Thomas Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 704 (N.L.R.B. 1974)

704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
House of Mosaics , Inc., Subsidiary of Thomas Indus-
tries, Inc. and International Brotherhood of Electri-
cal Workers, Local Union No. 2088 , AFL-CIO.
Cases 12-CA-6220 and 12-RC-4491
December 16, 1974
DECISION , ORDER , AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On June 20, 1974, Administrative Law Judge Her-
bert Silberman issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief.
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 brief and
has decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge to the extent
consistent herewith.
The complaint alleged violations of Section 8(a)(1)
and (3) of the Act. The Administrative Law Judge
recommended dismissing the complaint in its entirety.
We agree as to the dismissal with the modifications
indicated hereinafter.
The Union held a meeting of employees on Friday,
September 21, 1973. In response, President Billet called
a plantwide meeting on Monday, September 24, 1973,
to discuss the Union. Billet noted his regret that the
employees were involved in a union organizational
campaign. He commented that he did not believe it was
necessary for the employees to become involved with
the Union, that the Company was still a good place to
work, and that any problems that might exist could be
worked out within the Company. He cautioned the
employees to read the union authorization cards care-
fully. Employee Mark Braun suggested that spokesmen
for different groups of employees should be designated
to discuss employee problems with Billet. Billet re-
sponded that his office was open for anybody at any-
time and that this had been his policy for 9 years.
After the general meeting, Braun went to Billet's
office and spoke to him again about the grievance com-
mittee suggestion. Braun asked whether Billet could
help him work out some plan. Billet answered that the
best thing to do was to have one or two persons from
each department form a committee to bring employee
problems to the attention of management. Billet com-
mented that he did not care whether or not Braun's
suggestion was adopted. Later the same day three other
employees, Eleanor Campbell, Ramona Duffey, and
Linda Weisner, went to Billet's office to speak with
him. At this meeting, Campbell raised the question of
establishing a grievance committee. Billet told her that
Braun had been in to speak to him about a similar
program and he asked for 1 or 2 days to act upon the
matter. Thereafter, the employees in the various de-
partments elected department spokesmen. It does not
appear that there was any meeting between company
management and any employee grievance committee.
During the week of September 24, 1973, Billet held
individual group meetings with the employees of each
department in the office of Plant Manager Gil Grady.
There was one meeting each with the petal-forming
department, the packing and shipping and paint de-
partments, the electrical department, the welding de-
partment, and the molding, casting, and trim depart-
ment.
In response to employee complaints at the group
meetings, Respondent advanced the pay dates from the
5th and the 20th of each month to the 3d and 17th of
each month. Also, Respondent changed the type of
musical broadcast over the plant loudspeaker system to
hard rock. Further, Respondent promised to change
the carpeting on some worktables and the fan on a piece
of equipment.
The conclusion is warranted that Respondent was
motivated by a desire to frustrate its employees' organi-
zational efforts by showing them that a union was un-
necessary when it fostered the development of the
grievance committee, held the separate group meeting
with the employees, changed some employee working
conditions, and promised other changes, since these
acts clearly had the effect of demonstrating to the em-
ployees that they would not need a union to obtain
redress of their grievances. Gold Circle Department
Stores, 207 NLRB 1005 (1973). We recognize that the
Respondent was in a difficult position with regard to
the formation of the grievance committee when the idea
for the committee was initiated by an employee. Never-
theless, Billet endorsed the idea and fostered its devel-
opment by suggesting the election of grievance spokes-
men and indicating his willingness to work with them.
Also, while the actual and promised changes may seem
modest, these matters were important to the employees
and the changes showed the employees that they would
not need a union to effectuate alterations in working
conditions.
Accordingly, we find, contrary to the Administrative
Law Judge, that Respondent violated Section 8(a)(1) of
the Act by the foregoing conduct.'
Contrary to our dissenting colleague, we find that
' Chairman Miller dissents from this finding and would affirm in toto the
findings and conclusions of the Administrative Law Judge for the reasons
set forth in the said Administrative Law Judge's Decision
215 NLRB No. 123
HOUSE OF MOSAICS, INC. 705
Respondent's no-solicitation rule does not violate Sec-
tion 8(a)(1) of the Act. First, we agree with the Ad-
ministrative Law Judge that the rule is not unlawful on
its face since it is directed to the solicitation of articles
and goods and not to union solicitation. Second, even
assuming the rule was directed at union solicitation, the
rule still does not violate the Act.
The validity of no-solicitation rules must be tested
against the standards set forth in Essex International,
Inc., 211 NLRB 749 (1974). Essex establishes that a
rule prohibiting solicitation during working hours is
prima facie susceptible of the interpretation that solici-
tation is prohibited during all business hours and thus
invalid. However, an employer may show by extrinsic
evidence that, in the context of a particular case, the
"working hours" rule was communicated or applied in
such a way as to convey an intent clearly to permit
union solicitation during breaktime or other periods
when employees are not actually engaged in the per-
formance of their work tasks.
In the instant case, the rule proscribes solicitation
"in the building at any time" and is therefore prima
facie invalid (assuming arguendo that it is directed at
union solicitation), but extrinsic evidence establishes
that the rule is applied in a lawful manner. The Ad-
ministrative Law Judge credited the testimony of Presi-
dent Billet that the rule was never intended to discour-
age employees from talking about unions during break
and lunch periods but was adopted merely to discour-
age vendors from bothering employees while at work.
Further, the Administrative Law Judge credited Bil-
let's testimony that he had asked employees to use their
lunch periods and spare time to discuss union, as well
as company, policies. We find that this extrinsic evi-
dence overcomes the prima facie invalidity of the rule
and therefore the rule does not violate the Act.
Moreover, we cannot agree with our dissenting col-
league who, contrary to the Administrative Law Judge,
finds that President Billet's remarks to employee Rich-
ard Silva during a meeting with the packing and ship-
ping and paint departments constitute a violation of
Section 8(a)(1) of the Act. As the employees assembled,
Billet asked Silva where his union button was. Another
employee then remarked that Silva had gone under-
ground. Billet then said to Silva that he did not have
to worry about wearing a union button in the meeting.
Billet and two employees testified that the exchange
was in jest. Silva even acknowledged that Billet was
laughing. We agree with the Administrative Law Judge
who found that Billet's remarks reasonably would not
generate fears in employees that the Respondent was
seeking to ferret out the names of those who were sup-
porting the Union in order to take action against them,
nor did the incident reasonably tend to develop the
impression that the Respondent had been keeping their
union activities under surveillance.
The Remedy
Having found that the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a(1) of the Act, we shall order
that it cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of
the Act.
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. House of Mosaics, Inc., Subsidiary of Thomas
Industries, Inc., is, and at all times material herein has
been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. By interfering with, restraining, and coercing em-
ployees in the exercise of their rights guaranteed in
Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, House of
Mosaics, Inc., Subsidiary of Thomas Industries, Inc.,
Cocoa Beach, Florida, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act by fostering em-
ployee grievance committees, in order to discourage
union membership, changing pay dates, and other
working conditions in order to discourage employees
from seeking labor union representation.
2. Take the following affirmative action which is
necessary to effectuate the purpose of the Act:
(a) Post at its place of business in Cocoa Beach,
Florida, copies of the attached notice marked
"Appendix."2 Copies of said notice, on forms pro-
vided by the Regional Director for Region 12, after
being duly signed by the Respondent's authorized rep-
2 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 Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resentative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that all allegations that Re-
spondent violated the Act other than those specifically
discussed, supra, be dismissed.
IT IS FURTHER ORDERED that the objections to the elec-
tion be overruled, and the challenges to the ballots of
Ruth Cowart, Linda Weisner, and Iris Wolfe be
sustained.'
As the Petitioner has failed to receive a majority of
the valid votes cast, we shall certify the results of the
election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid votes
have not been cast for International Brotherhood
of Electrical Workers, Local Union No. 2088,
AFL-CIO, and that said labor organization is not the
exclusive representative of the employees in the unit
found appropriate , within the meaning of Section 9(a)
of the Act, as amended.
MEMBER JENKINS, concurring in part and dissenting in
part:
I agree with my colleagues' findings that Respondent
violated Section 8(a)(1) by fostering employee griev-
ance committees in order to discourage union member-
ship, and changing pay dates and other working condi-
tions in order to discourage employees from seeking
labor union representation. However, contrary to my
colleagues, I would further find that Respondent also
violated Section8(a)(1) in the manner set forth below.
The record reveals that Respondent maintains the
following no-solicitation rule which has been circulated
to its employees:
Soliciting is not permitted in the building at any
time. Persons selling jewelry, cometics, cookware,
ect., must contact employees outside the plant
after 4:30 p.m.
The Administrative Law Judge and my colleagues find
that the above rule is not on its face
unlawful-being directed to the solicitation of articles
and goods. I disagree and do not believe that this rule
can be so narrowly construed.
The first sentence of the rule prohibits soliciting in
the building at any time and is clearly unlawful on its
face. The unlawful restriction is not cured by the sec-
ond sentence of the rule since the second sentence, in
no way, intrinsically relates back to the first sentence
and it does not control the impact of the first sentence.
Indeed, in Higgins Industries, Inc., 150 NLRB 106
(1964), a rule providing "Soliciting or the selling of any
merchandise . . . by any person without permission of
the Management is forbidden in the factory or on Com-
pany property" was found to be presumptively invalid
by the Board. Clearly, if the rule in Higgins Industries
is presumptively invalid where the terms soliciting and
selling appear in the same sentence, it would follow that
the instant rule is unlawful where there is no relation-
ship between selling and solicitation. Moreover, even
were Ito believe the no-solicitation rule to be ambigu.
ous, nevertheless I would find an 8(a)(1) violation, ap-
plying the well-settled Board rule that any ambiguity in
the rule must work against the promulgator of the rule
rather than against the employees to whom it applies.
Republic Aviation Corporation v. N..L.R.B., 324 U.S.
793 (1945).
In addition, in my view, the maintenance of the un-
lawful no-solicitation rule during the organizational
campaign constitutes grounds for setting aside the elec-
tion held on December 20, 1973, and I would direct a
second election.
Finally, I must disagree with my colleagues' findings
herein that President Billet's remarks to Richard Silva
during a meeting with the packing and shipping and
paint departments do not constitute a violation of the
Act. In this regard, it appears that Billet asked Silva if
he had a union button and why he wasn't wearing it.
At this point another employee remarked that Silva
had gone underground. Thereafter, Billet accused Silva
of being in "union activities-union organizer." As the
General Counsel alleged, in my view Billet 's remarks
constituted interrogation and clearly conveyed the im-
pression to all the assembled employees that Respond-
ent had kept their union activities under surveillance by
telling Silva that Respondent knew Silva was for the
Union and asking him if he was ashamed to wear the
union button.
APPENDIX
3 We note that the unfair labor practices found herein occurred in late
September 1973, which is prior to the filing of the representation petition
on October 31, 1973, and therefore may not be considered as grounds for
setting aside the election The Ideal Electric and Manufacturing Company,
134 NLRB 1275 (1961)
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
HOUSE OF MOSAICS, INC . 707
The Act gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT interfere with, restrain, coerce em-
ployees in the exercise of their rights guaranteed
in Section 7 of the Act by fostering employee
grievance committees in order to discourage union
membership and changing pay dates and other
working conditions in order to discourage em-
ployees from seeking labor union representation.
