Rohr, Marion, Corporation

National Labor Relations Board - Board Decisions

May 18, 1982

261 N.L.R.B. 971 (N.L.R.B. 1982)

MARION ROHR CORPORA'I'ION
Marion Rohr Corporation and Local 280, Interna-
tional Ladies Garment Workers' Union, AFL-
CIO. Case 3-CA-9231
May 18, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 2, 1981, Administrative Law Judge
Robert W. Leiner issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel and the Charging Party, herein called the
Union, each filed reply briefs.
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, find-
ings,' and conclusions of the Administrative Law
Judge as modified herein, and to adopt his recom-
mended Order, as modified.
The Administrative Law Judge properly found
that during the period prior to the Union's demand
for recognition on July 9, 1979,2 Respondent Plant
Manager Henry Schlossberg engaged in the follow-
ing conduct in violation of Section 8(a)(l) of the
Act:
After learning about the Union's organizing cam-
paign, Schlossberg on April 27 created the impres-
sion of surveillance by telling Lyda Metcalf, an
active union adherent, that he knew that she had
been at the union meeting held on that day.
Schlossberg also interrogated Metcalf concerning
the union activities of other employees and the per-
centage of their membership in the Union. Schloss-
berg went on to warn her of the prospect of layoffs
and a shutdown of the plant when he indicated, by
citing the example of another employer, that there
was a necessary linkage and causation between
unionization and an employer thereafter going out
of business.
At a meeting of all employees called by Schloss-
berg on the afternoon of April 27, he created a fur-
ther impression of surveillance of the employees'
union activities by telling them that the Union was
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutionis with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con
vinces us that the resolutions are Incorrect Srundard DIrl 4aull Products.
Inc.. 91 NLRB 544 (1950), enfd 188 F12d 3t2 (3d lir 1951). We hase
carefully examined the record and find t)o basis for resersing his findings
z All dates below refer to 1979 unless otherwise indicated
around the plant forcing employees to sign authori-
zation cards; that he knew of two employees who
were soliciting signatures; that he also knew that
there had been 12 employees at a union meeting;
and that he had knowledge of the date of the next
union meeting. Schlossberg also declared that, if
the Union came in, he would no longer permit si-
multaneous vacations of the female employees with
their husbands and would commence timing the
employees' stay in the bathroom. Schlossberg then
warned the employees that he could in the event of
a strike close the doors of the plant and hire con-
tractors to do the work.
Schlossberg again assembled his employees on
April 30, at which time he repeated the warning
that in the event of a strike he might have to close
down the plant and subcontract out the work. 3 He
also made the retaliatory statement that the Union
could not prevent him from timing their bathroom
visits. Schlossberg made the further statement to
the employees that he knew who the five union
sympathizers were, and warned that he could make
things "hot and heavy" for them and could fire
them if he wanted to.4
On May 2, Schlossberg told employees Debra
Krajewski and Marie Trumbull that the girls who
signed the cards would not be fired but that the
card distributors would be fired eventually.
A few days later, Schlossberg held another em-
ployee meeting at which he repeated threats made
at the two earlier meetings.- Following these meet-
ings, seven employees took steps to revoke their
authorization cards.
Schlossberg continued to engage in unlawful
conduct subsequent to the Union's July 9 demand
for recognition:
The Administrative Law Judge correctly found
that Respondent violated Section 8(a)(3) and (1) of
the Act on July 12 by "putting on notice," i.e., dis-
' The Administrative Iass Judge found, in connection with Schloss
berg', earlier statement that he could close the doors. that the ill.ion
"had not suggested, much less threatened any type of strike" According-
ly, he properli found that this statement was, in the context of Respond-
ent's other threats,. an unlawful warning of a shuldown if the Union came
in In light of Schlossberg's April 30( warning, his earlier statement that
he "could" close the doors takes ot even more clearly the tone of a
threat
4 In addition, the Administrative Law Judge held that Respondent
threatened employees in tiolation of Sec 8(a)(l) (of the Act by telling
them in April that. if the Union came in, (1) their lsorkeek 'would be
reduced because the Union's contracts prohibit the longer workwneek and
there would be layoffs caused by union-implxsed rigid classifications of
employment operations. (2) employees returning to work after pregnancy
leave would on each such occasion be required by the Union to pay $35
ill initiation fees. and (31 by telling employees on July 9 thalt the Union
n ould present the hiring of It- and 17-year old employees Contrars to
the Administrative I.an Judge, we find that the foregoing statements are
not unlaswful because they pertain to possible action by the [Inion rather
than by Respondent
s A.s thil Ihreats tere repetltile and cumulatie,. the Administrative
L aw Judge deemed it unnecessary to make findings thereon
261 NLRB No. 138
971
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ciplining, employee Carol Pawlica for her protect-
ed union solicitation before worktime, and dis-
charging employee Lucinda Hurlburt in Pawlica's
presence because she had a union card in her pos-
session during nonworktime. Although Schlossberg
apologized and rescinded the discharge, we find in
agreement with the Administrative Law Judge that
said repudiation of his unlawful conduct did not vi-
tiate its coerciveness.
Finally, the Administrative Law Judge properly
found that Schlossberg engaged in further unlawful
conduct in violation of Section 8(a)(1) of the Act
by telling Debra Axtell when she was hired in
March 1980 as a temporary employee that she
would be "very temporary" if he heard anything
about her being involved with the Union.
We come now to the findings of the Administra-
tive Law Judge regarding the allegation that Re-
spondent violated Section 8(a)(5) and (1) of the Act
by refusing to bargain with the Union.
The Administrative Law Judge found appropri-
ate a unit which included production, maintenance,
plant clerical, shipping, and receiving employees
but excluded cutters, spreaders, 6 office clerical em-
ployees, and guards and supervisors as defined in
the Act. We disagree with the exclusion of the cut-
ters and spreaders by the Administrative Law
Judge who found that they constituted a craft "in
view of the lack of departmental integration [with]
other cutting room employees who often perform
tying, bundling, shipping, receiving, and driving."
The record shows that the cutters and spreaders
and four packers and bundlers work in the cutting
room, which is supervised by Leon Spicer, and ad-
joins the sewing room where 10 to 20 sewing ma-
chine operators do basic sewing on newly cut ma-
terials that are trucked in from the cutting room. In
addition to their cutting duties, which require
about a year's on-the-job training, the cutters spend
from 50 to 90 percent of their time operating
spreading machines, sorting bundles, preparing
markers, driving, loading, and unloading of
trucks. 7 The spreaders, who are trained for only 1
or 2 months, spend about 80 percent of their time
operating spreading machines and devote their re-
maining time to making and preparing markers,
bundling and tying of cut goods, and loading and
unloading trucks.
It is clear from the foregoing that many of the
duties of the cutters and spreaders are the same as
those of the other cutting room employees all of
whom are under the same supervisor. Accordingly,
6 There were four spreaders and four cutters who were not sought by
the Union or any other labor organization. As indicated below, one of
the cutters, William Spicer, was also excluded on the alternative ground
that he was a supervisor as defined by the Act.
I One of the cutters also sweeps the floor.
as they have interests in common with those of
other unit employees and no other union seeks to
represent them, we shall include the cutters and
spreaders in the unit.s
As indicated above, William Spicer is one of the
cutters excluded from the unit by the Administra-
tive Law Judge. Although he found that William
Spicer sporadically and irregularly assumed super-
visory duties in the absence of his brother, Leon
Spicer, an acknowledged supervisor within the
meaning of the Act, the Administrative Law Judge
nevertheless excluded him (William Spicer) as a
statutory supervisor because of his "divided loyal-
ty" stemming from his return to employee status
among the employees he controls during his inter-
mittent performance of supervisory duties. Howev-
er, it is well established that an employee whose
substitution for a supervisor is sporadic and limited
cannot be deemed a statutory supervisor and is en-
titled to representation. 9 We therefore find that
William Spicer is not a supervisor within the mean-
ing of the Act.' ° Accordingly, we shall include
him in the unit.
On July 9, the Union met with Plant Manager
Henry Schlossberg and read a letter' to him re-
questing recognition. Schlossberg then ordered the
union representatives to leave and, at a meeting
called by him later that day, told the employees
that he was sure that the Union did not have a ma-
jority and that he had written a letter to the Union
rejecting its demand for recognition.' 2
The Administrative Law Judge found that on
the morning of July 9, when the demand for recog-
s The record shows that four of these eight employees submitted valid
authorization cards.
Members Jenkins would adopt the Administrative l.aw Judge's finding
that the cutters and spreaders are craft employees who may properly be
excluded from the unit. Thus, his analysis of the Union's majority status
follows that of the Administrative Law Judge.
9 See Canonsburg General Hospital Association, 244 NLRB 899 (1979).
See also Statler Industries. Inc. (Statler Tissue Company), 244 NLRB 144
(1977), wherein the Board held that an employee who spends 50 percent
or more of his time performing nonsupervisory duties cannot be denied
the advantages of collective bargaining.
'0 Contrary to the Administrative Law Judge, who relied on Westing-
house Electric Corporation, 163 NLRB 723, 727 (1967), in excluding Wil-
liam Spicer from the unit as a supervisor, the Board in that case permit-
ted employees to be included in the bargaining unit where, as here, their
supervisory duties were not regularly or closely intermingled with their
nonsupervisory work.
" The letter was not introduced at the hearing which was closed on
December 4, 1980. However, the General Counsel on February 20, 1981,
sent the Administrative Law Judge as a proposed exhibit a copy of the
purported letter wherein the Union "demands recognition" and states,
"This is a continuing demand." Upon a motion by Respondent, the Ad-
ministrative Law Judge rejected the proffered document on the ground
that no such letter was offered in evidence and there was no sufficient
preliminary foundation laid which would identify it as the actual demand
letter that Schlossberg read before refusing the Union's demand for rec-
ognition.
12 Respondent's letter, dated July 9, 1979, which was received in evi-
dence, refers to the Union's "letter of July 9, 1979, requesting recogni-
tion" but contains no further description thereof.
972
MARION ROHR CORPORATION
nition was made, the Union had not then achieved
majority status because it had 96 valid cards1 3 for
a 200-employee unit which excluded the cutters
and spreaders. We agree with that conclusion as
the inclusion of the cutters and spreaders in the
unit resulted in 100 valid cards for 208 employees
and hence fell short of a majority. We therefore
find in agreement with the Administrative Law
Judge that as of July 9 Respondent's refusal to bar-
gain with the Union was not unlawful.
However, the Administrative Law Judge found
that the Union did achieve majority status on July
10 by virtue of 100 valid cards out of 197 employ-
ees in a unit which excluded cutters and spreaders.
