days , and was the only one of
the laid-off group who was recalled.
The first organizing activity on behalf of the Union oc-
curred on about November 27, when Schickling went to
the plant, distributed union cards with attached buttons,
and requested employees to wear the buttons to let the
Respondent know about the union activity. He recalled
that among those to whom he handed cards and buttons
were Simpson, Stein , and Konski. He made the distribution
in front of the building and in an area in back where cars
were parked. He also put cards and buttons on parked
cars . When Spolar, whom Schickling did not know at the
time, arrived , Schickling walked over to the parking lot
behind the building, handed Spolar a card and button,
identified himself as a union organizer who was organizing
in the area, told Spolar he had a right not to be harassed by
his employer , and asked Spolar if interested to sign the
card and mail it to the union office . Schickling testified
that Spolar replied that this was a small company , a family
organization with a number of relatives who would not
vote for a union , and that Schickling should do his organiz-
ing at larger plants. Schickling , on cross-examination by
the Respondent , denied that he saw a "No trespassing"
sign on the building or premises , that Spolar requested him
to leave or said he was trespassing, that he had been told
by employees about any security regulations adopted by
the Respondent as a result of recent burglaries or sensitive
government contract work , and that he entered the build-
ing at any time . He also testified that he did not recall
Spolar commenting that he was aware of employee rights
to join labor organizations without harassment by an em-
See House of Mosaics, Inc.. Subsidiary of Thomas Industries. Inc.. 215
NLRB No. 123 (1974).
2 Riverside Industries. Inc., 208 NLRB 311 (1974); Graham Ford, Inc.. 218
NLRB 980 (1975).
3 The representative of the Glass Workers prepared one of Konski s pre-
hearing affidavits but played no other part in the events here in issue.
ployer, but did recall Spolar mentioning that union repre-
sentatives should not harass employees.
Spolar testified that Schickling met him very near the
gate so he did not know how far Schickling had gone onto
company property; that when Schickling made a remark
about harassing employees, he asked if Schickling would
do anything illegal about harassing the employees; that
Schickling said he would not; and that "I'm laughing be-
cause he's trespassing on my property at the time he tells
me he wouldn't do anything illegal. So I told him, `Okay-
goodby,' and he left."
Konski testified that he saw Schickling that morning in
front of one of the bay doors where trucks unload materi-
als, that he had met Schickling previously but as a repre-
sentative of the Glass Workers, and that Schickling "hand-
ed me the card and button and he informed me that he was
representative of the ISST, informed me about the card
and what it meant."
D. Spolar's Comments About the Distribution
Spolar testified that he was concerned about where
Schickling went on the property because the shipping and
receiving door was usually open and the customers' ship-
ping orders laid out nearby; that he asked the three opera-
tors on the shift, Simpson, Stein, and Konski, to meet with
him in the lunch area; that he told them he had been given
a card when he arrived that morning and that the "man
was trespassing," and asked if and where they received
cards; that Simpson said she got hers at the employee en-
trance and the other two said it was in the street; and that
he then told them the man who trespassed did not care
much about the law, they should be careful whom they
chose as bargaining agent, and they should take the cards
home and send them in if they wished as it did not matter
to him whether or not they joined the Union. He testified
further that "I also told them that in the event, `You deny
me your services remember that I will run this place the
best way I can, with my supervisors, my family or
friends: "
Simpson testified, as a witness for the Respondent, that
Spolar, after asking where they received the cards, "said he
has no objection to us joining the union if we want to join
the union. . . . And if we didn't want to, you know, work
for him, that he would, you know, get other people to work
.... He said, 'If you deny us your service,' you know, he
meant if we didn't want to work for him. . . . That he
would find other people to work."
Stein testified, as a witness for the General Counsel, that
during this conversation "I think he [Spolar] said he want-
ed to tell us something about the union-something about
its officials had been in trouble for something-I don't re-
member now, what. . . . he said that he knew that there
were people in the plant that were for the union and there
were people who were against the union. And he said that
he didn't really feel that it was necessary for us to have a
union in there. He said, `You can fill out the cards or you
don't have to.' He said, `It's up to you.' But he said, 'I
really don't feel that it's necessary for us to have a union in
the plant.' And then he told us that his company started
out as a family business and if he wanted to, he could lay
MOLDAMATIC, INC. 1103
everybody off and bring his family in to work again... .
he said that he didn't mind what we did for the union, just
as long as we didn't do it on his time or on his property."
She did not recall whether Spolar made reference to his
action if the employees denied him their services. She ad-
mitted on cross-examination that Spolar's questions about
where the cards were received were apparently designed to
ascertain where Schickling was at the time, but said she did
not remember if Spolar indicated why he was interested in
this or if he mentioned trespass.
