Permanent Label Corp.

118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Permanent Label Corporation and District 65, Dis- tributive Workers of America. Cases 22-CA- 8027, 22-CA-8144, 22-CA-8192, and 22-RC- 7335 March 4, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On October 9, 1979, Administrative Law Judge Herzel H. E. Plaine issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in support of the Administra- tive Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order as modified herein.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, i Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. The Administrative Law Judge dated the bargaining obligation from the end of October, when Respondent commenced its unfair labor prac- tices. However, the Union attained majority status only on November 9. We therefore date the bargaining obligation from November 11, 1977, the date of Respondent's refusal to bargain in the context of its unfair labor practices at a time when majority was established. Idak Convalescent Center of Fall River, Inc.. d/b/a Crawford House, 238 NLRB No. 59 (1978) (Member Jenkins concurring) 2 Respondent cites Pillows of California, 207 NLRB 369 (1973), as sup- port for its contention that certain actions directed toward three employ- ees, who it argued were supervisors, were not violations of Sec 8(a)(1) Respondent's reliance on Pillows is misplaced There, the Administrative Law Judge found the respondent had a good-faith belief of the employ- ee's supervisory status, unlike Respondent's contrived "flimsy basis" for such belief as found by the Administrative Law Judge here It is on this basis, i.e., lack of a good-faith belief on Respondent's part, that we affirm the finding of the 8(a)(1) violations directed toward the three employees 3 In par. I(n) of his recommended Order, the Administrative Law Judge provided that Respondent cease and desist from "in any other manner" interfering with, restraining, or coercing its employees in the ex- ercise of their rights guaranteed by Sec. 7 of the Act. We agree that a broad order is warranted in this case but we do so for the reasons et forth in Hickmott Foods, Inc., 242 NLRB No. 177 (1979). 248 NLRB No. 21 Permanent Label Corporation, Clifton, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, as so modified: 1. Delete "as of the end of October 1977" from paragraph 2 (a). 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the petition filed herein in Case 22-RC-7335 be, and it hereby is, dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which both sides had the oppor- tunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and we intend to abide by the following: WE WILL NOT coercively interrogate em- ployees concerning union organizing, or who supplied union cards, or the employees' inter- est in District 65, Distributive Workers of America, or any other labor organization. WE WILL NOT threaten employees with loss of jobs if they bring the above-named Union into the plant. WE WILL NOT threaten employees that there will be no correction of grievances if employ- ees bring the Union into the plant. WE WILL NOT discharge, suspend, or other- wise discipline employees for engaging in union activities. WE WILL NOT solicit grievances and prom- ise benefits or correction of grievances to induce employees to abandon the Union. WE WILL NOT grant bonuses or other bene- fits to induce employees to abandon the Union. WE WILL NOT interfere with employees' wearing of union insignia. WE WILL NOT instruct employees, under threat of discipline, to desist from engaging in union activities. WE WILL NOT promulgate or enforce rules prohibiting solicitation by employees of union membership in plant work areas on nonwork time, or distribution of union literature by em- ployees in nonwork areas during nonwork time. WE WILL NOT coercively induce or attempt to induce influential employees to induce other employees to cease support of the Union. --- PERMANENT LABEL CORPORATION 119 WE WILL NOT suspend or otherwise disci- pline employees for attending National Labor Relations Board conferences to assist the Union in connection with union representation of the employees. WE WILL NOT discourage employees from support of, or membership in, the Union or any other labor organization by discharge, sus- pension, or other discrimination affecting their tenure or other conditions of employment. WE WILL NOT refuse, upon request, to bar- gain with the Union as the exclusive collec- tive-bargaining representative of the bargain- ing unit of our Clifton plant employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL, upon request, bargain with the District 65, Distributive workers of America as the exclusive collective-bargaining represen- tative of the bargaining unit comprising all of our employees employed at the Clifton, New Jersey, facility but excluding all office clerical employees, professional employees, managerial employees, guards, assistant supervisors and all other supervisors as defined in the Act, and, if an agreement is reached, embody it in a writ- ten contract. Because the Board found that we unlawfully discharged employees Bernard Daly and Elea- nor Ott on November 2, 1977, and then re- duced the discharge to unlawful suspension for each to November 16, 1977, and also unlawful- ly suspended employees Michael Roberts, Robert Linderoth, and Eleanor Ott for I day on November 29, 1977: WE WILL give each of them backpay with interest for the respective times of their sus- pensions. WE WILL expunge from our records any ref- erences to discipline of these employees in connection with the occasions for these sus- pensions. PERMANENT LABEL CORPORATION DECISION HERZEL H. E. PLAINE, Administrative Law Judge: Permanent Label Corporation, Respondent herein, a pro- cessor engaged in the business of labeling and decorating plastic containers for use by manufacturers and distribu- tors of cosmetics, drugs, and household products, was the object of union organizing of its Clifton, New Jersey, plant by District 65, Distributive Workers of America, herein called the Union, in the fall of 1977. The Union demanded recognition from Respondent on November 11, 1977, but was refused, and the campaign culminated in a Board-conducted election on December 30, 1977. The Union lost the election by a vote of 54 for and 65 against. As the result of union objections to conduct affecting the results of the election, preceded and followed by unfair labor practice charges against Respondent filed by the Union, the complaints that issued and the unresolved objections in the representation case were consolidated for hearing. 