P. E. Guerin, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1992

309 N.L.R.B. 666 (N.L.R.B. 1992)

666
309 NLRB No. 97
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On July 2, 1992, Administrative Law Judge Howard Edelman
issued the attached decision which was supplemented by an Errata
dated July 21, 1992. The Respondent filed exceptions and a support-
ing brief, the General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
P. E. Guerin, Inc. and District 15 International As-
sociation of Machinists & Aerospace Workers,
AFL–CIO. Cases 2–CA–24219, 2–CA–24378,
and 2–RC–20856
November 30, 1992
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issue presented in this case is whether the Re-
spondent engaged in objectionable conduct, including
several violations of Section 8(a)(1) and (3) during an
election’s critical period, warranting the setting aside
of the election and directing a second election.1
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, finding,2 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, P. E. Guerin, Inc., New
York, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
IT IS FURTHER ORDERED that the election in Case 2–
RC–20856 is set aside and the case is remanded to the
Regional Director for Region 2 to conduct a new elec-
tion when he deems the circumstances permit the free
choice of a bargaining representative, as directed
below.
[Direction of Second Election omitted from publica-
tion.]
Gregory B. Davis, Esq., for the General Counsel.
Arthur Liberstein, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on June 25 and 26, 1991, in New York,
New York. The case was based on a consolidated complaint
which issued on August 20, 1990. This complaint was subse-
quently amended at trial on June 25. Additionally, objections
to the conduct of the election in connection with the rep-
resentation case set forth in the caption above were consoli-
dated with the above unfair labor practice trial. The com-
plaint was based on a charge filed by District 15 Inter-
national Association of Machinists & Aerospace Workers,
AFL–CIO (the Union) against P. E. Guerin (Respondent).
The complaint alleges in substance that during an organiza-
tional campaign by the Union attempting to organize Re-
spondent’s production and maintenance employees, Respond-
ent engaged in various conduct in violation of Section
8(a)(1) of the Act, and discharged Kenny Barber and Philip
D’Amato in violation of Section 8(a)(3) of the Act. The ob-
jections filed by the Union are essentially consistent with the
unfair practices alleged except that they include an allegation
of a captive-audience speech within 24 hours of an election
within the prohibition of Peerless Plywood Co., 107 NLRB
427, 429 (1953).
On the entire record, including my observation of the de-
meanor of the witnesses, and on a careful consideration of
the briefs, I make the following
FINDINGS OF FACT
Respondent is a New York corporation with its office and
place of business located in New York, New York, where it
is engaged in the business of the manufacture and nonretail
sale of decorative hardware and related products. During the
course of Respondent’s business, Respondent annually pur-
chases and receives at its place of business goods valued at
in excess of $50,000 directly from points outside the State
of New York. Respondent admits, and I find, that it is an
employer within the meaning of Section 2(2), (6), and (7) of
the Act.
It is admitted, and I find, that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
Respondent’s production and maintenance employees num-
ber about 40 employees. Sometime on or about January
1990, D’Amato contacted the Union and indicated that the
employees employed by Respondent were interested in union
representation. A meeting was scheduled at a nearby bar on
February 6 and attended by D’Amato, Barber, Franklin Hart-
man, and about 15 other employees. At this meeting a union
representative spoke to the employees about the benefits of
unionization. A second meeting was held at the same bar on
February 16, attended by D’Amato, Barber, and 10 or so
other employees. During this meeting D’Amato, Barber, and
some other employees signed union cards. D’Amato and Bar-
ber were the most active union supporters and spoke with
and distributed union cards to most of Respondent’s employ-
ees. These activities took place outside Respondent’s plant
and during nonworking hours.
Franklin Hartman, a former employee of Respondent,
credibly testified that on February 7, the day following the
first union meeting, Andrew Ward, Respondent’s president,
pointed him out to Martin Grubman, sales manager and an
admitted supervisor within the meaning of Section 2(11) of
the Act, and stated ‘‘There goes the organizer.’’ Neither
Ward nor Grubman denied this testimony.
On March 1 during the morning D’Amato credibly testi-
fied that he and Barber were examining a gun catalogue at
667P. E. GUERIN, INC.