We agree with that conclusion as the modified
unit, which includes them, resulted in 10414 rather
than 100 valid cards for a unit of 205 rather than
197 employees. Despite the Union's majority status
on July 10, the Administrative Law Judge properly
held that there was no basis in the record to show
that the Union's demand on the preceding day
might be characterized as a "continuing demand,"
and no exception was taken to this finding. Yet the
Administrative Law Judge held, and we agree, that
the Union was nevertheless entitled to a bargaining
order to remedy effectively Respondent's unlawful
conduct.1 5 Thus, Schlossberg as plant manager and
highest level supervisor was in a position to have a
heavy impact on the employees when he made a
series of coercive and intimidatory statements and
threats of loss of benefits, discharges, layoffs, and
shutdown of the plant which were designed to im-
press upon them the unwelcome prospect that their
support of the Union would endanger their contin-
ued employment with Respondent. It is clear that
Schlossberg's serious and persistent threats, particu-
13 The Administrative Law Judge discredited the testimony of em-
ployee Leah Dawson that several cards including hers were executed on
the solicitor's assertion that there would be an election. As indicated
above, we found no basis for reversing any of the Administrative Law
Judge's credibility resolutions. However, the Administrative Law Judge
also stated that Respondent abandoned its position that the cards were
solicited for the purpose of securing an election. Because it appears that
Respondent did adhere to that position which it expressed in its brief to
the Administrative Law Judge, we disavow his finding to the contrary.
14 As indicated above, four of the eight cutters and spreaders submit-
ted valid cards.
is In this connection, the Administrative Law Judge properly deemed
without merit Respondent's contention that a bargaining order was not
warranted because of employee turnover and the passage of time since
July 1979. In view of that holding of the Administrative Law Judge, we
find it unnecessary to adopt his further statement that in any event those
issues will be resolved by the Board if and when it enforces the recom-
mended Order and Respondent fails to comply therewith.
Member Zimmerman would not order Respondent to bargain with the
Union since he finds the unfair labor practices found by the Board not to
be of sufficient magnitude as to preclude a fair election following applica-
tion of the Board's traditional remedies. He therefore finds it unnecessary
to pass on the question of whether the Union ever obtained majority
status or on Respondent's contention that a bargaining order was not
warranted because of employee turnover and the passage of time since
the occurrence of the unfair labor practices.
larly those pertaining to a punitive shutdown of the
plant and loss of employment, would have effects
which are unlikely to be eradicated by our usual
cease-and-desist order.' 6 In this connection, we
agree with the Administrative Law Judge that
three additional factors ultimately demonstrate the
lingering effects of the foregoing coercive conduct
and the indispensible need for a bargaining order:
(1) the withdrawal of no less than seven authoriza-
tion cards following Schlossberg's speeches, (2) the
July 12 discharge of Hurlburt, and (3) the dis-
charge threat made to Axtell in March 1980. Ac-
cordingly, we shall in agreement with the Adminis-
trative Law Judge order Respondent, upon request,
to bargain retroactively with the Union regarding
wages, hours, and conditions of employment as of
July 10, 1979.'7
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Marion Rohr Corporation, Hornell, New York, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for the unit descrip-
tion contained in paragraph 2(a):
"All production and maintenance employees,
plant clerical employees, shipping and receiv-
ing employees, cutters, and spreaders em-
ployed by Marion Rohr Corporation at its
facilities located at 18 North Main Street and
at Edison Street in Hornell, New York, but ex-
cluding office clerical employees, and guards
and supervisors within the meaning of the
Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
1i See Ed Chandler Ford. Inc., 254 NLRB 851 (1980). Cf. N.LR.B. v.
Jamaica bowing. Inc., 632 F.2d 208 (2d Cir. 1980), wherein the court held
a bargaining order was unjustified in the absence of serious "hallmark"
violations. We find in agreement with the Administrative Law Judge that
Jamaica lowing is distinguisable from the instant case which does involve
"hallmark" violations.
" As the bargaining order must be retroactive under existing Board
law, Member Fanning abides thereby despite his position in Beasley
Energy, Inc. d/b/a Peaker Run Coal Company. Ohio Division #1, 228
NLRB 93 (1977), that bargaining orders should be dated prospectively in
the absence of a continuing demand by the Union.
973
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIIlL NOT discharge, place on notice, or
otherwise discriminate against our employees
because they engage in union activities or be-
cause they engage in protected, concerted ac-
tivities.
WE WILI. NOT give the impression of sur-
veillance of our employees' union activities or
their union meetings or coercively interrogate
them.
WE WILL NOT threaten reprisals against our
employees because they engage in union activ-
ities or because they select Local 280, Interna-
tional Ladies' Garment Workers Union, AFL-
CIO, or any other labor organization, as their
collective-bargaining agent.
WE WILL NOT in any other manner interfere
with our employees' exercise of their rights
guaranteed them in Section 7 of the National
Labor Relations Act as amended.
WE WILL expunge from our records any ref-
erence to discipline accorded to Carol Pawlica
and Lucinda Hurlburt on July 12, 1979.
WE WILL, upon request, recognize and bar-
gain collectively in good faith with Local 280,
International Ladies' Garment Workers'
Union, AFL-CIO, in the bargaining unit de-
scribed below with respect to rates of pay,
wages, hours of work, and other terms and
conditions of employment as of July 10, 1979,
and WE WI.L, upon request, embody in a
signed agreement, any understanding that may
be reached. The bargaining unit is:
All production and maintenance employees,
plant clerical employees, shipping and re-
ceiving employees, cutters, and spreaders
employed by the Employer at its facilities
located at 18 North Main Street and at
Edison Street in Hornell, New York, but ex-
cluding office clerical employees, and
guards and supervisors within the meaning
of the Act.
MARION ROHR CORPORATION
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge: Upon
a charge filed and served on July 24, 1979, by Local 280,
International Ladies' Garment Workers Union, AFL-
CIO (herein called the Union), upon Marion Rohr Cor-
poration (herein called Respondent), the General Coun-
sel of the National Labor Relations Board, by the Re-
gional Director for Region 3, issued an amended com-
plaint and notice of hearing on August 14, 1980, to
which Respondent duly filed its answer. The amended
complaint, thereafter further amended at the hearing, al-
leges that Respondent engaged in unfair labor practices
in violation of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act as amended, herein called the Act.
Pursuant to prior notice, the hearing was held in Hor-
nell, New York, on December 2, 3, and 4, 1980, at which
all parties were represented by counsel and accorded the
right to call, examine, and cross-examine witnesses, pro-
duce evidence, and argue on the record. After the re-
ceipt of the evidence, the parties waived oral argument
and thereafter submitted posthearing briefs which have
been carefully considered. '
Upon the entire record, including the briefs, and from
my observation of the demeanor of the witnesses, I
hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation, maintaining its
principal office and place of business at 18 North Main
Street, Hornell, New York, and a factory and place of
business at Edison Street, Hornell, New York, has at all
times material herein been engaged at said locations in
the manufacture, sale, and distribution of ladies' under-
wear and related products. Respondent, annually, in the
course and conduct of its business operations, from facili-
ties located at the above addresses, manufactures, sells,
and distributes goods and products valued in excess of
$50,000 of which products valued in excess of $50,000
were and are shipped directly to States of the United
States other than the State of New York. Respondent
admits, and I find, that it is, and has been at all material
times, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admitted during
the hearing, and I find that Local 280, International
Ladies' Garment Workers Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
111. THE UNFAIR LABOR PRACTICES
A. The Issues Involved
At issue in this case is whether Respondent, principal-
ly in the period April through July 1979, and again in
March 1980, violated Section 8(a)(l) of the Act by, inter
alia, creating the impression of surveillance, and by var-
ious threats of reprisal relating to its employees engaging
in union activities; whether Respondent violated Section
The three carefully crafted briefs merit special mention as thorough
and persuasive.
974
MARION ROHR CORPORATION
8(a)(3) and (1) of the Act by discriminatory conduct, in-
cluding discharge, of its employees Lucinda Hulbert and
Carol Pawlica; and whether Respondent, on and after
July 9, 1979, violated Section 8(a)(5) of the Act by refus-
ing to recognize and bargain with the Union as the ma-
jority representative of Respondent's employees in an ap-
propriate unit. In this regard, Respondent denies not
only the Union's majority status in any appropriate unit
but denies both the appropriateness of the unit alleged in
the complaint and the exclusion of certain employees
therefrom. Finally, Respondent argues that, even if Re-
spondent would otherwise be obliged to recognize and
bargain with the Union, no such obligation should be
found due to both the large turnover of employees it has
experienced and the great passage of time since the
summer of 1979. It asserts that the proper remedy should
be an election rather than an order directing it to recog-
nize and bargain.
B. Background: The Organizational Campaign
Respondent maintains two manufacturing plants in
Hornell, New York. About 3 years ago, it maintained
only one plant, the Main Street plant, but thereafter
opened the second plant on Edison Street which is about
I mile away from the Main Street plant. The Edison
Street plant consists of at least two floors: the bottom
floor for shipping-receiving; the top floor divided into at
least two areas, the cutting room which employed about
a dozen employees and a sewing room employing be-
tween 10 and 20 (predominately female) sewing machine
operators. There are approximately two shipping and re-
ceiving department employees in the Edison Street plant
with an overall shipping and receiving department num-
bering about 10 employees in both plants. After receipt,
the flow of goods in Respondent's operation starts the
cutting room and thereafter to sewing and bundling op-
erations in the Edison sewing room abutting the cutting
room and thereafter to other sewing, bundling, packing,
and shipping operations in the Main Street plant.
It is uncontested that the Respondent employed office
clericals and supervisors in the several departments:
Henry Schlossberg the plant manager over both plants;
Leon Spicer, supervisor in the cutting room as well as
over the entire Edison Street operation; Bill Kelleher, in
the shipping and receiving department; and Aletha Card-
man in the sewing machine room at the Main Street
plant, are all supervisors within the meaning of Section
2(11) of the Act and Respondent's agents. The supervi-
sory status of sometime supervisory cutter William
Spicer and of Doni Binder, employed in the sewing ma-
chine operators' room at the Edison Street plant, abut-
ting the cutting room, is in issue.
The Union started an organizing drive among Re-
spondent's production and maintenance employees in late
March 1979. Its agents included Myrtle Elliott, Betty
Ponticello Haley, Bob McManus, and John Serio. They
distributed to the production employees, commencing on
or about March 22, 1979, union authorization cards bear-
ing the following matter on the face thereof:
Authorization Card
1, of my own free will, hereby authorize the IN-
TERNATIONAL LADIES' GARMENT WORK-
ERS UNION, its affiliates and its representatives, to
act exclusively as my agent and representative for
the purpose of collective bargaining.
Beneath that paragraph, there are separate lines for the
printed name of the employer-signer. the address of said
employee, the employer by whom employed, the em-
ployer's address, the employee's signature, and the date.
Nothing on the card relates to an election.
The Union held about 12 meetings of employees at
various places in and about Hornell, New York, includ-
ing the Candlelight Motel, the American Legion Hall
and other similar places. Four of these union meetings
were held prior to July 9, 1979, which was the date, Re-
spondent admits, the Union made a demand for recogni-
tion and bargaining upon Respondent. Respondent by
letter of July 9 refused to recognize the Union at that (or
any other time) and directed the Union's attention to the
Board's processes (Resp. Exh. 2). In particular, there was
a meeting of employees with the Union at the Coachlight
Motel on April 24, 1979, which meeting was conducted
by Union Agents Serio, Betty Ponticello Haley (herein-
after called Ponticello), and Myrtle Elliott. The April 24
union meeting, according to Henry Schlossberg, was at-
tended by 10 to 12 employees, 5 of whom he believed to
be particularly active union supporters, helping the union
organizers. He testified that he received this knowledge
from employee Mary Ann Ciancaglini who voluntarily
reported to him of the participants in this union meeting.