HOUSE OF MOSAICS, INC,
SUBSIDIARY OF THOMAS INDUSTRIES,
INC
DECISION AND REPORT AND
RECOMMENDATIONS WITH RESPECT TO
OBJECTIONS TO AN ELECTION AND
CHALLENGED BALLOTS
HERBERT SILBERMAN, Administrative Law Judge. These
consolidated proceedings were heard in Rockledge, Florida,
on March 26, 27, 28, and 29 and April 10 and 11, 1974. There
was oral argument at the close of the hearing, and counsel for
General Counsel and for the Employer thereafter filed briefs
with the Administrative Law Judge.
The Pleadings
The complaint in Case 12-CA-6220, issued on February
28, 1974, as amended at the hearing , alleges that House of
Mosaics, Inc, subsidiary of Thomas Industries, Inc., herein
sometimes called Respondent , the Employer , or the Com-
pany , has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (3) and Section 2(6)
and (7) of the National Labor Relations Act, as amended.
The complaint is based upon charges filed on December 28,
1973, by International Brotherhood of Electrical Workers,
Local Union No. 2088 , AFL-CIO, herein referred to as the
Union . In substance , the complaint alleges that the Employer
unlawfully discharged or laid off 17 employees on October 1,
1973, and thereafter on various dates between October 24 and
December 3, 1973, unlawfully discriminated against 4 of
these employees by recalling them from layoff and transfer-
ring them to job duties which were more onerous and physi-
cally exerting and less desirable than the jobs they held when
they were laid off; and by reason of the foregoing and other
conduct set forth in the complaint the Company has inter-
fered with , restrained , and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act. The
Respondent duly filed an answer generally denying that it has
engaged in the alleged unfair labor practices.
With respect to the representation proceeding, Case
12-RC-4491 A petition requesting certification of represen-
tatives was filed by the Union on October 31, 1973. There-
after, the parties entered into a Stipulation for Certification
Upon Consent Election which was approved by the Regional
Director on November 28, 1973. Pursuant thereto, an elec-
tion was conducted on December 20, 1973, among the em-
ployees in the following unit.
All production employees, maintenance employees and
plant clerical employees, excluding: all office clerical
employees, managerial employees, guards and supervi-
sors as defined in the Act.
The tally of ballots shows that of approximately 44 eligible
voters, 18 votes were cast for the Union, 20 votes were cast
against the Union, and 3 ballots were challenged. The chal-
lenged ballots are sufficient in number to affect the results of
the election.
On December 28, 1973, the Union filed timely objections
to the election.
The Regional Director caused an investigation to be made
of the challenges and the objections and on March 15, 1974,
issued his report thereon. The report shows that the Board
agent conducting the election challenged the ballots of Ruth
Cowart, Linda Weisner, and Ins Wolfe on the ground that
their names did not appear on the voting eligibility list fur-
nished by the Employer The report further shows that these
three employees were laid off on October 1, 1973, that they
are named as having been the subjects of unlawful discrimina-
tion in the complaint in Case 12-CA-6220, and that their
eligibility to vote in the election necessarily must be deter-
mined by the outcome of the unfair labor practice proceeding.
The report also shows that the objections to the election filed
by the Union contained four numbered allegations and
"[s]ince substantial portion of the conduct alleged in Objec-
tions 1 through 4 occurred prior to the filing of the petition
and under Board policy is not considered as a basis for setting
aside an election, the Petitioner has withdrawn said Objec-
tions, and will rely on the additional items of conduct dis-
cussed hereinafter which occurred after the filing of the peti-
tion Withdrawal of Objections Nos. 1 through 4 is herewith
approved." The report further states that "[a]lthough not
alleged as part of the Objections, as initially filed, the investi-
gation disclosed additional conduct which occurred during
the critical period between the filing date of the petition and
the election, such conduct being alleged in Items 5(k), (m)
and (n) of the Complaint issued in Case- No.
12-CA-6220 " The Regional Director issued an order direct-
ing a hearing to resolve the issues raised by the "alleged
additional objectionable conduct" and to resolve the eligibil-
ity of the three challenged voters. He also ordered that such
hearing be consolidated with the unfair labor practice hearing
in Case 12-CA-6220 and that, thereafter, Case
12-RC-491 be transferred to and continued before the
Board in Washington, D.C.
Motion to Strike the Objections to the Election
At the hearing Respondent moved to strike the objections
encompassed by the Regional Director's order of March 15,
1974, on the grounds that they were not filed by the Union
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the representation proceeding and that all the objections
filed by the Union had been withdrawn so that no viable
objections to the election within the meaning of Section
102.69 of the Board's Rules and Regulations are extant
On March 11, 1974, the Union sent a letter to the Regional
Director of the Board containing the following request:
In my letter to you dated December 28, 1973, I filed
several objections to the election for the above Case
Number. I respectfully request that all these objections
be withdrawn except the one concerning the Company's
action in conducting layoffs of employees due to their
support and/or activities in behalf of the Union.
Two days later, on March 13, 1974, the Union mailed to the
Regional Director of the Board the following additional re-
quest:
Reference my letter dated March 11, 1974. In consid-
eration that the fourth objection to the election concern-
ing the layoff of employees did occur prior to the filing
of the petition, I respectfully request permission to with-
draw this objection also.
In view of newly discovered evidence, specifically
Items 5(k),(m) and (n) of the Complaint issued by the
National Labor Relations Board under Case No.
12-CA-6220, I request the Director pursue these items
as objections to the election
The Regional Director approved the Union's requests to
withdraw its Objections 1 through 4, which were all the
objections filed by the Union in the representation proceed-
ings.
Decision was reserved on Respondent's motion to strike in
order to give the parties an opportunity to file briefs with
respect to the subject.
Respondent, in its brief, by citing National Electric Coil
Div. McGraw-Edison Company, 184 NLRB 691 (1970), and
other cases, indicates it is aware of the well-established princi-
ple that in determining whether to set aside the results of an
election the Board may consider and rely upon any evidence
uncovered in the course of its investigation of timely objec-
tions filed by a party to the election and also of any pending,
concurrent unfair labor practice charges. However, Respond-
ent, in substance, argues that this principle presupposes the
continuing viability of objections to the election filed by one
of the parties thereto.' Section 102.69 of the Board's Rules
and Regulations gives a party to a representation proceeding
5 days after the tally of ballots to file with the Regional
Director objections to the conduct of the elections or conduct
affecting the results of the election If no objections are timely
filed, the Regional Director shall forthwith issue to the par-
I rule applicable to unfair labor practice proceedings is that if the
complaint "gets so completely outside of the situation which gave rise to the
charge that [the Board ] may be said to be initiating the proceeding on its
own motion , then the complaint should fall as not supported by the charge "
NLR B v Kohler Company , 220 F 2d 3 , 7 (C A 7) Thus, it has been held
that where a timely filed unfair labor practice charge was withdrawn without
prejudice its reinstatement more than 6 months after the operative events
occurred "would amount to a circumvention of the proviso to Section
10(b) " Koppers Company, Inc., Forest Products Division, 163 NLRB 517
(1967), NL R B v Silver Bakery, Inc of Newton , Massachusetts , 351 F 2d
37 (C A 1,1965)
ties a certification of the results of the election (which may
be delayed only if the challenged ballots were sufficient in
number to affect the results of the election). Respondent
contends that the Union "now seeks to collaterally attack the
election procedure through an unfair labor practice case,"
which is contrary to the decisional doctrine of the Board and
the courts Respondent cites N. L. R. B. v. Reliance Steel Pro-
ducts Company, 322 F.2d 49, 55 (C.A. 5, 1963), enfg. as
modified 135 NLRB 730 (1962), where the court stated:
In urging its present position that District 50 be allowed
to accomplish indirectly what it could not accomplish
directly, the Board has, we think, departed from its prior
decision in North Electric Co., 129 NLRB 675, in which
it reached the opposite result There the bar to the
union's raising objections to the election was a pre-elec-
tion cut-off date rather than the 5-day limitation:
"Even though the Respondent violated Section 8(a)
(1) of the Act, a remedy for this violation that resulted
in setting aside the contract and invalidating the certifi-
cation of the [elected union] would permit the Charging
Union to accomplish indirectly through the filing of an
unfair labor practice charge what it could not accom-
plish directly by filing objections to the election. In this
case, the negotiation and execution of the contract be-
tween the Respondent and the [elected union] occurred
prior to the date that the Board issued its decision and
direction of election. Although objections to the election
were filed, they were later withdrawn, and properly so
For under the well-established principles, the Board will
not consider election objections based upon interference
which occurs prior to the issuance of the decision and
direction of election If the Board were now to set aside
the [elected union's] certification and order a new elec-
tion, it would be permitting the Charging Union to ac-
complish indirectly through the filing of a Section
8(a)(1) charge what it could not have accomplished di-
rectly by pressing objections to the election." North Elec-
tric Co., supra, 129 NLRB at 667-677.
We agree with the reasoning of the Board in the North
Electric case and hold that the Board was without au-
thority to order the election set aside and to deny certifi-
cation of Local 372.
General Counsel's argument is as follows:
It is axiomatic that the issue would not exist had the
Regional Director not allowed the withdrawal of the last
original objections but had instead left one objection
intact to serve as an administrative vehicle for the Ad-
ministrative Law Judge to consider the additional al-
leged objectionable conduct. It is submitted that such an
artificial position would exalt form over substance. Here,
no due process rights of Respondent have been harmed
by the order of a hearing on the additional objectionable
conduct since Respondent has had ample notice and has
not been prejudiced. It is submitted this issue is con-
trolled by the principle expressed in the case of Edward
J. Schlachter Meat Co., Inc., 100 NLRB 1171. There, an
election was set aside in the absence of a union's filing
of objections pursuant to the Board's rules and regula-
HOUSE OF MOSAICS, INC 709
III THE ALLEGED UNFAIR LABOR PRACTICES
tions, the Board stating , ". . . the primary objective of
the Board is to make certain that every election held A. Background
under Board auspices is conducted fairly and properly,
and that the results represent freely expressed desires of
employees, we must, on our own motion occasionally
investigate and consider allegations of interference . .
. regardless of how the matter comes to our attention.
Schlachter, supra, at 1172.
Although the above-mentioned case involved a substan-
tial departure from Board policy by the Regional Direc-
tor, the principle remains the same that the authority
exists in representation matters (here for the Adminis-
trative Law Judge) to consider such afore-mentioned
conduct and to make appropriate findings [Cases cited
in footnote omitted.]2
For the reasons set forth below, I shall recommend that the
objections encompassed by the Regional Director's order of
March 15, 1974, be overruled Accordingly, it is unnecessary
for me to pass upon the instant motion to strike the objec-
tions.
Upon the entire record in these cases, and from my obser-
vation of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
The Company, a California corporation licensed to do
business in the State of Florida, maintains an office and plant
in Cocoa Beach, Florida, where it manufactures and sells
lighting fixtures. During the 12 months preceding the issu-
ance of the complaint, which period is representative of Re-
spondent's business operations, the Company purchased
goods and products valued in excess of $50,000 which were
shipped to its Cocoa Beach plant through channels of inter-
state commerce directly to points outside the State of Florida,
and during the same period of time the Company sold goods
and products valued in excess of $50,000 which it shipped
from its Cocoa Beach plant through channels of interstate
commerce directly to points outside the State of Florida..