1 Both D’Amato and Barber impressed me as credible witnesses.
I was impressed by their demeanor. They gave detailed testimony
and such testimony was consistent during both cross- and direct ex-
amination. In addition, their testimony was at significant times cor-
roborated by other employees.
2 Ward did not impress me as a credible witness. He was admit-
tedly a volatile person and the statements attributed to him by
D’Amato and Barber and by other witnesses, described below are
consistent with such personality. Moreover, Ward’s prior statement,
described above, concerning the ‘‘organizer,’’ which was not denied
is similar to the statement in issue.
3 There is no evidence that Johnson was a supervisor within the
meaning of Sec. 2(11) of the Act. However, Respondent did not
deny D’Amato’s description of Johnson as a supervisor. Accord-
ingly, I conclude that at the very least Johnson is an agent of Re-
spondent.
4 Johnson was not called as a witness during this trial.
5 This finding of fact is based on the credible testimony of
D’Amato, August Calderon, an employee, and Franklin, a former
employee. Ward denied making this statement. However, in view of
my unfavorable impression concerning his credibility, I discredit his
testimony. Martin Grubman, assistant to the president, corroborated
Ward’s denial. Grubman is an admitted supervisor within the mean-
ing of Sec. 2(11) of the Act. Grubman’s testimony as to this meeting
was extremely vague. In view of his supervisor position, and his
close relationship with Ward, I do not credit Grubman. Respondent
elicited testimony from two other employees, Russell Bassarath and
Juan Pena, both of whom essentially denied such statement was
made. However, they were unable to recall little if anything as to
what was said during the course of Ward’s speech. The same is true
as to Grubman.
D’Amato’s workplace for a few minutes when Ward ap-
peared and accused D’Amato of reading on company time.
He then stated ‘‘I’m going to fire your ass, I’ll close down
the chasing department [D’Amato was a chaser in the chas-
ing departmen]). I am going to issue a formal warning . . .
I know what else you are doing.’’ Barber, a credible witness
corroborated D’Amato’s testimony.1 Ward denied the state-
ments attributed to him, by D’Amato and Barber. I credit
Barber and D’Amato’s testimony.2
On March 3, Ward issued D’Amato a written warning for
reading outside material during working hours and for dis-
tracting another employee from his work. Respondent did not
have any formal disciplinary procedure. There is no evidence
that Respondent issued any written warnings. D’Amato was
employed by Respondent at the time as a chaser which is a
position requiring a fair amount of acquired skill. He began
his employment with Respondent in 1984, as a filer and as
he acquired skill, was later promoted to a chaser. There is
no evidence that D’Amato had ever received any warnings,
oral or written, throughout his employment with Respondent.
On March 7, the Union filed the instant representation pe-
tition with the Board’s Region 29. That same morning, Terry
Elders, a foreman and an admitted supervisor within the
meaning of Section 2(11) of the Act, came over to Barber
and told him that Respondent was terminating his employ-
ment. Barber asked Elders why, and Elders replied that he
simply ‘‘didn’t work out.’’ Barber left his work area and
proceeded into Ward’s office unannounced, to protest his dis-
charge. On entry, he observed Ward with an individual not
employed by Respondent passing a gold-plated pistol be-
tween each other. Undisputed testimony established that the
individual in Ward’s office was an electrician named Dono-
van, who had performed some work in Respondent’s build-
ing and had worked out an arrangement with Ward to gold
plate his pistol for which he had a permit. Barber apparently
came in at the time when Ward was returning the finished
product to Donovan. After Donovan left Respondent’s office,
Barber told Ward about his discharge and Ward replied that
he had authorized it.
Barber began his employment with Respondent as a filer,
without prior experience on September 25, 1989. Generally,
unskilled employees are started as filers and learn on the job.
When they acquire experience, they are ultimately promoted
to a chaser position. Filers’ duties consist of filing the edges
of rough castings from the foundry. They are thereafter re-
fined by ‘‘chasing’’ which is skilled machine work. Re-
spondent has no probationary period for new employees. Em-
ployees receive wage increases at the discretion of Respond-
ent based on merit. In addition to his filing duties, Barber
preformed some general maintenance and repair work on Re-
spondent’s building.