With a few days of the meeting, she told him the names
of the five chief union supporters among Respondent's
employees: Tracey Clarke, Anita Gordon, Lyda Metcalf,
Ms. Sanford, and Carol Pawlica. As noted below,
Schlossberg knew that Lyda Metcalf was a strong union
supporter by noon of Friday, April 27. Whether Cian-
caglini was the source of this information is unclear. In
any event Schlossberg thereafter noted, without naming,
the five chief supporters in one or more speeches to his
employees. In July, he took unlawful action against Paw-
lica.
1. The events of April 27 and shortly thereafter
As above noted, on Tuesday, April 24, 1979, at the
Coachlight Motel in Hornell, New York, the Union held
a meeting of about a dozen employees including the
above, five apparently strong union sympathizers, Lea
Dawson and Mary Ann Ciancaglini. Lea Dawson signed
a union card at that meeting. Three days later, on
Friday, April 27, at 12:30 p.m., while Lyda Metcalf, em-
ployed by Respondent for more than 7 years as a sewing
machine operator, was receiving her pay, she was told
by an office clerical to go to Schlossberg's office. When
she entered, Schlossberg closed the door. Schlossberg
said the meeting lasted 15-20 minutes but he could not
recall what she said. I do not believe such testimony.
Rather, as Metcalf testified, he told her that he knew she
had been at the union meeting; that she was the sixth em-
ployee called in; that she would not be fired; that she
975
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
need not worry;2 that she had been around the plant for
sometime, and was familiar with unions because she had
worked for an employer which had a union. He men-
tioned an employer, Corbin Manufacturing Co., of Hor-
nell, New York, which had a union and went out of
business, with all the employees who had paid into its re-
tirement fund never receiving any money. In context,
such a statement demonstrating the necessary linkage be-
tween an employer going out of business because of
unionization and loss of retirement benefits violates Sec-
tion 8(a)(1). So far as is known, loss of benefits through
insolvency is not the inexorable consequence of unioniza-
tion. Centre Engineering, Inc., 253 NLRB 419 (1980). He
told her that, if they got a union into the plant, the work
could not be "fluctuated" (i.e., flexibly assigned) among
the employees and that some employees would have to
be sent home because of the lack of ability to "fluctuate"
the work.
He asked her what "went on" at the union meeting
and who else was there. Metcalf answered that it was
clear that he knew what went on at the meeting and told
him that she would not "rat on" the other employees.
When Schlossberg asked if the union meeting concerned
pensions and vacations, Metcalf said that it did but that
no specifics were discussed on these matters. Schlossberg
then asked if the union meeting concerned getting higher
pay, and Metcalf said that it did not. He then asked what
percentage of the employees belonged to the Union, and
Metcalf said that she did not know.
I conclude that, as alleged, Schlossberg, on April 27,
1979, created an unlawful impression of surveillance by
telling her he knew she had been at the union meeting;
and also, in view of Metcalfs further testimony, unlaw-
fully interrogated her concerning the union activities of
other employees and the percentage of membership; and
unlawfully warned her of layoffs due to unionization.
Respondent thus further violated Section 8(a)(1) of the
Act.
At 3 p.m., on April 27, all the employees of both
plants were called into a meeting at the Main Street
plant and were addressed by Henry Schlossberg. I con-
clude that Schlossberg called this employee meeting in
response to the information he had received from inter-
rogating Metcalf and others. As he described it, it was a
lecture on the matter of the Union's organization effort
accompanied by questions, solicited from the audience,
which he answered. The following facts are found on the
basis of testimony of employees Tracey Clarke and Lyda
Metcalf, and Henry Schlossberg. Clarke and Metcalf tes-
tified as current employees of Respondent.
2 Henry Schlossberg testified that when he learned of the union orga-
nizing effort in late March, he proceeded to obtain literature relating to
union organization drives, including a list of "do's and don'ts," the consti-
tution of the union, union contracts, and various publications relating to
unions. He received all of these documents in or about the first week of
April before his meetings, above, with employees. He testified generally,
in addition, that when various employees told him of their attendance at
union meeting and the proceedings thereat, he told these employees that
he was "not interested" and never asked them questions relating to what
occurred at the union meetings. Since his recollection of the above 15-
minute closed-door session with Metcalf was admittedly unreliable ("she
may have made comments,") or selective, and since it was he who initiat-
ed the conversation I do not credit this testimony. I credit Metcalf.
Schlossberg told them that the union was around the
plant forcing employees to sign authorization cards; that
he knew of two solicitors among the employees who
were going around getting the signatures; that there had
been 12 girls at a union meeting and that he knew when
the next union meeting would be. I find and conclude, as
alleged in the complaint, that this statement, in violation
of Section 8(a)(1), constituted Schlossberg's creation of a
further unlawful impression of surveillance of employees'
union activities. He also told the assembled employees
that, if the union came in, Respondent would no longer
be able to hire handicapped employees and pregnant
women essentially because these employees, under union
working conditions, would be unable to produce suffi-
cient product to make the union piece rate; and that he
kept them in employment notwithstanding their deficien-
cy as producers because he found them to be steady and
reliable. He cited no union rule or contract to that effect.
His statement is a threat of layoff in violation of Section
8(a)(l). He also said that, if the union came in, he would
no longer permit simultaneous vacations of predominate-
ly female employees with their husbands; and, if employ-
ees went off on pregnancy leave for several months, they
would be rehired as new employees under Respondent's
existing rules, but would be required to pay $35 in union
initiation fees on each such occasion. No union rule to
that effect was cited. His statement was retaliatory and
violated Section 8(a)(l) of the Act. He also told them
that, if the Union came in, their workweek would be re-
duced from 40 hours to 37-1/2 hours because the union
contracts prohibit a longer workweek; that he would no
longer tolerate their spending long periods of time talk-
ing to each other in the bathroom but he would be able
to put into the bathroom someone to time their break-
times in the bathrooms; that, if the Union came in, they
would not have any choice of whether to work overtime
or not; that if Respondent became unionized he would,
after 23 or 24 years of not laying off employees, be
forced to have layoffs due basically to the rigid classifi-
cation of work operations required under union con-
tracts, and specifically because of the flow of work in an
underwear factory where, if one group or section of em-
ployees was without work, it would have to be sent
home because of a lack of flexibility in assigning them
other tasks. This is the same message he conveyed to
Lyda Metcalf earlier the same day.
There is no assertion that the Union made any de-
mands on Respondent or suggested any work rules. Nor
did Schlossberg show that the results as were required
by any and all International Ladies' Garment Workers
Union agreements. 3
I conclude that his assertions in his speech of April 27,
1979, that the unionization of Respondent would prevent
continued employment of pregnant women, would cause
layoff among employees, changes in the leave policy by
3 Although Schlossberg, in his several speeches to employees, adverted
to requirements of union contracts, no contract was ever offered in evi-
dence to support his claims. When, at the hearing, as noted in the text, he
was specifically directed to the terms of an International Ladies' Garment
Workers Union agreement he used in his speech (which he said, in his
April 30 speech, would cause a diminution of vacation benefits if the
Union came in). he admitted he was confused and mistaken.
976
MARION ROHR CORPORATION
not permitting husband-wife vacations, a diminution of
the workweek and layoffs caused by union-imposed rigid
classifications as well as the timing of employees in the
bathrooms, all as alleged in the complaint, constitute vio-
lations of Section 8(a)(1) of the Act. Anita Gordon, an-
other credible witness called by the General Counsel, re-
called, in addition, that Schlossberg told them that in
event of a strike, Respondent could close the doors of
the plant and hire contractors to do the job cheaper and
faster. Schlossberg's version of this element, in substance,
was that in the event of a union strike, he could lawfully
complete unfinished work by subcontracting out such
work. The Union had not suggested, much less threat-
ened, any type of strike. Such a statement was merely in-
timidation and a warning of a shutdown in which the
employees would not be paid but Respondent would
suffer no ill effects. In short, the futility of unionization.
Such a statement in this context of other threats, violates
Section 8(a)(l). See for instance, Centre Engineering, Inc.,
supra.
2. Schlossberg's speech of April 30, 1979
At the end of this Friday, April 27, 1979, speech he
told them that there would be another speech to the em-
ployees of both plants in the Main Street plant on the
following Monday, April 30. He requested the employ-
ees to assemble questions relating to the advantages and
drawbacks of unionization.
The April 30, 1979, speech, according to Schlossberg,
had less lecture in it and more questions and answers.
Anita Gordon said, and I find, that it was pretty much a
repeat of the April 27 speech. The following findings are
based primarily on the credited testimony of Anita
Gordon, Tracey Clarke, and Lyda Metcalf along with
two transcriptions. (G.C. Exhs. 8 and 11.) The April 30
speech was tape recorded by Tracey Clarke. However,
the tape recording, 4 which was heard by counsel for all
parties and, with their consent, by me, has been tran-
scribed by two persons. The first transcription (G.C.
Exh. 8) was made by Ponticello, the union agent; the
second (G.C. Exh. 11), by the court reporter 5 on the
4 Respondent objected to receipt of the tape on the ground that there
was insufficient foundation demonstrating a chain of custody The record,
however, particularly the testimony of Betty Haley, shows to the con-
trary. Moreover, Respondent failed to suggest, much less to prove, any
tampering with the tape International Brotherhood of Boilermakers. Iron
Ship Builders, Blacksmiths Forgers & Helpers, Local Lodge 587 (Stone &
Webster Engineering Corporation), 233 NLRB 612, 615, fn. 10 (1977)
5 Although some portions of the tape are unintelligible, much of it is
understandable. Receipt or rejection of the tape, however, would not
affect Schlossberg's other speeches. Subsequent to the close of the hear-
ing, Respondent moved to correct the court reporter's transcript so as to
show numerous instances where employees' laughter met Schlossberg's
Apnl 30 speech, and the questions and answers. (AL Exh. 3.) I grant
Respondent's motion regarding the 19 instances of laughter but deny her
further request to have the court reporter correct the transcript of the
speech for further instances of laughter I have listened to the tape. The
tone, level, and nature of laughter is uneven: some flows from Schloss-
berg's clowning; some spontaneous. Laughter in the midst of a speech re-
lating to the close down of the plants, stnkes, loss of work, and discharge
of union proponents is legally rather grim humor. I conclude, as the Gen-
eral Counsel suggests, that any such laughter is here irrelevant. If the
Board, Quemetco. Inc., 223 NLRB 470 (1976), and courts, V.L.R.B. v.