Respondent admits, and I find, that it is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
11 THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local
Union No. 2088, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
1 in the Schlachtercase, cited by General Counsel, the union refused to
participate in any manner in arranging for an election because the election
was about to be conducted in the face of a pending charge alleging violation
of Sec 8(a)(2) of the Act, which charge was not subject to waiver under
Board policy See also Alfred Nickles Bakery, Inc, 209 NLRB 1058 (1974),
where the Board stated "Our Rules and Regulations have been developed
and adopted for the purpose of providing for the orderly processing of
representation cases within the framework of the National Labor Relations
Act In order to maintain the orderly processing of these cases, there must
be adherence to the Board's Rules and Regulations "
The Company manufactures plastic lighting fixtures in its
two-story factory premises in Cocoa Beach, Florida. Princi-
pally it produces a tiffany tulip flower-type lamp made of
plastic with fiberglass inserts and what is commonly known
as a spinball which is a lamp composed of a fiberglass
material impregnated with polyester residue and spun on a
form.
On the ground floor of the premises are the shipping and
packing department, the electrical department, the petal-
forming department, and the welding department. In the
petal-forming department, plastic parts are produced by a
vacuum forming process, the material is cut into appropriate
shapes, colored, and then reshaped. From this department
the parts go to the welding department where they are ul-
trasonically welded into a tulip petal lamp. These lamps are
produced in various sizes from 9 inches in diameter to large
and bulky items. From the welding department the lamps are
moved to the shipping department where they are packed
together with their electrical components. On the second
floor is located the spinball department where the polyester
and fiberglass work is done, the casting department where
columns and bases for table lamps are cast out of plaster, and
the paint-finishing department where the spinballs are given
a lacquer or other finish and are prepared to be sent to the
shipping department.
The Company has been manufacturing these lamps for
more than 10 years. Initially it was located in Santa Barbara,
California, but moved to Cocoa Beach, Florida, where opera-
tions began on or about December 22, 1970. The Company
presently employs 60 persons and, prior to October 2, 1973,
employed 69 persons
During the times material hereto, the Company's manage-
ment was composed of the following persons:
James R. Billet-president
E. Billet (wife of James R.)-vice president
John D . Mandelik-sales manager and plant manager
Jerry Swanson-assistant plant manager
Gilbert R Grady-manufacturing manager and person-
nel supervisor
Betty Miller Mandelik (it appears that she and John
Mandelik married-probably after her employment
with the Company terminated about February 21,
1974)-expediting manager
B. Cress-manager of the spinball operations
W. Spencer-maintenance manager
P. Madigan-traffic manager, in charge of shipping, re-
ceiving, and packing
The above-listed personnel were salaried employees and were
carried on the payroll of the Company's parent organization,
Thomas Industries, Inc., which is located in Louisville, Ken-
tucky.
John Mandelik, who was an important witness for General
Counsel, was hired as sales manager in March 1971. He
testified that in mid-1972, when Plant Manager Paul Clifton
left the employ of the Company because of illness, he volun-
teered to assume the position of plant manager. According to
Mandelik, "I told [Billet] that I believed if we gave the super-
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visors [lead personnel] more authority within their depart-
ments, that I could handle that job, providing they properly
handled each one of their departments . . .. He said, `Okay,
fine, let's go that way."'
In early 1973, an organization chart was prepared by John
Mandelik and published over the signature of James R. Billet
which lists the lead person in each of the departments as a
supervisor . They are named in the document as follows:
R. Duffey-welding supervisor
Lombardi-forming supervisor
K. Altieri-electrical supervisor
L. Antal-trim supervisor
H. Aiton-painting supervisor
0. Sipple-receiving & security
J. Swanson (John Swanson, the son of Jerry
Swanson)-molding & casting
The instrument contains the following additional informa-
tion:
As you are aware, the House of Mosaics as of January
1, 1973, became a subsidiary of Thomas Industries, Inc.
In keeping with the aggressive policies and growth of
this company , the above organizational chart has been
compiled to better illustrate the various assigned respon-
sibilities.
B. Status of the Department Leaders
An issue in the case is whether the lead person in each of
the production departments of the plant are supervisors
within the meaning of the Act. During the times material
herein the following were the lead persons in the departments
listed with their respective names:
Sally Nickerson-welding
Henrietta Lombardi-petal forming
Katherine Altieri-electrical
Lottie Hiers-painting
Frances Galemba-molding , casting , and trim
The production work performed in the various depart-
ments is unskilled and repetitive. According to various wit-
nesses who testified at the hearing, with one exception it takes
from 10 minutes to approximately 2 days to learn any of the
production jobs in the plant. The one exception involves the
painter in the forming department who has to draw straight
lines on plastic material and select the proper color petals for
assembly into lamps. According to Lombardi, it takes ap-
proximately 1 week to learn this job, although within a single
day she can tell whether a new employee will be suitable for
the work.
The department leaders to production work alongside the
other employees and on the average spend 50 percent of their
working time performing such functions. In addition, the
department leaders inspect the goods produced in their de-
partments. According to Frances Galemba, she devoted ap-
proximately 50 percent of her time doing production work
and 30 percent of her time doing inspection work thus leaving
approximately 20 percent of her time for nonproduction ac-
tivities , including training new employees and supervisory
functions.
The lead persons receive work orders from the clerical
office and distribute the work to the employees in their re-
spective departments . In making such distributions, they at-
tempt to select the persons best suited to do the particular
jobs. They are responsible to see that the work of the depart-
ment is completed and, as they are the inspectors , they are
also responsible for the quality of the product. General Coun-
sel argues that in the performance of this function the lead
persons have authority to "assign" work as that term is used
in Section 2(11) of the Act. However , the evidence shows that
in distributing work the lead persons are required to do little
more than make perfunctory judgments as to who are availa-
ble and able to do the various tasks among the relatively few
different operations in each department. In the exercise of
their function of distributing work the lead persons need only
to make routine assignments based upon their familiarity
with the work and the employees in their departments. As the
production jobs are simple and unskilled , such determina-
tions require little decisional effort and ' do not require the
exercise of "independent judgment."'
The lead persons are paid from 30 to 50 cents per hour
more than the other employees , but otherwise their condi-
tions of employment are the same as those of the other em-
ployees. The department leaders are hourly paid, punch time-
clocks, and have the same fringe benefits and other
employment characteristics as the other rank -arid-file em-
ployees. In contrast , the acknowledged supervisory em-
ployees are salaried and enjoy fringe benefits not available to
the department leaders and other employees.
Both James Billet and Gilbert Grady denied categorically
that the lead persons possess any of the supervisory indicia
or responsibilities set forth in Section 2 ( 11) of the Act. Hen-
rietta Lombardi, a witness called by Respondent, generally
corroborated their testimony. She testified that in 1972 she
was promoted to the job of lead lady in the petal -forming
department by James Billet . Billet then informed her that she
was responsible for training the women in her department
and for seeing that the work was properly done. She was
given an increase of 20 cents per hour with the promotion.
She specifically denied having authority to hire, fire , disci-
pline , promote, transfer, lay off, recall , reprimand , or grant
time off to employees. She also testified that she did not have
authority and did not exercise any authority to assign over-
time to employees . She, as well as several other group leaders,
voted 'in the December 20, 1973 , election without challenge.
In early 1973 , an organizational chart was posted over the
signature of President James R. Billet which refers to each of
the department leaders as supervisors. General Counsel
places much stress upon this evidence as indicating that the
department leaders are known as and are considered to be
supervisors . However , Billet testified that, notwithstanding
the chart, the department leaders have always been referred
to as lead persons ' and the organization chart was not in-
tended to make any change. According to Billet, the organi-
zation chart was prepared in early 1973 after the Company
3 See Phalo Plastics Corporation, 127 NLRB 1511, 1513 ( 1960), Bausch
& Lomb Optical Company, 107 NLRB 790,801 (1954); GreystoneKnitwear
Corp and Donwood Ltd., 136 NLRB 573, 584-586 (1962), enfd 311 F 2d
794 (CA 3, 1963)
HOUSE OF MOSAICS , INC 711
was acquired by Thomas Industries and for incorporation by
Thomas Industries in their "Organizational Chart for Sala-
ried Employees," which bears a publishing date of June 1,
1973. As the chart was intended by Thomas Industries to
cover only salaried employees, when the final copies were
prepared for inclusion in their printed manual the names of
all the Company's department supervisors were omitted.
Even witnesses called by General Counsel corroborated Bil-
let's testimony that the publication of the organizational
chart effected no change in the authority or duties of the
department leaders. Thus, Ramona Duffey, who began work-
ing for the Company when it was still located in Santa Bar-
bara, California, and continued in the Company's employ
when it moved to Cocoa Beach, Florida, testified that when
the Company began business in Cocoa Beach she was ap-
pointed to the job of "lead person" for the welding depart-
ment by then Plant Manager Clifton and that although she
is listed in the organizational chart as supervisor of the weld-
ing department she was never told by anyone in authority
that her title had been changed from lead person to supervi-
sor. She also testified that she had no recollection that John
Mandelik at any time advised her that there had been any
change in her authority.'
Prior to 1973, the department leaders were not referred to
as supervisors and there is no evidence that they had any
authority which would qualify them as supervisors within the
meaning of Section 2(11) of the Act. In late 1972 or early
1973, the plant manager, Paul Clifton, became ill and left the
employ of the Company. According to John Mandelik, who
then held the position of sales manager , Billet expressed con-
cern about finding a replacement for Clifton because it would
take from 9 months to 1 year to train such a person. Mandelik
testified that he suggested to Billet that if the supervisors (at
that time the lead persons were not referred to as supervisors)
were given more authority in their departments he would be
able to assume the duties of plant manager in addition to his
other functions. Billet approved the plan. According to.Man-
delik's further testimony, he held a meeting with the "super-
visors" and "told them that their department[s] would be
their complete responsibility. And, if anything did go wrong
within their department[s]. . . . I would not go to their peo-
ple to discuss it with them. It was their complete responsibil-
ity."
Mandelik also testified, " I recall telling them should they
have any people in their departments that could not properly
do the work to discuss it with myself, and we would see what
course of action then was necessary." And "I told them, as
I was in charge of the plant and I also had to handle sales,
that they were to be in full charge of the people within their
departments. Anything taking place in their departments was
their responsibility. If someone had to leave for sickness or
what have you, it was their option to say, `Yes, you can leave'
or 'No, you can not leave."' On cross-examination , Mandelik
testified, "I told them that with my duties in the plant and
sales that they would have to run their departments in what
you might call a `tight ship manner .' In other words, each
supervisor was going to be in charge of their department. If
there was a problem within the department between the girls,
' Duffey was demoted and transferred to the petal-forming department
in August 1973.
I really didn't want to know about it. They should handle it.
And, of course, if it got to the place where they couldn't take
care of it, then they were to see me." Mandelik named the
lead persons who were present at the meeting. They included
Ramona Duffey and Henrietta Lombardi, who were wit-
nesses at the hearing.' However, neither Duffey nor Lom-
bardi corroborated Mandelik.6
In addition to Ramona Duffey, four department leaders
testified as to what was told them when they were promoted
to the position. Katherine Altieri testified that about April
1973 she was promoted to supervisor of the electrical depart-
ment by John Mandelik, that Mandelik informed the em-
ployees in the department of her position, and that he told
them that she would be in complete charge of the department
as of that date. However, Mandelik did not otherwise de-
scribe her duties. She listed the following as being included
among her responsibilities as supervisor: to see that the em-
ployees began work on time; to give the employees their work
for the day;' to instruct new employees as to what tools to
use and the proper way to use them, to fill out daily and
weekly worksheets; to check the timecards to see that they
were punched correctly; and, if there were any mistakes to
correct and initial the mistakes. When an employee had to
leave early because of illness or for personal reasons, she
permitted the employee to leave after being sure that the
employee had punched out, and then she reported to either
Grady or Swanson that the employee had left 8
Luella Nickerson, a witness called by Respondent, testified
that in August 1973 she was promoted to "lead girl" in the
welding department by Mandelik. She further testified that
Mandelik informed her that her responsibility was to train
the girls and to distribute the work orders. She specifically
denied that she had authority to fire, discipline, promote,
transfer, lay off, reward, reprimand, or grant time off to any
employee. She also voted in the December 20, 1973, election
without challenge.