2 The complaint alleges violations by Respondent of Section 8(a)(l), (3), (4), and (5) of the National Labor Relations Act, as amended, and requests a bargaining order as the remedy. The allegations include 8(a)(1) co- ercive interrogation, soliciting of grievances, enforce- ment of unlawful no-solicitation no-distribution rules, promise and grant of benefits to discourage union sup- port, coercion regarding the wearing of union insignia, coercion of employees to induce other employees to cease union support, threats of reprisals including loss of jobs, and instructions to three employees to cease sup- port of the Union; 8(a)(3) discharges of two employees; 8(a)(4) suspensions of three employees for attending a Board proceeding; and an 8(a)(5) refusal to bargain. Gen- eral Counsel contends that a bargaining order is the ap- propriate remedy to cure otherwise irremedial interfer- ence with the free choice of the employees in the repre- sentation election. Respondent has denied any wrongdoing. Respondent further claims that three members of the in-plant union organizing committee were statutory supervisors thereby invalidating any union authorization cards obtained by their participation, and contends that as a result the Union did not represent a majority of the bargaining unit employees. Respondent requests that the election result be confirmed. The consolidated cases were heard in Newark, New Jersey, on June 15, 16, 20, 21, 22, and 23, and August 22, 23, and 24, 1978. General Counsel and Respondent have filed briefs. Upon the entire record of the cases, including my ob- servation of the witnesses and consideration of the briefs, I make the following:3 Originally there were 13 challenged ballots, ultimately reduced to 6, by the opening of the heanng. The six challenged ballots could not affect the outcome of the election; nevertheless the supervisory or the bargain- ing unit status of the six individuals has a bearing on the outcome of the consolidated cases. 2 The charge in Case 22-CA-8027 was filed November 9, 1977, com- plaint filed December 27, 1977; the petition in Case 22-RC-7335 was filed November 14, 1977; the charge in Case 22-CA-8144 was filed Janu- ary 9, 1978, and the charge in Case 22-CA-8192 was filed January 31, 1978. On February 24, 1978, an order consolidating two of the CA cases and a first amended complaint was issued. Ultimately on May 24, 1978, an order consolidating all of the cases and a second amended complaint was issued, further amended June 1, 1978. r At the hearing on August 23, 1978, General Counsel offered in evi- dence G.C. Exh. 98 for identification, which was employee Bernard Daly's copy of the report from Respondent's workmen's compensation insurance carrier, New Jersey Manufacturers Insurance Company, of the specific days, totaling 4-2/7 weeks, from March 8 to return to work April 18, 1977, for which the carrier had paid Daly temporary compensa- tion for injury to his hand that disabled him from work for theoe days Continued 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. JURISDICTION Respondent is a New Jersey corporation engaged in the business of labeling and decorating plastic containers. It maintains two plants, one in Clifton and one in Bloom- field, but the Clifton plant is the only facility involved in this proceeding. In the year prior to issuance of the second amended complaint, a representative period, Respondent provided and performed labeling and decorating services valued in excess of $50,000, of which services valued in excess of $50,000 were provided persons in States other than the State of New Jersey. As the parties admit, Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. As the parties also admit, the Union is a labor organi- zation within the meaning of Section 2(5) of the Act. 11. THE UNFAIR LABOR PRACTICES A. Respondent's Business Operations Based on the testimony of Respondent's vice president of operations, Robert Tancredi, and several employees, such as Mike Roberts and Robert Linderoth, it appears that Respondent is a service company that labels and decorates plastic containers, usually under contract, for companies in the cosmetic, drug, or household products industries. These include companies such as Mennen, Colgate, Revlon, Helena Rubinstein, and the like. Respondent's work is done under two alternate pro- cesses, each involving use of heat. One process is known as therimage, which is the application of a preprinted ro- togravure label to a plastic container with the application of heat and pressure. As a result the label is laid on the exterior of the plastic bottle. An advantage of this pro- cess is that multiple colors can be applied in one pass on the machine. The second process is called hot stamping, a method, again using heat and pressure, of impregnating the exteri- or of the plastic bottle with the label of the desired color, making the label and container almost homogen- eous. This process employs the use of a plastic type tape (mylar) coated with the desired color. In hot stamping, ordinarily only one color can be used in a single pass on the machine. Loosely, both processes are referred to by employees and supervisors as printing, or as decorating, as well as labeling. (and indicating the offer of additional permanent compensation). The document was relevant to General Counsel's contest of the accuracy of Respondent's exhibit of claimed absences of employee Daly. Respondent claimed lack of knowledge, or of having received a copy of the report, and challenged the authenticity of the document. It was agreed at con- clusion of the hearing that the parties would together or independently inquire of the New Jersey Manufacturers Insurance Company and stipu- late if they could, after hearing, to the authenticity of the document, upon which it would be admitted into evidence. In his brief, General Counsel has included a motion for admission of the document into evidence. Since it appears that the parties made inde- pendent investigations and orally agreed on the authenticity of the docu- ment, I admit G.C. Exh. 98 into evidence. Respondent has two plants, both engaged in the two processes, the older plant in Bloomfield, New Jersey. The other plant, which is the only plant directly in- volved in this case, is located in Clifton, New Jersey. The Clifton plant, where Vice President Tancredi has his office and is the highest officer in charge, has four functions: a therimage department, a hot stamping de- partment, a warehouse, and an office. The therimage department ran three shifts around the clock; the hot stamping department ran only two shifts. 