VCA Sterling, Inc.

National Labor Relations Board - Board Decisions

Feb 21, 1974

209 N.L.R.B. 127 (N.L.R.B. 1974)

VCA STERLING, INC
VCA Sterling, Inc. and International Union of E lectri-
cal, Radio and Machine Workers , AFL-CIO-CLC.
Cases 6-CA-6761 and 6-RC-6476
February 21, 1974
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On October 31, 1973, Administrative Law Judge
Benjamin A. Theeman issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, VCA Sterling, Inc.,
Erie, Pennsylvania, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
IT IS FURTHER ORDERED that those allegations in the
complaint as to which no violations have been found
be, and they hereby are, dismissed.
IT IS FURTHER ORDERED that the election held on
May 24, 1973, in Case 6-RC-6476 be, and it hereby
is, set aside, and that Case 6-RC-6476 be, and it
hereby is, remanded to the Regional Director for
purposes of conducting a new election.
[Direction of Second Election and Excel;.dr foot-
note omitted from publication.]
DECISION
STATEMENT OF THE CASE
BENJAMIN A. THEEMAN, Administrative Law Judge: The
complaint i in Case 6-CA-6761 as amended at the
hearing2 alleges that VCA Sterling, Inc. (Respondent)
during the month of May 1973 has engaged and is
engaging in unfair labor practices affecting commerce
209 NLRB No 28
127
within the meaning of Sections 8(a)(I) and 2(6) and (7) of
the National Labor Relations Act, as amended, 29 U.S.C.
151, et. seq. (the Act) by (a) Tom Fousette3 and John
Patton interrogating employees concerning their activities
and sympathies on behalf of International Union of
Electrical, Radio and Machine Workers, AFL-CIO-CLC
(the Union); and (b) Tom Fousette and David Ashby
threatening employees with economic reprisals if the
employees selected the Union as their collective-bargaining
representative. In its answer, Respondent admits certain
jurisdictional facts but denies (a) that Fousette was a
representative, agent, or supervisor and (b) all other
allegations of the complaint.
In Case 6-RC-6476, a stipulation for certification upon
consent election was executed by Respondent and the
Union and approved by the Regional Director for Region
6 on May 9, 1973.4 An electicn was conducted on May 24,
1973. The tally of ballots showed 177 eligible voters. 171
votes were cast of which 89 were against, and 82 were for
the Union. On May 29, 1973, the Union filed timely
objections to the election.5 After investigation it appeared
to the Regional Director that the objections raised
substantial and material issues with respect to the election
which should be resolved on the basis of record testimony
at a formal hearing. On July 31, 1973, the Regional
Director issued an order consolidating the RC case with
the CA case for the purposes of taking testimony.
Pursuant to notice, the hearing in this consolidated case
was held in Erie, Pennsylvania, on August 27 and 28,
1973.6 All parties appeared and were represented by
counsel.? They were given full opportunity to participate,
adduce evidence, examine and cross-examine witnesses,
i Issued on July 31, i973, based on a charge filed on June 7, 1973, by
International Union of Electrical, Radio and Machine Workers,
AFL-CIO-CLC, a first amended charge filed on June 22, 1973, and a
second amended charge filed on July 26, 1973
2 The General Counsel's motion at the hearing to eliminate allegations
contained in the complaint with regard to certain actions of David Ashby
on or about May 10, 1973, Phil Patton on or about May 22, 1973, and John
Patton on or about May 23, 1973, was granted without objection No
testimony was offered on any of these allegations at the hearing The
General Counsel's later motion at the hearing to amend the complaint to
conform to the proof as to dates and names was granted The record does
not show that Respondent was misled or prejudiced by the latter motion in
any manner
3 Spelled "Foessett" in Respondent's brief
4 The certification petition was filed April 26, 1973
5 Originally, the Union filed objections numbered I through 9 By letter
dated July 26, 1973, the Union withdrew all the objections except 2, 3, and
5, which follow
(2) The Employer deliberately persuaded the employees to vote against
the Union by promising wage increases and other benefits
(3) The Employer interrogat, d employees about their activities on
behalf of the Union
(5) The Employer requested alleged loyal employees to solicit votes in
favor of the Company
Objection 3 in essence is the same as the allegation of interrogation
contained in the amended complaint Objections 2 and 5 were in essence the
same as allegations pleaded in the complaint before the complaint was
amended, and which allegations were eliminated from the complaint by the
first motion of the General Counsel referred to in In 2
6 All dates hereafter mentioned are 1973
7 The Union appeared by its International representative He was
present the first day but not the second day of the hearing His absence the
second day was noted on the record Through the General Counsel, the
union representative advised that he had no witnesses to present, did not
(Continued)
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and present oral argument. The General Counsel submit-
ted a brief solely in support of the matters alleged in the
complaint. The Respondent also filed a brief. The
Charging Party filed no brief. The briefs have been read
and considered.8
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Respondent, a Delaware corporation with its principal
office located in Erie, Pennsylvania, is engaged in the
manufacture and nonretail sale of metal closures .9 During
the 12-month period preceding July 1973, Respondent
purchased and received goods and materials valued in
excess of $50,000 directly from points outside Pennsylvania
for use at its Erie facility. During the same period,
Respondent shipped goods and materials valued in excess
of $50,000 from its Erie facility directly to points outside
Pennsylvania.