Lottie Hiers testified that she was promoted to the position
of lead person by Gilbert Grady and John Mandelik in Sep-
tember 1973. She was informed that she was responsible for
teaching the new girls their duties and for seeing that produc-
tion and quality were maintained. She also testified that she
had no authority to fire, discipline, promote, transfer, layoff,
reward, recall, reprimand, or grant time off to any employee.
5 Mandelik testified that he was uncertain as to whether Katherine Altien
had attended the meeting As Altien was not promoted to department
leader until about April 1973, which was several months after the meeting
was held, it is unlikely that she was present
6 Mandelik also testified that the "supervisors" continually were asking
him to resolve large and small problems and this became burdensome and
interfered with his other duties Therefore, about January 1973 when the
organizational chart was posted, he went to each department with Betty
Miller and informed the employees in the department that the supervisor
should take up their departmental problems with Betty Miller and that the
instructions they would receive from Betty Miller should be considered as
though they had been given by him At that time, Betty Miller was the
expediting manager
7 According to Altieri, Betty Miller each day brought the work orders to
her and "I was to assign the girls to their jobs as to who I thought could do
which jobs the best-the fastest in order to fill these orders to go back to
shipping "
8 Altieri testified that when Mandelik informed her that she had been
promoted he also told her that the title of her new position would be
supervisor of the electrical department.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
She voted in the December 20, 1973, election without chal-
lenge.
The fourth department leader who testified about her pro-
motion was Frances Galemba. Her testimony was to the
effect that she was advised of her promotion by Grady, who
informed her that she was in charge of the casting department
and had authority to fire any unsatisfactory employee.
I do not credit Mandelik that in late 1972 or early 1973 he
informed the department leaders that they were invested with
the authority described in his testimony. None of the wit-
nesses who were department leaders at the time testified that
they had received such advice from Mandelik or that they
otherwise had been given such added responsibilities. Of the
witnesses who subsequently were promoted to department
leaders, there is a distinct cleavage as to what was told them
when they were promoted, depending on whether they were
witnesses for General Counsel or for Respondent. Nickerson
and Hiers testified that they were given no substantial au-
thority over the employees in their department. On the other
hand, Altien and Frances Galemba, both of whom were wit-
nesses for General Counsel, testified. that when they were
promoted they were advised that their titles were changed to
"supervisor" and that they were in charge of their respective
departments. I discredit Galemba's testimony which was
specifically contradicted by Gilbert Grady. If Altien's tes-
timony that Mandelik had told her she was in complete
charge of the electrical department is true, her further de-
scription of her job duties as supervisor demonstrates that she
engaged in only routine, repetitive direction of the persons in
her department which did not require the exercise of in-
dependent judgment.'
To bolster the contention that the department leaders are
supervisors, General Counsel adduced testimony about a ple-
thora of incidents intended to demonstrate that they exer-
cised authority and responsibility of such nature as to meet
the definition in Section 2(11) of the Act. The evidence falls
into the following categories:
1. To train employees and prepare daily and weekly work-
sheets: The latter activity does not appear to involve any
authority over other employees. With respect to the training
function, what is required is no more than the ability of an
experienced employee to instruct new employees as to how to
do uncomplicated and unskilled work. Having the responsi-
bility of training new employees does not invest the depart-
ment leaders with supervisory authority within the meaning
of the Act.
2. To excuse employees from work: The lead personnel had
authority to permit employees to leave work because of illness
or for personal reasons.1° The evidence shows that the lead
persons did not have authority to deny an employee permis-
sion to leave. Accordingly, in discharging this function the
department leaders were doing little more than maintaining
timechecks on the employees in their departments.
3. To correct timecards: Department leaders have au-
thority to correct mistakes on timecards. There is no evi-
dence, however, that they have authority to make any adjust-
9 Butler's Shoe Corporation, a Wholly-Owned Subsidiary ofZale Corpora-
tion, 208 NLRB 404 (1974)
10 Mandelik testified that "this is what I considered little nonsense things
which I didn't want to hear about "
ments which can affect employees' earnings . This function is
purely ministerial.
4. To transfer: Ramona Duffey testified that after she had
complained about an employee in her department to Plant
Manager Paul Clifton the latter arranged to transfer that
employee to another department. This single incident does
not establish that the department leaders have the authority
responsibly to recommend the transfer of employees.
5. To discipline: Testimony was adduced regarding a few
trivial incidents. Frances Galemba testified that one of the
employees in her department, Howard Aiton, refused to stop
eating an apple while at work. She spoke to Grady, who in
turn cautioned Aiton about the matter. Katherine Altieri
testified that a woman in her department talked too much and
didn't observe the rules regarding safe conduct. she com-
plained to Mandelik who in turn spoke to the woman. The
woman later quit her employment voluntarily." Lastly, of a
slightly more serious nature, Mandelik testified that Ramona
Duffey, who then was a department leader, once complained
to him about a woman who refused to follow instructions. He
admonished the employee, but, nevertheless, some time later
Duffey again complained about the same person. He advised
the woman that she should look for another job. However,
the woman spoke to Mrs. Billet and was not terminated.
Henrietta Lombardi testified that on one occasion she had a
dispute with Duffey. She pulled Duffey's timecard, put it on
Mandelik's desk, and told him she did not want Duffey in her
department. However, Duffey spoke to Mr. Billet and re-
turned to Lombardi's department. The sum total of this tes-
timony does not establish that the department leaders had
authority to discipline employees or effectively to recommend
the discipline of employees.
6. To fire: Despite the testimony of most witnesses that the
department leaders did not have authority to fire
employees," General Counsel sought to establish by means
of specific incidents that the department leaders either were
given authority to fire employees or exercised such authority.
His principal witness in this regard was Frances Galemba,
who testified that when she was promoted to department
leader Giblert Grady told her that she had authority to dis-
charge employees. This testimony was denied by Grady. I do
not credit Galemba.13 Henrietta Lombardi testified that
upon her complaint Mandelik discharged Ethel Serfozo. Ac-
cording to Serfozo, in April 1973 Lombardi said to her, "I
don't need you any longer," and pulled her timecard and
brought it to the office. Mandelik later delivered her final
check to Serfozo. Mandelik testified that when Lombardi
complained to him about Serfozo he told Lombardi to dis-
charge her. 14 Ramona Duffey testified that when she was
supervisor of the welding department she complained to
11 Mandelik testified that on one occasion Altieri complained to him that
one of the women had such long fingernails that she was unable to do her
work properly Mandelik told Altieri that he would arrange for Betty Miller
to speak to the woman
12 Even Geperal Counsel's witness , John Mandelik, testified that he did
not intend to clothe the "supervisors" with authority to fire employees
13 Galemba also testified that on one occasion she recommended that
Ronnie Brewer should be discharged or transferred He was transferred to
the electrical department
14 Lombardi testified that sometime in the summer of 1973 Mandelik
informed her that she had the right to hire and fire employees , but within
a week this advice was countermanded by President Billet
HOUSE OF MOSAICS, INC
Mandelik about a Christina McIntosh and suggested that
McIntosh should be discharged. However, McIntosh was not
discharged. There was testimony by Linda Weisner suggest-
ing that Department leader Lombardi had discharged an
employee, Dale Newberger. However, Lombardi testified
that Newberger was discharged by Grady and that she had
made no recommendation in such regard, and Grady testified
that he discharged Newberger when it was reported to him
by Lombardi that she was unable to do the work assigned to
her. With only the exception of Ethel Serfozo, there is no
competent evidence in the record that any employee was
discharged directly by a department leader or that a depart-
ment leader effectively recommended a discharge. The single
incident involving Serfozo does not establish that the depart-
ment leaders had the authority to discharge or effectively to
recommend the discharge of employees. Highland Telephone
Cooperative, Inc., 192 NLRB 1057 (1971)
7. To assign overtime: Mandelik testified that when he was
plant manager he determined when overtime was to be
worked and the supervisors selected the employees who
would do such overtime work. However, the overwhelming
testimony of the department leaders indicates that the au-
thority amounted to little more than ascertaining who was
able and available to work overtime.
8. To recommend raises. There is no competent testimony
in the record establishing that lead personnel had authority
to recommend raises for employees.
9. To grant time off: The department leaders had authority
to permit employees who wished to take time off because of
illness or other personal reasons to do so, but they did not
have the authority to deny such time off.
In drafting Section 2(11) of the Act, Congress intended
only to cover employees who, realistically viewed, exercised
the power of the employer in relation to subordinate em-
ployees. Congress did not intend to include within the defini-
tion "straw bosses," who have only minor supervisory
duties.15 It is a well-known industrial fact that "many
skilled workers . . . exercise some degree of direction over
the less skilled."" However, where direction involves noth-
ing more than the routine assignment of work such responsi-
bility does not vest the individual with supervisory authority.
Responsibly to direct subordinates within the meaning of
Section 2(11) requires the exercise of "responsibilities
[which] identify the holder of the position with manage-
ment ." West Penn Power Co. v. N.L.R.B., 337 F.2d 993, 996
(C.A. 3, 1964). The individual must consistently display true
independent judgment in performing one of the functions in
Section 2(11). N.L.R.B. v. Brown & Sharpe Manufacturing
Company, 169 F.2d 331, 334 (C.A. 1) In this case the evi-
dence shows that the department leaders function to train and
to direct the employees in the routine performance of rela-
tively unskilled and generally repetitive tasks. Such exercise
of limited authority to direct employees in routine situations
does not satisfy the criteria of Section 2(11) of the Act. Sul-
livan Surplus Sales, Inc., 152 NLRB 132 (1965). The supervi-
sion of fewer than 60 production employees" reasonably is
15 NLR B v. Bell AerospaceCompany, Division of Textron, Inc., 416U S
267 (1974)
i6 Northern Virginia Steel Corp v. N.LR B, 300 F.2d 168, 172 (C A 4,
1962)
713
within the capabilities of the Employer's more than six
managerial employees. Contrary to the General Counsel, I
find that the department leaders during the times material
herein were not supervisors within the meaning of the Act.
C. The Organizational Drive
In September 1973, two company employees, Ruth Cowart
and Johanna Sandusky, contacted W. F. Hamilton, business
agent for the Union. About September 19 a leaflet was dis-
tributed at the Company's plant announcing a union meeting
at 5 p in. on Friday, September 21. Approximately 15 to 20
employees attended the meeting, including Frances Galemba
and Henrietta Lombardi who withdrew from the meeting
after being asked to leave by Hamilton. " Beginning the next
working day, Monday, September 24, employees began to
wear union buttons in the plant. Duffey testified that the
majority of the employees in the petal-forming department
and some employees in the welding department wore union
buttons. Linda Weisner testified that a majority of the em-
ployees in the welding department wore union buttons.
Eleanor Campbell testified that seven employees in the
welding department wore union buttons and four did not.