1. Employee classifications In both the therimage and hot stamping departments there are several classes of employees. The feeder-packer-inspectors feed the plastic bottles onto the conveyor belts, inspect the bottles during the printing process, and pack the imprinted bottles into car- tons for shipping. The material handlers take the plain plastic bottles to the lines for the feeder-packer-inspectors and remove the cartons of printed bottles from the lines. In the therimage department, but not in hot stamping, there are line attendants who tend to the rolls of labels put on the machine and remove and replace the expend- ed rolls. They also watch for proper placement of labels on bottles. Both departments have line mechanics and setup men, who set the machines as job orders change and do needed mechanical repairs to the machines, in place on the floor. Usually a line mechanic and setup man is one and the same person, but occasionally, said Vice Presi- dent Tancredi, there will be a division of this work so that sometimes one will be doing setups and another me- chanical repairs if it appears more efficient at the time. In both departments there are quality control employ- ees who take random samplings of the production work. There is a plant engineer and there are two machinists- maintenance mechanics who, unlike the line mechanics or setup men, work on the plant machines primarily off the floor. There is also a small group of building mainte- nance and repair employees, who are charged with keep- ing the premises, including the exterior and grass, clean and in repair. The warehouse department employees are forklift op- erators, of whom there are about five. The office department has five clerical employees. Excluding the five clerical employees, and a half- dozen other employees whose status as either rank-and- file employees or as supervisory-managerial employees was in question, there were at least 118 plant bargaining unit employees in the week ending November 12, 1977, and at least 122 such employees in the week ending No- /ember 19, as the parties stipulated. 2. Supervisors The agreed-upon statutory supervisors, whose actions affected the events of this case, were Respondent Presi- dent Alfred (Al) Contreras, Sr.; Vice President (of oper- ations) Robert Tancredi; Plant Manager Douglas (Doug) Contreras; Alfred (Al) Contreras, Jr., production control manager and office manager; John (Jack) Studt, supervi- sor of the therimage department; Michael Bevilacqua, PERMANENT LABEL CORPORATION 121 foreman therimage department, first shift; Ed Alegre, foreman therimage department, second shift; Robert J. Sanders, supervisor of the hot stamping department; Robert Tarantola, warehouse supervisor. Except for President Al Contreras, Sr., whose office was in the Bloomfield plant, all of these supervisors functioned on a daily basis at and for the Clifton plant. Also mentioned in the testimony and not in contention, described by Vice President Tancredi as supervisors, were the hot stamping department first-shift foreman, Neil Meador, and the second-shift foreman, Eugene The- bodeau. Respondent claimed that Robert Linderoth, second- shift material handler of the therimage department, Alice Gorski, line attendant or floorlady of the same shift and department, and Dorothy Saracco, handling quality con- trol of first-shift therimage department, were also super- visors. General Counsel and the Union have contested this and say they are bargaining unit employees. Conversely, Respondent claimed that Stanley Newick, in charge of the plant building repair and of labels, and Leonard Bubrowski and Robert Rechsteiner, who were the two skilled machinists and maintenance mechanics engaged in principally off-the-floor work on the produc- tion machinery, were rank-and-file employees and part of the bargaining unit. On the other hand, the General Counsel and the Union contend that'these three were either supervisory or managerial employees who were not part of the bargaining unit. These claims are considered infra. B. The Union Organizing Commences Employee interest in the Union in 1977 appeared to have begun with employee Bernard Daly, who was line mechanic-setup man on the second shift of the therimage department.4 Employee Daly learned of the Union through an aunt and as early as February 1977, he said, was in touch with Union Organizer Joe Picola. Daly began talking about the Union to other employees in the shop. Daly further testified that he had a conversation with Foreman Mike Bevilacqua of the first-shift therimage de- partment (not Daly's supervisor), who told him in a friendly manner, said Daly, that he could get fired for talking for the Union. As a result, said Daly, he stopped talking about the Union for a considerable period of time.5 Employee Eleanor Ott, who carpooled with Daly 4 The 1977 organizing was not a first attempt, according to Respon- dent President Al Contreras, Sr. There had been previous attempts, he said, and he was constantly vigilant and had been successful in keeping out the Union. 5 Employee Daly conceded that he had been told the same thing by employee Mike Carbone, but did not refer to the Bevilacqua conversation in his affidavits to the Board in November after being fired by Respon- dent, or again in December (after the firing had been commuted to a 2- week suspension), because immediately after the firing Bevilacqua had in- dicated he wanted to get Daly back to work for him on the first shift, and, said Daly, he did not want to make trouble for Bevilacqua Foreman Bevilacqua denied the February talk or any other talk with Daly about the Union, but Bevilacqua proved to be an unreliable, self- contradictory witness. For example, Bevilacqua, a former official of a union, claimed he knew never to question or harass an employee about a union and said he never did about this Union. However, employee Maria Garcia testified that after she signed a union card given to her by co- and whom Daly interested in the Union, testified that he told her in February that someone in management had told him if he did not stop talking union he could be fired. In early September 1977, employee Daly was called by Union Organizer Tom Acosta. Employee Mike Rob- erts, who had responded to a union leaflet left in the plant