Konski testified that Spolar "asked us if we received the
cards from the man 4 and informed us that they were good
union cards and that we had a right to fill them out and
send them in if we wanted a union in the plant. And he
said that he didn't think it was a good idea to have the
union in the plant. . . . he didn't think the union was a
good union and that some of the officials . . . were mis-
handling funds, and he thought that we should know this
before we signed our union cards. . . . He told us to put
them in our pockets or in the girls' purses and not to show
them around the plant, or not to discuss about the union
around the plant." On cross-examination, Konski testified
Spolar said they were not to do so "on company time or
property." Konski admitted, however, that the representa-
tive of the Glass Workers had told him not to discuss that
union while at work, that Schickling at the meeting at
Croce's home told the employees not to discuss union ac-
tivity when they were at work, and that he might be con-
fusing these instructions with what Spolar said.
At a later point in his direct examination, Konski added
that Spolar at this time "said something about if he had to
he would close down the plant and make it a family-run
plant." When asked about this on cross-examination, Kon-
ski admitted Spolar said it was the employees' right to join
a union, they could join if they wished, and it was up to
them. Asked if the remark about making it a family-run
plant was conditioned upon some occurrence, Konski
asked if he could see his prehearing affidavit to refresh his
recollection. When he was told to testify to the best of his
recollection, he stated that Spolar's remark was based upon
"if he had to," and Konski did not know to what this re-
ferred. He denied that Spolar remarked he would do this if
the employees denied him their services. Asked finally to
relate what he recalled Spolar saying in this matter, Konski
answered, "All I remember him saying is-he said that he
would close the plant down if he had to; that's all that I
remember him saying"; and, further, that he did not recall
the words "if I had to" or any other conditional phrases.
Konski testified that, when Spolar asked the three em-
ployees where they received the cards, while he did not
recall what the others replied, "I told him I received my
card by the gate"; that, after the morning talk Spolar "had
with us about the union," Spolar came out to where he was
working "and he asked me where I received my union card.
I told him I received it out by the gate," and, when asked if
he was sure, he repeated that he received it out by the gate;
that Spolar then talked to his son and to Jacobs, came back
and repeated the question, and he repeated his answer;
4 On cross-examination , Konski admitted Spolar first mentioned that he
had been given a card before asking where the employees received theirs.
that Spolar again spoke to his son, who said Konski re-
ceived it by the bay door, Spolar asked if that was so, and
"I said yes"; that Spolar asked why he had lied, and he said
he was afraid to get himself or Schickling in trouble; and
that Spolar closed the discussion with the remark that he
should not have been afraid to tell the truth.
Spolar testified that, after questioning the three employ-
ees about where they received the cards, he was informed
that Konski had not told him the truth about it; that he
confronted Konski with this, and Konski admitted lying;
that he gave Konski a fatherly sermon about lying and
asked why Konski did so; that when Konski "said he was
fearful," he said there was nothing for Konski to be afraid
of; and that he asked if Konski ever heard him lie, Konski
said "No," and "I told him that it disturbed me that he
would lie to me about someone who is trespassing on the
property. That's all-there was no disciplinary action, at
all." Spolar admitted this was the only time as far as he
knew that Konski, whom he had known for years and "al-
ways considered . . . as sort of a boy I took care of," lied
to him. Konski admitted, on cross-examination by the Re-
spondent, that he lied in this instance to Spolar although
Spolar in all the years of their relationship "hasn't told me
a lie."
Concluding Findings
The complaint alleges that Spolar, on or about Novem-
ber 29, 1974, interrogated employees concerning whether
they had been handed union authorization cards and
where they had received the cards, in violation of Section
8(a)(1) of the Act.
Stein impressed me as a witness striving to testify truth-
fully to the best of her recollection. While she had trouble
recalling events and conversations, I found her a more can-
did and believable witness than Konski, Simpson, or Spo-
lar. I find, on the basis of her testimony, the corroboration
and admissions of other witnesses, and the entire record,
that Spolar questioned the three employees about where
Schickling handed them cards, that he said they were
"good union cards" and they could sign or not as they
wished, and that he was chiefly concerned in this regard
with where they were given the cards. I find that he interrq-
gated them not to obtain information about union activi-
ties, but because of concern about possible violations of
plant security rules, and that he later repeated his question-
ing of Konski not in an attempt to discourage any interest
Konski might have in the Union, but because Konski ad-
mittedly lied about where Schickling handed him a card.
Spolar did not ask about their interest or that of other
employees in a union. I find that Spolar's interrogation
about where the cards were received did not, in the circum-
stances of this case, constitute interference with the statu-
tory rights of the employees in violation of Section 8(a)(1)
of the Act.
The complaint also alleges that Spolar at this time or-
dered employees not to discuss, solicit, or campaign for the
Union on company time or property, and to put the union
cards and pins in their pockets and take them home; and
that he threatened employees that he would close the plant
down or run the plant -solely with family members if the
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees selected the Union as their exclusive bargaining
representative.
I find , on the basis of Stein 's credited testimony and on
the record as a whole , that Spolar in his conversation on or
about November 29, 1974, ordered employees not to en-
gage in any union activity on company time or property,
conduct which was also prohibited in the posted no-solici-
tation rules found above to be unlawful , and that Spolar
threatened to lay off employees and replace them with su-
pervisors, family members , or friends, conditioned not on
the employees "denying their services" to him, but on their
selection of a union bargaining representative . The security
considerations which , it is found above, made permissible
Spolar's interrogation about where cards were distributed,
did not warrant these coercive comments . I find, therefore,
that the Respondent by the foregoing order and threats,
violated Section 8(axl) of the Act.'