Elders testified that he can usually tell whether a new em-
ployee work out within a month. Elders further testified that
he told Barber that his work was inadequate almost daily;,
right up until his discharge. Barber denied that he was ever
issued any verbal or written warnings concerning his work
or his attendance. Elders incredibly testified that he and
Ward decided to terminate Barber on March 2, but since
Barber was absent that day they did not do so, but rather put
off his discharge hoping the ‘‘problem would resolve itself,’’
or possibly because they disliked reassigning an unfinished
job to someone else. This reason is so vague and indefinite
that it strikes me as manufactured and unbelievable. More-
over, contrary to Elders’ testimony concerning Barber’s job
performance, he testified that at some point during his brief
employment, he had received a merit increase.
On April 3, D’Amato gave a union leaflet to Wilfred
Johnson, Respondent’s supervisor of the plating department.3
At the this time, D’Amato told Johnson that he was dumping
sulfuric acid used in Respondent’s manufacturing process
into the sewer and D’Amato considered this to be toxic
dumping. Very shortly thereafter Ward came over to
D’Amato’s work station and said to him that he was crazy,
that he didn’t know what happened to those chemicals (pre-
sumably a reference to D’Amato’s conversation with John-
son). ‘‘I don’t know why you’re working here anyway, I’m
going to fire your ass and I will close the chasing depart-
ment.’’ Ward did not deny this conversation. Accordingly, in
view of my favorable impression of D’Amato’s credibility,
and credible testimony concerning a prior threat by Ward to
close down the chasing department, I fully credit D’Amato’s
testimony.4
On April 4, Ward conducted a meeting in his office for
the purpose of campaigning against the Union. During the
course of an antiunion speech, Ward vas delivering to his
employees he stated ‘‘We fired a worker for bringing in the
Union, but I guess we were wrong.’’ In response to Ward’s
statement, D’Amato stated that it was he that was responsible
for bringing the Union in.5
On April 26, D’Amato asked Ward for a leave of absence
of about 4 weeks because of bronchial problems. Ward ini-
tially told D’Amato that he did not give leaves of absence.
D’Amato reminded Ward that he had given him a leave of
absence in the past as well as leaves of absence to other em-
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 D’Amato did obtain the doctor’s note required and forwarded
such note to Ward in a letter dated March 22.
7 The facts set forth above were based on the credible and corrobo-
rated testimony of Calderon and Lloret. Ward admitted that he ob-
served the above three employees talking and went ‘‘nuts.’’ Ward
admitted using profane language and admitted stating ‘‘See what I
give you at Christmas time with your bonus.’’ Ward’s limited admis-
sion reaffirms my evaluation of Calderon and Lloret as credible wit-
nesses and my overall general impression as to Ward’s lack of credi-
bility. It also reinforces Ward’s inclination to retaliate against em-
ployees who he suspects of being sympathetic to the Union.
8 The above facts are based on the credible and corroborative testi-
mony of D’Amato and Hartman. I find Grubman’s credibility sus-
pect as set forth in fn. 5. Moreover, D’Amato’s testimony that when
he reminded Grubman that his speech was taking place within the
prohibited 24 hours prior to an election and that he looked at his
watch and immediately adjourned the meeting has a ring of truth.
ployees. Ward told him he would speak to his attorney and
get back to him. Ward did consult his attorney who advised
him, that he had given leaves of absence in past years, and
in view of this practice he should give D’Amato his re-
quested leave of absence. Later that afternoon Ward told
D’Amato that he could take a leave of absence for whatever
time required, but to bring a doctor’s note indicating such
leave was medically necessary. D’Amato denies Ward condi-
tioned such leave on a doctor’s note. In this particular con-
nection, I credit Ward. Since the reason for the requested
leave was D’Amato’s alleged medical condition it is logical
to conclude that any employer would require a doctor’s note,
especially after consultation with his attorney. This is simply
a routine accepted business procedure.
On April 30, D’Amato commenced his leave of absence.