It is found, as admitted, that Respondent is now, and at
all times material has been, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION
It is found, as admitted, that the Union is and has been a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues in this case have been adequately set forth in
the Statement of the Case above.
B. Credibility of Witnesses
The issues in this case depend entirely upon the
resolution of the credibility of the witnesses. This is not an
easy task. Insufficient corroborative testimony appears in
the record. In determining the conflict, the testimony of all
witnesses has been considered. In evaluating the testimony
of each witness, demeanor was considered. In addition,
inconsistencies and conflicting evidence were considered
and set forth with particularity herein. The absence of a
statement or resolution of a conflict in specific testimony,
wish any continuance because of his absence, and would rely on the
evidence adduced by the General Counsel.
8 No opposition has been received to motions by the General Counsel
and Respondent to correct the transcript. The motions are granted and the
motion papers are ordered filed and made part of the record.
9 For a description of metal closures, see section III,C, below.
10 Examples of Fousette's unreliable testimony. In his morning testimo-
ny on August 27, Fousette stated that when hired by Phil Patton an
understanding was reached that "this was a training, this was understood
between himself and I that I had no supervisory authority." After lunch,
Fousette changed this testimony. He denied that there had been a mutual
understanding. He stated that "this was my interpretation." Similarly in his
morning testimony, Fousette stated that he represented himself "to the
employees working in production as a trainee for management (and that I
they were aware of the fact that I was a trainee for management." After
or of an analysis of such testimony does not mean that
such did not occur. See Bishop and Malco, Inc., d/b/a
Walker's, 159 NLRB 1159, 1161. Further, to the extent that
a witness is credited only in part, it is done upon the
evidentiary rule that it is not uncommon "to believe some
and not all of a witness' testimony." N.L.R.B. v. Universal
Camera Corporation, 179 F.2d 749, 754 (C.A. 2) reversed on
other grounds 340 U.S. 474 (1951); N.L.R.B. v. United
Brotherhood of Carpenters, 230 F.2d 256, 259 (C.A. 1,
1956); cf. N.L.R.B. v. Florida Citrus Canners Co-op, 288
F.2d 630, 638 (C.A. 5, 1961).
Tom Fousette did not impress me as a reliable witness
either from his demeanor or his testimony. The latter was
vague in places, contradictory, and inconsistent. At times it
was contradicted by Philip Patton, president of the
Respondent.10 As more fully set forth in section III,H,2
hereafter Judith Black Sherry was not considered a reliable
witness.
C. Background
Respondent's business is the manufacture of metal
closures, i.e., "several hundred types of parts from gas
masks to cottage cheese lids to decorative metal closures
for the cosmetic industry." The daily production ranges
from 2 to 3 million pieces.
The Company employs approximately 200 production
employees on a hourly basis. The manufacturing process is
from 8 to 10 operations housed in a plant of about 130,000
square feet covering two city blocks in length.
Phillips E. Patton is president. John Patton is vice
president of operations. Frank Vella is the plant foreman.
David Ashby is manager of the decorating and shearing
department. Tom Fousette since early July was assistant
production manager. Prior to that date and during May, he
was a management trainee."
D. Tom Fousette was a Supervisory Employee
during May 1973
Fousette was hired by Respondent as "a management
trainee in production," 12 by letter dated April 2 signed by
Phillips E. Patton. According to its terms Fousette would
be prepared for and placed in a slot where he showed "the
most potential." His "initial exposure would be a training
period in Production Control" starting "at $7500 per year
with a review after six months." 13 A little later that week
Fousette called Phil Patton to accept the letter and was
lunch he denied this statement stating that he "had assumed that the
workers had known what I was there for, you know, in a training status"
Later in this testimony Fousette testified that as he went around the shop he
introduced himself to the employees as a production trainee or a trainee in
production. Fousette testified positively as to his recall about conversations
with members of management but a conversation with the production and
management employees, he could not remember time, specific matters it.
conversations with them, or specific matters about his duties while training.
17 It was stipulated that as assistant production manager, Fousette was a
supervisor. The issue herein is whether Fousette prior thereto as a
management trainee was a supervisor.
12 This was the term applied to Fousette' s position during the hearing by
Patton and Fousette.
13 This period was in fact reduced to a 90-day review.
VCA STERLING, INC.
told to report on April 9 to John Patton who would turn
him over to Frank Vella for instructions.