E. Spolar 's Comments to a Subpenaed Employee
Stein, under subpena by the General Counsel , testified
that in June 1975, a few days before she received the sub-
pena, Spolar asked her at work if she had received it; that
she told Spolar a few days later she had received it, and
asked if he would tell Jacobs or Smith she was taking time
off to testify ; that he said she should tell them; that "then
he sort of chuckled a little bit and he said , `This is kind of
silly us going.' And I didn't say anything. And then he said,
`Well, you know , Kevin [Konski] signed a paper saying all
he did was-he did because the union was coming in.' "
Stein also testified that a few days later Spolar said to her,
in Simpson 's presence, they might not have to go as "we
might settle out of court," that she did not remember if he
said anything else, and then that he did, "something about
somebody had changed their testimony-and if we had
gotten up there on the witness stand , or something, it
would be perjury , or something like that . I don 't really
remember. . . . It's vague-I don't remember what it's-
what it was all about."
Spolar testified that Stein told him she had received a
subpena, that he told her to notify Jacobs, her supervisor,
that she would be off the day of the hearing, and that he
said "I thought it was a waste of time . . . . I didn 't think
that anybody would gain anything out of this," and that he
did not remember any remark about Konski stating he said
certain things because of the Union . Spolar also testified
that Stein had told him she did not like to appear, and,
therefore , when there was some discussion of a possible
prehearing settlement , he told her "We may not have to
appear down there ; we may have a settlement on this." He
added that "I told her there was nothing to fear ." Asked by
his counsel if she said anything indicating fear, Spolar an-
swered, "Kind of apprehensive ." Asked then if she said
anything about this , he answered, "I couldn't factually cite
anything," and, on cross-examination , that she said some-
thing, or seemed sad, or indicated somehow a fear about
having to testify instead of working , and he therefore in-
formed her she would get paid as a witness . He denied that
5 See Penasquitos Village, Inc.. et al, 217 NLRB No. 155 (1975); Fayette-
ville Industrial Maintenance, Inc., 218 NLRB 889 (1975).
he said anything about a change in testimony constituting
perjury.
Simpson, who was present during this conversation, tes-
tified that Spolar came over to where she and Stein were
working, said Stein may not have to appear, that it may be
settled out of court, and that Stein then walked away with
nothing further said.
The complaint was amended at the hearing to allege that
Spolar, a few days before the hearing, harassed an employ-
ee because of the employee's anticipated testimony at the
hearing, in an attempt to discourage the employee from
testifying. As noted above, Stein impressed me as a more
candid and honest witness than Spolar or Simpson. Stein,
however, admittedly had a very vague recollection of what
Spolar said regarding her appearance as a witness although
this conversation took place a few days before she testified.
Furthermore, Stein's testimony, to the extent she could re-
call the conversation, does not, in my opinion, show unlaw-
ful harassment by Spolar. I find, therefore, on the basis of
all the relevant evidence, that the General Counsel has not
established that Spolar's remarks were reasonably calculat-
ed to have the effect of harassing Stein because of her an-
ticipated testimony at the hearing, and of attempting to
discourage Stein from testifying, in violation of Section
8(a)(1) of the Act. Accordingly, I shall recommend dismiss-
al of this allegation of the complaint.
F. The Termination of Konski
1. Konski's employment history
Konski, who lived next door to the Respondent's plant,
became acquainted with Spolar when the plant was being
built. Over a span of about 10 years, he did odd jobs for
Spolar beginning when he was about 11 years old, got a job
in the plant when he was 18, and quit at one time but came
back to work as a press operator in August 1974 on the
8-a.m. to 4-p.m. shift. Konski received a 10-cent-an-hour
wage increase in September 1974. He was laid off for lack
of work on about November 1, 1974, as were several
others, but Konski was called back to work in about 3
days, and was the only one of this group who was recalled.
Spolar testified that this recall was because Konski was the
most experienced operator of the hot stamping machine
and was also able to handle the 97-pound boxes of ice
scrapers.
Konski testified that no Respondent representative said
anything to him about the union campaign prior to his
layoff in November but that, on the day he returned to
work, he had a conversation with Smith, in the office used
by Smith and Jacobs, during which Smith "said that he
thought that the union had a poor chance of getting into
the plant, because he said that in order to be eligible for an
election you had to work six weeks and one weekend, and
he said that this was a strong point against the union."
Konski testified that, later the same morning, the hot
stamping machine broke down and Jacobs told him to go
get some coffee; that while he was in the rest area Smith
came in and "started asking me why I had wanted to join
the union"; that he refused to answer although Smith
asked the question repeatedly; and that when Jacobs came
MOLDAMATIC, INC. 1105
in to report Konski's machine was ready , and Smith asked
his question one more time , he answered in Jacobs' pres-
ence "that the reason I wanted a union in there was be-
cause we needed one in there ." Later in the day, Konski
testified , Smith asked him "what some of the grievances
were of the union ," he told Smith he refused to discuss this
in the plant, but he said he would discuss it when they were
together , as they occasionally were , outside the plant.