Henrietta Lombardi testified that union buttons were worn in
all but the electrical and paint departments and about one
half of the plant employees wore union buttons. A representa-
tion petition was filed by the Union on October 31, which was
followed by a Board election held on December 20.
Company President James Billet was perturbed by the em-
ployees' union interest. He blamed John Mandelik for the
situation. On Monday, September 24, he accused Mandelik
of having precipitated the problem because of "his activities
with various women in the plant," because he had displayed
favoritism towards certain people, and because he caused
"unhappiness in the plant." Billet informed Mandelik, "You
are no longer plant manager You are either going out on the
road or you are going to quit." That same day at a general
meeting of the employees Billet announced that Mandelik
was going on the road to try to get more business and from
then on the employees should take their problems to Mr.
Grady or Mr Swanson, both of whom would be responsible
for the production activities of the Company.19 Despite this,
Mandelik continued to exercise some functions with respect
to the production operations until he was discharged on Janu-
ary 31, 1974.
D. Credibility of Witnesses
The most important single witness who testified for Gen-
eral Counsel was John Mandelik. If Mandelik is believed,
17 During the times involved herein the entire work force , including
clerical, administrative , and managerial employees , was no more than 69
persons
18 According to Ramona Duffey, Hamilton inquired whether any supervi-
sors were present Galemba and Lombardi acknowledged that they fell into
that category and were requested to leave
19 Mandelik substantially corroborated Billet's version of their conversa-
tion According to Mandelik , Billet accused him of being responsible for the
Union's presence on the scene because he had too many favorites in the
plant and other employees disliked him becuase he was mean to them Billet
advised him that he could go out on the road as sales manager or be
terminated in 30 days with severance pay
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among other things, he initiated the October 1, 1973, layoff
of employees in order to impair the Union' s organizational
drive. In this respect, Mandelik is corroborated by Frances
Galemba whose testimony also is in question. Respondent
contends that Mandelik should be discredited, not only be-
cause as a disgruntled former employee he cooperated with
General Counsel in order to retaliate against the Company,
but also because of his venality, which is evidenced by tes-
timony that even before his discharge he attempted to under-
mine Billet in order to replace Billet as president of the Com-
pany.
Lottie Hiers testified that on December 19, the day before
the election, Mandelik telephoned her and informed her that
he wanted her to go union and to help him "to get Mr. Billet
out of the plant ." He also said that he wished to speak with
her and her coworker, Linda Carmichael, the next day. Hiers
testified that the next day Mandelik spoke with Carmichael
and herself and told them that if they voted for the Union it
would cause Mr. Billet to be removed from his job and there
was nothing for them to worry about because as the result of
something that had happened 3 days earlier the election
would be set aside. Carmichael corroborated Hiers regarding
that conversation.20 Hiers further testified that on the day
Mandelik was discharged he telephoned her and inquired if
she would help him. He informed her that if enough em-
ployees walked out of the plant then Thomas Industries, Inc.,
the parent company, would look into the matter and would
reinstate him. Mandelik also said that Katherine Altieri in
the electrical department was ready to walk out and he
wanted to know if Hiers would speak to Carmichael and if
they also would walk out.21 Hiers informed Mandelik she
would not comply with his request.22
Hiers and Carmichael were straightforward witnesses.
Hiers in particular testified without any evasion even to ques-
tions that called for answers which were personally embar-
rassing . I am of the opinion that both Hiers and Carmichael
were truthful witnesses . While their testimony, plus the fact
that one may assume resentment , if not actual vindictiveness,
on Mandelik's part towards the Company, furnishes reason
for Mandelik to cooperate with the General Counsel in the
prosecution of this case,23 it does not necessarily mean that
Mandelik was an untruthful witness. However, there is sub-
stantial conflict between Mandelik's testimony and the tes-
timony of other witnesses including some witnesses who also
were called to testify in support of General Counsel's case. It
thus is necessary to make a general assessment of Mandelik's
credibility and reliability as a witness in this case. Mandelik
testified for almost a full day during the hearing. I had more
opportunity to observe Mandelik than any other witness. It
is my opinion that Mandelik was not a reliable witness I base
20 Mandelik denied that he had asked any employees to vote for the Union
or told anyone that he wished the Union to get in in order to destroy Billet
21 Altieri testified that Mandelik never asked her to go on strike
22 At one time, Hiers had had a very close relationship with Mandelik so
that it is not improbable that Mandelik may have expected to obtain support
from Hiers According to Mandelik, for the purpose of baiting Lottie Hiers,
he said to her, "Well, tomorrow the electrical department is all going to walk
out " She asked if he wanted her to walk out also , and he told her to "go
ahead "
23 Mandelik testified that after he was discharged he told Frances
Galemba, who had been in contact with the Labor Board, that "they were
more than welcome to come and talk to me "
my conclusion upon the fact that his testimony conflicts in
many respects with testimony of other witnesses who im-
pressed me as being honest and truthful and upon the further
fact that his general demeanor as a witness suggested to me
that he was distorting facts and events to make more telling
points.
Frances Irene Galemba was another important witness for
General Counsel. She was hired in February 1973 and in
August was promoted to department leader. Her employ-
ment terminated on February 4, 1974.24 A substantial part
of Galemba's testimony is contradicted by an affidavit which
she gave to a Board agent on January 17, 1974. According to
Galemba, her testimony at the heanng is true and the con-
flicting statements in her affidavit are false. Lottie Hiers and
Linda Carmichael testified that the day after Galemba's em-
ployment terminated they visited at her apartment. She in-
formed them that she could not return to the plant because
she had done something that Mandelik had asked her to do,
that she would do anything for Mandelik because she was in
love with him, and what she had done was something she
should not have done. In Galemba's case also there is evi-
dence suggesting a reason or a motive why the witness would
give testimony in support of General Counsel's case even at
the expense of truth. Galemba's prior inconsistent affidavit
further impairs her credibility. I am of the opinion, based
upon the foregoing and my impressions from observing
Galemba at the hearing, that she was not a reliable witness.
Still another witness for General Counsel whose general
credibility is in question is Betty Miller Mandelik. At the time
of the hearing, she was no longer in the Company's employ
and was married to John Mandelik. I am of the opinion that
she was willing to compromise truth to promote John Man-
delik's cause. I find Betty Miller Mandelik was not a reliable
witness.
E. Interference, Restraint, and Coercion
The complaint in paragraph 5(d) alleges that on September
21 James Billet asked Frances Galemba to go to a union
meeting and to report to him what transpired and the names
of the employees who attended. Galemba testified that in the
afternoon on September 21, while she was dunking coffee
with Betty Miller, Billet asked her to go to the union meeting,
to obtain the names of persons who attended, and to report
them to him. Galemba went to the meeting, but the union
representative, Hamilton, asked any supervisors present to
leave, and she and Henrietta Lombardi departed.25 Galemba
further testified that after the meeting she telephoned Billet
and gave him a list of the employees who had been
there.26
Betty Miller Mandelik testified that she was with Frances
Galemba (luring the afternoon coffeebreak on September 21.
Billet came to them and she asked him if anyone was going
24 There is a conflict between the testimony of Galemba and Grady
regarding her termination Galemba testified that she was discharged by
Grady Grady, on the other hand , testified that Galemba voluntarily quit
On the day of her termination, Galemba delivered a letter of resignation to
Grady
25 Lombardi testified that nobody had asked her to attend the union
meeting
26 In her January 17, 1974, affidavit Galemba stated, "I did not report to
the Company who had attended the meeting "
HOUSE OF MOSAICS, INC 715
to be at the union meeting that evening. He replied that he
did not know. She asked whether he wanted her to go and he
answered, "No, you are considered management." Galemba
then said, "I'll go." He responded that it would be best if she
went and that she should "get a list of who was there."
Billet testified that he had a conversation with Galemba
and Miller at the time mentioned. Betty Miller asked him if
he wanted her to attend the union meeting and he answered
that he did not because she would not be permitted in the
meeting and it would be improper. Galemba then stated that
perhaps she should attend the meeting. Billet replied that he
knew of no reason why she should not. Billet specifically
denied that he requested Galemba to attend the meeting, or
to make a list of the names of those who were present at fhe
meeting He also denied that Galemba later telephoned him
and told him who had attended the union meeting I credit
Billet in regard to the foregoing and find that General Coun-
sel has not proved the allegations in paragraph 5(d) of the
complaint.27
Frances Galemba reported the names of the persons who
attended the union meeting to John Mandelik,28 and some-
time during the week of September 24 Mandelik showed
Grady a list of the persons who Mandelik thought were in
favor of the Union.
Paragraphs 5(a), (b), (c), (e), and (f) of the complaint relate
to remarks allegedly made by Company President Billet at
meetings he held with employees during the week of Septem,
ber 24, 1973. On the Monday after the union meeting of
September 21, Billet spoke to the whole work force about the
Union. In addition, at various times during the same week,
he held departmental meetings where there was greater op-
portunity for direct exchanges of views between himself and
the employees. There is no dispute that Billet was chagrined
by the employees' union interest and that he hoped to per-
suade them against selecting the Union as their collective-
bargaining representative. Also, Billet obtained professional
advice and instructions regarding the legal limitations on the
Company's conduct during the organizational campaign.
Although considerable testimony was adduced regarding
what took place at the September 24 plant-wide meeting,
there is relatively little conflict as to what was said. Billet
expressed his regret that the 'employees were involved in a
union organizational campaign. He stated that he did not
believe it was necessary for the employees to become involved
with the Union, that the Company was still a good place to
work, and that any problems that might exist could be
worked out within the Company. He cautioned the em-
ployees to read the union authorization cards carefully and
to be sure that they knew what they were signing because by
signing such cards they were giving the Union a power of
attorney to represent them. Mark Braun, who worked in the
27 Billet answered all questions directed to him without equivocation and
seemingly without any conscious disposition to frame his answers in a
manner calculated to enhance Respondent 's defense Although Billet has an
obvious interest in the outcome of this proceeding, I find he was a credible
and reliable witness
28 Billet testified that on the night of September 21 Mandelik told him
they would know who had attended the union meeting because he had sent
Galemba and Lombardi to find out Billet asked him why he had done this
because, according to Billet, he had already admonished Mandelik against
stationing himself on the balcony of a nearby motel to observe who was
going into the union meeting
spinning department, suggested that spokesmen for different
groups of employees should be designated to discuss em-
ployee problems with Billet. Billet responded that his office
is open for anybody at anytime and that this had been his
policy for 9 years.29
The testimony as to what occurred at the subsequent de-
partmental meetings is generally fragmentary and contradic-
tory With respect to the meeting with the petal-forming
department, Ramona Duffey testified that Billet said it would
not be to the employees' advantage to become involved with
the Union, that he couldn't give the employees a wage in-
crease because of the union negotiations, that he had pre-
pared a schedule of raises before the Union appeared on the
scene, but now he couldn't do anything about it, which Betty
Miller who was present confirmed, and that it might be con-
sidered illegal if he gave a wage increase. Duffey further
testified that Billet said that "some improvements that could
be made that wouldn't interfere with union activities or any-
thing, like putting in an air-conditioner or fan over the
vacuum formers because it was so hot back there." Linda
Weisner gave two somewhat different versions of what Billet
said to the employees in the forming department. On direct
examination, she testified that Billet said a pay plan was
laying on his desk but he could not do anything about it, his
hands were tied because the Union was trying to get in. On
cross-examination, she testified that Billet said he had a pay
plan on his desk ready to be put in effect, which Betty Miller
could verify, and until the employees decided whether or not
they wanted a union he would not put the pay plan into effect.