It would serve no purpose to go into the details of the
testimony of the functions performed by Fousette dunng
his training period. The record clearly shows that it was
generally known that he was a "management trainee in
production." 11 In that capacity during the month of May,
Fousette actually transferred employees from one pro-
duction line to another, directed employees as to what work
to do on a particular line, directed floor boys to do
different jobs or perform their work in a manner other than
the manner in which they were then doing the work.li
Fousette in general testified that the authorlty that he
had to make the above changes was subject to the approval
of Frank Vella. But the record clearly shows that Fousette,
as a matter of course, effectually made the work changes
and that in many instances they remained as changed. On
some occasions, Fousette corrected the change after
checking with Vella and being informed that he had made
an error. The significant fact is that Fousette actually made
the changes, and subsequently the corrections. When
Fousette made an error in judgment he was told to correct
the error. There is no evidence that he was criticized for
exercising authority he did not possess or informed that he
had exercised authority he did not possess as a manage-
ment trainee. It is clear from the foregoing that Fousette
had the authority and the responsibility effectively to
transfer employees from one position to another.
It is clear from the foregoing that Fousette even though a
"trainee" used his independent judgment in responsibly
directing the work of the employees on the production line.
Further that he effectively accomplished these changes
with the knowledge of and under the approval of Vella.
The fact that he was in a training status is of no
consequence particularly where he actually and effectively
exercised authority and used independent judgment to
direct, instruct, and change the work of employees.16 The
facts stated above are a sufficient basis for a finding that
Fousette is a supervisor.
The record contains other evidence of Fousette's
14 Fousette admitted to this title in his interview with the Board's
representative
15 DeWolfe an employee of 9 years testified that Fousette's eventual job
was to "assist Frank Vella" and that in May Fousette was learning by doing
The following testimony was in response to questions by Respondent's
counsel
Q (By Mr Zamboldi) You say he was learning, did he in fact do
any of those things?
A Yes, at times when it had to be done he had to learn it, so he
had to do it at different times.
Q. For example what?
A. Like we finished an order and he'd go up and take the count off
of the counter. he'J take the order down and take it back up to the
office and he would tell us we were changing over to something else or
ie-scheduling us for another Job. He wouldn't do it continuously, but at
different intervals I would say
iS See Illinois Power Company, 155 NLRB 1097, 1098, and note how the
objection raised in the dissenting opinion (p. 1.100) is overcome by the facts
in this case
17 See Great Central Insurance Company, 176 NLRB 474, 475
i" Section 2(11) of the Act states.
The term "supervisor" means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances. or effectively
to recommend such action, if in connection with the foregoing the
129
supervisory capacity . In light , however , of N.L.R.B v.
Metropolitan Life Insurance Co., 405 F.2d 1169 (C.A. 2,
1968), it would only lengthen this decision unnecessarily to
list them . Metropolitan Life and Board decisions 17 hold
that Section 2(l 1) of the Act i8 speaks in the disjunctive;
that to constitute a person a supervisor it is sufficient to
show that the person performed any one of the functions,
or in the performance of his duties, possessed one of the
enumerated powers and responsibilities and duties set forth
in the Section . Fousette 's exercise of his responsibilities
and duties as above stated clearly come within these
holdings.iy
E. The Conversation Between DeWolf and Fousette
Geraldine DeWolf was a press operator working in the
Uni-shell department of Respondent. She had been an
employee for 9 years at the time of the hearing.
In early May, DeWolfs machine went out of order.
Fousette spoke to her about it. The conversation continued
from there. Fousette asked her how she felt about the
union business. She replied she didn't care one way or
another. Fousette hoped the Union didn't get in, that
things would be different, that there would be no
scheduling of the girls. When asked what he meant,
Fousette told DeWolf, that the girls would be on one line
which they would have to run day in and day out.
Fousette denied that he had had such a conversation
with DeWolf. He admitted that in May, including the early
part of May, he had held discussions with DeWolf. He was
unable to recall what the conversations were about, but
testified that he did not ask her "how she felt about the
union or how she intended to vote. "20 DeWolf though
somewhat diffident and uncertain in her testimony
impressed me as a reliable witness.21 Her version of this
conversation is credited.
The full implication of Fousette's statement is that if the
Union came in the work done by the employees would
become more tedious and irksome. The employees would
have no change in duties. They would not be assigned from
exercise of such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment
is This conclusion is supported by the following additional facts. For
example. Fousette was hired and employed on a salaried basis as were all
management employees , but the production and maintenance employees
were on an hourly basis . Fousette attended management meetings
commencing about May I At these meetings union matters were discussed
Hourly paid employees did not attend such meetings . This latter aspect is
sharply pointed up by the comparison of Fousette with Reichel. The exact
job that Reichel had was not clearly shown in the record Reichel was an
hourly paid employee and a member of the unit. He voted in the union
election lie performed some functions of directing employees at their
machines and scheduling their work The record does not disclose that he
made the same work changes as did Fousette nor that he attended any
management meetings . Vella, when he introduced Fousette to Reichel, told
the latter to help Fousette out as much as he could Respondent 's attempt to
show that Fousette was not a supervisor during his training period by
stating that Fousette was in the same status as an employee as was Reichel
does not hold up
'0 It is noted that DeWolf did not testify that Fousette had asked her
"how she intended to vote "
21 "This finding takes into consideration the facts that DeWolf gave the
Board two affidavits one dated 'June 13 and the other August 23, that the
statement concerning the conversation occurs in the later affidavit taken
about 4 days before the hearing, and the record does not account for the
lack in the earlier affidavit or the presence in the later one
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job to job as was the custom but would be restricted to one
machine and do one job.