Smith denied that these conversations took place. The
General Counsel stated at the hearing that Konski 's testi-
mony was adduced about these conversations , which were
not alleged in the complaint to be violative of the Act, only
as background information relevant to the events here in
issue.
The General Counsel maintains that Smith during this
period was a supervisor within the meaning of the Act.
While there is testimony, including some presented by the
Respondent's witnesses , indicating Smith was a supervisor,
the Respondent disputed his status as a supervisor within
the meaning of the Act. Smith spent much of his time per-
forming the same tasks as the production employees. For a
few weeks he was in charge of the third shift , but he testi-
fied he was given explicit written directives by Spolar or
Spolar's own son as to the work to be done on each shift.
He also testified that he did not have authority to hire,
discharge , or change an employee 's status , and that his rec-
ommendations in such matters were subjected to.indepen-
dent investigation by Spolar . While I found Smith a hesi-
tant , evasive , and unconvincing witness , the evidence does
not, in my opinion , establish that Smith possessed or exer-
cised authority requiring the use of independent judgment
or other statutory indicia of supervisory status. I find,
therefore , that Smith was not a supervisor within the mean-
ing of the Act .6 On the other hand, Smith admittedly re-
ported to his superiors any employee problems he ob-
served. The General Coun sel argues , therefore, that Smith
would have reported Konski's union interest . The fact is,
however, that Konski's union activity was minimal, and
that other employees who had similarly shown an interest
in unionization were still employed at the time of the hear-
ing.
2. Konski's work performance
The record shows that Konski was a slow worker, re-
quired close supervision of his work, and had difficulties
for a time operating the hot stamping press . The record
also shows that others during the same period had trouble
with this operation. During the November layoff of Konski
and other employees, the Respondent worked on the prob-
lems presented by this operation, and Spolar designed a
system that imprinted both sides of the ice scrapers simul-
taneously, a rotating table that facilitated handling of the
ice scrapers , and, after experimentation , the most efficient
time cycle for the machine operation. Spolar and Jacobs
both testified that Konski continued to have trouble keep-
ing up with this work when other operators of the same
machine did not . Spolar testified that he gave Konski a
6 See Adams & Eve Cosmetics, Inc., 218 NLRB 1317 (1975).
wage increase in about September 1974 which he -hoped
would motivate Konski to work harder, but that it did not
result in any change.
On about November 12, shortly after Konski was re-
called from layoff, he placed an ice scraper in the hot
stamper improperly and damaged the machine by breaking
the rubbers. Spolar testified that this occurred frequently
prior to the learning period in October, but not thereafter,
and that another employee, not named, did this twice in a
row in early November and was discharged. Konski was
directed to work on the second of the two hot stamping
machines, and, according to the testimony of Spolar and
Jacobs, in a matter of minutes made an error that caused
the rubbers to come off, which stopped production. Spolar
sent Konski home about 2 p.m. as a disciplinary measure,
and called him back to work during the next day. Jacobs
testified that everyone broke the rubbers on the-hot stamp-
er at times , including himself , Stein , Simpson, Smith, and
Spolar, but not in a way that stopped operations on the
machine. -
Konski explained that he damaged his machine because
his work required handling parts that were hot; this was
one of the items about which a complaint was filed with
OSHA, but he did not know what OSHA found as to this
item; he generally wore bandaids to protect his fingers but,
on the day the machine was broken, Smith told him to get
a glove instead; he found the glove "cumbersome" for han-
dling the parts, which caused him to slow down; and when
Jacobs or Smith-he did not recall which-told him "to
catch up to the machine," he tried to speed up, put a part
in incorrectly, and "it cut the rubbers on the machine."
Konski also testified that he did not recall if other opera-
tors ever wore gloves. Konski denied that he broke both
machines the same day. He admitted he cut the rubbers on
one and, directly after he began to operate the other, the
rubbers fell off, but he claimed these incidents occurred on
different days, and that he was disciplined by being sent
home at 2 p.m. for breaking the one machine. After Konski
returned from his disciplinary layoff, he testified, he re-
sumed wearing the bandaids but brought his own as Smith
told him to do.
Stein, who has been employed as a machine operator on
the 8-a.m. to 4-p.m. shift since about April 1974, except for
one layoff between June and July, testified that she wore
bandaids on her thumbs to avoid blisters when handling
the ice scrapers while they were hot, and that she wore a
glove one time but was told to stop doing so because when
she "pushed the stuff . .. down the grinder-the glove
went down with it." She also testified that while Konski,
after his return from the November economic layoff, usual-
ly ran the hot stamper, others who also ran it at times
broke the rubbers, including Simpson.
Konski's work improved after his disciplinary layoff. As
Spolar testified, "that disciplinary action seemed to be
pretty darn good because he [Konski] got to be a good
operator then. We had no trouble on that particular one,
after that, with him . . . he was a pretty good operator on
that particular product after the 12th." In fact, Spolar testi-
fied, Konski's job attitude generally improved at this time.