Ward testified that he believed that D’Amato would have
given him his doctor’s note by April 30, when he began his
leave of absence. When he did not receive it on that date,
he contacted his attorney who told him not to call or write
any letters to D’Amato. Notwithstanding his attorney’s in-
structions Ward sent D’Amato a letter dated May 4, which
stated: ‘‘In view of the fact that you have not presented us
with a doctor’s note certifying your illness, which you were
supposed to produce on April 30, 1990, as agreed, this will
confirm that you have voluntarily resigned from employment
with the company.’’ On receipt of this letter D’Amato imme-
diately called Ward and denied that he had resigned. He ac-
cused Ward of firing him. Ward replied: ‘‘Yes, well
maybe.’’ Ward did not deny this conversation.6
On June 18, 1991, a week before the commencement of
the instant trial, August Calderon was served with a sub-
poena to appear at the instant trial. Calderon notified Re-
spondent’s bookkeeper about the subpoena. Shortly there-
after, in the morning while working, Ward came over to
Calderon’s work station. Present were Sal Bargallo and Car-
los Lloret. At this point Ward began screaming at the group
that: ‘‘I should fire you guys for talking on the job. . . .
Tell Phil D’Amato that I won the case. You guys are shit,
I should fire you guys. If I give you guys a raise it will be
a quarter, if I give you any raise. And you guys don’t de-
serve nothing.’’7
The election in the instant case was scheduled for April
12 at 10 a.m. On April 11, at about 10:30 a.m. Respondent
scheduled a mandatory employee meeting. Present at this
meeting were Supervisors Martinez, Elders, and Johnson.
Grubman was the speaker on behalf of Respondent. Grubman
was in the middle of an antiunion election speech when at
some point D’Amato reminded Grubman that this speech
was taking place within the Board’s prohibited 24-hour rule.
Grubman looked at his watch and immediately adjourned the
meeting.8
Analysis and Conclusion
The evidence established that on February 7, the day fol-
lowing the initial union meeting, Ward stated to Grubman as
employee Hartman walked by: ‘‘There goes the organizer.’’
It is clear that such statement which was directed to and
heard by Hartman would reasonably cause him to believe
that the employees’ union activities were under surveillance.
Under these circumstances, I conclude Respondent violated
Section 8(a)(1) of the Act by creating the impression of sur-
veillance. Waterbed World, 286 NLRB 425, 427 (1987); 7-
Eleven Food Store, 257 NLRB 108, 116 (1981). I also con-
clude that such statement establishes Respondent’s knowl-
edge of union activities generally, and his suspicion at the
time that Hartman was the major union activist. Waterbed
World, supra.
The evidence also established that on March 1, D’Amato
and Barber were talking at D’Amato’s workplace when Ward
came over and angrily stated to D’Amato: ‘‘I’m going to fire
your ass, I’ll close down the chasing department. I’m going
to issue a formal warning. . . . I know what else you’re
doing.’’ Ward’s statement that he knew what else D’Amato
was doing taken together with his general knowledge of
union activity establish his specific knowledge of D’Amato’s
union activity. Waterbed World, supra; Lafayette Radio Elec-
tronics Corp., 216 NLRB 1135 (1975). Clearly his state-
ments, made with knowledge of D’Amato’s union activities
that he was going to issue a written warning, fire him and
close down the chasing department constitute individual
threats to issue a warning, to discharge, and to close a spe-
cific department, in violation of Section 8(a)(1) of the Act.
Penn Color, Inc., 261 NLRB 395, 396, 405 (1982).
General Counsel contends that Respondent violated Sec-
tion 8(a)(1) on March 7 by brandishing a pistol in the pres-
ence of employees and thus threatening them with physical
violence. I find no merit to this contention. The evidence es-
tablished that the basis for this allegation was that following
Barber’s discharge, described below, Barber proceeded, un-
announced into Ward’s office which was closed and ob-
served Ward handing over a gold-plated pistol to an elec-
trical contractor who had performed some electrical work at
Respondent’s facility. The evidence established that this was
a private transaction, unrelated to Respondent’s usual work
or to union activities. There is no evidence that Ward in any
manner, express or implied, threatened Barber, or any other
employee with this pistol. Under the circumstances described
above, I conclude that General Counsel has not established
the 8(a)(1) violation alleged.