Respondent raises the question whether the statement is
coercive because DeWolf did not regard Fousette as a
representative of Respondent or a supervisor. The record
does not bear out this contention. DeWolf testified that she
knew he was a "trainee of some sort" who "was being
broke in on the job," to assist Frank Vella. In addition,
though DeWolf in response to the question "But he never
gave you orders at that point in time" answered "No, he
was learning," the record shows that when she detailed the
activities that took place Fousette was in fact giving her
orders.22 The record clearly shows that Fousette was not
another hourly production and maintenance employee and
that DeWolf and other employees understood the distinc-
tion. Regardless of whether DeWolf gave weight to his
statement or not, or whether she considered it coercive or
not,23 there is no doubt that such a statement under this
circumstance was and is coercive. The Act proscribes such
behavior.
F. The Conversation Between Fousette and
Toflinsky
Barbara Ann Toflinski was employed by Respondent as
a punch press operator for approximately 15 years. She left
in June, at which time she was working in the miscellane-
ous and aerosol department.
Toflinski and Fousette had a conversation in early May.
According to the credited testimony of Toflinski, the
conversation went as follows:
Q. How did this discussion begin?
A. Well he came over and was complaining about
how he just couldn 't seem to get organized on the job
and he just started talking about how he didn't know
what to do and how to maneuver his way around
because it was hard when you're first breaking in on a
new job, it's hard to figure out what to do and how to
do things without having somebody with you constant-
ly, they just tell you to go do this and go do that and
expect you to know what you're doing.24
Then he asked me what I thought about the union
and I told him I didn't know and he said pertaining to
the union that things wouldn't get any better around
here, they would get worse if the union got in.
Q. And what did you say?
A. I told him that I had worked there for fifteen
years without a union so it didn't make any difference
to me one way or the other if the union got in or not.
Q. Was anything discussed further that you recall
by either him or by you during this conversation?
A. After I said that he made a remark that-he
said things are really going to get-be different around
22 Sec In. 15.
23 DeWolf testified she "did not think , that much of it."
24 Both Phil Patton and Fousette himself admitted that Fousette had
griped about his job, the conditions under which he worked and that he did
not find "running the plant" an easy job.
25 Visits to the bathroom.
26 It is considered that this testimony though of no especial weight is
further support for the conclusion that Fousette was a supervisor. As a
nonsupervisory employee there would be little reason for Fousette to be
"astounded" at the practices of the girls . But the use of the word and the
here if the union got in and I asked him if he had
worked in any union shops before he had worked there
and he said yes, but he didn't state the places or
anything of where he was working at.
Q. As best as you can recall, what were his exact
words about how things would be or what he said in
that reference as to what would happen if the union got
in?
A. Well he just said that things would get alot
rougher around here, you wouldn't be able to take your
walks and your smokes and things that you're doing
now if the union got in.
Q. Was anything further discussed that you recall
at that time?
A. No.
Q. How did the conversation close?
A. Well he said that he really didn't like to talk
about the union and I said well I didn't either so why
don't we just drop the subject and then he walked
away.
Fousette recalled that he spoke to Toflinski in early
May; that the subject of breaks and walks25 came up; that
he told Toflinski "it astounds me the number of walks the
girls take in the shop"; he did not deny that the subject of
the Union came up because he remembered he told
Toflinski that he had previously worked in a union shop.
However, Fousette testified vaguely that while he knew the
Union was discussed he "felt that the question was
initiated by Barbara [Toflinski]." Further, he stated he
could not "recall anything else, no, I would say that I can't
say completely that nothing else transpired but I don't
remember it if it did." Toflinski denied that Fousette had
said he "was astounded" but did make the statement that if
a union got in the girls would not be able to take as many
breaks or walks as they did.
It has already been stated that Fousette was considered
an unreliable witness. His vague testimony of the conversa-
tion supports that conclusion. The quoted version of
Toflinski is credited as the conversation that occurred.
Support for that finding is also found in the statement of
Fousette's that he told her that he "was astounded." There
is doubt that he used that word, but what is significant in
the use of the word is the fact that Fousette considered the
practice of the girls so unusual and a cause for wonder-
ment . Nothing in Fousette's testimony shows why he
brought up the matter of the practice of taking frequent
breaks, or why it was of such importance that he should be
astounded at the practice.26 The more reasonable probabil-
ity is that he discussed the "breaks" and "walks" matters
using the language testified to by Toflinski. Upon the
records as a whole it is so found, and further that the threat
of worsened working conditions is proscribed by the Act.27
reference to the practices carries with it the flavor of a person in a
supervisory position.