Konski made a written request on or about November 19
to be put on a piecework rate on the hot stamper job and
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operated it at commendable speed although before that he
had complained that he could not keep up with the opera-
tion. As others who operated the machine had no difficulty
with the speed , both Spolar and Jacobs testified that they
suspected Konski had for a time engaged in a willful slow-
down for some reason.
Simpson testified that ice scrapers piled up one day
when Konski and Stein were working on them , that she
asked why they were so far behind, that they replied "be-
cause they told us to slow down ," that she did not ask and
they did not say who told them but she "figured it was the
union ." She also testified that she had seen both Konski
and Stein , contrary to instructions , readjust the machine in
about November, that this damaged the product and re-
quired that the machine be reset , but that she never spoke
to them about it or reported it to a supervisor.
Konski testified that supervisors always said he was slow
ever since he had been employed in the plant, but he de-
nied , on cross-examination, that in November 1974 he en-
gaged in deliberate work slowdowns, or told employees he
was doing so, in order to enhance the union cause.
Konski also testified that the time cycle on the machine
was varied by the Respondent at times for a few hours,
days, or weeks; that it went from 15 seconds "down to like
eight seconds" at different times ; and that when it was
speeded up at one time from 12 to 9 seconds , and the em-
ployees complained about the speed , it was set back to 10
seconds but then speeded up to 8. He also testified that he
concluded this was harassment because of union activity,
not as a result of anything that was said but on the basis of
its occurrence in October and November. He admitted,
however, that on his return in November from the discipli-
nary layoff, he asked to be assigned to this operation on a
piece-rate basis.
Spolar and Jacobs testified that there was a trial period
of cycles from 15 to 20 seconds, 15 being the fastest possi-
ble; that the 20-second cycle was established in early No-
vember and was maintained regardless of who was operat-
ing the machine ; and that both Stein and Simpson asked to
operate this machine alternatively with Konski , and did, as
it was a relatively easy job. The machine continued, how-
ever, to be operated most frequently by Konski.
3. Konski's violations of rules
Konski admitted that at one time in November 1974 he
had been looking at and handling the timecards of other
employees , and was reprimanded by Spolar for doing so.
He testified that his conduct was justified in this instance
because two employees told him there was a card with the
word "killer" on it, and he found that was true.
Further, the record shows that, although employees had
been told they were to be in the plant only when they were
working, and were to enter and leave the plant only
through a designated employee door, Konski had been in
the plant on several occasions when he was not working,
and at times used other doors.
Simpson testified that at one time in August 1974, Kon-
ski, who was not working at the time , came in through a
nonemployee entrance and got a wrench, that when she
asked about it he said he was going to borrow it, that she
said he was supposed to ask someone, and that he an-
swered it was all right and took the wrench, but she knew it
was against the rules.
Konski testified that he recalled an instance when he
came to the plant while on vacation in August 1974 and
was taking some wrenches out of the toolroom when Simp-
son told him he was not supposed to do so. He maintained
that he told her he had obtained permission from a super-
visor, although he could not recall which one.
Spolar and Jacobs testified that Konski also at one time
in about November refused Jacobs' request that he work
overtime in place of an absent employee, then lingered in
the plant talking to operators on the second shift for about
a half-hour, when he was told by Jacobs to leave. Konski
testified that he could not recall this incident. Jacobs testi-
fied that he saw Konski on other occasions "hanging
around" in the plant and asked him to leave, and that he
reported to Spolar some of the instances of Konski's unau-
thorized presence in the plant. Both Spolar and Jacobs tes-
tified that they criticized and warned Konski about this
several times, including once in early November and again
on about November 18, 1974.
Konski testified that when he came home from work on
December 2, 1974, his mother reminded him that he forgot
his thermos bottle, and suggested he go back to the plant to
get it. Konski had music practice scheduled, however, at-
tended it, and, when it ended about 10:30, the group sat
around and talked. He then drove to where he parked near
his home and near the plant, and, close to midnight, re-
membered his thermos and went into the plant through an
unauthorized entrance. The plant was at that time operat-
ing a third shift.
Konski testified that as he was walking in between two
presses, he saw DiCampello, "who is a boss"; that he
waved to DiCampello and motioned that he was going
back to the secondary operation room; that DiCampello
seemed surprised to see him and, as he was leaving, asked
what he was doing there, and he said he came to get his
thermos bottle and showed it to DiCampello; that DiCam-
pello said he was not supposed to be in there, and he re-
plied, "Yes, I know, but I just came in to pick up my ther-
mos bottle"; that DiCampello walked him through the
small pressroom and out toward the door; and that just
then Smith walked in and asked what he was doing there,
DiCampello answered it was to pick up a thermos bottle,
and walked him out through the employees' entrance.
Konski testified that he had gone back to the plant after
work "numerous times" to pick up his thermos bottle or
other personal articles he had forgotten, and no one ever
said anything to him about it, and that he also went
there-after asking Smith, who told him to ask Spolar's
son, who gave permission-to use tools or equipment in
working on his car.
