Pocono Artesian Waters Co.

National Labor Relations Board - Board Decisions

Sep 15, 1993

312 N.L.R.B. 104 (N.L.R.B. 1993)

104
312 NLRB No. 14
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We affirm the judge’s denial of the Respondents’ motion to re-
open the record. See fn. 15 of the judge’s decision. We also grant
the General Counsel’s request to strike from the Respondents’ brief
their April 7, 1993 letter attachment. The evidence the Respondents
seek to adduce is neither newly discovered nor previously unavail-
able. See Sec. 102.48(d)(1) of the Board’s Rules and Regulations.
2 The Respondents have 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.
1 1The names of the Respondents appear as amended at the hear-
ing.
2 The relevant docket entries are as follows: The unfair labor prac-
tices were filed by the Union in Cases 4–CA–20122–1, –2, –3, –4,
–5, and –6 on October 4, 1991, and in Case 4–CA–20265–2 on No-
vember 20, 1991, which it amended on February 21, 1992. The com-
plaint issued on March 31, 1992, and the hearing was held in
Stroudsburg, Pennsylvania, on October 26 and 27, 1992.
3 All dates refer to 1991, unless otherwise stated.
4 Contrary to Respondents’ brief, the record does not support their
contention that all employees wore their prounion insignia at all
times, even until they were laid off.
Pocono Artesian Waters Company and Pocono
Springs Demi Sales Co. and United Food and
Commercial Workers, Local 72, United Food
and Commercial Workers International Union,
AFL–CIO. Cases 4–CA–20122–1, 4–CA–20122–
2, 4–CA–20122–3, 4–CA–20122–4, 4–CA–
20122–5, 4–CA–20122–6, and 4–CA–20265–2
September 15, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 11, 1993, Administrative Law Judge Ben-
jamin Schlesinger issued the attached decision. The
Respondents filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings,1 findings,2 and conclusions and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Pocono Artesian Waters
Company and Pocono Springs Demi Sales Co., Mount
Pocono, Pennsylvania, their officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Richard Wainstein, Esq., for the General Counsel.
James R. Nanovic, Esq., of Jim Thorpe, Pennsylvania, for the
Respondent.
Carol L. Backes, Organizer and Business Agent, of
Oakmont, Pennsylvania, for the Charging Party.
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge. The
consolidated complaint alleges that, once Respondents Po-
cono Artesian Waters Company and Pocono Springs Demi
Sales Co.1 learned that their employees had decided to orga-
nize and after United Food and Commercial Workers, Local
72, United Food and Commercial Workers International
Union, AFL–CIO–CLC (the Union) filed a petition with the
Board for a representation election, Respondents threatened
to contract out certain of their work and did so and also laid
off employees, all in violation of the National Labor Rela-
tions Act, 29 U.S.C. § 151 et seq. Respondents denied that
they violated the Act in any manner.2
Jurisdiction is conceded. Respondents are both corpora-
tions with a production facility in Mount Pocono, Pennsyl-
vania, where they process, bottle, and distribute beverages.
During the 12 months ending March 31, 1992, they sold and
shipped goods valued in excess of $50,000 directly to cus-
tomers outside Pennsylvania. I conclude, as Respondents
admit, that they are employers within the meaning of Section
2(2), (6), and (7) of the Act. For the purposes of this pro-
ceeding only, Respondents also conceded that they constitute
a single employer within the meaning of the Act, and I so
conclude. I also conclude, as Respondents admit, that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
Truckdriver Zane Burke was the employee who initially
contacted the Union, and he and four other employees met
with union representatives on Wednesday, July 17, 1991.3
Three of them signed union authorization cards then. By Fri-
day, Burke and the others had obtained cards from about 90
percent of Respondents’ 41 employees. He gave them to the
Union on Monday, and on Tuesday, July 23, at the break be-
tween the first and second shifts, about 3 p.m., Burke and
five other employees and two union representatives went to
Respondents’ office to personally deliver the Union’s de-
mand for recognition to Michael Melnic, Respondents’ presi-
dent and chief executive officer. Melnic would not see them,
and they left the demand with his receptionist. (On the same
day, the Union also filed its petition for a representation
election with the Board’s Regional Office.)