The evidence established that on April 3, D’Amato distrib-
uted a union leaflet to Supervisor Johnson and at the same
time complained about the dumping of sulfuric acid. John-
son, who was at least an agent of Respondent, if not a super-
visor within the meaning of the Act, undoubtedly informed
669P. E. GUERIN, INC.
Ward of his conversation concerning the sulfuric acid and
gave Ward the union leaflet because minutes later Ward an-
grily confronted D’Amato and told him he was uninformed
about how the sulfuric acid was handled and then stated:
‘‘I’m going to fire your ass and I will close the chasing de-
partment.’’ As set forth above, Ward was aware of
D’Amato’s union activities. Moreover, such statements were
virtually a repetition of the threats found to be unlawful on
March 1. Accordingly, I conclude Respondent additionally
violated Section 8(a)(1) of the Act by threatening to dis-
charge employees and to close a specific department in its
facility.
The evidence established that during an antiunion speech
to Respondent’s employees on April 4, Ward stated ‘‘We
fired a worker for bringing in the Union.’’ Such statement
indelibly creates the impression in employees’ minds that if
they engage in union activities they will be discharged. Ac-
cordingly, I conclude that by making such statement Re-
spondent again threatened to discharge employees in viola-
tion of Section 8(a)(1) of the Act. Penn Color, supra.
The evidence established that on June 18, 1991, a week
before the trial, counsel for General Counsel issued a sub-
poena to employee Calderon. When Ward became aware of
this, he rushed over to Calderon’s work station and in the
presence of employees Bargallo and Lloret threatened to fire
them and refuse to grant them a wage increase. At the time
he made such threats he stated: ‘‘Tell Phil D’Amato that I
won the case.’’ This is undoubtedly a reference to the instant
trial. In view of the timing of the threats, immediately fol-
lowing the issuance of a Board subpoena to Calderon’s and
Ward’s reference to the instant trial, I conclude such threats
were motivated by Calderon’s participation in the Board’s
proceedings. I find such threats violative of Section 8(a)(1)
of the Act. S. E. Nichols, 284 NLRB 556, 558 (1987).
On March 3, Respondent issued a warning letter to
D’Amato for reading outside material during working hours.
This letter followed Ward’s unlawful threat to issue such let-
ter on March 1, as set forth above. Respondent does not have
an established disciplinary procedure. Moreover, there is no
evidence that D’Amato, a longtime employee, had ever re-
ceived any warnings, oral or written, during his entire em-
ploy. There is no evidence that Respondent would have
issued such warning in the absence of union activity. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). The issuance of dis-
ciplinary warnings because of union activity is unlawful.
Kenco Plastics Co., 260 NLRB 286, 290 (1981). Accord-
ingly, I conclude that the issuance of such warning violated
Section 8(a)(1) and (3) of the Act.
The evidence established that Respondent discharged Bar-
ber on March 7. Respondent contends that Barber was dis-
charged because he couldn’t perform the work. However, El-
ders, Respondent’s supervisor, testified that he could tell if
an employee was going to work out within a month. Barber
was employed for a period of 4 months during which period
he received no warnings concerning his work performance.
Moreover, and most significantly, Respondent admitted that
Barber was discharged because of his union activities in his
antiunion speech to his employees on April 4, when he stat-
ed: ‘‘We fired a worker for bringing in the Union.’’ Barber
was the only worker fired since the advent of the union cam-
paign. However, even if I were to credit Respondent’s con-
tention that Barber was a poor worker and that he was
warned practically every day by Elders concerning his poor
work, in view of Elders’ testimony that he could tell whether
a new employee would work out within a month, it would
appear that Respondent condoned Barber’s poor work until
he engaged in union activities. Accordingly, I conclude that
there is no evidence that Respondent could have terminated
Barber in the absence of union activities, Wright Line, supra.
I further conclude that Respondent unlawfully discharged
Barber in violation of Section 8(a)(1) and (3) of the Act.