Konski maintained on cross-examination that he was
not aware of the Respondent's security problems; that,
while he knew of burglaries in the vicinity, he knew of no
robberies or pilferage at the Respondent's premises; and
that he knew the Respondent had expensive equipment,
but not that it had confidential plans in the plant. He also
testified that he knew of no prohibition against coming
into the plant except when authorized or working until the
MOLDAMATIC, INC.
rules were posted; that previously he knew only that Spolar
at times asked "other kids walking on his property . . . to
stay off his property"; and that, with regard to a rule
against employees being in the plant when not working, the
first time he "heard about it in writing" was when the rules
were posted on November 18. Asked then if he heard of
such a rule before that even if not in writing, he answered,
"I would not say that the rule was enforced stiffly"; and,
finally, "I knew that there was a rule saying that, informal-
ly saying that if you had no business here, that you should
be elsewhere-you shouldn't be on company property." In
any event, this incident occurred after the rules were post-
ed.
Smith reported to Jacobs that Konski came into the
plant about midnight on December 2. When Konski came
to work in the morning, Jacobs asked him about it. Jacobs
testified that, when Konski said he came in to get his ther-
mos, "I says, `Well, you know you are not permitted in the
plant after you have punched out and gone home.' He says
`Yes, I know,' and he smiled, shrugged."
4. The discharge interviews
Jacobs testified that he reported the December 2 inci-
dent to Spolar; that he commented that Konski seemed to
be "pushing us" and Spolar agreed; that he did not then, or
in making previous reports about Konski, recommend
Konski's discharge; and that there was no discussion of
discharge at this time.
Konski testified that when Jacobs had asked why he was
in the plant the night before, he explained he came in to
pick up his thermos bottle, which he had forgotten, and
came so late because he first went to practice with his mu-
sic group; that when Jacobs stated this was hard to believe,
he asked if Jacobs thought he was "some kind of spy"; that
Jacobs said Spolar would find this explanation hard to be-
lieve, told Konski to wait, and went out and came back
with Spolar; and Spolar told him to go to the production
office, where the following occurred:
A. Mr. Spolar informed me that he was going to
have to leave me go. And I said, "Why? Because I
came in to pick up my thermos bottle?"
And he said, "For that and for other reasons."
Q. Did you answer anything? Did you say anything
at that point?
A. No, not that I can recall.
Q. Did he say anything else?
A. He stated the reasons why he said he was going
to leave me go.
Q. What did he say?
A. He said there were four reasons why he was
leaving me go.
Q. What were they?
A. It was for the incident for Bob [Smith] hollering
at me, for me breaking the hot stamper, and for me
lying to him about why [sic] I received my union card.
And he said because I lied to him, that's the reason
why he didn't believe me when I said that I came in to
pick up my thermos bottle that night.
Q. Did you say anything then?
A. No.
1107
Q. Did Mr. Spolar say anything else?
A. Yes. He asked me if I wanted to leave then,
leave at noon time, or work the full day.
Q. And what did you say?
A. I said I'd work the full day.
Q. Was there any further discussion?
A. Not at that time, no.
Spolar testified that he assumed, when he heard of the
thermos incident, that the plant, usually kept locked at
night, had been left unlocked by DiCampello, and "gave
him hell for it," but then apologized when he learned it was
his own fault because he had left about 11:30 and forgot to
lock the door. Spolar also testified that he made the deci-
sion to discharge Konski about 9:30 on the morning of
December 3; that he was a little late getting in that morn-
ing so Konski had already started to work; that he told
Konski, in the presence of Jacobs, he had decided to dis-
charge Konski because of an accumulation of incidents of
"willful misconduct," some of which he spelled out, and
particularly the episode of the night before; that Konski
admitted that he had read the posted plant rules and that
his conduct violated the rules; and that he said Konski
could leave then or finish the day, and Konski chose to
finish the day.
Jacobs testified that he was present when Spolar told
Konski on the morning of December 3 that Konski's com-
ing into the plant the night before, his disbelief of Konski's
explanation as Konski lied previously about where he re-
ceived the union card, Konski's work slowdown and break-
ing the hot stamper, all were reasons for dismissing Konski.
Spolar testified that Konski, during the morning dis-
charge interview, "cried-and I felt bad about it." There-
fore when, at Konski's request, someone-Spolar thought
it was Simpson-interceded for Konski, Spolar agreed to
discuss it further at the end of the day. Konski, after his
shift was over, came into the work office. Other people
were there so Spolar offered to go into a private office, and
at Konski's request they did so.
During this interview they discussed certain conduct of
Konski in more detail. At one or the other discharge inter-
view, or in some instances at both, there was reference to
Konski's disciplinary layoff, to Konski's lie about where he
was handed the union card, to Spolar's disbelief of
Konski's asserted reason for coming to the plant late the
night before because he had admittedly lied to Spolar be-
fore,7 to other incidents of Konski being in the plant when
he was not supposed to be, to Konski refusing to work
overtime and then lingering in the plant for about a half-
hour, to Konski having examined the timecards of other
employees for which Spolar had reprimanded him, and to
the frequently unsatisfactory speed and quality of Konski's
7 Spolar explained that he did not believe Konski's explanation of why he
came to the plant late the night before because Konski could have come
next door to get the thermos bottle and have it filled before work the next
morning, and because, as he told Konski in both interviews, Konski had
"tarnished his reputation for truthfulness" when he admittedly lied about
where he got the union card.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work. Spolar testified that they also discussed Smith telling
Konski on several occasions to clean up his work station
because of the danger of loose pellets on the floor; that
Konski had to be directed to do his work properly or to
clean up almost daily, more often than any other employ-
ee; that those who spoke to Konski about this included
Spolar, his son, Jacobs, Smith, and coworkers; and that,
while Konski would do what he was told, "he had to be
told many times."