27 This conclusion is based on the determination that Toflinski was
considered a credible witness . It took into consideration the fact that
Toflinski like DeWolf gave two statements to the Board , one dated May 24,
the other June 7. In her case , neither statement bore an account of the
conversation with Fousette about "breaks and walks ." As with DeWolf, no
accounting for the omission in the affidavits is contained in the record.
Toflinski when asked stated that it was her best recollection that the above
statement about reduction in "breaks and walks" was said. When she
VCA STERLING, INC.
G. The Conversation Between Marjorie Hokenson
and David Ashby
Marjorie Hokenson was a setup operator in the shear
department since September 18, 1972 . She left Respon-
dent 's employ on August 16 . The night of May 22 David
Ashby and she held a conversation . According to her
credited testimony the conversation with Ashby went
somewhat as follows:
The night of May 22, Hokenson went to Ashby's office
to discuss an operating problem about shearing metal.
When she was about to leave Ashby told her he had
another problem to talk to her about: 28
... and I said something bad and he said no, not
that bad and he went on to continue to say, `you know.
you have a pretty good level head on your shoulders'
and he said you know that the union is trying to
negotiate to get in here and I said yes.
He said `well, you know I wish that maybe you could
talk to the other people and try to tell them of the
favors and close contact that you have with the Pattons
now' and he said . `You know , you've had favors before
from the Pat tons' which he commented on a loan
which I had previous to this and he said , `you know, if
the union gets in here you wouldn't have these kind of
favors or the close personal contact that you do now.
Q. Were any favors other than the loan mentioned
that you recall?
A. No.
Q. Was anything further discussed in this conversa-
tion with Mr. Ashby that you recall?
A. Yes, we were walking out of the office at the
time and I asked him if we could work my shift, which
was three thirty until midnight if we could work until
two in the morning and he said no, and I said well in
order to catch up with the overtime that the day crew
had I wanted to work my girls until two o'clock the rest
of the week which would be eight hours to catch up
with their overtime and he said no, he said and if the
union gets in here , he said we'll go by seniority and not
by crew . I don't have to give one shift more overtime
than the other.
Ashby admitted that he held the conversation with
Hokenson on May 22, that the union election was
discussed and that he asked Hokenson to answer the
questions of other employees about the Union . His version
of the conversation does not contain a reference to
"favors" or "loans" nor does he deny that they were
mentioned . Further he admitted that he spoke to Hoken-
son on many occasions; that he spoke to her about
overtime after the election on May 24; that he was not sure
that the May 22 conversation included a discussion about
overtime but that it might have and that he was not certain
of everything that was discussed on the May 22 conversa-
tion . Ashby in effect was attempting to deny the Hokenson
testified, the impression was made that it was her best recollection It is
recognized that a witness ' memory should be better the nearer the recall is
to the event It is also recognized that many instances occur where
statements are given to Board representatives where for various reasons
factual matters are omitted.
28 The quotation is from Hokenson's testimony
29 Ashby knew of tie loan to Hokenson because he was her point of
131
version of the overtime portion of the May 22 conversation
but he did not actually deny that the Union was
mentioned. His attempt at denial is not credited.
Conclusions with Regard to the Hokenson-Ashby
Conversations
Hokenson impressed me as a reliable witness who as
Ashby stated had a "good level head" on her shoulders. As
stated above her testimony is credited.
The record indicates that the loans to employees and
personal contacts with the Pattons were benefits that
accrued to the plant employees.29 Ashby stated that with
the advent of the Union these benefits would be terminat-
ed.30 Further, it was clear that the threat to discontinue
overtime on a crew basis and to grant overtime on a
seniority basis would also lessen the benefits the employees
had received prior to the advent of the Union. The request
by Ashby that Hokenson answer questions of employees
favorably to Respondent and the threats of diminished
benefits if the Union came in are unlawful under the Act.
It is so found.
H. The Conversation Between John Patton and
Norma Jean Dolph and Judith Black Sherry
1. Patton and Dolph
Norma Jean Dolph was a punch press operator em-
ployed by Respondent since May 13, 1960. On May 18 she
informed Frank Vella that she was quitting on May 19.
John Patton -31 talked to DeWolf on May 18.
Dolph testified that the conversation with John Patton
went as follows:
Q. How did the discussion begin?
A. He was walking by my line and he just said, `I
heard you are quitting' and I said yes.
Q. Was anything further said?
A. Yes, I had told him that I got a betterjob that I
couldn't get any place there, I was trying to get on the
hand feed and Frank Vella kept giving me the run
around that they didn't need hand feed operators, yet
they would hire new girls and put them on that jobs
and he asked me what I thought was going to happen
with all of this union activity and I said I really didn't
know.
Q. Was anything further mentioned by you or by
him after you said you didn't know?
A. Yes, I had told him that I heard somebody went
in the office and said that Barbara Toflinski and I had
started it.
Q. Started what?
A. The union and Ijust wanted him to know that it
wasn't true.