Laredo Coca-Cola, 613 F.2d 1338 (5th Cir 1980), often find "fnendly" in-
terrogation to be coercive, then humorous threats, in the presence of
consent of all parties. Both transcriptions and the tape
are in evidence. Upon review of the tape, and both tran-
scriptions, and having reviewed the testimony of Tracey
Clarke, Anita Gordon, Lyda Metcalf, and Henry
Schlossberg, I find that the matters spoken of at the
April 30 meeting can be reasonably set down and any
conflicting versions resolved. I conclude that at the
April 30, 1979, meeting, as at the April 27 meeting,
Schlossberg told the employees that, if the Union got in,
he could not continue in employment of the handicapped
and pregnant employees because they would not be able
to make the production rates in the union contracts. He
also told them, at length, that they would receive re-
duced vacation benefits because, while the Union paid
vacation pay based on straight earnings, Respondent had
heretofore a policy of paying vacation benefits based on
2 percent of the employees' gross earnings of the prior
year. At the hearing, Schlossberg, confronted with the
sources from which he made these assertions regarding
the payment of lesser vacation benefits under the Union
(based merely on straight time), admitted that he was
confused by the International Ladies' Garment Workers
Union contract provisions regarding holiday pay rather
than vacation pay. He also told the employees that, in
the event of a strike, he would attempt to continue to fill
orders but thereafter might have to close down the plant
and continue filing orders by means of subcontracting
out the work. It was also clear that at the April 30 meet-
ing, he again asserted that unionization would bring rigid
classification of employment operations which would
lead to layoffs of employees in the event of a halt in pro-
duction by one of the production segments in the rigidly
classified unionized plant. I conclude that he was again
telling them that unionization necessarily requires such
rigidity of job classifications as to lead inexorably to lay-
offs in a ladies underwear plant. While it is arguable that
the collective-bargaining agreements which Schlossberg
allegedly read did relate to classification of operations of
employees, there was nothing in such documents which
lead to the conclusion that layoffs would be required
whether or not there was an interruption of production,
nor to the issue of job or classification interchange. That
was Schlossberg's conclusion. There was nothing auto-
matic shown to exist in the contracts relating to layoffs. I
conclude that, as in the April 27 speech, he was threaten-
ing retaliation, futility and reprisal for unionization to
these employees in violation of Section 8(a)(l) of the
Act.6 Similarly, the tape showed, contrary to some of
the employees' testimony regarding the April 27 and 30
speeches, that Schlossberg said that the Union could not
prevent him from putting a person in the women's bath-
room to time their stays therein. This retaliation, based
on a union coming into the plant, similarly violated Sec-
tion 8(a)(l) of the Act. The transcripts and the tape also
other unfair labor practices, cannot be ignored under Sec. 8(aXI). Cf. El
Rancho Market, 235 NLRB 468, 471 (1978).
6 Thus (G.C. Exh. 11, p. 4), he said: "Now, this [layoffs due to inter-
ruptions in work flow due to ngid classifications] in what I meant when I
said there would be the probability of the considerable amount of layoffs,
in other words, not being almost guaranteed the 52 weeks." Again (p.
21), "If you were unionized today, the picquot girls would not be work-
ing tomorrow, the top elastic girls would not be working tomorrow"
977
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
showed that Schlossberg told the employees that he was
not describing what he was going to do in the event that
the Union got in but was merely telling them what bene-
fits they would lose "if this factory becomes union."
(G.C. Exh. I1, p. 30.) No clearer statement of retaliation
could be made than by telling the employees that they
would lose various advantages of being employed under
nonunion standards by the advent of the Union. There
was nothing to show that these losses were matters out-
side his control. This generalized statement of inexorable
loss is a violation of Section 8(a)(l1) of the Act. Similarly.
there nothing in of the union contracts wherein unioniza-
tion would require Respondent not to offer employment
to hand employees. By so stating, Respondent offered
another type of retaliation against any handicapped em-
ployees and indeed all employees in his plant to refrain
from unionization.
In the April 30 meeting, he told employees that he
knew who the five union sympathizers were among the
production and maintenance employees and that the only
reason he was not firing them for such activity (wanting
a clean place to eat other than at worktables and better
ventilation, G.C. Exh. 11, p. 23) was because he felt that
they had been mislead and had gone "overboard" for the
Union. Such a statement violates Section 8(a)(1) of the
Act. He also said that if he desired, since he knew who
they were, he could have them identified during the
meeting and make things "hot and heavy" for them be-
cause they were "in absolute violation of all Federal
Standards . . ." (G.C. Exh. 11, p. 38). Such statements
additionally violate Section 8(a)(1) of the Act. On the
witness stand, quite apart from the tape or the testimony
of the General Counsel's witness, Schlossberg admitted
that he told the employees that (I) he knew who the five
union supporters were, (2) could make things hot and
heavy for them and (3) could fire them if he wanted to.
Such admissions support the accuracy of both tape tran-
scriptions, and the testimony of General Counsel's wit-
nesses.
3. The events of May 2, 1979
Debra Baird Krajewski testified that sometime after
the April 30 meeting, she and employee Marie Trumbull,
encountered Schlossberg on a stairway near the entrance
door of the Main Street plant after lunch. They said they
wanted to ask him questions relating to the Union, par-
ticularly the wisdom of their having signed union cards.
Their action apparently flowed from Schlossberg having
told the employees, at the April 30 meeting, the signing
of union cards in themselves was meaningless but that if
the majority signed cards, the Union would come to Re-
spondent and demand recognition. Schlossberg told them
that the girls who signed cards would not be fired but
that the card distributors would be fired eventually and
that he would find out their names from the Union. She
said that he also asked what the Union had to offer them
in terms of pay and insurance. Schlossberg told them
that there has never been a layoff in Respondent since it
had started in business and that there would be layoffs
and cuts in hours and pay if the Union came in. Al-
though Schlossberg admits having met with Krajewski
and Trumbull, he at first could not recall what happened
at the meeting but thereafter testified that they asked him
what would be the benefits if the plant was unionized
and if they joined the Union. Schlossberg said that he
told them only that it was his opinion that joining the
Union and unionization would gain them nothing. He
denied saying that he would find out who joined the
Union and fire them. I do not credit Schlossberg and
credit Krajewski's version. Such statements by Schloss-
berg that he would discover from the Union who were
the card distributors and fire them is consistent with his
having previously threatened to fire the five, known
union sympathizers and violates Section 8(a)(l) of the
Act.
4. The events of May 8, 1979
The complaint alleges that at the Main Street plant, on
May 8, 1979, Schlossberg told the employees that (1) he
did not have to negotiate with the Union; (2) it would be
futile for them to select the Union as their collective-bar-
gaining representative, (3) they would be discharged, and
(4) Respondent would cease its operations and withhold
employment for summer applicants if employees selected
the Union as their collective-bargaining representative.
The uncontradicted and credited testimony of Lyda Met-
calf is that, about a week after the April 30 meeting,
there was a third meeting of employees with Schloss-
berg. She testified without contradiction that Schlossberg
said he did not have to negotiate with the Union on
what he did not want to; (she apparently confuses this
with the April 30 meeting) he could make them eat in
the parking lot and the Union could not challenge it;
they could be fired for excessive absenteeism or not
making rate; and, although he would not fire them for
signing a union card, if the Union came in, layoffs would
result because of the lack of "fluctuation" (i.e., flexibil-
ity) in production operations. I conclude that Lyda Met-
calf's testimony with regard to the May 8 meeting was,
although undenied, repetitious of the April 30 meeting.
While these events may have occurred, it is unnecessary
to make findings thereon. They are merely cumulative
and repetitive of threats and other elements of retaliation
he made in his April 27 and 30 speeches.
5. The events of July 9, 1979
At or about 6:45 a.m. on the morning of July 9, four
union agents (Serio, Simonetti, Ponticello, and Elliott),
together with employees Tracey Clarke and Anita
Gordon, entered Respondent's office and spoke with
Schlossberg. July 9 was the first day of work or the em-
ployees after a 2-week vacation beginning in the last
week of June 1979.
When Schlossberg identified himself, Ponticello began
to read a letter requesting recognition, but Elliott fin-
ished reading it. Schlossberg asked them if they were fin-
ished and, when they told him that they were, Schloss-
berg told them to get out of the office; and that his em-
ployees could do "what they want." They all left. A
couple of days later, they returned and spoke with
Schlossberg. Serio asked Schlossberg if Clarke and
Gordon could return to their jobs and Schlossberg told
them that they could. Indeed Schlossberg asked the
978
MARION ROHR CORPORATION
union official why they had returned to his office and
Serio told him that just wanted to make sure that the
employees had their jobs.
Later on in that day (July 9), Respondent called a
meeting at the Main Street plant of all employees. 7
Schlossberg told the employees that he was sure that the
Union had no majority in view of the fact that many em-
ployees were asking for their cards back. He told the
employees that he did not feel that they needed a union;
that a union would just pull them all down; that the
Union, had along with two of the female employees
wearing big green union buttons, had demanded recogni-
tion, and he told them to leave the premises. He said at
the meeting that he had not fired anybody and was not
going to fire anybody; he had written the Union a letter
of rejection to their demand of recognition; and it was
mostly the younger girls who were involved with the
Union and that they did not know how good it was
without the Union. He again repeated that they might be
terminated if the Union came in because of excessive ab-
senteeism and not working up to rate. He also told them
that, if the union came in, he would not be able to hire
the same summer help that he had been previously hiring
at age 16 and 17 because the union contract required em-
ployees to be 18 years of age. No contract to that effect
was offered in evidence to show hiring or firing based on
age or production.
Schlossberg, on July 9, by telling the employees that
unionization would prevent hiring 16 and 17 years olds
without proof thereof in a union contract, and repeating
to the employees that they could be discharged for ex-
cessive absenteeism and not making rate if the Union
came in, violated Section 8(a)(1) of the Act. To the
extent that the complaint alleges further violations of
Section 8(a)(1) of the Act on July 9, I find that such alle-
gations were not supported by proof and should be dis-
missed.
C. Violations of Section 8(a)(3) on July 12, 1979
1. Carol Pawlica, like Lyda Metcalf, Tracey Clarke
(but not Anita Gordon), and other employees called by
the General Counsel as witnesses, was employed by Re-
spondent at the time of her testimony and therefore con-
siderable weight has been given this factor in assessing
her credibility. Georgia Rug Mill Co., 131 NLRB 1304
(1961). Schlossberg's version, where not consistent with
Pawlica and Hurlburt, is not credited.
Pawlica, employed since May 1971, testified that she
had signed her own membership card for the Union on
March 28, 1979. Thereafter, Tracey Clarke give her a
blank card and asked her to solicit some other employee
to sign a card for the Union.
On the morning of July 12, 1979, she was in the plant
around 6:45 a.m., along with other employees, and had
noted that employee Hurlburt was then showing other
7 In the April 30 speech (G C. Exh. II, p 20). Schlossberg said that
employees' signing union cards was "meaningless at this point," but
"meaningful . if they get enough cards" Thus, on July 9, Schlossberg
evidently no longer considered the signing of cards to be "meaningless."
As will be discussed hereafter, it was only after this July 9 request that
Schlossberg committed violations of Sec 8(a)( 3) and (I) of the Act; i.e,
on July 12, 1979.
employees pictures of her children. Worktime begins at 7
a.m. Pawlica testified that Hurlburt had asked her for a
card prior to this time but Hurlburt denies that. For rea-
sons discussed below, I do not credit Hurlburt and find
that Hurlburt had asked Pawlica for a union card. Paw-
lica voluntarily slipped a blank union card into Hurl-
burt's picture envelope which Hurlburt returned to her
handbag together with the pictures of her children. This
was about 6:45 a.m., 15 minutes before starting time.
In any event, more than an hour and a half later, about
8:45 a.m., Supervisor Aletha Cardman told Pawlica to go
into the office where Schlossberg wanted to see her.