Weisner further testified that somebody asked whether they
could get some relief against the heat and Billet responded,
"Absolutely not . .. it would be interfering with the law,
because the union was trying to get in and he could get into
deep trouble because of it." With respect to the same meeting,
Henrietta Lombardi testified that one of the girls asked when
they were going to get a raise and Billet responded that at
present he could not discuss the subject. Lombardi specifi-
cally denied that Billet said he had an approved wage increase
on his desk but could not put it into effect because of the
Union and that Billet had asked Betty Miller to confirm such
fact. Also, according to Lombardi, an employee raised the
question about the defective air conditioner and Billet pro-
mised that he would try to get it fixed.
With respect to the meeting with the packing and shipping
and paint departments. As the employees assembled Billet
asked Richard Silvia where his union button was. Silvia was
not then wearing a union button although he had one in his
pocket. Another employee facetiously remarked that Silvia
had gone underground. Billet then said to Silvia that he did
not have to worry about wearing a union button in the meet-
ing. Lottie Hiers, Gilbert Grady, and Billet testified that the
exchange with Silvia was infest Although Silvia testified that
Billet was laughing, Silvia denied that Billet was talking in
jest. This incident is intended to support paragraph 5(f)
29 Billet testified that an employee asked what can be done about wages
and he replied, "At the moment you have me stymed [sic] I can't do
anything about your wages " I do not credit Altien's testimony that Billet
said "he had a raise on his desk at the time for all of the employees, but he
couldn't do anything because his hands were tied because of the union
activity." No other witness testified that such statement was made at the
September 24 meeting
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the complaint which alleges that James R. Billet
"[interrogated] employees and [gave] employees the impres-
sion that it had kept their union activities under surveillance
by telling an employee he knew the employee was for the
union, and asking if the employee was ashamed to wear a
union button." Contrary to General Counsel, I find that the
described incident does not constitute interrogation. In the
circumstances described Billet's remark reasonably would
not generate fears in employees that the Employer was seek-
ing to ferret out the names of those who were supporting the
Union in order to take action against them, nor did the inci-
dent reasonably tend to develop the impression that the Em-
ployer had been keeping their union activities under surveil-
lance . Lottie Hiers testified that at this same meeting Bonnie
McIntosh inquired when the employees would receive a raise
and Billet responded that "he couldn 't discuss a wage in-
crease right now because of the union, it would be an unfair
labor practice." Also, according to Hiers, during the meeting
Billet mentioned that an air conditioner had been ordered
before the union campaign had begun.
Katherine Altien was the only employee who testified
about Billet's meeting with the electrical department. Ac-
cording to Altien, Billet said that he understood a union was
seeking to organize the employees, that the Union had noth-
ing to offer, that the door to his office was open, and that he
could take care of any problems that might arise and the
employees did not need a third party. He also said that he
knew that working conditions were poor and that the air
conditioning was uncomfortable, but he could not do any-
thing because his hands were tied until "the union bit was
settled." Further, he said that he had a raise on his desk for
the employees but couldn't do anything about it until he saw
what the Union was going to do. Altieri testified that Billet
made a similar remark concerning raises at all the meetings
she attended.
With respect to the meeting Billet held with the welding
department employees, Ruth Cowart testified that Billet said
that the plant used to be like a happy family, that the em-
ployees were nice to work with because they were smiling and
looked so happy. He said that the employees really did not
need a union. He also mentioned that he was ready to give
a pay raise but, since the Union tried to get in, he couldn't.
Towards the end of the meeting Billet told the employees to
smile, which prompted Cowart to remark that it was very
hard to smile "when you get harassed to death." Billet asked
what had happened and she told him that she was sent to
work upstairs in the casting department and became sick and
shouldn ' t have been given such an assignment . Billet an-
swered that he was sorry it had happened and it would not
happen again. Luella Nickerson testified that at the meeting
someone asked a question about a wage increase and Billet
answered that he could not talk about any wage increase.
As to the meeting with the molding , casting , and trim
department, Howard Aiton testified that Billet said he did not
want to see the Union get in the plant, that the employees
would be happier without a union, and that the Union was
after the employees' dues. Billet also said if the Union got in
he did not think any wage increases would be granted.30 Ai-
ton further testified that Billet mentioned that a wage
schedule had been on his desk for some time but he could not
act upon it until "this union movement was settled."31 Ai-
ton further testified that someone asked why the employees
had to wait so long for their pay. The employees then were
being paid bimonthly on the 5th and 20th day of each month.
One employee suggested that they should be paid weekly.
Billet replied that would involve too much bookkeeping ex-
pense, but he would look into whether the employees could
be paid earlier than the 5th and 20th of the month.
During the same week Billet , Grady, and other company
officials met with the department leaders. General Counsel's
witnesses, Katherine Altien and Frances Galemba, testified
concerning the transactions at this meeting and presumably
their testimony is intended to support paragraphs 5(g), (h),
and (o) of the complaint which read as follows:
(g) On or about the month of October 1973 or Novem-
ber 1973, the exact date being presently unknown, by
James R. Billet and John Mandelik republishing and
maintaining an overly broad , illegal no-solicitation rule
prohibiting employees from soliciting support for the
union during non-working time.
(h) On or about the week beginning September 24,
1973, the exact date being presently unknown, by James
R. Billet telling employees in a meeting they could not
discuss the union during their break or lunch time.
(o) On or about the week beginning September 24,
1973, the exact date being presently unknown, by James
R. Billet holding a meeting of supervisors in the plant
office and telling the supervisors that while they were
still supervisors, the Employer would classify them as
lead girls so they could be included in the bargaining unit
to vote against the union.
Katherine Altieri testified that Billet said he understood a
union was trying to organize the plant, that they didn't need
a union, and that there was not to be any union talk in the
plant at any time. She also testified that Billet said that they
were supervisors but "our classification at the time was `lead
girl,' and that way we could vote" against the Union in the
election. Galemba similarly testified that Billet said that the
department leaders "were being referred to as `lead person-
nel,' and `group leaders' rather than supervisors from that
moment on." Altien further testified that Grady said that the
employees were not supposed to talk union in the plant, that
they would have to engage in such conversations on their own
time, and that if the department leaders heard employees talk
about the Union in the plant they should report it to manage-
ment.
The testimony of Altien32 and Galemba was contradicted
30 There is no allegation in the complaint that Billet threatened the em-
ployees that no increases in wages would be granted if the Union should
succeed in organizing the employees
31 Frances Galemba testified that at this meeting Billet said that there
were many things he planned to do but could not do at this time because
of the union activities and that there was a pay raise on his desk that he could
not put into effect because of the union activities
32 Katherine Altien was uncertain about some of the events she described
in her testimony I believe she strove to answer accurately the questions
asked her but, because of her discomfort on the witness stand and her
(Continued)
HOUSE OF MOSAICS, INC. 717
by Respondent's witnesses Billet , Grady, Henrietta Lom-
bardi, Luella Nickerson, and Lottie Hiers, In substance, Re-
spondent's witnesses testified that Billet told the employees
that as department leaders they should be in a position to
answer questions that are asked them about the Union and
any questions they are unable to answer they should refer to
himself, Grady, or Mandelik. Billet informed the group that
he had consulted with counsel and was familiar with what
should be done and should not be done in connection with the
organizational campaign. He informed them that employees
can discuss union questions during their coffeebreaks and
lunch hour but were prohibited from campaigning during
working time because that was unfair to the Company. He
also told the department leaders that they were hourly people
who worked along with the other persons in the plant and had
every right to vote in the election. I credit Respondent's
witnesses rather than Altien and Galemba as to what oc-
curred at that meeting.
The complaint sets forth 15 separate allegations of alleged
violations of Section 8(a)(1) of the Act. The evidence adduced
in support thereof concern the meetings described above and
certain other transactions Several of these separate allega-
tions have been discussed above. I will consider the remaining
allegations in the order in which they appear in the com-
plaint.
(a) On or about the week beginning September 24,
1973, the exact date being presently unknown, by James
R. Billet holding a meeting of employees in the break
area of Respondent's plant and advising the employees
to send representatives from each department to form a
grievance committee which would deal directly with Re-
spondent concerning employee working conditions.
Toward the end of the general meeting of employees held on
September 24, one of the employees, Mark Braun , suggested
that various groups of employees should designate spokesmen
to discuss employee problems with management . Billet re-
sponded that his office is open for anybody to see him at any
time . Billet's testimony is corroborated by General Counsel's
witness, Ramona Duffey, who testified that Billet always had
an open-door policy and that she had spoken to Billet many
times about her individual problems and so have other em-
ployees. After the meeting , Braun went to Billet 's office and
spoke to him again about the suggestion. Braun inquired
whether Billet could help him work out some plan Billet
responded that the best thing to do was have one or two
persons from each department form a committee to bring
employee problems to the attention of management . Billet
emphasized that he did not care whether or not Braun's
suggestion was adopted. Later the same day three other em-
ployees, Eleanor Campbell, Ramona Duffey, and Linda
Weisner, went to Billet's office to speak with him. At this
meeting , Campbell raised the question of establishing a griev-
ance committee or grievance board. Billet informed her that
Mark Braun had been in to speak to him about a similar
program and he asked for 1 or 2 days to act upon the matter.
Thereafter, department spokesmen were elected by the em-
ployees in the various departments. However, there never was
imprecise recollection, her testimony was substantially less reliable than that
of other witnesses
any meeting between company management and any em-
ployee grievance committee. Billet testified that Shirley Gag-
non, who had been elected as one of the spokesmen, came to
speak to him but there was no evidence as to what they
discussed.
Thus, the evidence in support of paragraph 5(a) is that
Billet approved employees' suggestions that a grievance com-
mittee should be formed to deal with the Company concern-
ing working conditions and that persons were elected to such
committee, but no dealings between the committee and the
Company ever took place. General Counsel cites no
authority,33 and I know of none, which spells out a violation
of Section 8(a)(1) from the described conduct.
Paragraph 5(b) alleges:
On or about the week beginning September 24, 1973, the
exact date being presently unknown, by James R. Billet
meeting with small groups of employees in the office of
Plant Manager Gil Grady and telling employees they
would not receive a wage increase because of the union,
and promising to act favorably on employee grievances.
As summarized above, witnesses called by General Counsel
testified that Billet made statements to the effect that he had
delayed giving the employees a wage increase because of their
union activities. In addition, Linda Weisner testified that on
one occasion she, Duffey, and Iris Wolfe went to Billet's
office and spoke with him about various subjects and during
that meeting Wolfe asked Billet about a raise, and he an-
swered that he had "a pay scale in process and that it was on
his desk, but he could not do a thing about it" because the
employees were trying to get the Union in Although Duffey
was a witness at the hearing and testified regarding the same
meeting, she did not mention that the subject of a wage
increase was discussed. Betty Miller Mandelik testified that
in August 1973 she was informed by Billet and John Man-
delik that a wage increase for the employees had been ap-
proved and they were going to give it to the employees before
the amendments to the minimum wage law would take effect
in order that the employees would believe they were getting
the increase from the Company rather than because of gov-
ernmental action. Mrs. Mandelik further testified that at one
of the departmental meetings Billet "did mention a wage scale
that he had already, but he couldn't give it now."