Q. And what did Mr. Patton say?
A. Well, he said that he heard that a couple of
contact when she made the loan.
30 Ashby stated that it would be the Union that would prevent the loans
from continuing No basis for such a change was offered by Ashby it is
considered that the statement was a thinly disguised method of stating that
the Company would discontinue its loan policy
ii As vice president he was in charge of operations. i e., everything that
happens outside the office
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
people had been pulled into it and I said well it wasn't
really pulled into it, but we had not started it.
Q. Was anything further discussed at this time that
you recall?
A. I don't think so.
John Patton testified that the conversation with Dolph
went as follows:
Q. Would you relate to us what happen in that
conversation?
A. Well, I had just heard that Norma Jean had
given a one day quitting notice and as usual, in my
practice I went over to her to-as to any employee who
is quitting and her in particular I went over to and
made comment that I see you're quitting tomorrow and
I had expressed my surprise to her that in light of all of
the union activity and knowing that she was involved in
the union activity that I was surprised that she was
quitting before the vote was to be taken and then she
would not be involved in it.
Q. Now let me stop you for one moment there, how
were you aware that she was involved in the union
activity?
A. She had been down in your office at the consent
signing agreement so I assumed from that show over
there that she was in some way involved in it.
Q. Did she made any response?
A. Yes, during or after that statement or conversa-
tion she responded back to me that-well, words to the
affect that she wanted me to be aware that there were
rumors going around in the office that she and another
girl were organizers of the union and that she was not
,an organizer of it.' I acknowledged to that fact that
some people get pulled in and get in a little over their
head when they really had not intended to and that was
about the end of it
was active in the campaign because she had signed the
consent agreement . The question as stated was general in
import and content. It can easily be considered the
equivalent to, "How do you think the election will come
out?" The question neither contained nor referred to
anything specific. No employees were referred to, not even
Dolph herself. No specific union action was mentioned.
Certainly nothing contained therein contained a promise of
benefit or threat of reprisal. In the context of the testimony
it has no more than a conversational effect . It is so found.32
2. Patton and Sherry
Judith Black Sherry started working for Respondent on
March 9 . She was in the Shear and then in the decorating
department . She was discharged sometime after the union
election33 admittedly because she missed too many days
from work.
Sherry testified that she held two conversations with
Patton . The first occurred on the Tuesday immediately
before the election and the second at approximately 10:30
p.m., the night of the election . These will be dealt with in
that order.
Sherry testified that the Tuesday conversation went as
follows:
Q. How did he start the conversation , I believe you
made reference to something about how you liked your
job and then he said something about a meeting, now
what did he say about it?
A. The president of the company, he was talking at
a meeting before this, before I talked to John and he
asked me if I thought that he got through to the people.
Q. You mean whether the president had gotten
through to the people at the meeting?
Q. Do you recall any discussion in that conversa-
tion about why she was leaving?
A. Yes, I do believe it did come up, I had asked her
again as I usually say , where the heck are you going,
how come you are leaving here after you've been here
for so long and the usual response which her response
was, she was getting more money and she could get a
better opportunity for improvement and she also
mentioned the fact that some of the newer girls seemed
to be getting further ahead faster than some of the
older girls who were there and she didn ' t quite feel that
that was fair.
Conclusions as to the Patton-Dolph Conversation
It is considered unnecessary to determine which version
of this conversation actually occurred . The General
Counsel erroneously contends that Patton's question,
"what was going to happen in connection with all of the
union activity" contained in the foregoing testimony
constitutes a violation of Section 8(a)(1) of the Act.
Assuming this question was asked of Dolph , it is difficult
to find that it is proscribed.
The record clearly shows that Patton knew that Dolph
Q. Did Mr. John Patton say anything after that
when you said you didn't know?
A. He was talking to me about things and then he
asked me if-he asked how my friends would vote and
I told him I didn 't know.
Q. Did he ask any other questions if you recall?
A. I can 't remember.
Q. Did he ask anything about your voting, if you
recall?
A. He asked me if I was for the union and I told
him that I was.
Q. Was anything mentioned that you recall about
strikes or contracts?
A. He said if the union did possibly get in that
there would be a lot of people that would quit because
it wouldn't be what they expected.
Q. And did this same conversation involve any
discussion of contracts?
A. He said he would lose a contract because they
wanted a non-union shop to handle it.
Q. Did the matter of money come up in connection
with this discussion of the unions, do you remember?
A. No.
a2 Peerless of America, Incorporated , 198 NLRB No. 138, cited by the She was unable to remember when the discharge took place.
General Counsel does not deal with so general a question.
VCA STERLING, INC. 133
Q. Do you recall anything further that was dis-
cussed?
A. No, I can' t remember.
* * * *
Q. . . . Now, do you recall who brought up any
matter regarding the union dues?
A. We got a slip of paper in with our check one
time.
Q. During your discussion with Mr . Patton that
night, do you recall the matter of union dues coining up
in your conversation?
A. He said something about we wouldn 't be getting
as much because the dues would takeup some of the
money.