At the close of this interview, Spolar told Konski nothing
had been presented to change his mind . He testified, how-
ever, that he was not sure at the time whether this was a
permanent termination , that "even then I felt bad about
the boy so I asked him to come back and see me" in about
a week , and offered to review the decision at that time, but
Konski never returned.
Konski testified that he knew the incidents to which Spo-
lar made reference. They included coming into the plant
late at night on August 2, lying to Spolar about where he
received the union card , breaking the hot stamping ma-
chine , and Smith "hollering" at him. He explained this last
item referred to a time in October 1974 when Smith told
him to move some boxes while he was engaged in doing
work he had been told to do, he thought, but was not sure,
by Jacobs; that this work was in his opinion more impor-
tant than moving the boxes so he continued with it; and
that Smith later came out and "hollered" at him for not
moving the boxes , although he believed he told Smith he
was carrying out a direction of Jacobs . Spolar denied there
was any discussion of this in the discharge interviews. Kon-
ski stated on cross-examination that he assumed this was
the incident Spolar referred to when Smith "hollered" at
him, but that Smith in fact frequently "hollered" at him.
Konski also testified that, when he met with Spolar again
in the conference room, he gave his side for each reason
Spolar advanced for the discharge , including that in his
opinion the work he was doing was more important than
Smith 's direction to move the boxes ; that he broke the hot
stamping machine because he was wearing gloves, could
not feel the part right, put it in crooked, and it broke the
rubbers; that he was afraid to tell the truth about where he
received the union card because he remembered reading a
notice on the bulletin board about receiving solicitations
from people on company property; and that he came to the
plant at night to get the thermos bottle, but Spolar said he
did not believe that because Konski lied before about
where he got the union card . Konski testified further that
Spolar "said that instead of firing me , he dismissed me with
prejudice so that I would be able to collect unemployment.
And he also told me to come back in a week or a month, or
after I find another job, if I don't like that job, to come
back and he would reconsider." Finally, Konski testified,
they discussed some of the OSHA claims , Spolar asking his
opinion , and he stated as to each "whether I felt that was a
fair claim or an unfair claim." Spolar then paid Konski for
the previous week and the 2 days he worked that week.
This was not a payday. Konski never went back as Spolar
suggested , and gave no explanation for his failure to do so.
An unemployment compensation claim filed by Konski
states that : "Mr. Spolar, president of company , said I was
dismissed with prejudice because of four reasons. (1) Being
yelled at by foreman Bob Smith; (2) breaking a hot stamp
machine; (3) Lying to him where I received my union card;
(4) Entering the plant after work hours to pick up my ther-
mos bottle. I did do the above acts but they are under
question at the present time. There is an unfair labor claim
against the company filed at the N.L.R.B. in Phila. [sic]."
The UC form signed by Spolar states that: "Mr. Konski
was told at the time of his dismissal, to report back in I
week for review and possible rehire. Mr. Konski was told
this without prejudice. Mr. Konski did not come back. The
reason for his dismissal was as follows: (1) Refusing to
work overtime, then loitering in the area talking to opera-
tors at their work station. Reprimanded. No penalty. (2)
Handling and examining timecards of other employees at
quitting time. Reprimanded. No penalty. (3) Breaking hot
stamping machines. 2 in succession. Reprimanded. Penalty
time off and warning. (4) Lying about a trespass by an
outsider. Reprimanded. No penalty. (5) Apprehended in
plant at 12 midnight. This was approx. 8 hours after his
quitting time of 4:30 P.M. (Penalty dismissal) for I week.
Subject to review upon return."
Konski attended the Glass Workers organizing meeting
at the Croce home, was at the meeting in Schickling's home
about the November layoffs, and received a union card
and button when Schickling distributed them at the plant
later in November 1974. As set forth above, Konski was
questioned by Spolar about where Schickling's distribution
took place, and he admitted to Spolar that he originally
lied when he answered this question. Both Simpson and
Stein were asked the same question, answered truthfully,
and were still employed at the time of the hearing. Konski
admittedly did not engage in union discussion at the plant.
There is no evidence that he engaged in any other activity
on behalf of the Union.
Konski admitted on cross-examination , as stated in his
prehearing affidavit of December 30, that other than the
questions about Schickling's card distribution, "Mr. Spolar
did not, after this, talk to me or other employees, to my
knowledge, about the union. He did not ask whether we
had signed the cards; he did not make any threats." He
maintained, however, as the affidavit further stated, "They
did harass us by speeding up the machines, giving us more
work to do."