Immediately after, the employees who were then working,
those on the second shift, put on ‘‘Union yes’’ buttons. By
the next day, all the employees wore some kind of prounion
button or tag.4 Early that next day, Melnic scheduled and
presided over what would be almost daily (sometimes twice
a day) meetings with his managers and supervisors. Present
at the first was Edward Schultz, the first-shift supervisor; Ed
Jennings, senior vice president of sales and marketing; Carl
Petro, executive vice president and chief administrative offi-
cer; Tim Fitzgerald, operations manager; and Ken Teats, cor-
porate controller. Melnic asked who had organized the
Union. Fitzgerald thought that the second shift had, because
105POCONO ARTESIAN WATERS CO.
5 Fitzgerald testified, but not about anything that transpired at the
management meetings.
6 McLaughlin was accused by Respondents of stealing money, but
that charge did not come to his attention until about 4 months before
the hearing. He had, however, earlier signed an affidavit during the
Region’s investigation relating to this incident. I am persuaded that
he did not fabricate his testimony to get revenge on Respondents for
filing a criminal complaint.
7 Fitzgerald testified that he had never been greatly opposed to
unions and that it was much easier to manage a company that was
unionized. Because of the statements attributed to him, I find that
his attempt to cast himself as a union sympathizer is patently untrue.
Rather, he tried to please his boss, Melnic, and his testimony was
wholly geared for his approval.
8 Schultz was aware of the organizing effort. He saw the employ-
ees gathering during working hours and kidded them that they were
attending union meetings during working hours. He did not dis-
cipline them, nor did he report what he had seen to management.
When Melnic asked his supervisors and managers, after the Union
had made its demand for recognition on July 23, whether they had
any advance notice of what the employees were doing or thinking,
Schultz said nothing.
9 The Union called as witnesses Burke, Bensley, Rasmussen,
McLaughlin, Nicholas Merigris, Harry Neuman, Eric Finkbeiner, and
Troy Shotwell. The election was held on October 7, pursuant to the
Acting Regional Director’s Direction of Election, dated September
10.
they were new hires.5 Melnic replied that it was probably
Burke. He ordered Fitzgerald to get outside trucking contrac-
tors so he could rid himself of Burke, no matter what it
might cost. He also ordered that the second shift be dis-
banded. When Fitzgerald asked how to accomplish that,
Melnic stated that the supervisors and managers ought to
start evaluating employees, give them bad evaluations, and
fire them.
Later that day, Fitzgerald told Burke that he had pre-
viously been employed at Coca-Cola, where there was a
union, and that, unfortunately, working with a union, the
good people get held back. Fitzgerald then told him what
Melnic had said earlier that day: ‘‘[T]hey’re going to get rid
of the trucks for this. They’ll contract you out.’’ or
‘‘[T]hey’re going to contract out the trucks because of this
Union thing.’’ Employee Ron McLaughlin overheard this
threat, that Respondents would ‘‘get other drivers’’ as a re-
sult of the union organizing drive. McLaughlin was no
longer an employee of Respondents when he testified, and he
had nothing to gain by misstating that Fitzgerald had made
the threat.6 I found Burke candid and credible and credit his
testimony, especially because he was the one who was being
threatened and, as will be seen below, the threat as he related
it was carried out. I thus find that Fitzgerald threatened
Burke and conclude that Respondents violated Section
8(a)(1) of the Act.
In so doing, I do not credit Fitzgerald generally. He por-
trayed himself as one who favored labor organizations,7 but
this threat, not denied by him, and yet other statements he
made at meetings of Respondents’ management, also not de-
nied, did not support his alleged prounion stance. Further-
more, as will be seen, he and Melnic were guilty of the most
flagrant retaliations against the employees’ attempt at self-or-
ganization. Evidence of union animus is rife. Schultz’ testi-
mony makes evident that Respondents were motivated by ha-
tred of the Union and desired to rid themselves of all union
supporters. Respondents contend that Schultz should not be
believed because he held grudges against them for, among
other things, their reduction of his pay. That reduction was
temporary and applied to all management salaries. Further-
more, shortly before he resigned, Melnic gave him a bonus.
Accordingly, there was no evidence that Schultz was at all
biased. At best, I felt that he was upset with Respondents’
bias against and mistreatment of its employees because of
their union activities.8 Otherwise, I was impressed that he re-
membered so many events with clarity and detail, both of
which were generally lacking from the witnesses who testi-
fied on Respondents’ behalf.
The next day, the managers met again. This time Melnic
distributed a list of the employees and asked them to note
whether the employees were in favor of the Union or op-
posed to it. Schultz termed the document a ‘‘hit list’’ that
would determine whether the employee would continue to be
employed or would meet an untimely end. Each manager
was designated to sway an employee whose vote was ‘‘yes,’’
report back at the next meeting whether the employee could
be swayed and the vote could be changed into a ‘‘no,’’ or
whether the employee was a definite ‘‘yes.’’ Over time, as
employees’ sentiment changed, new lists would be distrib-
uted, and different employees would be the subjects of dis-
cussion and of Respondents’ effort to change their minds.