cafeteria in July, was also called. The two employ- ees met with Acosta in a diner and, after comparing plant and union benefits, decided on the desirability of achieving union representation in the shop. Daly testified that he began talking to employees both in the shop where, as a line mechanic, he got around, and before work hours. He recruited, among others, employees El- eanor Ott, Feeder-packer-inspector on the second shift, Dorothy Saracco, quality control on the first shift, and Elton Demonteverde, line mechanic on the second shift. Ott and Roberts also talked to fellow employees and by mid-October the Union began holding meetings with em- ployees at a nearby Howard Johnson Motel in Clifton, under chairmanship of Acosta. There were approximate- ly three or four such meetings in October and meetings continued to be held in November and December. A goodly part of the card signing, and paying of union dues of $10, was done at these meetings. Employees, such as Daly, Ott, and Linderoth, signed union authori- zation cards at a union meeting on October 19. The Oc- tober 30 meeting, where employee Roberts signed his card, was attended by about 40 employees, according to Roberts. By November 1, 29 employees had signed union au- thorization cards, and a union organizing committee among the employees had been formed. C. Respondent's Countercampaign 1. Interrogation During the latter part of October 1977, Foreman Bevi- lacqua investigated the rumors he had heard about unionizing. He interrogated employee Daly twice. On the first occasion he asked Daly if he knew anything about a union starting. Daly said no. On the second oc- casion, Bevilacqua asked Daly if he knew anything about the Filipino employees starting a union in the plant. Daly denied any knowledge.7 2. Discharge of employees Daly and Ott In this period Daly was separated from his wife and had the care of a young son who was ill and for whom he received some help from his aunt. On October 31 and again on November 1, Daly reported to his shift on time at 4 p.m. but asked for and received permission from his foreman, Ed Alegre (in the presence and with the assent worker Zenaida Esquilin from quality control girl Dorothy Saracco and, clutching the card in her hand, went looking for Saracco to turn the card in, Foreman Bevilacqua asked her who had given her the card and she told him, truthfully, Zenaida from Dorothy Saracco. Other problems with Bevilacqua's credibility are dealt with infra. 6 Employee Ott's credibility was not challenged; indeed, she was com- plimented by President Al Contreras, Sr., on her honesty in testifying. 7 I do not credit Foreman evilacqua's denials of inquiring of employ- ee Daly on these subjects, for reasons noted supra and infra. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Plant Manager Doug Contreras on November 1), to leave early to tend to his sick son. On the morning of November 2, well before he was due at the plant, Daly was called at home by Foreman Al Alegre who said he had been instructed by the Company to notify Daly that his services were no longer needed. In distress, employee Daly went to the plant for an ex- planation. Plant Manager Doug Contreras told Daly he had been absent too much and that Respondent was cracking down on absentees because the Company was losing too much money, giving as an example the failure of two women to show up the previous night on the third shift that cost the Company $300 to $400. Con- treras claimed that Daly did not contest the allegation that he was absent too much. On his way out of the plant, Daly was stopped by Foreman Bevilacqua who on learning that Daly had been discharged told him he would try to have him rehired on his shift because busi- ness was picking up and he could use another mechanic. Daly had never received any discipline or warnings during his employment, and had received a pay raise with praise for his work by Foreman Alegre in mid- August 1977. Just before midnight of the prior day November 1 when the second shift ended, employee Eleanor Ott had been called in by her supervisor, Foreman Ed Alegre, and told, in the presence of the hot stamping foreman, Eugene Thebodeau, that she was discharged because of her absences from work. Her most recent absence had been a day in the previous week and there had been no warning or discipline given her. There was no review of her record of absences by Foreman Alegre, and Alegre, though still in Respondent's employ at the time of the hearing, did not testify. At the hearing, the alleged record of her absences, as well as the alleged record of Daly's absences, was overstated and inaccurate. 8 3. Respondent's meetings with employees On November 4, 2 days after the discharge of Daly and Ott, Respondent Vice President Tancredi called each of the three shifts to meet with him, separately, in the plant cafeteria. According to Tancredi, each employ- ee was handed a paper labeled "Agenda for General Meeting" (Resp. Exh. 11) as he or she came into the cafeteria. Though it was in the form of an outline, Tan- credi claimed that he read the paper to each of the three assemblages of employees, prefacing what he read by saying he would take no questions but would remain after he finished and talk with any employee who came forward with any problems. In the paper, as Tancredi said he delivered it, the em- ployees were told that Respondent neither wanted nor needed the Union, that employees had the right to re- frain from joining the Union, that the Union would out- s Resp. Exh. 27, which was placed in the rejected file because of its inaccuracies relating to Bernard Daly and Eleanor Ott, failed, among other things, to identify which of the "absent" days were vacations days for Daly and Ott; and in Daly's case, while recognizing that several "absent" days in April 1977 were for disability from injury on the job, indicated all of the March 1977 "absences" as unexplained absences. when they were in fact part of the whole job-related disability absence that began March 8 and ended April 18, see G.C. Exh. 98, the workmen's compensation record of Respondent's insurance company. promise the employer but guarantee nothing other than that the employees would pay monthly dues, that job se- curity could be obtained only from the Company, that unionized plants sometimes become uncompetitive and find it difficult to stay in business and that it was impor- tant for job security to maintain the current level of busi- ness, and, finally that the Company's growth in business and jobs had been accomplished heretofore without out- side interference. In Tancredi's meeting with the second-shift employees, employee Roberts rose after Tancredi gave his speech and asked to read a petition to Respondent from the second-shift employees of the therimage department. Tancredi asked if it dealt with the union matter of which he had just spoken, and Roberts replied that it was an employee petition, whereupon Tancredi told him to read it. Roberts read the petition, signed by approximately 30 employees, stating that they felt the firing of employes Bernard Daly and Eleanor Ott was unjust, and that both should be rehired. Roberts handed the petition (Resp. Exh. 12) to Tancredi, who said he would consider it and get back with an answer. 