The evidence supporting the allegation that D’Amato was
unlawfully discharged is overwhelming. It is crystal clear
that Respondent not only had knowledge of union activities
generally, but he was also aware that D’Amato was the prin-
ciple activist. This is established by the events in Respond-
ent’s April 4 meeting of employees during which time Ward
admitted that he had fired Barber because he thought he had
brought in the Union but later learned that he had fired the
wrong man. At this time D’Amato stated that he was the em-
ployee responsible for bringing in the Union. The events of
this meeting not only establish knowledge, but also an ad-
mission that Respondent had fired the employee he had
thought to be the principal union activist. Thus, the evidence
establishes that Respondent intended to terminate whoever
the principal union activist might be, and at this meeting he
learned that it was D’Amato. Other evidence of a discrimina-
tory motive is the discriminatory warning letter issued to
D’Amato on March 3. Further evidence of a discriminatory
motive is established by the initial disparate treatment ac-
corded to D’Amato when he requested a leave of absence for
reasons of ill health. Ward initially told D’Amato that he did
not give leaves of absence. D’Amato reminded Ward that he
had given him a leave of absence to him in the past as well
as leaves of absence to other employees. It was only after
Ward consulted his attorney who advised him that in view
of his past liberal practice in granting leaves of absence and
in view of the present union activities he should not deviate
from his past practice. Thus, Ward reluctantly granted
D’Amato a leave of absence, conditioned on receipt of a
doctor’s note. Although D’Amato began his leave of absence
without supplying the doctor’s note, Ward, rather than con-
tacting D’Amato to request the note waited only 4 days, and
then contrary to instructions from his attorney, sent D’Amato
a letter dated March 4, advising him that since he hadn’t pro-
duced the doctor’s note was deemed to have voluntarily quit.
This hasty action, without giving D’Amato a reasonable pe-
riod of time to produce such doctor’s note or to explain why
he had not produced it on April 30 establishes his intention
to terminate D’Amato without reasonable provocation. His
attempt to disguise such termination as a voluntary quit is
simply further evidence of a discriminatory motive. More-
over, when D’Amato contacted Ward following his receipt of
his March 4 letter, denied that he had quit and accused Ward
of firing him, Ward admitted it. Respondent simply contends
that D’Amato was terminated because he failed to supply a
doctor’s note on the day the leave of absence was to begin.
In view of the overwhelming evidence establishing a dis-
criminatory motive, and Respondent’s utter lack of any evi-
dence to establish such discharge would have taken place in
the absence of union activity, I conclude that Respondent
discharged D’Amato on March 4, in violation of Section
8(a)(1) and (3) of the Act. Wright Line, supra.
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 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.
Objections
The Union filed timely objections to the election held on
April 12 at 10 a.m. The objections filed were consistent with
the unfair labor practices alleged in the complaint through
April 12 except for the objection filed that the Employer held
a captive audience speech among its employees within 24
hours of the time of the election in violation of the long es-
tablished rule against such speeches. Peerless Plywood Co.,
107 NLRB 427 (1953). The credible evidence establishes
such violative speech took place. Additionally, as set forth
above, I have concluded that certain conduct engaged in by
Respondent from March 7, the date the Union’s petition in
the instant case was filed to April 12, the date of the elec-
tion, was violative of Section 8(a)(1) of the Act. Such con-
duct would also constitute objectionable conduct, affecting
the results of the election. Dal-Tex Optical Co., 137 NLRB
1782 (1962); Caron International, 246 NLRB 1120 (1979).
On the basis of all the objectionable conduct engaged in by
Respondent, I conclude such conduct justifies setting aside
the results of the election, and conducting a second election.
CONCLUSIONS OF LAW
1. Respondent is, and has been at all times material, an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By creating the impression among its employees their
union activities were under surveillance, Respondent violated
Section 8(a)(1).
4. By threatening its employees that it would issue to them
written warnings because of their activities on behalf of the
Union, Respondent violated Section 8(a)(1).
5. By threatening its employees with discharge because of
their union activities, Respondent violated Section 8(a)(1).
6. By threatening its employees that it would close down
departments within its facility because of their union activi-
ties, Respondent violated Section 8(a)(1).