Specific names were raised at the meetings. From an early
date, Melnic believed that Jeff Bensley and Patricia Ras-
mussen were union supporters who could not be persuaded
not to support the Union. His opinion grew stronger after
they testified at the representation hearing, which was held
on August 2 and 9.9 As a result of their testimony, Melnic
wanted to discharge them and directed their discharge. An-
other problem employee continued to be Burke. Burke’s
principal function was to drive a 6700-gallon tanker truck
from the plant to the spring, where he would load the spring
water into the tanker, take readings on the pumphouse equip-
ment, and collect samples. He would then return to the plant
and pump the water into a silo, where it would be processed.
He would run up to three runs a day, each one taking about
3 hours. In addition, he would jockey or switch trailers from
one location of the facility to another. He worked on the first
shift, and Dave Adams, the other full-time driver, worked on
the second. Melnic was convinced that Burke had started the
organizing drive. He wanted to get rid of Burke, too, but
there was a problem with getting rid of Burke without termi-
nating Adams, because, argued Fitzgerald, the discharge of
Burke would have been interpreted as being caused by his
union activities. On Monday, August 26, Burke finished his
third run, working overtime. Fitzgerald told him that he was
then terminated and that he had to punch out and empty the
truck of his personal belongings. He said that Respondents
were ‘‘getting rid of the trucks.’’ Adams, too, was dis-
charged.
The above-credited evidence demonstrates that Burke’s
union activities motivated Respondents to act as they did.
Melnic selected Burke solely because of his belief that Burke
was a union supporter and instigated the organizing cam-
paign. There is yet other support. Schultz met with Fitzger-
ald, who commented that it was too bad that Respondents
had to terminate Adams, but it could not let go of Burke
without treating Adams the same. Otherwise, that would be
too suspicious. Schultz also remarked that it was costing
106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Much of Respondents’ other proof was shallow. The impetus for
the contracting out came from an unnamed driver who relayed an
offer to Fitzgerald at just the time that the employees were demand-
ing recognition of the Union. The negotiations were held between
this unnamed individual and Petro, neither of whom testified. Fi-
nally, the rate agreed on appears to be greater than that offered to
and rejected by Respondents 6 months before and was still being ne-
gotiated even after Respondents had terminated Burke and Adams.
11 There is no evidence that Respondents terminated Burke for his
testimony at the representation hearing, and I dismiss the allegation
that the discharge violated Sec. 8(a)(4) of the Act.
12 Schultz narrated his recollections of the discussions that the
managers and supervisors engaged in at their daily meetings. He
could not recall the discussions about every one of the employees.
much more for Respondents to be contracting out the work
of the truckdrivers rather then employing them to do the
work. Fitzgerald replied that it did not make any difference
what it cost, that he did not want Burke in the plant. These
findings establish the prima facie case that the General
Counsel must prove under Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983). Wright Line then re-
quires that Respondents, in order to avoid liability, must
prove that they would have taken the same action that they
did, even in the absence of the union activities. Respondents
did not do so.
Respondents’ defense was premised on the fact that they
had decided that it was cheaper to contract out their trucking
work than to employ the two truckdrivers and rent trucks for
them. But there were two basic problems with Respondents’
proof. First, both Melnic and Fitzgerald wanted to get rid of
Burke and specifically stated that cost was no factor—even
if it cost Respondents more, Burke had to be discharged.
More important, Schultz testified that the document on which
they principally relied to prove their cost savings, a cost
comparison (G.C. Exh. 16), was prepared the day before the
Region’s investigator had an appointment to talk with Re-
spondents’ representatives about the unfair labor practice
charges on which this proceeding is based. (Melnic asked
Fitzgerald where the price and cost comparison was, and
Fitzgerald answered that he did not have it yet. According
to Schultz, ‘‘Melnic, in an outrage, hit the table and told him
to go do it right now before (the Region’s investigator) gets
here.’’) Because the first unfair labor practice charge was
filed on October, that interview had to take place long after
the driving jobs were contracted out. Accordingly, the exhibit
was fraudulent, and I do not rely on it. In addition, I refuse
to rely on any of the testimony of both conspirators, Melnic,
who ordered the preparation of the document, and Fitzgerald,
who carried out Melnic’s order. Witnesses who create docu-
ments to defraud this Agency are unworthy of any belief.