4. Soliciting grievances Thereupon, according to employee Roberts, Vice President Tancredi adjourned the meeting, stating that he and Plant Manager Doug Contreras would stay on to talk with anyone who had problems and not to hesitate to come forward with them. Employee Christine Grus testified that Tancredi said he had not realized there were so many problems in the Company and asked any who had problems to stay and discuss them, or come to the office and discuss them. Employees Grus and Helen Berry accept.ed Tancredi's invitation at the close of the second shift and talked to him in the cafeteria. Employee Grus told Vice President Tancredi that a lot of women had complaints including complaints of being harassed by foremen. According to Grus, Tancredi asked her to make a list of the complaints and give it to him. (Tancredi claimed he said he would be willing to talk to the employees and maybe it would be helpful to have a list of grievances to discuss.) Grus replied she would talk to the other employees. Two days later, said employee Grus, Plant Manager Doug Contreras came to her asking for the list. Con- treras testified that Tancredi had told him of the conver- sation with Grus. She asked employee Mike Roberts to explain why she did not have the list. Roberts told Con- treras that, if Respondent was ready to recognize the Union, a bargaining committee would go over the griev- ances. Contreras answered that he did not recognize the Union. 5. Promising benefits Employee Helen Berry, who started to talk to Vice President Tancredi after the November 4 meeting in the cafeteria, ended up talking to the therimage department supervisor, Jack Studt, who intervened in the conversa- tion. According to Studt, Berry complained of Foreman Alegre making the second-shift women employees cry, and asked questions about obtaining Blue Cross-Blue PERMANENT LABEL CORPORATION 123 Shield benefits. Studt testified he asked Berry why the employes never informed management of the problems, and told her that most of the problems could be straight- ened out. Employee Elton Demonteverde, a second-shift line mechanic, testified without contradiction that in a conversation with Studt on the production floor, before the election, Studt told him he had been getting employ- ee complaints about pay, but the Company was growing, and if the employees gave the Company a year, it would straighten out the problems. 6. Reinstatement of Daly and Ott On November 9, the Union filed, and served copy on Respondent of, the initial unfair labor practice charge (in Case 22-CA-8027) alleging the unlawful discharge of employees Daly and Ott. On November 15, Respondent called Daly and Ott to the office and offered them rein- statement. Both accepted and started work the next day, November 16. Respondent treated the prior 2 weeks as a justified suspension, gave no backpay for the loss of wages, and posted a notice to that effect (Resp. Exh. 13). However, Vice President Tancredi testified that he had reviewed attendance records of other employees and found many others with many absences against whom similar action had not been taken. 9 Additionally, there was no evidence that the two employees, who allegedly cost Respondent $300-$400 by not showing up the night before Daly was discharged, were either fired or sus- pended. 7. Union recognition requested and refused On November 11, Union Organizer Tom Acosta, ac- companied by some of the members of the in-plant orga- nizing committee, t o met with Plant Manager Doug Con- treras. Acosta said that a majority of the employees had designated the Union as their representative, and request- ed recognition by Respondent. At the time the Union had 67 signed authorization cards (well over a majority). Contreras replied that he did not recognize the commit- tee or the Union as representative of the employees. The Union filed a representation petition with the Board on November 14 (Case 22-RC-7335). 8. Enforcing no-solicitation rule On November 18, employee Dorothy Saracco, quality control girl on the first shift of the therimage depart- ment, and a member of the employees' in-plant organiz- ing committee, was asked for a union authorization card by employee Zenaida Esquilin for Esquilin's coworker Maria Garcia, who had just returned to work after preg- nancy leave. The request for the card was made and the card handed to Esquilin at lunch break on the therimage production floor. Saracco testified that while many em- D In a later conversation between employee Ott and President Al Con- treras, Sr., Ott told him she had been unjustly fired, and he agreed, saying that the Company had gone through the employee records and found that there were many others absent many times, and that she had been called back when the mistake was realized. 10 Among those of the organizing committee who accompanied Acosta were employees Mike Roberts, Robert Linderoth, Alice Gorski, Dorothy Saracco, Christine Grus, Rudy Gonzalez, Rich Sklepko, Arthur Hauser, and Drew Struss or Straus ployees used the cafeteria for lunch break others re- mained on the production floor. Before lunch break ended, Esquilin returned the card signed by Garcia to Saracco. Employee Maria Garcia testified that when she re- ceived and signed the card Zenaida Esquilin told her to give it to Dorothy Saracco. Maria, holding the card, went looking for Saracco but met Foreman Bevilacqua. According to Maria's and Bevilacqua's admission, he asked Maria who gave her the card and she answered, Zenaida from Dotty. Maria then gave the signed card to Zenaida who turned it over to Saracco. Following the lunch break, Foreman Bevilacqua called Saracco into his office and, in the presence of employee Ralph Vargas who Bevilacqua told her was there as a witness, gave her a warning not to pass out union cards anymore on company time as she had done with Maria Garcia, and, that while she might talk on breaktime or lunchtime, she was not to pass out union cards or union literature on the production floor or in the parking lot because it was private property. tt When employee Sar- acco asked Foreman Bevilacqua that the warning be put in writing, Bevilacqua went to the plant manager's office, and came back telling Saracco that the company lawyer said he was not to put anything in writing. 