When l'awlica entered the office, Hurlburt was already
there and Schlossberg asked Pawlica whether she had
given the union card to Hurlburt 15 minutes ago. Paw-
lica denied that she had done so and asked Hurlburt if
she had told Schlossberg that she had given the card to
her only a few minutes ago. Hurlburt denied having said
so but Schlossberg told her that he was not asking Hurl-
burt the question but was asking Pawlica. Pawlica said
nothing and Schlossberg told Hurlburt to punch out and
go home. Hurlburt left. Schlossberg then turned to Paw-
lica and said that "as of now, I'm putting you on notice."
He then told her to go back to work and she did. There-
after, I week later, she asked Schlossberg what it meant
to be "put on notice." She was at that time with Tracey
Clarke and Lyda Metcalf. Schlossherg told her that it
was a private matter and to come into the office. When
she did so, he told her that it meant that she was misus-
ing company privileges, the privilege of "talking." No
company rule relating to talking among employees prior
to or at work was ever suggested in the evidence. I con-
clude that, as alleged in the complaint, Schlossberg, on
July 12, 1979, by telling Pawlica that she had been
placed "on notice" for her conduct earlier that day, was
an act of discriminatory discipline and thus violated Sec-
tion 8(a)(3) and (1) of the Act. The sole Pawlica conduct
mentioned by Schlossberg was the giving of the card
prior to commencement of worktime. Such union solici-
tation is presumptively lawful. Stoddard-Quirk 3.anufac-
turing Co., 138 NLRB 615 (1962). It is relevant that at no
time during the hearing did Respondent suggest a benign
meaning to "on notice." It was obviously an act of dis-
criminatory retaliation concerning Pawlica's union solici-
tation conduct. No evidence to rebut the presumption
was offered.
2. Lucinda Hurlburt testified that she had, on several
occasions, left the Company's employ after 1973 for pur-
poses of maternity leave. On July 10, 1979, in Respond-
ent's office, she asked Schlossberg for reemployment and
Schlossberg asked her if she knew that the Union was
around. She told him that she did. He then told her that
although he did not have to rehire her as an employee
(because she had quit three times) he would employ her.
He told her to report the next day and she did.
I This may hase been Schlossherg's attempt to cause Pawlica to erro-
neously admit to having solicited the signature during working time in a
xsorking place, a possible predicate for disciplining her for such an act
Hurlburt directly denied Schlossbherg's suggestion as did Pawlica In fact,
Schlossberg asked to see Hurlburt's pictures and he found the union card
among the pictures
979
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 12, as Pawlica testified, Hurlburt was showing
pictures to her coemployees about 6:45 a.m. Schlossberg
came to her workbench around 8:45 a.m. and asked if
Pawlica gave her a union card. She answered: "Not that
I know of." Schlossberg told her it was "illegal" if Paw-
lica had done so. She was thereafter called into the
office. Alone in the office, Schlossberg asked to see the
pictures in her bag and took out the union card which,
according to Hurlburt, was a complete surprise. While
the matter is not free from doubt, I do not credit Hurl-
burt's testimony that she was caught by complete sur-
prise by inclusion of the card among her photographs
and I find, as above noted, crediting Pawlica, that she
had asked for the card. 9 I conclude that her testimony
(that she was caught by surprise) was caused by the fact
that she was then a newly hired employee and was
frightened of Schlossberg. At any rate, at this time,
around 8:45 a.m., Schlossberg removed the card and
called in Pawlica. He asked Pawlica if Pawlica had put
the card in among Hurlburt's pictures and Pawlica said
that she had done so. It was at this point Schlossberg
told Hurlburt to punch out and go home. She did so and
Schlossberg continued his conversation with Pawlica,
above.
About an hour after Hurlburt went home, Schlossberg
sent a male employee after her. There was no phone in
her house. Notwithstanding that the employee told her
that Schlossberg wanted her to come back so he could
talk to her, she did not return but went to the unemploy-
ment office where she was soon found by supervisor
Aletha Cardman (sent by Schlossberg) who told her that
Schlossberg "didn't want the union in" but wanted to
talk to her. About 10:50 a.m., she returned to the plant
and spoke to Schlossberg. Schlossberg said that he did
not apologize to many people but was going to apologize
to her for what he did to her. He told her that she could
come back to work and she agreed. He also told her, in
response to her question, that if she signed a union card
he would not do anything against her because "there is
nothing [I] could do" about it. He told her that he would
pay for the whole day and asked her to return to work.
She did not do so because she felt ill and returned to
work the next day. Hurlburt was not cross-examined on
the merits of her testimony and Schlossberg did not deny
it. The uncontested evidence therefore shows that
Schlossberg terminated her because she had a union card
placed in her possession on nonwork time. She violated
no Respondent rule. It was a retaliatory and unlawful
discharge which violated Section 8(a)(3) and (I) of the
Act as alleged in the complaint. ' 0
9 Since Hurlhurt was not employed by Respondent at the time of the
hearing, there would be no pressure against her admitting that she had
asked for the card. As I observed Hurlburt, however, I conclude she
would be adverse to admitting the contrary story when she had told
Schlossberg that the card was a surprise. Certainly she admitted that
Pawlica previously had asked her to sign a union card the day before and
Hurlburt agreed. Thus the card and the donor were hardly a complete
surprise, although suddenly finding it among her pictures may have been
a surprise.
'o Schlossberg's apology and payment to Hurlburt does not appear to
constitute such a repudiation of his unlawful conduct as to vitiate its co-
erciveness or unlawfulness. He neither notified Pawlica (who witnessed
the discharge) of his apology and statement to Hurlburt nor, even after
Pawlica's inquiry to him regarding his discriminatory acts against her,
D. The Events of March 1980
At the hearing, the General Counsel amended the
complaint to allege that in or about March 1980, at the
Main Street plant, Schlossberg, in further violation of
Section 8(a)(l), threatened an employee with discharge
based on her union activities and sympathies and the ac-
tivities and sympathies of fellow employees. In support
of this new allegation, the General Counsel adduced tes-
timony of Debra Axtell. Axtell, a current employee of
Respondent, credibly testified that while being inter-
viewed for employment on March 20, 1980, Schlossberg
told her that there were no regular jobs available and
that he would have to hire her on a temporary basis. He
told her that the Union was trying to get into the shop
and that if he heard "anything of [you] being involved in
the Union, the 'temporary' could be 'very temporary."'
In response to Schlossberg's statement, employee Axtell
said, "I understood the conversation." She was hired and
told to start work on Monday, March 24, which she did.
On cross-examination, Axtell testified that she has never
signed a union authorization card. I conclude that
Schlossberg's statement to her that her job could be
"very temporary" if he heard anything of her becoming
involved with the Union, as alleged, was a threat of dis-
charge in violation of Section 8(a)(1) of the Act. With
regard to Axtell's testimony, Schlossberg testified that he
did not believe that he talked about her job becoming
"very temporary" if she were involved with the Union,
but said that if he did so, it was done in a "jesting
manner." I do not credit any such equivocal denial or
the legal effect of any such jest.
E. The Alleged Violation of Section 8(a)(5) and (1) of
the Act
The Unit
The complaint alleges the following constitutes an ap-
propriate Respondent employee unit for bargaining
within the meaning of Act:
All production amd maintenance employees, plant
clerical employees, shipping and receiving employ-
ees employed by the Employer at its facilities locat-
ed at 18 North Main Street and at Edison Street in
Hornell, New York; excluding truckdrivers, cutters
and spreaders, office clerical employees, profession-
al employees, guards and supervisors within the
meaning of the Act.
apollogized to Pawlica; nor did he notify plant employees (of his apology)
who presumptively knew of these unlawful acts committed by their chief
supervisor. Compare: General Stencils, Inc., 195 NLRB 1109, 1112 (1972).
(Chairman Miller, dissenting), and Bausch & Lomb Optical Co v.
N.L.R.B., 217 F.2d 575, 576 (2d Cir. 1954), with N.L.R.B. v. General
Stencils, Inc., 472 F.2d 170 (2d Cir 1972), and N.L.R.B. v Jamaica
lbwing, Inc., 632 F.2d 208 (2d Cir.), by posting a notice to that effect or
otherwise, Intertherm, Inc., 235 NLRB 694 (1978); Passavant Memorial
Hospital, 237 NLRB 138 (1978).
His later threat (March 1980) to job applicant Axtell, infra, leaves little
doubt that his isolated attempt at retraction and repudiation was mere lip
service, masking continued hostility and unlawful acts to thwart employ-
ees support for the Union. Auslin Power Co., 141 NLRB 183, 192 (1963).
980
MARION ROHR CORPORATION
In substance, Respondent denies that such a unit is ap-
propriate in Respondent's plants because, according to
Respondent there is no classification such as cutters and
spreaders to be excluded from the regular production
and maintenance unit because of a community of interest
among such employees; and, in any case, Respondent
denies that there is any classification whatsoever of
truckdrivers among its employees.
In substance, Respondent argues that its cutters,
spreaders, and truckdrivers are all production and main-
tenance employees with a community of interest among
all such employees and that their exclusion would make
the pleaded unit inappropriate under the circumstances
of Respondent's practice and organization.
In addition, Respondent, contrary to the General
Counsel, would include Doni Binder as an employee for
purposes of counting a majority whereas the General
Counsel would exclude her as a supervisor or, in any
case, an agent of Respondent with interests incompatible
to the remainder of production and maintenance unit;
and the General Counsel would exclude as a supervisor,
William Spicer, brother of, and sometimes admittedly a
cutter supervisor in the place of, Leon Spicer, the ad-
mitted cutter-spreader supervisor.
F. Jimmy Forrester, the Truckdrivers
In his brief, the General Counsel concedes that Forres-
ter regularly performs inside work (br., p. 7) and does
not oppose his inclusion in the unit. Whereas Respondent
asserts there is no definable group of truckdrivers, the
General Counsel insists that, as a group, truckdrivers be
excluded. There is a failure of proof demonstrating the
existence of such a group. I shall therefore recommend
the elimination of "truckdrivers" from the pleaded unit
exclusions.
G. The Exclusion of Doni Binder
Immediately next to the cutting room at the Edison
Street plant, on the second floor, there is a sewing room
wherein approximately 10 to 20 sewing machine opera-
tors do basic sewing on newly cut materials trucked in
from the cutting room. The machine operators in the
sewing room are paid on a piece rate. Among the per-
sonnel in the sewing room is Doni Binder who, in July
1979, was paid at an hourly rate. Certain nonsewing ma-
chine personnel (packers and bundlers) in the cutting
room and in the sewing room were also paid on an
hourly rate. Doni Binder receives the trucked, cut goods
from the cutting room and then separates and distributes
the bundles to the sewing machine operators, thereafter
collecting the sewn pieces from the same operators. She
is the sole person in telephone contact both with the cut-
ting room and with Henry Schlossberg over in the Main
Street factory. She performs sewing operations about I
hour a day and meets with Leon Spicer, the cutting
room supervisor (who is in charge of the entire Edison
Street building and its personnel) once or twice per day.