John Patton testified that the Tuesday conversation went
as follows:
Q. Now let's refer to the first conversation that
allegedly occurred , I believe , two nights preceding the
election and subsequent to a speech given by Phil
Patton , do you recall that conversation?
A. Yes.
Q. Would you relate for us essentially the nature of
that conversation?
A. Basically the nature of the conversation related
to the speech that my brother had given and my
comment on that speech was it was a pretty powerful
forceful speech , it had a lot of fire and brimstone in it
and that we had had some facts that hadn't been
brought to light before and I thought it was quite
impressive and it was quite an impressive speech and
this basically was the gist of my comments.
* * * * *
Q. (By Mr. Zamboldi) Did you ask any questions
concerning how she intended to vote?
A. No.
Q. Did you ask any questions concerning how her
friends intended to vote?
A. No.
Q. Did you ask her any questions in the course of
that conversation?
A. No.
Q. Did you make any reference to people quitting
their employment if the union got in?
A. No.
Q. What sort of response did you get from her?
A. 1 would say I got a very minimum response
from her.
Sherry testified that the conversation the night of the
election went as follows:
Q. Directing your attention to the night right after
the election, did you have occasion to have any
discussions with anyone from the company?
A. When [ came it was about ten thirty, I was by
the soda machine. I was talking to John again and I
asked him if the union got voted in.
Q. And what did he reply?
A. He said it didn't.
Q. And after this matter was discussed of your
question, did the union get in and I believe Mr. Patton
you testified said it didn't, was anything further
discussed that you recall?
A. He said it isn't any of my business and that and
how did you vote and I told him that I voted for the
union.
Patton testified that he was unable to recall a conversa-
tion with Sherry election night because he was not then at
the plant. Patton testified:
Q. (By Mr. Zamboldi) Explain the circumstances
that lead to your inability to recall that conversation?
A. I wasn't in the plant that night, it was after the
election and after the vote had been counted and I left
the office at approximately six thirty.
My brother and Harry Dunn and yourself and Dan
Griffin were there having a little celebration party and
I had to leave approximately at six fifteen or six thirty
to go to my mother's house where my wife was waiting
for me to celebrate the winning of the election.
Q. Did you spend the rest of the evening at your
mother's house?
A. Yes.
Conclusions as to the Patton-Sherry
Conversations
As stated earlier Judith Black Sherry was not considered
a reliable witness. She gave the impression of being
confused. Her testimony in a number of instances was
vague. She was unable to remember many things that
occurred or conversations that took place. In sharp
contrast she did remember with certainty the conversations
that allegedly took place between John Patton and her.
The record does not account for the sharpness of recall as
to the latter and the failure of recall as to the former.
Sherry, though she had a speaking acquaintanceship with
Patton and knew of him, did not know he was vice
president, did not know what his job was, nor what he did
with the Company. Phil Patton gave a speech to the
employees the same Tuesday that Sherry spoke to John
Patton. Though present when given she had little or no
recollection of the contents of the speech. She attended a
second speech given by Phil Patton but didn't "remember
what it was about" Both speeches dealt with the Union.
Sherry stated she could not recall the Tuesday speech
because it "was a long time ago." In fact it occurred the
same day as the conversation with John Patton. When
Sherry started her testimony she was confused as to which
Patton gave the speech and which Patton was the one she
talked to. The one specific item of the conversation with
John Patton that Sherry recalled without prompting from
Counsel was that Patton "asked how my friends would
vote." Only after the General Counsel presented her in
each instance with a leading question did Sherry remember
that Patton (1) asked her about her vote, (2) told her that
"a lot of people would quit" if the Union got in, (3) said
Respondent would lose a contract if the Union got in
because they wanted a nonunion shop to handle it, and (4)
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said "something about we wouldn't be getting as much
because the dues would take up some of" their pay.
On cross-examination she testified that when John
Patton spoke to her that Tuesday night he asked her first if
she thought that Phil Patton "got through to the people."
She testified that after this "he told me he didn't feel that
the Union should get in." She stated that nothing further
was discussed. The discrepancy between her testimony on
direct and on cross was not accounted for on the record.
Her failure to testify on cross to any of the many items that
she testified to on direct raises considerable doubt about
their actual occurrence.
For the foregoing reasons and the record as a whole the
statement of John Patton that on Tuesday, he discussed no
more than Phil Patton's speech with Sherry is credited and
the Sherry version is not credited.
The conversation between Sherry and Patton alleged to
have occurred on the night of the election also presents a
problem. Patton denied he was in the plant that night.
Sherry testified she spoke to him. She also testified that one
Bill Unger was present for a short period of time during the
conversation.34 Neither the General Counsel nor Respon-
dent introduced any corroborative evidence to support the
testimony of their respective witnesses. Under the circum-
stances and on the record as a whole it is found that there
is insufficient basis for a determination that Patton was
present at the plant on or about 10:30 p.m. the night of the
election and Sherry held a conversation with him.