9. Interfering with distribution of union literature In the early morning of November 29, at or about 7 o'clock, employee Mike Roberts (a second-shift employ- ee), several other employees, and Union Organizer Acosta stationed themselves outside the plant in order to distribute union literature to third-shift employees who would be leaving the plant and the first-shift employees entering the plant. While Acosta and the other employ- ees took up positions on the sidewalk at the front of the building, employee Roberts took his position at an em- ployee entranceway located at the rear and side of the building near an employee parking area. Employees ap- proached the building entranceway on foot after parking their cars, and reversed the process on leaving the build- ing. A few feet beyond this building entranceway was the loading platform used by trucks for loading and un- loading. Both the building entranceway and the loading platform were on a large L-shaped indentation of the building, which area was accessible to and from the public street (Bloomfield Avenue) and sidewalk by a I Foreman Bevilacqua claimed that he told employee Saracco, only, that while she was working she was not to hand out union literature. Be- vilacqua shifted his testimony too much to be a credible witness He first said it was merely a friendly conversation with Saracco, not a warning Ultimately he conceded that it was a warning for Saracco who, he said. had done something she was not supposed to do under plant rules that he did not bother to read or cite to her. He was asked, since he had adopted Respondent's view that Saracco was a supervisor, why he had not waited for the therimage department supervisor, Studt, to return from lunch and have him present for the warning rather than rank-and-file employee Vargas. Bevilacqua first responded that he did not need or try to get Studt or anyone else in management, since he (Bevilacqua) was a foreman and did not need backup for what he had to do for himself. However, as his cross-examination progressed, Bevilacqua admitted that before calling Saracco in for the warning he had consulted with Plant Manager Doug- las Contreras, telling Contreras that Marie Vargas told him (Bev ilacqual that Saracco gave her a union card, and asked Contreras what should he do 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wide two-lane driveway used by trucks and cars and by employees on foot. Employee Roberts testified that he took up his position at the rear employee entranceway at approximately 7:10 a.m. and left about 7:30 a.m. It was not disputed that he was within the indentation of the building and not in the driveway and not in the area in front of the loading plat- form. No truck came by him in the 20-minute interval of his stay, said Roberts. The supervisor of the hot stamping department, Robert Sanders, parked his car that morning on the Bloomfield Avenue (front) side of the building, observed Acosta and the several employees on the sidewalk dis- tributing union literature, walked up the driveway from the street, and confronted employee Roberts in his posi- tion at the building indentation facing the employee en- tranceway. According to Sanders, Roberts was accosting employees walking from the parking lot to the building entranceway to hand them union literature (the night- shift employees, said Sanders, had not yet emerged from the building). As both men testified, Supervisor Sanders told em- ployee Roberts he was on company property and could not distribute union literature on company property, and to move to the public sidewalk where his fellows and Acosta were handing out union literature. Roberts re- sponded he was not on working time and had a legal right to distribute the literature at a place such as this outside the working area of the plant. Sanders warned Roberts that if he did not comply with the order to move off the property he would be subject to disciplin- ary action.' 2 Following employee Roberts' initial refusal to desist from distribution of the union literature, Supervisor Sanders went into the building and fetched Warehouse Supervisor Tarantola as a witness to Roberts' refusal to desist. Roberts again refused to move and Sanders again threatened disciplinary action. Roberts testified that he stopped the leaflet distribution there and did not engage in union leafleting in this area again; and there was no disciplinary action taken against him. Employee Roberts further testified that he had never seen or heard of any such or similar company prohibition against soliciting or distribution. On the contrary, said Roberts, he had seen soliciting and distribution of materi- als on the plant floor during working hours, in connec- tion with raising church funds or selling for Avon, which involved distribution of raffle tickets, chocolate bars, and Avon products. These activities had been car- ried on, said Roberts, in the sight of, and with the knowledge of, Foreman Ed Alegre of the second shift, on which Roberts worked. 12 Supervisor Sanders claimed he also said to employee Roberts it was a busy area where trucks and cars came in and out and he should not be there stopping the people on foot. Roberts denied there was any such ref- erence to danger from trucks and cars or other safety hazard. In view of the fact that Roberts was not in the driveway, or in the truck loading area, and Sanders' admission that employees as well as he have used the wide driveway to get to the entranceway without problems, along with Sanders' expressed personal belief that Roberts should not have been dis- tributing union literature on company property, I view the claimed refer- ence to an alleged safety hazard as an afterthought. 