Spolar maintained that he did not know of Konski's in-
terest in union representation until the charge was filed
with the Board. He knew Konski had been handed a card
and button by Schickling, but other employees received
cards and buttons in the same distribution. Jacobs testified
that he did not know on December 3 of any interest of
Konski in a union. Smith admitted that Konski had at one
time expressed the opinion that it would be desirable to
have a union in the plant. When asked by Respondent's
counsel whether he was aware of Konski's interest in the
particular Union, however, Smith answered, "Not really,
no." Further, although he admittedly reported Konski's
rule violations, he denied that he ever reported Konski's
interest in a union to management.
Concluding Findings
I am convinced that Spolar was angry about Konski's
MOLDAMATIC, INC. 1109
deliberate and repeated violations of plant rules and prac-
tices , culminating with Konski's entrance into the plant
about midnight preceding the day of the discharge, and
that he discharged Konski for these violations, not because
of any interest Konski had displayed in union representa-
tion. Konski's activity in relation to the Union had been
limited to accepting a card and button from a representa-
tive of the Union who was making a general distribution at
the plant, and who identified himself to Konski as a repre-
sentative of the Union at the time of the distribution. And,
assuming that Smith reported Konski' s interest in union
representation to Spolar, this became known to Smith
weeks before the discharge. Had Spolar because of that
report been looking for a pretext to discharge Konski, he
could have relied on earlier rules violations by Konski.
It is true that one of the discharge factors asserted by
Spolar was Konski's lie about where he received the union
card. The General Counsel's brief argues that Konski lied
about this because he feared he would be subject to disci-
pline under the Respondent's unlawful no-solicitation
rules, that the lie was therefore a protected concerted activ-
ity, and that his discharge based in part on this reason
constitutes a violation of Section 8(a)(3) and (1). On the
other hand, Konski testified that he had frequently violat-
ed rules about being in the plant when he was not working
with no recrimination by the Respondent. And I have
found above that Spolar's interrogation in this matter was
based on concern about violation of the plant security
measures , not the union activity of three employees, two of
whom are still employed.
As the General Counsel also urges , some of the reasons
asserted for the discharge seem insignificant ,8 and Konski
was not threatened with discharge when these incidents
occurred. Spolar maintained, however, that these incidents
had a cumulative effect, and that Konski's unauthorized
entrance into the plant about midnight on December 2
triggered the discharge of Konski on December 3. And the
Board holds that an employer may discharge an employee
for any reason provided it is not for union or protected
concerted activity. Finally, I found Konski an evasive and
unconvincing witness . While I have likewise found some of
the Respondent' s witnesses unworthy of belief, the General
Counsel has the burden of establishing that a discharge
was violative of the Act. I am convinced and find, from the
evidence in its entirety, that the General Counsel has not
met that burden in this case.
Moreover, there was a particular relationship of many
years between Spolar and Konski. Konski grew up next
door to the plant, did odd jobs for Spolar beginning when
he was a young boy, became a machine operator as an
employee of the Respondent, was recalled in a few days
from an economic layoff in November although none of
the others laid off were recalled, and was recalled the next
day from a disciplinary layoff in November. At the time of
8 1 find no evidentiary support for the assertions in the Respondent's brief
that Konski refused to wear safety glasses even after repeated warnings and
an OSHA complaint and fine ; that Konski engaged in a deliberate slow-
down in production ; or that Konski intentionally broke two hot-stamp
presses within 20 minutes resulting in the total shutdown of the entire com-
pany production for a half day.
the second discharge interview of December 3, as Konski
admitted, Spolar told him to come back in about a week to
discuss reemployment, but Konski did not return, and ad-
vanced no explanation for the failure to do so. This request
that Konski come back shows a lack of malice toward
Konski and indicates, in all the relevant circumstances,
that Spolar was not discharging Konski to prevent union
organization of his employees.
I conclude and find, on the entire record, that the Gener-
al Counsel has not established by a preponderance of the
evidence that the Respondent discharged Konski because
of his interest in and activity on behalf of the Union, in
violation of Section 8(a)(3) and (1) of the Act. I shall there-
fore recommend dismissal of the allegations of the com-
plaint that the Respondent discriminatorily terminated
Konski.9
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's op-
erations described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8(a)(1) of
the Act, I shall recommend that the Respondent be or-
dered to cease and desist therefrom and from infringing in
any like or related manner upon its employees' Section 7
rights, and that it take certain affirmative action designed
to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Moldamatic, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Society of Skilled Trades is a labor or-
ganization within the meaning of Section 2(6) and (7) of
the Act.
3. By promulgating and maintaining employee rules
prohibiting solicitation and distribution of literature on
company time or property, by ordering employees not to
engage in any union activity on company time or property,
and by threatening to lay off employees and replace them
with supervisors, family members, and friends if the em-
ployees selected a union bargaining representative, in order
to discourage union membership and activity, the Respon-
dent has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7
9 Gilbert International, Inc., 213 NLRB 538 (1974); Willowbrook, Inc., 218
NLRB 379 (1975).
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act, and has thereby engaged in unfair labor practic- practices affecting commerce withing the meaning of Sec-
es within the meaning of Section 8(aXI) of the Act. tion 2(6) and (7) of the Act.
4. The aforesaid unfair labor practices are unfair labor [Recommended Order omitted from publication.]