7. By threatening to discharge its employees because they
participate in NLRB proceedings, Respondent violated Sec-
tion 8(a)(1).
8. By threatening to withhold raises from its employees
because they participate in NLRB proceedings, Respondent
violated Section 8(a)(1).
9. By issuing a written warning to its employee Philip
D’Amato because of his activities on behalf of the Union,
Respondent violated Section 8(a)(1) and (3).
10. By discharging its employees Philip D’Amato and
Kenny Barber because of their union activities, Respondent
violated Section 8(a)(1) and (3).
REMEDY
Since I have found that Respondent discriminatorily dis-
charged its employees Barber and D’Amato, I shall rec-
ommend Respondent make whole the employees together
with interest as set forth below, from the date of their termi-
nation until their reinstatement or valid offer of reinstate-
ment.
Backpay for the above employees shall be computed in ac-
cordance with the formula approved in F. W. Woolworth
Co., 90 NLRB 289 (1950). Interest on and after January 9,
1990, shall be computed at the ‘‘short-term’’ Federal rate for
the underpayment of taxes as set out in the 1986 amendment
to 26 U.S.C. § 6621 in accordance with New Horizons for the
Retarded, 283 NLRB 1173 (1987). Interest on amounts ac-
crued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U.S.C. § 6621), shall be computed as set
forth in Florida Steel Corp., 231 NLRB 651 (1977).
I shall also recommend that Respondent expunge from its
records any reference to the discharges of the above-named
employees, and to provide written notice of such expunction
to those employees, and to inform them that Respondent’s
unlawful conduct will not be used as a basis for further per-
sonnel action concerning them. Sterling Sugars, Inc., 261
NLRB 472 (1982).
I shall further recommend that the above election be set
aside and a second election be conducted.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, P. E. Guerin, Inc., New York, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Activities on behalf of District 15, International Asso-
ciation of Machinists & Aerospace borkers, AFL–CIO, the
Union.
(b) Creating the impression among its employees that they
were under surveillance.
(c) Threatening its employees that it would issue to them
written warnings because of their activities on behalf of the
Union.
(d) Threatening its employees with discharge because of
their union activities.
(e) By threatening its employees that it would close down
departments within its facility because of their union activi-
ties.
(f) Threatening to discharge its employees because they
participate in NLRB proceedings.
(g) Threatening to withhold raises from its employees be-
cause they participate in NLRB proceedings.
(h) Issuing written warnings to its employees because of
their activities on behalf of the Union.
(i) Discharging its employees because of their union ac-
tivities.
(j) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their right
to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from and or all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Kenny Barber and Philip D’Amato, full and
immediate reinstatement to their former or substantially
equivalent positions of employment, without prejudice to
671P. E. GUERIN, INC.
10 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.’’
their seniority or other rights and privileges previously en-
joyed.
(b) Make the above employee whole for any loss of earn-
ings they may have suffered by reason of the discrimination
against them in the manner set forth in the remedy section
of this decision.
(c) Preserve and, on request, make available to the Board
or its agent, for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all the records necessary or useful to ana-
lyze the amount of backpay due under the terms of this
Order.
(d) Post at its place of business in New York, New York,
copies of the attached notice marked ‘‘Appendix.’’10 Copies
of the notice, on forms provided by the Regional Director for
Region 2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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.
WE WILL NOT create the impression amongst our employ-
ees that their union activities are under surveillance.
WE WILL NOT threaten our employees that we will issue
a written warning to them because of their activities on be-
half of the Union.
WE WILL NOT threaten our employees with discharge be-
cause of their union activities.
WE WILL NOT threaten to close down departments within
our facility because of their union activities.
WE WILL NOT threaten to discharge employees because of
their participation in NLRB proceedings.
WE WILL NOT threaten to withhold raises from employees
because they participate in NLRB proceedings.
WE WILL offer Kenny Barber and Philip D’Amato, full
and immediate reinstatement to their former or substantially
equivalent positions of employment, without prejudice to
their seniority or other rights and privileges previously en-
joyed.
WE WILL make them whole for any loss of earnings they
may have suffered by reason of the discrimination against
them.
P. E. GUERIN, INC.