10. Suspensions for attending Board proceedings In the afternoon of November 29 an informal confer- ence for dealing with the Union's representation petition had been scheduled for 1:30 p.m. at the Board office in Newark, New Jersey. Present for Respondent were Vice President Tancredi and Attorney Pachman, and for the Union, Organizer Acosta and Attorney Flynn, accompa- nied by employees Linderoth, Ott, and Roberts of the second-shift therimage department. The starting time of work for the three employees was 4 p.m. In midafternoon, recognizing that the conference might continue longer and past their 4-p.m.-shift starting time, the three employees agreed that employee Roberts should call the plant and report that they might be late for the shift start. Roberts testified that he made his call at or about 3:30 p.m., at a point when it looked like they would no longer be involved in the business of the meet- ing and could arrive at the plant about 5 or 10 minutes late. On the phone, Roberts gave his message first to the receptionist but ended up talking to the hot stamping de- partment supervisor, Robert Sanders, the man who had threatened Roberts with discipline earlier that day, if he persisted in distributing union literature at the employee plant entranceway located on Respondent's premises. (Supervisor Sanders explained that he took or was given the call because he was temporarily acting for the theri- mage department supervisor, Studt, who was out.) Rob- erts identified for Sanders the three who would be late, where they were, and the approximate time of arrival. Employee Roberts testified that Sanders told him the Company had instituted a policy that if an employee did not start the shift on time he would not be permitted to work that day, that the three employees should not bother coming to work and should consider themselves suspended for the day, but would be permitted to resume work the next day. Sanders admitted telling Roberts that the three employees should not come in, without conced- ing that he referred to a "policy," but testified that the decision was Plant Manager Doug Contreras' decision. Normally, said Sanders, he would handle the matter by himself, but since he was substituting that day in the therimage department for Supervisor Studt and did not know how the lateness would affect production, he checked with the plant manager, Contreras. However, Sanders admitted that he did not check with the shift su- pervisor, Foreman Alegre, who would directly know the effect. Upon being told not to come in, employee Roberts in- formed his two coworkers, and, being in the Board's of- fices, all three went to the Board lawyers to complain of discriminatory conduct against the three of them, since Respondent's practice as they knew it had been to permit employees who notified the plant of delay in arrival to come in as soon as they could. Supervisor Sanders ad- mitted in his testimony that such was the plant policy, although he claimed Roberts' call was after 4 p.m. Both employees Linderoth and Ott testified that Roberts had made the call at least a half-hour before 4 p.m. The fact is that, about a half-hour before 4 p.m., Plant Manager Doug Contreras knew from Vice President Tancredi that three employees sitting in the Board con- ference room with Tancredi would probably be late for -- --- --- PERMANENT LABEL CORPORATION 125 the start of the 4 p.m. shift. Tancredi testified that he became so concerned that the three employees would not get to work on time that he interrupted the confer- ence (without explaining his reason, or talking to any of the three employees) to telephone Plant Manager Con- treras that he saw no way how three employees attend- ing the conference could get to work on time, and re- quested Contreras to get employees of the first shift to stay over and take their places. Contreras testified that he asked the first-shift foreman, Bevilacqua, to make the arrangement (which he described as getting some first- shift employees to double-shift), and when Supervisor Sanders told him (Contreras) at or about 4:15 p.m. that employee Roberts was on the telephone, told Sanders to tell Roberts that he and his companions were not to come in. Contreras said he told Sanders that coverage arrangements had been made and there was a lack of courtesy by the three employees in not calling in before- hand. Respondent's testimony comprising and surrounding this explanation had an artificial ring. Vice President Tancredi backed off from his initial explanation that he called Plant Manager Contreras out of concern that the employees had not called in and the need for proper shift coverage, to suggest that he called Contreras merely to ask for any messages for himself or any problems need- ing his attention, and threw in the pr&sence of the three employees at the conference as a "by the way" com- ment-indeed he was not even thinking of them when he placed the call, he said. Further, Tancredi could not ex- plain why, instead of interrupting the meeting to place the call, he did not put his concern for plant coverage to rest by asking any one or all of the employees if they had remembered to notify the plant. In this regard his testimony was further suspect because at the meeting Tancredi had initiated the position that, along with sev- eral other employees, Linderoth was a supervisor, but had not inquired of Linderoth whether he had aranged with the plant to be away because, said Tancredi, he did not want to indicate harassment of Linderoth. Yet, de- spite this alleged intention not to harass Linderoth, said Tancredi, he was not outraged or embarrassed by Plant Manager Contreras' suspension of Linderoth for a day, which Tancredi claimed he did not discuss beforehand with Contreras, and which he did not revoke when he learned of it. All three employees lost a day's pay. Tancredi testified that he recalled other experiences of suspending employees who called in within minutes after the start of their shifts. He and Respondent were given ample opportunity to present any documentation to sup- port the claim but came up with two irrelevant records, one of employee Thomas Stasio, shown only to have quit voluntarily, and the other of employee Omar Gon- zales, with no indication of why he was terminated (see testimony of the production control manager and office manager, Alfred Contreras, Jr.). Plant Manager Doug Contreras testified that he did not recall that Vice President Tancredi identified the three second-shift employees who would be late on No- vember 29, yet, he said he made arrangement with the first-shift foreman, Bevilacqua, to hold over first-shift employees to cover for them. Foreman Bevilacqua testi- fied that Contreras asked him for three employees and all of his people had left but two, whom he had held over for cleanup, and they agreed to work the second shift that night, a Tuesday. The two were employees Reyn- aldo DeGuzman and Nicasio Manasala, but their time- card records (Resp. Exhs. 32 and 33) disclosed that both men worked double shift the whole week starting a day earlier, Monday, running through Friday, putting in 86 and 81 hours, respectively (the 86 hours reflected some additional daytime hours on Saturday). 