Aside from the I-hour daily sewing that she performs,
she performs 3 to 4 hours per day of distributing and col-
lecting work and also is the sole employee who trains
new employees on the sewing machines. It takes her
about I day to train a sewing machine operator. She tes-
tified that for purposes of giving employees time off, she
is the recipient of the request from the sewing machine
employees but goes to Schlossberg for permission to give
the employees time off. She does not figure the opera-
tors' timesheets and she denies that Schlossberg consults
with her on timesheets. She also denied that she speaks
to Schlossberg concerning employees who fail to make
"rate." However, she admitted that she alone checks on
the quality of each sewing machine operators' work but
does not ask any operator to redo faulty work. She is
paid a Christmas bonus but the record is barren as to the
basis of the bonus and whether employees other than su-
pervisors get the bonus. She does not report lateness of
employees and, when operators tell her of the break-
down of machinery, she merely reports the condition to
the mechanics. Upon machine breakdown, she transfers
the operator to another machine if the repair takes a long
time. She testified that, while the employees go to the
bathroom without her permission, she admits that, with-
out consultation, she reports to Henry Schlossberg if an
employee takes too much time in the bathroom. In addi-
tion, she reports to Schlossberg, at Schlossberg's direc-
tion, anything that goes wrong in the sewing room.
Chief Supervisor Leon Spicer, supervisor of the cut-
ting room and overall supervisor of all operations in the
Edison Street building, including the sewing room where
Binder works, testified that he speaks to Doni Binder 10
or 12 times per day both on the phone and in person. His
description of the flow of work is that he receives the
assignments of work, often by phone, in the cutting room
from Schlossberg who tells him what needs to be sewn
after his cutting operation. Then Leon Spicer directs the
cuts (or takes cut materials from inventory) into the
sewing room where he gives the cut material to Binder.
He then tells her what needs to be sewn. Doni Binder
then distributes the cut work to the sewing machine op-
erators and takes the finished work to trucks outside the
sewing room where the sewn goods are trucked over for
finishing sewing to the Main Street plant (where the
items are then packed and boxed). Although he testified
that in cases of absenteeism or sickness, he transfers em-
ployees to and from the sewing room and the cutting
room, he admitted that Binder selects employees to work
in the cutting room when Spicer says that he needs extra
help and asks her to send someone in. Binder then selects
employees who are not busy to go into the cutting room
for work. He testified that, in addition, Binder decides
how many operators are required to do in addition,
Binder decides how many operators are required to do
an operation on the sewing machines. He does not
decide any such questions. Lastly, Leon Spicer testified
that, if a sewing machine operator is not "working out,"
it would be Doni Binder who would report this matter
to Schlossberg. Spicer testified that he visits the sewing
room only twice a day and each time for about 5 min-
utes. Schlossberg visits the Edison Street plant for a few
minutes each day.
Mildred Carnes, an employee presently employed for
about 13 years, occasionally works in the main office at
Main Street plant. She testified that on occasion she
981
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overheard conversations between Schlossberg and Doni
Binder. These conversations occurred over a period of 3
years and at least one of them was heard in the last 6
months. She heard Schlossberg ask Doni Binder, on the
telephone, how well she knows a particular sewing ma-
chine operator and whether the sewing machine operator
would be a good worker. As late as December 1979, he
heard her ask whether a former employee (Donna Camp-
bell) should be hired back. This testimony of Mildred
Carnes was never denied nor was it tested on cross-ex-
amination.
Lastly, Leon Spicer testified that with regard to disci-
pline in the sewing room at the Edison Street plant, it is
Binder who initiates discipline for employees remaining
in the bathroom too long or talking too much at work.
With regard to reprimanding and disciplining of such
employees, he testified that Binder first talks to Schloss-
berg about the matter and that Schlossberg then comes
over to the Edison Street sewing room and speaks to the
offending employees in Binder's presence.
On the basis of the above-credited evidence, it appears
that Binder does little production work of the machine
operators; is the sole person who initiates discipline in
the sewing room; reports in disciplinary problems to
higher authority; is present when discipline is meted out
by Schlossberg; is solely responsible for inspection of the
quality of the work; alone trains new employees; assigns
employees to machines in her own discretion with regard
to how many operators are necessary to perform a single
operation; assigns employees who are not too busy, in
her own discretion, to work in other work areas at the
request of Leon Spicer; and, but for the 10-minute-per-
day presence of Leon Spicer in the sewing room
(Schlossberg passes through the sewing room on a daily
basis), would be the only person who would regularly
and directly supervise the activities of 10 to 20 sewing
machine operators in the period April through July 1979.
On the basis of her regular activities described above, I
conclude that she is a supervisor within the meaning of
Section 2(11) of the Act and should thus be excluded
from the pleaded unit.
H. The Exclusion of William Spicer
The General Counsel contends that William Spicer,
brother of Leon Spicer, employed by Respondent as an
employee in the cutting room for more than 20 years,
should be excluded both as a supervisor and under the
category of being a "cutter." I agree on both grounds,
but, since William Spicer's position with regard to super-
visory status is borderline and his exclusion as a cutter a
matter not entirely free from doubt, I will pass on both
matters. With regard to William Spicer's supervisory
status in the cutting room, the facts show that he has
been employed overall for 23 years and more than 20
years in the cutting room. There are about a dozen em-
ployees in the cutting room including four to five em-
ployees who run the cutting machines, including Chief
Supervisor Leon Spicer, and four spreaders, with the
balance being employees who sort colors, tie bundles, do
shipping and receiving work, and any other work neces-
sary for the proper operation of the cutting room. All
cutting room employees dust and make markers. William
Spicer testified that he spends all his time in the cutting
room doing about 80-percent cutting and 20-percent
dusting markers and making markers.
In the absence of brother Leon Spicer during vaca-
tions (2 weeks each year), sickness (sporadic) and mo-
mentary absences (seldom), William Spicer takes over
Leon Spicer's duties as a supervisor. Like Leon Spicer,
he oversees the activities in the cutting room but does
not engage in any activity in or over the employees in
the adjacent sewing room. I Thus, he calls the "cuts" in
materials over to the Main Street office; assigns work to
the employees in the cutting room; and shifts work
among the employees in the cutting room but never
threatens or engages in discipline among the employees.
When discipline is required in the absence of Leon
Spicer, he recommends the discipline to Henry Schloss-
berg who ordinarily follows his recommendations and
does not wait for Leon Spicer to return to administer
discipline. William Spicer's role as a substitute supervisor
for his brother Leon Spicer has occurred regularly for
the last 12 years. No other employee performs this func-
tion. He received a Christmas bonus, but, as in the case
of Binder, the record is unclear as to whether only su-
pervisors receive bonuses or whether bonuses are given
to employees.
The General Counsel contends that William Spicer, a
substitute supervisor, should be excluded from the pro-
duction and maintenance bargaining unit principally be-
cause his otherwise sporadic and irregular assumption of
admittedly supervisory functions, by recurring over a
span of years, has achieved "regularity" which destroys
the community of interest with coemployees. I agree but
on different grounds. While the rule appears to be that
part-time supervisors who regularly assume that position
are not excluded, the rationale therefor consistently
flows from the fact that the erstwhile "employees" exer-
cise their part-time supervisory functions over employees
who are ordinarily foreign to the work which the some-
time supervisor engages in as an employee. Here, howev-
er, when William Spicer, the supervisor's brother, re-
turns to his employee status, he is among the very em-
ployees whom he controlled as supervisor, thereby creat-
ing that "divided loyalty" which destroys the ordinary
community of interest he would otherwise share with
them. See Westinghouse Electric Corporation, 163 NLRB
723, 727 (1967); Great Western Sugar Co., 137 NLRB 551
(1962), and Statler Industries, Inc., 244 NLRB 144
(1979).12 If not excluded as a "cutter," he should be ex-
cluded as a supervisor.
" Thus, at these times, Doni Binder has no higher supervision in the
Edison Street plant. There is also little question that her consistently eva-
sive testimony was designed to obscure her role in the sewing room.
12 1'he crucial finding here, as in Westinghouse Electric. supra at 727, is
that William Spicer's recurring supervisory function is "closely intermin-
gled with [his] nonsupervisory work activity." In addition, here, unlike
Westinghouse Electric, William Spicer is called upon to fill in as supervi-
sor on a sporadic basis and not "for a measurable and continuous period
of time."
982
MARION ROHR CORPORATION
I. The Configuration of the Appropriate Bargaining
Unit
As above noted, the General Counsel and the Union
allege that the appropriate bargaining unit should be con-
fined to production and maintenance employees exclud-
ing, inter alia, the truckdrivers (I have already recom-
mended the elimination of the truckdriver exclusion
which does not materially effect the results herein), cut-
ters, and spreaders, office clerical employees, profession-
al employees, guards and supervisors within the meaning
of the Act. Respondent does not contest the exclusion of
office clericals and supervisors along with the profession-
als, and guards, but does assert that cutters and spreaders
should be included both because of the lack of such rigid
classifications in Respondent's plant and because of the
community of interest among all production and mainte-
nance employees including those categories.
With regard to cutters and spreaders, the evidence
shows as follows:
Cutters: Cutting Room Supervisor Leon Spicer testi-
fied that there are 12 cutting room employees including
4 cutters and 4 spreaders. The four cutters: William
Spicer, Terry Warden, Fred Lehman, and Tim Nizbet.
He said that Nizbet spends only about 10 percent of his
time as a cutter and 90 percent of his time operating the
automatic spreading machine; William Spicer spends
about 85 to 90 percent of his time as a cutter; Terry
Warden, 95 percent of his time; and Fred Lehman 50
percent of his time as cutters. Lehman's remaining duties
include spreading, unloading and loading trucks, sorting
bundles, dusting markers, truckdriving, and sweeping the
floor. With regard to Nizbet, 75 percent of his time is ac-
tually spent on the automatic spreading machine, 10 per-
cent in cutting, and 15 percent of his time doing the
same extraneous work with dusting markers, sorting bun-
dles, and unloading trucks as does Fred Lehman.
William Spicer testified that the cutters operate high-
speed cutting machines cutting up to 600 layers of cloth
in a single operation. Thus the cutting operation de-
mands substantial skill and care with regard to mistakes,
for a single mistake may result in financial problems of a
high order. The evidence shows that it takes more than a
year to fully train a cutter though the fundamentals can
be quickly taught. Lastly, William Spicer testified that all
the cutters do spreading from time to time and also do
some tying of bundles, the dusting of markers, and
making of markers. William Spicer testified that it takes
"years" to train a cutter and that only he and his broth-
er, Leon Spicer, train the new cutters the source of
which is from plant workers found to be conscientious.
Leon Spider, alone, supervises the cutting room oper-
ations and its employees, except when William Spicer
acts in his place.
The Spreaders: William Spicer testified that four em-
ployees (Constantino, Rice, Whitford, and Sanford) are
the four cutters. They ordinarily work in teams of two.
It takes two spreaders to operate the manual spreading
machine which spreads cloth on the cutting tables. He
testified that they spend 80 percent of their time in
spreading operations and 20 percent of their time in bun-
dling cut garments, assorting, preparing the markers, and
dusting the markers. Unlike Leon Spicer's testimony, he
did not assert that all cutting room employees regularly
unload trucks. He testified that while some of the cutting
room employees do unload trucks, ordinarily it is not the
cutters or spreaders, but the nonspreaders and perhaps
one time a week, the cutters and spreaders. He noted
that Lehman, a cutter, sweeps the floor on a daily basis.