Gilbert Grady who attended all the employee meetings
testified that at several of the meetings the question of a wage
increase arose and Billet's answer was that it would be a
violation of the National Labor Relations Act to discuss
wages at this time. Grady denied that at any of the meetings
Billet said a wage increase had been approved and was on his
desk. Billet similarly testified that he told the employees he
was unable to discuss wages with them while the Union's
organizational campaign was in progress. I credit Respon-
dent's witnesses as to Billet's statements -about a wage in-
crease because, first, I am of the opinion that Billet and
Grady were reliable witnesses who testified thoughtfully and
carefully and, second, because Billet testified that when the
33 Gold Circle Department Stores, a Division of Federated Department
Stores, Inc, 207 NLRB 1005 (1973), cited by General Counsel in his brief,
is inapposite
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizational drive began he consulted labor counsel who
advised him as to what he could and could not do, and the
evidence tends to show that management followed such ad-
vice..
Paragraph 5(c) of the complaint alleges:
On or about the month of October 1973 or the month
of November 1973, the exact date being presently un-
known, by James R. Billet correcting pay dates and the
selection of a radio station for the plant radio system,
which grievances were solicited during employee meet-
ings during the week beginning September 24, 1973.
The applicable principle was explicated by the Court of Ap-
peals for the Second Circuit on February 25, 1974, in
N.L.R.B. v. Rollins Telecasting, Inc., 494 F.2d 80 (C A. 2,
1974), as follows:
It is plainly not unlawful for an employer to hold a
"gripe session" during a union campaign; an organiza-
tional drive often comes as a rude shock to an employer,
and a simple offer to hear any complaints the employees
may have, or to set up machinery to that end, is a natural
and non-coercive response. [Citations omitted.] It is only
when this is accompanied by an employer's promises of
benefits contingent on rejection of the union that it
becomes suspect under Section 8(a)(1).34
The evidence shows that in response to employee complaints
the Company advanced the pay dates from the 5th and 20th
of each month to the 3rd and 17th of the month. Beyond that
there is uncertain and ambiguous testimony indicating that
the Company made some changes in the type of music broad-
cast over the plant loudspeaker system and that certain nor-
mal maintenance repairs were made. Contrary to General
Counsel, I find that the evidence does not support the conten-
tion that Billet directly or implicitly promised to rectify em-
ployee complaints as an inducement for them to reject the
Union. The change in pay dates, which stands alone, did not
convert the "gripe sessions" into an instrument for bribing
the employees to reject the Union.
The evidence relating to paragraph 5(d) of the complaint
and my findings with respect thereto are discussed above.
Paragraph 5(e) alleges:
On or about September 25, 1973, in Respondent's plant
by James R. Billet denying an employee an individual
wage increase previously due because of the union, and
by promising improvements in employee working condi-
tions once the union was no longer attempting to organ-
ize its employees.
At the hearing, General Counsel stated that because of the
unavailability of a witness he was unable to offer evidence
with respect to the first part of this allegation. General Coun-
sel has not pointed out what evidence he relies upon to sup-
port the second part of the allegation and I am not aware of
any evidence purporting to prove this allegation.
34 Gold Circle Department Stores, supra, cited by General Counsel, is not
to the contrary In this case, it is undisputed that Billet maintained an
open-door policy and was regularly available to listen to employee griev-
ances and complaints
The evidence relating to paragraph 5(f) and my findings
with respect thereto are discussed above.
Paragraphs 5(g), (h) and (i) related to an alleged unlawful
no-solicitation rule and its alleged enforcement. The allega-
tions in question read as follows:
(g) On or about the month of October 1973 or Novem-
ber 1973, the exact date being presently unknown, by
James R. Billet and John Mandelik republishing and
maintaining an overly broad, illegal no-solicitation rule
prohibiting employees from soliciting support for the
union during non-working time.
(h) On or about the week beginning September 24,
1973, the exact date being presently unknown, by James
R. Billet telling employees in a meeting they could not
discuss the union during their break or lunch time.
(i) On or about September 24, 1973, by John Mandelik
telling an employee, in Respondent's forming depart-
ment, there would be no discussion concerning the union
while employees were on Respondent's property, includ-
ing their lunch and break time.
The rule in question reads as follows:
Soliciting is not permitted in the building at any time.
Persons selling jewelry, cosmetics, cookware, etc., must
contact employees outside the plant after 4.30 p.m.
This rule is included in a four-page pamphlet describing the
Company's facilities, operating procedures, and rules relating
to employee conduct The rule was originally adopted about
9 years ago when the Company was operating in Santa Bar-
bara, California. After the Company moved to Cocoa Beach,
Florida, it was republished to the employees in April 1973,
well before the union activities had begun James Billet testi-
fied that the rule was never intended to prohibit employees
from talking about unions during break and lunch periods but
was adopted to discourage vendors from bothering employees
while at work. Billet testified, "On the contrary, I asked the
employees to use their lunch periods and spare time to discuss
the union, as well as the company policies."
The only witness who directly implicated either Billet or
Mandelik in the implementation of the alleged unlawful no-
solicitation rule was Linda Weisner. She testified that on the
first day she wore a union button in the plant either John
Mandelik or Department Leader Lombardi-she was not
sure who it was-said to her that wearing the union button
or talking about the Union on company time, whether during
breaktime or lunchtime, was prohibited and employees could
be punished for doing so. Mandelik contradicted Weisner and
testified that he never told any employee that employees
could not discuss the Union during break and lunch periods
or on company property. He testified, "We were informed
they could discuss the union on the company property during
their time." Lombardi also denied telling Weisner that she
could not wear a union button or that talking about the
Union might be grounds for punishment. I do not credit
Weisner's testimony, which atithe best is uncertain. She was
unable to remember whether the male plant manager, John
Mandelik, or a female department leader, Henrietta Lom-
bardi, made the alleged incriminating remark. If she was
HOUSE OF MOSAICS, INC
unable to clearly remember which of the two was responsible
for the alleged remark, it is difficult to believe that she could
clearly recall what was said to her. Accordingly, as there is
no evidence that any responsible member of the Company's
management attempted to promulgate or enforce any unlaw-
ful no-solicitation rule and as the rule quoted above is not on
its face unlawful-being directed to the solicitation of articles
and goods-I find that there is no proof to support the allega-
tions set forth in paragraphs 5(g), (h), and (i) of the com-
plaint.
Paragraphs 5(j), (k), (1), (m), and (n) refer to conduct by
the department leaders. As I find that the department leaders
were not supervisors within the meaning of the Act and were
not otherwise authorized to act for the Company in regard to
the matters set forth in those paragraphs, I shall recommend
that these allegations of the complaint be dismissed. The
evidence relating to paragraph 5(o) and my findings with
respect thereto are discussed above.
Accordingly, for the reasons stated above, I shall recom-
mend that the allegations set forth in the various subdivisions
of paragraph 5 of the complaint be dismissed
F. The Layoff
On October 1, 1973, 17 employees, which included all the
employees in the petal-forming and welding departments,
except the department leaders, and three employees in the
shipping department, were laid off. The employees who were
laid off were given copies of the following letter:
As you are aware, business has been very poor for the
past several months and we have desperately tried to
create work for many departments With no appreciable
increase in new orders we cannot financially continue
this make work program.
Therefore, regrettably, as of October 2, 1973, we will
have to lay off personnel in various departments until
further notice. It is recommended you contact G. R.
Grady between 2 and 4 p.m., Friday, October 12th at
784-2670. At that time you will be advised if our busi-
ness warrants your return to work on October 15th or
if our economic position continues to force us to extend
this lay off to a later date.
Those persons effected by this lay off but not present
today will be notified by telephone. Those persons pre-
sent who are effected will be notified personally today.
General Counsel contends that the layoff was effected in
order to discourage the employees ' union support. Respon-
dent's position is that there had been a substantial drop in
orders beginning in May 1973 and as a result the inventory
of petals and petal lamps had become so great that there was
no room to store the products, therefore, a layoff had become
necessary and could no longer be deferred.
James Billet testified that, for reasons which he described
at the hearing, beginning in May 1973 sales , particularly of
petal lamps, began to fall below the Company's budget pro-
jections. Despite the drop in sales, which became significant
by July, the Company did not reduce its labor force but began
to accumulate inventory.35 All storage space within the
719
plant became filled and the Company purchased two ware-
house buildings for the storage of inventory. By the time of
the layoff, one of these buildings was completely filled and the
other building was three-quarters filled so that as a practical
matter there was no room to store additional inventory. Bil-
let's testimony was corroborated by John Mandelik. The lat-
ter testified that the Company had purchased two warehouse
facilities where completed petal shades were stored because
there was no space remaining in the plant. At the time in
question, one of the warehouses was completely filled and the
other three-quarters filled. In addition, there were approxi-
mately 800,000 petals in storage within the main plant. Man-
delik testified that in September or October 1973 he contacted
Gean Hunt, who had a contract to deliver to the Company
1 million petals per year made from scrap plastic, and asked
him to stop shipping petals because "[t]hey were coming out
of our ears." Mandelik further testified that 90 percent of the
work of the petal-forming department consisted of producing
petals and 95 percent of the work of the welding department
consisted of welding the petals produced by the forming de-
partment. Henrietta Lombardi, the department leader of the
petal-forming department, also testified that in September
there were so many petals on hand that there was no space
for their storage .31
Because of the situation that was developing, beginning in
late August 1973 Billet, Grady, and Mandelik had a series of
discussions regarding the necessity of a layoff. Finally, on
September 25 or 26, it was decided that unless substantial
orders for petal lamps were received by the following Monday
there would be a layoff in the petal-forming and welding
departments.37
There would be no issue in this case about a discriminatory
motive having influenced the layoff decision but for the tes-
timony of John Mandelik and Frances Galemba about a plan
they concocted to counter the organizational drive. Mandelik
testified that on Saturday, September 29, 1973, Frances
Galemba was visiting with him at his apartment Mandelik
mentioned that despite Billet 's meetings with employees more
union buttons seemed to be showing up Galemba agreed
with this observation and speculated, "What would happen
if you laid off a few of those departments where most of those
button are?" Mandelik's response was "that would probably
zap it to the union, however, I don't know if we are able to
do something like that." He explained to her that manage-
ment had been instructed by its attorneys not to deviate from
its past practices.38 Mandelik further testified that he then
telephoned Grady and suggested that it would a good idea to
lay off the employees in the two departments where there was
the most union sentiment and that the Company had enough
35 Mandelik testified that when sales began to fall in the summer of 1973
he and Billet believed that the decrease in orders was temporary and without
a layoff the inventory that accumulated would later be absorbed
36 In his brief, General Counsel makes an elaborate analysis of the Com-
pany's business statistics in an effort to demonstrate that there was no
business justification for the layoff that took place on October 1 However,
General Counsel completely ignores the undisputed testimony that by the
end of September there was no space available to store additional petals or
shades or petal lamps
37 Mandelik corroborated the testimony of Billet and Grady that they had
conversations over a period of 6 weeks regarding the need for a layoff
38 Frances Galemba corroborated Mandelik regarding their conversation
and the subsequent telephone conversations Mandelik had with Billet and
Grady that evening
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inventory on hand to last for quite some time . 39 Grady
agreed with the idea and it was decided that Mandelik should
telephone Billet . Thereupon Mandelik telephoned Billet and
said that the employee meetings did not seem to alleviate the
union situation and it would be a good idea to lay off the
welding and forming departments . Mandelik mentioned that
he did not know whether the Company could do that because
of counsel 's advice that they should not deviate from past
practices and in the past the Company had not had a layoff
at Cocoa Beach but merely reductions of the workweek . Billet
responded that he had had layoffs in Santa Barbara. It was
decided to consult the attorneys on Monday , Billet having
indicated approval of the plan.