Thus, I do not believe Respondents’ contentions that they
had always planned to contract out this work. There is evi-
dence that some thought was given to the contracting out of
this work, and every time that Respondents had some trouble
with Burke’s actions, it threatened him with ending his job.
For example, Fitzgerald had once before threatened Burke
that the trucking work would be contracted out if he did not
withdraw his complaint to the Wage and Hour Division
about not being paid overtime. Schultz also recalled two
other occasions, when Burke refused to drive his truck when
the brake lights were not working and when he thought that
there was too much snow and ice to drive safely. Fitzgerald
threatened that he ought to get outside contractors so that he
would not have to put up with Burke. But nothing came of
these threats, and nothing came of some other considerations
that had been given to contracting out the work on other oc-
casions, as long before as July 1990, when Melnic was first
hired and, he testified, was opposed to employing truck-
drivers. One incident made it apparent that Respondents did
not intend to contract out their work. In March, Burke was
considering applying for a mortgage. To ensure that he
would be able to keep up his payments, he asked Petro if
his job was in jeopardy. Petro assured him that it was not:
as long as Respondents existed, ‘‘[W]e will need you.’’ It
was only when the union organizing drive began that serious
consideration was given to this issue, and the persuasive evi-
dence demonstrates that consideration was given to it only
because Melnic believed (correctly) that Burke instigated the
union movement. As a result, Respondents have not sus-
tained their burden of showing that they would have con-
tracted out the work even in the absence of the union cam-
paign.10 Rather, their decision was made solely because
Burke was a union instigator and adherent. Adams was the
innocent victim of Respondents’ retaliation against Burke. I
conclude that Respondents violated Section 8(a)(3) and (1) of
the Act.11
Three days before Respondents contracted out the trucking
work, they terminated the second shift. That decision is not
questioned in this proceeding, but the selection of the 11 em-
ployees they laid off is. Again, the General Counsel has
proved a prima facie case. As the days of the union cam-
paign proceeded, Respondents’ supervisors were designated
to attempt to persuade individual employees to turn against
their support of the Union. Much of that attempt was suc-
cessful, and many of the ‘‘yes’’ votes were turned to
‘‘no’s.’’ When the time came for the layoff of the second
shift, Respondents did not lay off everyone on that shift.
Rather, they selected certain of those people and employees
from the other shifts in a random fashion. Schultz testified
that one of the objects of Respondents’ initial disaffection
was the second shift, all new employees, as the ones likely
to have instigated the Union’s organizing campaign. Melnic
wanted that shift disbanded, not because business was bad in
July, but because Fitzgerald thought that the second shift
started the union campaign. By the time that the shift was
terminated, Respondents determined that many of the em-
ployees on that shift had changed their positions. But Jeff
Bensley, David Geiger, and Pat Rasmussen had not, and they
were discharged. Thus, as to them, a prima facie case has
been made. There was no evidence about whether George
Hackett and Kevin Kojeszewski favored the Union,12 but
they were on the second shift and were thus fingered as
union supporters, so the General Counsel has also proved his
prima facie case as to them.
The General Counsel also proved a prima facie case re-
garding three employees on the first shift who were laid off:
Two were known to favor the Union, Linda Gates and Patri-
cia Kosmider. (Melnic directed the managers not to waste
their time with such employees as Kosmider, who was wear-
ing a union pin. ‘‘Get rid of her,’’ said Melnic.) The other
was Ronald Hamm. Although Schultz could not recall any
conversation about him, Hamm was one of the employees
107POCONO ARTESIAN WATERS CO.
13 Respondents were unsuccessful. The Acting Regional Director
found him to be an employee, and he was included in the unit.
14 Respondents contended that Rasmussen was laid off because she
was the quality control manager on the second shift and that she
could not be moved to the first shift because Schultz was assigned
to do that work. However, Respondents had no problem with retain-
ing three filler operators, although only one could be used in that
position and the other two had to be assigned elsewhere. Respond-
ents did not provide any evidence that they could not have similarly
assigned Rasmussen to perform a different function.