IV. OBJECTIONS TO THE ELECTION
The record does not give detail of the union organiza-
tional campaign, except that the election resulted in the
defeat of the Union. Neither does it detail Respondent's
attitude and activities with regard to the Union other than
as shown herein. As stated, the only objection upon which
any evidence has been offered is objection 3 which dealt
with interrogation of employees. The record shows that
Fousette did interrogate DeWolf and Toflinski in a manner
proscribed by the Act. It is found that such interrogation
interfered with the holding of a free election under the
laboratory conditions imposed by the Board. Accordingly
it is recommended that objection 3 be sustained.
The interrogations of Respondent found objectionable
occurred in a setting of coercive threats that were
proscribed by the Act. The totality of Respondent's
conduct resulted in substantial interference with the
election held on May 24, 1973, in Case 6-RC-6476.
V. THE EFFECT UPON COMMERCE OF RESPONDENT'S
UNFAIR LABOR PRACTICES
The activities of Respondent set forth in section III,
34 Sherry's testimony about Unger was also vague and confusing. She
was asked if anyone was present during her conversation with John Patton
on election night. On direct examination Sherry stated, "A guy walked out,
but I don't know who it was." On cross-examination she testified as follows:
Q. And no one else was present when you talked to John, is that
right?
A. No-well, about five minutes before he left the kid that was
working with me, he came back.
Q. Then what happened?
above, occurring in connection with Respondent's opera-
tions described in section 1, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
VI. THE REMEDY
It having been found that Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and that it take certain
affirmative action which is necessary to effectuate the
policies of the Act. It having been further found that the
Employer had engaged in certain conduct affecting the
results of the election conducted on May 24, 1973, it is
recommended that the election be set aside and that a new
election be conducted by the Regional Director at an
appropriate time.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. VCA Sterling, Inc., is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. International Union of Electrical, Radio and Ma-
chine Workers, AFL-CIO-CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed by
Section 7 of the Act, as above found, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. Other than as above found, Respondent has not
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. By illegally interrogating its employees and by
engaging in threatening, coercive, and other conduct, as
above found, Respondent unlawfully interfered with the
freedom of choice of its employees in their selection of a
bargaining representative on May 24, 1973.
6. The aforesaid conduct constituting unfair labor
practices and conduct illegally affecting the results of a
Board-conducted election is conduct affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER35
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that VCA Sterling, Inc., its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
A. Then when Bill came back hejust said hello to him and he was
getting ready to leave.
Q. Who was Bill?
A. Bill Unger , UNGER, the kid that was working with me.
''' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order , and all objections thereto shall be
deemed waived for all purposes.
VCA STERLING, INC. 135
(a) Interrogating its employees concerning their union
sentiments and activities.
(b) Threatening its employees with cessation or reduction
of benefits or with more onerous working conditions in the
event they chose the Union.
(c) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of
their right to self-organization, to form, join, or assist any
labor organization. to bargain collectively through repre-
sentatives of their own choosing and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or
all such activities.
2. Take the following affirmative action, which is
necessary to effectuate the policies of the Act:
(a) Post at each of its places of business in Ene,
Pennsylvania, copies of the attached notice marked
"Appendix." 36 Copies of said notice, on forms provided by
the Regional Director for Region 6. after being duly signed
by Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 6, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint herein
be dismissed insofar as it alleges any unlawful conduct
other than that as above found, and that Objections 2 and
5 also be dismissed.
IT IS FURTHER RECOMMENDED that the election held on
May 24, 1973, in Case 6-RC-6476, be set aside, and that
said case be remanded to the Regional Director for Region
6 of the Board to conduct a new election at slich time as he
deems that circumstances permit the employees a free
choice of a bargaining representative.
36 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to the Recommended Order of an Administra-
tive Law Judge of the National Labor Relations Board and
in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employ-
ees that:
As the result of a trial before the Administrative Law
Judge of the National Labor Relations Board , it was found
that we violated the Act in the respects set forth in his
Decision , and to remedy these unfair labor practices, he
has recommended that we advise you that:
WF. WILL. NOT coercively question any employee
regarding his own or other employees ' lawful union
activity.
WE WILL NOT threaten any employee that he or she
will suffer the loss of any existing benefits or conditions
of employment or will be treated less favorably because
of union activity.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce any employee in the exercise of
his or her right to join or assist International Union of
Electrical , Radio and Machine Workers,
AFL-CIO-CLC, or any other labor organization to
bargain collectively through their representatives, or to
engage in other concerted activity , or to refrain from
such activity, except as such right may be affected by
some agreement as provided in Section 8(a)(3) of the
Act.
All our employees are free to support or to become or
remain members of International Union of Electrical,
Radio and Machine Workers , AFL-CIO- CLC, or any
other labor organization , or to refrain from such activity,
subject to Section 8 (a)(3) of the Act.
Dated By
VCA STERLING, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office. 1536 Federal Building, 1000 Liberty Avenue,
Pittsburgh, Pennsylvania 15222, Telephone
412-644-2977.