Mandelik then called Grady a second time and informed
Grady that Billet had approved the idea and that on Monday
morning they would prepare a schedule of employees to be
laid off.
Billet testified that Mandelik telephoned him on September
29 and said to him that Galemba had mentioned that there
might be an advantage in a layoff and that many of the people
who would be affected by a layoff wore union buttons . Billet
responded that any such plan was unacceptable . Billet ex-
plained at the hearing , "[B]ecause I was well aware that there
was union activity within the plant . And, I was also well
aware that I would be guilty of unfair labor practices, or
something , if we were to just pull . . a layoff because of
some union activity, and this was an unthinkable thing as far
as I was concerned ." He told Mandelik that there was going
to be a layoff, but that he would not make any decision until
the following Monday morning and until after he spoke with
counsel . Billet further explained that he deferred a final deci-
sion until Monday because of the hope that over the weekend
substantial orders for petal lamps might arrive which might
permit the Company to avoid a layoff at that time.
Grady testified that his first conversation with Mandelik
on September 29 was concerned primarily with the possibility
of the Company getting into difficulties with the National
Labor Relations Board should there be a layoff . And in their
second conversation Mandelik informed him that Billet had
agreed that there may be a legal question and Billet would
take the matter up with the parent body on Monday.
According to Billet and Grady , the final decision to effect.
the layoff was made on Monday , October 1, because the
orders received over the weekend were insufficient to alleviate
the problems created by the excess inventory of petals and
petal lamps and because approval for the layoff had been
received from the Company 's parent corporation . The deci-
sion reached was to lay off all the employees in the petal-
forming and welding departments except the department
leaders and, because of the reduction in orders , it was also
decided to lay off three employees in the shipping and pack-
ing department. Accordingly , Billet instructed Grady and
Mandelik to take the necessary steps to effect the layoff and
the three of them collaborated in preparing the letter which
was distributed to the affected employees.40
39 This reassurance seems strange in the light of Mandelik 's testimony
that for a period of 6 weeks there had been a series of conversations concern-
ing the need for a layoff because of the excess inventory and lack of space
to store the inventory
40 Mandelik testified that in preparing the list of employees who would
be laid off he and Grady discussed who had been wearing union buttons,
During the period of layoff no new employees were hired.
Orders for petal lamps received during the layoff period were
filled by the department leaders in the petal -forming and
welding departments who had not been laid off and, from
time to time, with the assistance of employees who were
temporarily transferred from other departments to work in
either the petal -forming or welding departments for periods
of a few hours to 1 day. The laid-off employees were recalled
to work in order of seniority" beginning with Richard
Silvia , who was recalled to work on October 10.
General Counsel 's argument in support of his contention
that the layoff was discriminatorily motivated , as expressed
in his brief, is as follows:
(1) Respondent's economic justification for the layoff is
contradicted by "Respondent's own records which were pro-
duced by the General Counsel." However , General Counsel's
analysis ignores the undisputed evidence that at the time of
the layoff the Company had such a large surplus of petal
lamps and petals that there was no place to store additional
inventory of these items. It was the employees in petal-form-
ing and welding departments who were affected by the layoff,
plus three employees in the shipping and packing department
where work had fallen off substantially because of the drop
in goods to be shipped.
(2) The Company was opposed to the organization of its
employees and declared to its employees its animosity to-
wards the Union.42
(3) A disproportionate number of employees suspected of
supporting the Union were laid off. General Counsel asserts
that "[O]f those present in the plant at the time of the layoff,
only Mercedes Barrial, Jeanne Gagnon , Betty Jo Stevens, and
Ins Wolfe in the welding and forming departments , and Mil-
dred Bonta in shipping (junior employee) and Mike Murden
in maintenance had not had some connection with the Union
according to Mandelik 's knowledge and recollection at the
hearing . . . ." In addition , "Leatha Sharp was on a leave of
absence at the time of the layoff." As 17 employees were laid
off on October 1 and, according to General Counsel, 7 "had
not had some connection with the union " there remained 10
who were suspected by Mandelik as being union
supporters . 43 General Counsel then argues that according to
who had attended the September 21 union meeting, and other factors in-
dicating whether employees might be sympathetic with the organizational
drive Mandelik further testified that the employees in the petal -forming and
welding departments were selected for layoff because these departments
seemed to have the greatest number of employees who were supporting the
union movement , although he acknowledged that in these departments the
Company had "enough inventory to see through a layoff for a month or if
necessary probably 6 weeks " Grady contradicted Mandelik and testified
that on October 1 when he and Mandelik were preparing the layoff schedule
there was no discussion of the union affiliations or sympathies of any of the
employees I credit Grady in this respect
41 Except for those who did not maintain contact with the Company in
accordance with the letter of instructions delivered to each of the laid-off
employees
42 While there is no dispute that the Company was opposed to the organi-
zation of its employees and sought to persuade the employees to reject the
Union as their collective-bargaining representative , I have found that in so
doing the Company did not engage in any unlawful conduct
43 Elsewhere in his brief General Counsel states "approximately 12 out
of the 17 employees laid off had some connection with the union based on
the above-noted testimony " My review of the evidence relating to
Mandelik's alleged knowledge of who among those laid off supported the
Union indicates that the figure 10 rather than 12 is correct
HOUSE OF MOSAICS, INC. 721
Billet 's testimony approximately 35 to 40 percent of the em-
ployees wore union buttons in the plant demonstrating their
support for the organizational drive Contrary to General
Counsel, I find that the layoff of a group of employees which
included 58 percent who were suspected of supporting the
Union does not constitute a "tell-tale disproportion" of the
known union supporters where 35 to 40 percent of the entire
work force was suspected of being in favor of the Union.
The fact that the layoff occurred 1 week -after the com-
mencement of the organizational activities is a suspicious
circumstance particularly when during that week Respond-
ent actively sought to persuade the employees to reject the
Union as their representative.44 However, the evidence of an
economic need to discontinue further building up of inven-
tory of petals and petal lamps is undisputed and the evidence
further shows that the problem had reached pressing propor-
tions. It is only the testimony of John Mandelik and Frances
Galemba which provides any basis for inferring that antiun-
ion considerations influenced the Company's decision to ef-
fect the layoff when it did. For the reasons given above, I do
not credit the testimony of Mandelik and Galemba. I find,
therefore, that General Counsel has failed to prove by a pre-
ponderance of the evidence that the October 1 layoff was
motivated even in part by unlawful considerations
G. The Recalls From Layoff
The notice of layoff given to the employees informed them
that they should telephone Grady between 2 and 4 p.m. on
October 12. Those who called were advised when to call
again . Ultimately, all laid-off employees who maintained con-
tact with the Company were recalled to work. Those em-
ployees who did not call as instructed were treated as quits
and were duly terminated. Thus, both Iris Wolfe and Linda
Weisner were terminated for failure to maintain contact with
the Comapny in accordance with the instructions Iris Wolfe
did not testify at the hearing and a representation was made
by General Counsel that she is now residing in the Bahamas.
There is no information as to whether she left the country
before or after the date on which she would have been re-
called had she maintained contact with the Company. Linda
Weisner testified that she did not call Grady as directed by
the layoff notice and by October 18, 1973, she had obtained
other employment which paid her 25 cents per hour more
than she had been receiving from the Company. Ramona
Duffey, who also was terminated for failing to maintain con-
tact with the Company, testified she did not call because she
did not wish to return to work for the Company.
I find that the Company's instruction to the employees
who were laid off to call Grady in order to learn when they
would be recalled to work was a reasonable requirement, and
the Company's termination of Wolfe and Weisner for failure
to follow this instruction was not unlawful. Accordingly, I
find that as of the date of the election Linda Weisner and Iris
44 During the 2-1 /2 years that the Company had been operating in Cocoa
Beach, Florida, it had met declines in business volume by placing employees
on reduced workweeks Billet explained that on this occasion he did not
direct a reduced workweek because on a reduced workweek the employees
would not draw unemployment insurance and he was of the opinion that
they would be better off if they were laid off and then could draw unemploy-
ment insurance
Wolfe had been lawfully terminated and therefore were not
entitled to vote.
The complaint further alleges that four employees who
were laid off on October 1, namely, Mercedes Barrial, Elea-
nor Campbell, Ruth Cowart, and Betty Jo Stephens were
further discriminated against because when recalled from
layoff they were assigned to the casting department where the
work was more onerous, more physically exerting, and less
desirable than in the departments where they had worked
before the layoff. Eleanor Campbell was recalled on October
24 and was assigned to do sanding in the casting department
which work she described as being the dirtiest, filthiest, and
unhealthiest job in the plant. After about 2 weeks, she was
returned to work in the forming department. Barnal and
Stephens did not testify at the hearing. Ruth Cowart, who
was recalled from layoff on November 14, testified that she
had been informed by Grady that he had a job for her in the
casting department. She agreed to return to that job. Accord-
ing to her further testimony, her first day of work was on a
Wednesday. In order to attend to personal business, she took
the remainder of the week off and then returned the following
Monday. She was assigned to do sanding . After she had been
working for a while, the department leader, Frances
Galemba, admonished Cowart that she was working too
slow. Then, later in the day, Galemba brought back some
columns which Cowart had sanded and said that they looked
as if they hadn't been worked on and that Cowart was to do
them over again and that work of such caliber was reason, for
instant dismissal. Cowart responded that she was not going
to sand the same columns again, that she was going home,
and that she could find a better job any day. Without speak-
ing to any member of management , Cowart left the plant and
did not thereafter return. On the basis of Cowart's testimony,
I find that she voluntarily quit her employment on November
20, 1973.
Turning to the question of whether the four named em-
ployees were discriminated against when they were recalled
to work in the casting department, Grady testified that the
employees were recalled to jobs in the casting department
because that is where work was available and there was no
work available in the petal-forming department or the weld-
ing department. Except for their place of work all other con-
ditions of employment for the recalled employees remained
the same. Grady's testimony is not contradicted that when
the four named employees were recalled there was no work
available for them in either the petal-forming or welding
departments. Also, there is no evidence that any employee
with greater seniority than the four were returned to work in
the petal-forming department or the welding department
before these employees were given the opportunity to return
to those departments.45 I find that General Counsel has
failed to prove by a preponderance of the evidence that the
four named employees were discriminated against when they
45 Despite the testimony of Campbell, there is no adequate proof in the
record that the work in the casting department was substantially less desira-
ble than the work in the petal-forming or welding departments Galemba
testified that she had been informed by Grady that he was calling employees
back to work and was going to assign them to her department and that she
was to have them do sanding and nothing else for the time being and if they
did not want to do sanding they could punch out Even if this testimony is
correct, there is no evidence in the record that there was any work available
for the employees who were being recalled other than sanding.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were assigned to the casting department to do sanding upon
their recall to work.
IV THE REPRESENTATION PROCEEDING
As the objections to the election are based upon the same
evidence as certain allegations of the complaint which I find
have not been proved, I recommend that the objections to the
election be set aside.
For the reasons stated above, I find that the employment
of Ruth Cowart, Linda Weisner, and Iris Wolfe was ter-
minated prior to the election and therefore recommend that
the challenges to the ballots which they cast • in the election
be sustained . Accordingly, I further recommend that the
Board certify the results of the election as reflected by the
tally of ballots in the representation proceeding
Upon the basis of the above findings of fact , and the entire
record of the case , I make the following:
CONCLUSION OF LAW
Respondent has not engaged in the unfair labor practices
alleged in the complaint.
[Recommended Order omitted from publication.]
I