15 The General Counsel’s unopposed motion to amend the official
transcript in certain respects is granted. Respondents’ motion, dated
February 9, 1993, to reopen the hearing for the introduction of addi-
tional evidence is denied. Respondents gave insufficient reasons that
the new evidence was not found previously, particularly in light of
the fact that two of the documents should have been produced at the
hearing because the General Counsel subpoenaed them. To permit
Respondents now to introduce these documents, after it has failed to
comply with a subpoena duces tecum and after it has become aware
of the positions of the General Counsel to support his case would
severely prejudice him and the Union. Furthermore, even if I were
to consider the documents, in light of my credibility determinations,
Continued
who presented the Union’s demand for recognition. That
constitutes sufficient evidence to prove a prima facie case
that Respondents were motivated by his union activities.
There was no testimony that the other three employees, Kim
Mosteller, Jennifer Paradiso, and Michael McKee, favored
the Union at the time of their layoffs, except that all the em-
ployees favored the Union at the beginning of the campaign
and there is no evidence that Respondents persuaded them to
oppose the Union. Furthermore, the fact that Respondents did
not lay off one of their employees tends to prove that they
were well aware of these employees’ feelings about the
Union. Kristine Pappas was a bottle filler operator, and ap-
parently a very good one, who would have been hard to re-
place. Even though she was an ardent union supporter, Re-
spondents decided to keep her. Petro said, ‘‘[O]ne yes vote
wouldn’t hurt us.’’ Pappas being the one ‘‘yes’’ vote whom
Respondents decided to keep, these other employees must
have also been ‘‘yes’’ votes whom they decided to lay off.
That being so, there is a prima facie case that Respondents
selected these employees because of their union activities.
Respondents contend that they did so only after evaluating
the employees, but, having found that none of their witnesses
are reliable, I do not believe them. Furthermore, there is no
documentary evidence that they evaluated anyone. Schultz
testified that evaluations were not the test—he was not asked
to evaluate employees, but only to persuade them to vote
against the Union. I once again credit him, not only because
I found him believable but also because Respondents made
a clear effort to discharge those who favored the Union (or
testified in favor of the Union) and to retain those employees
they felt certain would vote against the Union or those, even
if they were ‘‘yes’’ votes, who would not harm Respondents’
election prospects. For example, Respondents could not have
been truly interested in the fact that employees were good
workers. John Gallo was viewed as a poor worker, but
Melnic said: ‘‘It doesn’t matter. We’re going to keep him.
He’s a no vote.’’ Apparently, Melnic could not discharge
enough employees to ensure that the vote would be against
the Union. Thus, he decided to neutralize other ‘‘yes’’ votes
in imaginative ways. For example, the route drivers favored
the Union, so Melnic determined to change their job classi-
fication to route salesmen, so that they could not vote. Fitz-
gerald suggested that Stephen Filardi, a sure ‘‘yes’’ vote, be
elevated to a supervisor, so that he could not vote for the
Union. Melnic and Fitzgerald were concerned about Harry
Neuman, who was a strong union supporter. However, he
was a former officer of a union for many years, and they felt
that he was very familiar with labor laws. Accordingly, they
made him a supervisor.13
All these findings demonstrate that Respondents made a
calculated attempt to retain those employees who, they
thought, would vote against the Union, to retain those who
were decent workers but who would have voted for the
Union had Respondents not changed their job classification
so that they would not be eligible to vote in an election, and
to terminate the rest. I find that all the discharges were moti-
vated by Respondents’ distaste for the employees’ union ac-
tivities and fear of their vote and conclude that all the dis-
charges violated Section 8(a)(3) and (1) of the Act. In addi-
tion, because Melnic specifically wanted to rid himself of
Rasmussen14 and Bensley because they testified at the rep-
resentation hearing, I conclude that Respondents’ discharge
of them violated Section 8(a)(4) of the Act.
The unfair labor practices found here, occurring in connec-
tion with Respondents’ business, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in numerous
unfair labor practices, I shall recommend that they cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act. Specifically, I shall
order Respondents to reestablish the trucking operations that
they contracted out in order to discriminate against Burke, as
they existed on August 26, 1991, when Respondents dis-
charged him and Adams. Service Merchandise Co., 278
NLRB 185, 188 (1986). I shall also order Respondents, if
they have not already done so, to offer immediate and full
reinstatement to Zane Burke, Kevin Kojeszewski, Dave
Adams, Patricia Kosmider, Linda Gates, Mike McKee, Dave
Geiger, Kim Mosteller, George Hackett, Jennifer Paradiso,
Ronald Hamm, Jeff Bensley, and Patricia Rasmussen to their
former positions or, if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously enjoyed,
and to make them whole for any loss of wages and other
benefits they may have suffered by reason of Respondents’
discrimination against them, in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987). In making this recommendation, I note that Re-
spondents began to litigate the issue of whether they made
offers of reinstatement to various of the discriminatees. By
agreement of the parties, that issue was left to the compli-
ance stage of this proceeding, and I make no specific finding
about whether legitimate offers were made.