William Spicer estimated that the spreaders spend 80
percent of their time in spreading and Leon Spicer said
that they spend 90 percent of their time spreading and 10
percent bundling and tying the cut goods. Although
spreaders need no special pretraining, and all are trained
in the cutting room, Leon Spicer testified that it takes I
to 2 months to train a spreader although an inexperi-
enced cutting room employee could be put on a spread-
ing machine after about a week's training as a prelimi-
nary matter. Leon Spicer also testified that, on occasion,
the cutters and spreaders would drive trucks and unload
them when necessary.
On the basis of the above, it appears clear that the cut-
ters and spreaders perform functions which are highly in-
tegrated one to the other with common operations of
dusting and making of markers, and, from time to time,
the bundling and tying of goods along with other em-
ployees. These latter operations consume 10 to 20 per-
cent of the time of the spreaders and cutters with truck-
driving not more than 2 or 3 percent. These cutting
room employees are separately supervised (by Leon
Spicer notwithstanding his perfunctory supervision over
the sewing room and shipping and receiving employees)
and are remote from all other supervision because the
Main Street plant is about a mile away. Thus, in addition
to separate supervision, the cutters and spreaders are
remote geographically from other production and main-
tenance employees except the sewing room employees
who are separated from them in a different room on the
same floor of the Edison Street plant. The evidence
shows that only a minor and sporadic amount of their
time (the cutters and spreaders) is spent in such functions
as truckdriving, unloading, or even unbundling and tying
up cut bundles. The nonspreader, noncutter employees in
the cutting room regularly perform functions other than
cutting room functions (truckdriving, shipping, and re-
ceiving). I conclude, contrary to Respondent's assertions,
that the cutters and spreaders are a homogeneous group
of highly skilled employees, separately trained, separately
supervised, physically isolated, with craft interests and
functions different from other production and mainte-
nance employees. Benjamin and Johnes, Inc., 133 NLRB
768 (1961). The eight cutters and spreaders should be ex-
cluded on a craft basis in view of the lack of department-
al integration of other cutting room employees who
often perform tying, bundling, shipping, receiving, and
driving. Cf. Newburgh Mfg Co., Inc., 151 NLRB 763, 765
(1965); Arnelle of California, 217 NLRB 986 (1975). In
Benjamin and Johnes, Inc., the Board held that cutters
and spreaders were craft employees and, if they per-
formed (as in the instant case) the "highly skilled func-
tion of . . marking;" they could be represented sepa-
rately as a craft unit (133 NLRB 786, 769), notwithstand-
ing that a departmental unit, under other factors, might
983
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also be appropriate. See The Berger Brothers Company,
116 NLRB 439 (1956).
J. The Union's Majority Status
During the hearing, all parties entered into a series of
stipulations relating to the size of the unit (comprising
the employees in both plants) and to certain union au-
thorization cards. In particular, the parties stipulated
that, excluding seven admitted office clericals and super-
visors, and a summer student (McShane), Respondent
employed a maximum of 209 employees on July 9, 1979,
at 6:45 a.m., when the union, as Respondent admitted,
made a demand in the pleaded unit. Respondent asserts
(br., Appendix B) that of a 109 total cards in evidence, 7
were signed by employees after the demand (but on or
before July 13) and 2 were signed by employees (Van
Skiner and Hadsell) not on the stipulated list. This would
leave 100 cards. On the other hand, I have excluded
Binder and William Spicer as supervisors (thus reducing
the unit to 207) and 8 cutters and spreaders (thus further
reducing the unit to 200). However, as Respondent ob-
serves, the exclusion of the eight cutters and spreaders
requires the concomitant exclusion of four cards:' Dan
Smith, Richard Rice, Royce Whitford, and Terry
Warden. Although the Union asserts (br., p, 31) that only
two timecards should be excluded if cutters and spread-
ers be excluded, it fails to name the two. Moreover, the
evidence shows that Dan Smith, Royce Whitford, and
Richard Rice are, without contradiction, identified as
regular spreaders and Joint Exhibit I shows them on the
payroll as late as July 6, 1979. The fourth card signer to
be excluded is Terry Warden, a regular cutter. This
would result in 96 cards and 200 employeees.
I therefore conclude that, on the morning of July 9,
when the demand for recognition was made, the Union
did not have a majority in the unit.
Respondent concedes (br., Appendix B) that, after this
union demand was made, still on July 9, three (3) more
cards were signed (Nolton, Sandford, and Yorka); that
fourth and fifth cards (Oakden and Cipolla) were signed
on July 10; that a sixth card (Magill) was signed on July
II; and a seventh card (Hurlburt) on July 13.
Whereas Respondent asserts that on July 10 there
were 205 unit employees (br., Appendix C), I have ex-
cluded the 8 cutters and spreaders. Thus, with 198 in the
unit and excluding Kathleen Doll's card and Kathleen
Doll (quit on July 9) leaving only 197 but adding the 5
cards, above, executed on July 914 and 10, there would
appear to be a net gain of 4 cards. Thus, 100 cards and
197 in the unit. If, as I have concluded Doni Binder is
also excluded, there would be 100 cards and only 196
unit employees. Magill signed a card on July 11. Thus,
101 cards and no more than 197 in the unit on July 11.
Hurlburt, hired on July 11, signed a card on July 13.
As of July 13, therefore, here, in the absence of other
Is As noted in the text hereafter, by July 13, if all eight cutters and
spreaders are included, there would be a union card majority even if
Binder were inclueded.
14 On the afternoon of July 9, with a net increase of 2 cards, there
would be 98 cards and 196 employees. It should be noted that the exclu-
sion of William Spicer is counted only once.
hirings and losses in the unit, there would be 102 cards
and no more than 198 employees.
I conclude, nevertheless, that on July 10, 1979, the
union first achieved majority status in an appropriate unit
for bargaining within the meaning of Section 9(a) and (b)
of the Act: 100 valid cards and 197 unit employees.
K. Other Contentions of the Parties15
(I) Respondent would subtract from the number of au-
thentic cards, a group of seven cards (Mattison, Carpen-
ter, Dawson, Stanford, Young, Becher, and Estey) since
these employees sought to revoke their cards before the
union's July 9 demand for recognition (br., Appendix B).
The evidence shows, and Respondent concedes (br., pp.
29-33) that these seven employees signed union cards in
March and April 1979. The earliest attempted revoca-
tions were Mattison and Carpenter, on June 7. Dawson
also said she sought revocation in June, but wrote to the
Union on July 2. Although they may have earlier (in
June) attempted revocation, Stanford, Young, Becher,
and Estey signed a petition to the National Labor Rela-
tions Board on July 9 seeking return of their cards.
The evidence thus shows that these revocations all oc-
curred after Schlossberg's speeches of April 27 and 30
and May 8. These speeches contain many unlawful
threats of reprisal (layoff, close down, subcontracting out
unit work in case of a strike, loss of benefits, diminution
of vacation pay, more strigent hiring policies) and were
designed to create an atmosphere of intimidation against
continued support for the Union. Under such circum-
stances, I infer that these employees were induced into
protecting themselves by revoking their cards. As the
Union observes (br., pp. 21, et seq.), Schlossberg led em-
ployees to believe that employees returning to work
would be charged a fee if the Union were successful;
and, regardless of revocation, there is undenied evidence
that revoking employees were afraid to disclose that they
had actually signed union cards in the first place; and
that, prior to even the earliest revocations, in one of
Schlossberg's unlawful speeches, he suggested that em-
ployees write to the Union to have their cards returned.
Under such circumstances, since the Board presumes
that the revocation is "ineffective," Warehouse Groceries
Management, Inc., 254 NLRB 252 (1981), I will recom-
mend that the Board ignore the seven purported revoca-
tions and count the cards. See also World Wide Press,
Inc., 242 NLRB 346 (1979); Serv-U-Stores, Inc., 225
NLRB 37, 39 (1976); Marcus J. Memorial Lawrence Hos-
pital, 249 NLRB 408 (1980); cf. Laclede Cab Co. d/b/a
Dollar Rent a Car, 236 NLRB 206, 211 (1978), and Pro-
duction Plating Co., 233 NLRB 116 (1977).
(2) The General Counsel and the Union assert that the
Union's admitted July 9 request for recognition was a
"continuing" request. In support of that assertion, the
15 At the hearing, Respondent, through employee Lea Dawson, sought
to elicit testimony that several cards, including hers, and were executed
on the card solicitor's assertions that there would be an election. No such
argument appears in its brief I would reject any such testimony, upon
demeanor grounds alone, elicited from Lea Dawson. The transcript un-
derscores such a conclusion. Respondent, however, appears to have aban-
doned the position. See Keystone Pretzel Bakery, Inc., 242 NLRB 492
(1979).
984
MARION ROHR CORPORATION
General Counsel submitted with and attached to its post-
trial brief (as G.C. Exh. 12) a copy of the purported
demand letter. No such letter was offered in evidence
nor was there a sufficient preliminary foundation laid
which would identify it as the actual demand letter
which Schlossberg admittedly read before rejecting the
Union's request; nor does Schlossberg's testimony suffi-
ciently identify or authenticate the document. I shall
therefore grant Respondent's post-trial motion (Exh. 5)
and deny the General Counsel's application to have the
document received in evidence. Contrary to Respond-
ent's further request, I shall neither direct return of the
document to the General Counsel nor expunge the
matter from the briefs of the General Counsel or the
Union. My decision in this latter regard flows from the
fact that it is at least arguable that my discussion with
the General Counsel constituted an anticipatory rejection
of the letter and may have denied the General Counsel
and the Union the opportunity to a full and fair hearing
with the right to argue that the document demonstrates a
"continuing demand,"' 6 notwithstanding that neither the
General Counsel nor the Union sought to offer the docu-
ment (in the absence of any formal ruling) and place the
matter before the Board by preserving their rights in the
"rejected exhibit file" or otherwise.
In view, therefore, of my conclusion that, as of the
hour of the demand on July 9, 1979, the Union failed to
prove that it represented a majority of Respondent's em-
ployees in "an appropriate unit," and since there is no
basis in the record to show that Union's demand might
be characterized as a "continuing demand," I shall rec-
ommend to the Board that it dismiss the General Coun-
sel's allegation that Respondent's July 9 rejection of the
Union's demand violated Section 8(a)(5) of the Act.
Warehouse Groceries Management, Inc., supra.
In any event, the above matter, except for the techni-
cal question of whether Respondent's refusal to bargain
violated Section 8(a)(5), is substantially rendered aca-
demic in view of my finding, above, that by July 10,
1979, and on July 13, 1979, the Union did achieve major-
ity status in "an appropriate unit" and that Respondent's
unfair labor practices should be remedied, as hereafter
specified, inter alia, with a bargaining order. Grandee
Beer Distributors, Inc., 247 NLRB 1280 (1980).
IV. THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices in violation of
Section 8(a)(l) and (3) of the Act, I shall recommend
that it cease and desist therefrom and take certain affirm-
ative actions designed to effectuate the policies of the
Act.
Contrary to Respondent's suggestion that an election
would be the appropriate remedy, Linden Lumber Divi-
sion, 419 U.S. 301 (1974), I shall recommend that the
Board require Respondent to bargain with the Union,
commencing with the date it first achieved majority
status, July 10, 1979. Trading Port, Inc., 219 NLRB 298
(1975); Bighorn Beverage, 236 NLRB 736, fn. 1 (1977);
Pilgrim Life Insurance Company, 249 NLRB 1228 (1980).
l' The document, on its face, recites that it is a "continuing demand."