On the foregoing findings of fact and conclusions of law
and the entire record in this proceeding,15 including my ob-
108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
my findings of fact and conclusions of law would be no different.
Petro never testified, and I reject his self-serving memorandum as
hearsay. The document dated in February 1991 relating to the possi-
bility of contracting work was not then acted on by Melnic, but the
decision made 6 months later resulted solely from the employees’
union activities. The third document does nothing to establish that
Schultz was biased against Respondents.
16 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 and
Regulations, be adopted by the Board and all objections to them
shall be deemed waived for all purposes.
17 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.’’
servation of the demeanor of the witnesses as they testified,
and my consideration of the briefs filed by the General
Counsel and Respondents, and pursuant to the provisions of
Section 10(c) of the Act, I issue the following rec-
ommended16
ORDER
The Respondents, Pocono Artesian Waters Company and
Pocono Springs Demi Sales Co., Mount Pocono, Pennsyl-
vania, their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening their employees that Respondents will con-
tract out their work because of their employees’ union activ-
ity.
(b) Laying off, terminating, or otherwise discriminating
against any of their employees because of their union activi-
ties or sympathies, or suspected union activities or sym-
pathies, or because their employees testified at or participated
in National Labor Relations Board proceedings.
(c) Contracting out their operations involving hauling tank-
ers of water from their water source to their Mount Pocono,
Pennsylvania facility and jockeying trailers at that facility,
because of the union activities or sympathies, or suspected
union activities or sympathies, of their employees.
(d) In any like or related manner interfering with, restrain-
ing, or coercing their employees in the exercise of the rights
guaranteed them in Section 7 of the National Labor Relations
Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Reestablish their operations involving hauling tankers
of water from their water source to their Mount Pocono facil-
ity, and jockeying trailers at that facility, as they existed on
August 26, 1991.
(b) Offer Zane Burke, Kevin Kojeszewski, Dave Adams,
Patricia Kosmider, Linda Gates, Mike McKee, Dave Geiger,
Kim Mosteller, George Hackett, Jennifer Paradiso, Ronald
Hamm, Jeff Bensley, and Patricia Rasmussen immediate and
full reinstatement to their former positions or, if those posi-
tions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed, and make them whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in the
remedy section of this decision.
(c) Remove from their files any reference to the unlawful
discharges of the above-named employees and notify them in
writing that this has been done and that the discharges will
not be used against them in any way.
(d) Preserve and, on 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.
(e) Post at their facility in Mount Pocono, Pennsylvania,
copies of the attached notice marked ‘‘Appendix.’’17 Copies
of the notice, on forms provided by the Regional Director for
Region 4, after being signed by Respondents’ authorized rep-
resentative, shall be posted by Respondents immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondents to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondents have
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees that we will contract
out their work because of our employees’ union activity.
WE WILL NOT lay off, terminate, or otherwise discriminate
against any of our employees because of their union activi-
ties or sympathies, or suspected union activities or sym-
pathies, or because our employees testified at or participated
in National Labor Relations Board proceedings.
WE WILL NOT contract out our operations involving haul-
ing tankers of water from our water source to our Mount Po-
cono, Pennsylvania facility and jockeying trailers at that fa-
cility, because of the union activities or sympathies, or sus-
pected union activities or sympathies, of our employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them in Section 7 of the National Labor Relations
Act.
WE WILL reestablish our operations involving hauling
tankers of water from our water source to our Mount Pocono
facility, and jockeying trailers at that facility, as they existed
on August 26, 1991.
WE WILL offer Zane Burke, Kevin Kojeszewski, Dave
Adams, Patricia Kosmider, Linda Gates, Mike McKee, Dave
Geiger, Kim Mosteller, George Hackett, Jennifer Paradiso,
Ronald Hamm, Jeff Bensley, and Patricia Rasmussen imme-
diate and full reinstatement to their former positions or, if
those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other
109POCONO ARTESIAN WATERS CO.
rights or privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits suffered as
a result of the discrimination against them, with interest.
WE WILL remove from their files any reference to the un-
lawful discharges of the above-named employees and notify
them in writing that this has been done and that the dis-
charges will not be used against them in any way.
POCONO ARTESIAN WATERS COMPANY AND
POCONO SPRINGS DEMI SALES