This conclusion, it seems to me, renders moot the issue,
supra, of the Union's alleged "continuing demand" to
bargain. Except for the technical issue of whether Re-
spondent's refusal to bargain of July 9 creates an 8(a)(5)
violation because of a "continuing demand," no bargain-
ing order could attach until the Union achieved majority
status, which was July 10. Hence, since Respondent's
unfair labor practices are sufficiently pernicious to render
an election a doubtful vehicle, I conclude that a bargain-
ing obligation attaches on July 10 regardless whether the
Union's July 9 request to bargain was "continuing" or,
indeed was ever made at all. See Bighorn Beverage, supra
atfn, 1; Grandee Beer Disrributors, Inc., supra at fn. 5.
The conclusion that a bargaining order is required
here, rather than the direction of an election,"7 is de-
rived from N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575 (1969).
Violations of Section 8(a)(l)
The independent violations of Section 8(a)(l) of the
Act derive principally from Schlossberg's speeches. The
speeches, without objective evidence or economic condi-
tions beyond Schlossberg's control, Warehouse Groceries
Management, Inc., supra, citing N.L.R.B. v. Gissel Pack-
ing Co., 395 U.S. 575, 618 (1969); Jamaica Towing, Inc.,
247 NLRB 353 (1980), enforcement denied 632 F.2d 208
(2d Cir.), predict layoffs due to the Union's rigid classifi-
cation of employees, onerous limitations on the amount
of leave and the taking of vacations, layoffs of pregnant
women and the physically handicapped who would be
unable to make a union-imposed high rate of minimum
production; subcontracting out of work in the event of a
strike without significant detriment to Respondent; and
threats to discharge the five employee union ringlead-
ers, 8i threats to time employees in the bathroom, to
impose a strict ban on smoking, and to prevent employ-
ees from eating inside the factory if they demand a sani-
tary lunchroom; and to not hire 16- and 17-year employ-
ees.
The Board, in Gissel cases, as here, has consistently
made plain the seriousness of threats of loss of employ-
ment whether by plant closure, discharge, or layoff, con-
struing it as one of the most "flagrant means by which
an employer can hope to dissuade employees from sup-
porting a union. Propellex Corporation, a subsidiary of
Essex Cryogenics Industries, Inc., 254 NLRB 839 (1981),
citing Pittsburg and New England Trucking Co., 249
NLRB 833 (1980). The "spectre of job loss . . . once
conjured up is not easily interred." El Rancho Market,
supra, 235 NLRB at 476.
" I take official notice of the Union's filing of a petition for certifica-
tion in the unit pleaded in the complaint on November 28, 1979, in Case
3 RC-7655
18 From G.C. Exh. 8. Schlossberg's April 30 speech to all employees:
. . . somebody came to me and said did you know the 5 girls who
are involved in this just take all five and fire them ... I also want
to caution the five people that are in the room right now. I have
enough information to put them in a position where they have been
in absolute violation of all federal standards-if I choose to exercise
it right now. They have problems. . . I could stand them up and
make things very hot and heavy I choose not to-I don't feel that
that is the proper thing. I wouldn't want to be in their seat.
985
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the Board and courts may differ on the issue
(not present in this case) of dissemination of such threats
and its effect on whether a fair election can be held after
the termination of the posting period prescribed in a
cease-and-desist order, compare General Stencils, Inc.,
195 NLRB 1109 (1972), enforcement denied 742 F.2d
(1972), cited in N.L.R.B. v. Jamaica Towing, Inc., supra
at 213, there is agreement that such threats are "hall-
mark" threats to be treated with deference under the Su-
preme Court's Gissel mandate: "Their presence will sup-
port issuance of a bargaining order unless some signifi-
cant mitigating circumstance exists," N.L.R.B. v. Jamai-
ca Towing, Inc., supra at 214; Grandee Beer Distributors,
Inc., supra.
In addition, as here, the Board, in Ed Chandler Ford,
Inc., 254 NLRB 851 (1981), as it has consistently at least
since General Stencils, Inc., 195 NLRB 1109, 1110
(1972),'9 has been particularly impressed by such "hall-
mark" threats eminating from top management. Such
threats, as general manager Schlossberg-the chief super-
visor-made here:
. . . were made by . . . a man who possessed the
power not only to threaten but also to turn threat
into reality. Threats made by one in such a position
will be seriously regarded by employees, and, thus,
the risk is increased that the threats will accompany
employees to the voting booth. General Stencils, Inc.,
195 NLRB at 1110. [Emphasis supplied.]
In Ed Chandler Ford, Inc., supra, where a bargaining
order was in issue, the Board held, that, as here, a un-
itwide speech, with threats of discharge and loss of exist-
ing benefits, by an important supervisor, was so serious
that:
. . the effects of which are unlikely to be eradicat-
ed by our usual cease-and-desist remedial order but
which will remain to interfere with the employees'
expressing a free choice [in an election] ... . Con-
sequently . . . we shall order Respondent to recog-
nize and bargain with the Union upon request ....
Lastly, Schlossberg's continued, unlawful hostility to
the Union was manifested 8 months later in his discharge
threat to Axtell in March 1980.
Violations of Section 8(a)(3)
While Schlossberg's July 12 violations of Section
8(a)(3) following the Union's demand for recognition on
July 9 were not widespread (discharge of Hurlburt; plac-
ing Pawlica "on notice") they were neither legally re-
tracted nor isolated. Cf. N.L.R.B. v. Jamaica Towing,
Inc., supra at 214. Dissemination of these discriminatory
acts may be presumed; the effects on the employees,
after assurance on July 9 in his speech that in spite of the
I9 The court of appeals in N.LR.B. v. General Stencils, Inc., 472 F.2d
170 (2d Cir. 1972), denied enforcement for the second time. In its first
denial 438 F.2d 894 (2d Cir. 1971), the court appeared to find mitigation
in the coercive quality of the threats of the employer's general manager,
the corporate secretary because, at times, he wore overalls and helped in
production work. No such proof exists here.
Union's demand, there would be no discharges, need no
elaboration.
In short, in terms of the effect of the unfair labor prac-
tices on future election conditions and the likelihood of
practices on future election conditions and the likelihood
of their recurrence in the future, this case falls into the
"less-than-egregious" Gissel category but is one where
the use of traditional remedies to ensure a fair election
would be ineffectual. Union membership cards serving as
a determinant of employee sentiment, on balance, should
serve as a basis for a bargaining order since Schlossberg's
unremitting hostility and threats of discharge cannot here
escape employees concern as they enter the voting
booth.
With regard to the issues of employee "turnover" 20
and "passage of time" raised by Respondent at the hear-
ing and in the brief (br., p. 62) to defeat issuance of a
bargaining order, I note that the Board rejected those
factors in Jamaica Towing, Inc., 247 NLRB 353 (1980),
and, with all due respect to the Court of Appeals, I am
bound by the Board's determination, Iowa Beef Packers,
144 NLRB 615, 616 (1963), notwithstanding the court's
contrary dictum. It is important to note, however, that
some of the court's criteria in N.L.R.B. v. Jamaica
Towing, Inc., 632 F.2d 208, for utilizing such factors in
refusing bargaining orders do not exist here: there has
been no proof of a change of management, and no
"genuine and sincere assurances to the work force of
non-interference .... " Rather, 8 months after rejecting
the Union's bargaining request, Schlossberg threatened
an employee (Axtell) with discharge if he discovered
that she engaged in union activities. Moreover, here, as
opposed to Jamaica Towing, Inc., there are "hallmark
violations" of Section 8(a)(1) and violations of Section
8(a)(3) following the Union's request for recognition.
In any event, those issues (turnover and passage of
time) will be resolved by the Board if and when the
Board enforces this recommended Order and Respondent
fails to comply therewith.
The three factors ultimately demonstrating the linger-
ing effects of Schlossberg's unfair labor practices and
militating in favor of use of the bargaining order remedy
are: (1) the attempted withdrawal of no less than seven
membership cards in June and July 1979; (2) Schloss-
berg's reflexive unlawful discharge after the July 9 bar-
gaining demand despite contempraneous assurances to
the contrary; and (3) the March 1980 threat of discharge
to Axtell.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By engaging in the conduct described in section III,
above, including unlawful acts of giving the impression
of surveillance of union activities, threats of retaliation
20 Approximately 70 new unit employees were hired in the year fol-
lowing the Union's July 9, 1979, request for recognition. Cf. N.LR.B. v.
Dadco Fashions. Inc., 632 F.2d 493 (5th Cir. 1980).
986
MARION ROHR CORPORATION
including layoff, discharge and subcontracting, loss of
existing benefits, and unlawful coercive interrogation,
Respondent is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. By discharging and placing employees "on notice,"
because employees engaged in Union activities, Respond-
ent unlawfully discriminated against such employees in
violation of Section 8(a)(3) and (1) of the Act.
5. All production and maintenance employees, plant
clerical employees, shipping and receiving employees
employed by Respondent at its facilities located at 18
North Main Street and at Edison Street in Hornell, New
York, excluding cutters and spreaders, office clerical em-
ployees, professional employees, guards and supervisors
constitute a unit appropriate for bargaining within the
meaning of Section 9(b) of the Act.
6. The unfair labor practices of Respondent have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce. 21
Upon the foregoing findings of facts, conclusions of
law, and the entire record herein, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER 2 2
The Respondent, Marion Rohr Corporation, Hornell,
New York, officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging, placing on notice, or otherwise dis-
criminating against its employees because they engage in
union activity or because they engage in concerted activ-
ity for their mutual aid or protection.
(b) Creating an impression of surveillance of its em-
ployees' union activities and coercively interrogating
them.
(c) Threatening its employees with any reprisals if
they select the Union as their collective-bargaining rep-
resentative.
21 In view of the fact that the unlawful discharge of Hurlburt did not
result in the loss of pay or any other detriment and since she was rein-
stated to her old position, I have not included a make-whole remedy for
backpay and interest with regard to Hurlburt.
" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board. the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(d) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, recognize and, retroactively to July
10, 1979, bargain collectively in good faith concerning
rates of pay, wages, hours, and other terms and condi-
tions of employment with Local 280, International
Ladies' Garment Workers Union, AFL-CIO, as the ex-
clusive bargaining representative of the employees in the
following appropriate bargaining unit:
All production and maintenance employees, plant
clerical employees, shipping and receiving employ-
ees employed by Respondent at its facilities located
at 18 N. Main Street and at Edison Street in Hor-
nell, New York, excluding cutters and spreaders,
office clerical employees, professional employees,
guards and supervisors within the meaning of the
Act.
and, if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Expunge from any of its records any notation re-
garding the July 12, 1979, discharge of Lucinda Hurlburt
and the July 12, 1979, discipline of Carole Pawlica.
(c) Post at its plants in Hornell, New York, copies of
the attached notice marked "Appendix." 23 Copies of said
notice, on forms provided by the Regional Director for
Region 3, after being duly signed by Respondent's au-
thorized representatives, shall be posted by it immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein; and the petition in Case 3-RC-
7650 be dismissed.
23 In 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
987