11. Instructions to cease support of the Union Some days after the representation conference of No- vember 29, in the week of December 6, according to Plant Manager Douglas Contreras, he held a meeting in his office of the plant department and shift supervisors to which he summoned employees Robert Linderoth, Alice Gorski, and Dorothy Saracco. Vice President Tancredi testified he was aware of the meeting and its purpose. The department and shift supervisors present were Su- pervisor Studt and Foreman Bevilacqua of the therimage department (but not Foreman Alegre), and Supervisor Sanders and Foremen Meador and Thebodeau of the hot stamping department, and possibly Supervisor Tarantola of the warehouse department (according to Sanders). The meeting was directed specifically to employees Linderoth, Gorski, and Saracco, and, for their benefit, Plant Manager Contreras read to them, from a book, the National Labor Relations Act definition of a supervisor. Contreras then told them, as all three employees testi- fied, that Respondent considered each of them to be a supervisor; that, as supervisors, it was unlawful for them to engage in union activity; and, if they did, Respondent had the right to take action against them. Linderoth asked if this was a threat that they would be fired if they were involved in union activity. While Contreras gave a surface "no" answer, he supplied his real answer by pointing out that if he, the plant manager, wore a union button or distributed union literature, the company could take action against him, that it was so written in the book, and if they did not believe him they should ask a lawyer. Gorski, Linderoth, and Saracco each testified that they came away from the meeting understanding that they were in jeopardy of being fired if they had anything more to do with the Union. Although Linderoth had worked for Respondent about 2 years, and Saracco about 5 years, and Gorski about 8 years, each noted that this was the first time that anyone had suggested that he or she was a supervisor for Respondent; and Vice President Tancredi agreed that it was not until this meeting in December 1977 that the three employees were informed that Respondent regard- ed them as hourly paid supervisors or assistant supervi- sors. To the contrary, employees who worked with them testified that they had never regarded any of the three as supervisors. Thus, second-shift employees such as Lucille Frederickson, Stefania Zaborniak, Helen Berry, Arthur Hauser, and Peter Hatala, who had received union cards from Linderoth, testified that they did not know or be- lieve Linderoth to be their supervisor or anyone's super- visor, but knew him as just another worker, and that they did not feel threatened when they received from 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him, and signed, their union cards. Christine Grus, also a second-shift worker, who got her card from Union Orga- nizer Acosta, testified that Linderoth was not her super- visor or anyone's supervisor or a representative of man- agement. Employee Maria Garcia, first-shift worker who received her union card indirectly, through another em- ployee, from Dorothy Saracco, testified that she did not consider Saracco as a boss or her boss but simply an em- ployee who had been at the plant for a time and knew the rules. Employee Eleanor Ott, a second-shift worker, testified that she did not know or regard Alice Gorski as a supervisor but as a senior employee who knew more about what was going on in the plant than others knew. Employees Linderoth, Saracco, and Gorski each testi- fied that the meeting in the week of December 6, 1977, conducted by Plant Manager Contreras, was the first su- pervisors' meeting each of them had attended. The theri- mage department supervisor, Studt, confirmed that before this meeting there had never been a supervisors meeting at which these three employees were present, and that this meeting was the only meeting of so-called hourly supervisors ever held. Additionally, Linderoth testified that he had never been in the plant manager's office before (or that he had ever been in Vice President Tancredi's Office). 12. Soliciting grievances In the week of November 25, according to Vice Presi- dent Tancredi, he sought out employee Dorothy Saracco as she worked at the line. He testified that he knew she was part of the union organizing committee. He talked with her of some quality problems and then turned the conversation to the Union. He said he was surprised and shocked by the union organizing because in the past em- ployees had talked to their supervisors and management regarding problems. Saracco testified that he then told her to go to the employees and tell them to come to him with their problems. Saracco replied that the employees now had an organizing committee and he could deal with them on problems. 13. Antiunion campaign intensified In December 1977, Respondent intensified its antiunion campaign in the plant, including the distribution and posting of antiunion literature (examples are contained in Resp. Exh. 24). President Al Contreras, Sr., who was headquartered in the Bloomfield plant and did not normally spend much time at the Clifton plant, turned his full attention and time to the Clifton plant employees. He testified that he had between 400 and 500 individual conversations with the Clifton plant employees on the subject of the Union, talking to approximately 120 to 130 employees between one and five times each, usually on the plant floor as they worked, he said. In each talk, said Contreras, after introductions and pleasantries, he made clear that Re- spondent opposed the Union and that the employees did not need the Union. In the specific conversations, how- ever, it turned out that he went further. 14. Interrogation, soliciting grievances, threats President Contreras talked to employee Saracco about December 10. He observed she was wearing a union button and asked why she was for the Union, and would she tell him her problems with the Company. Saracco re- plied that she was underpaid and that the Company did not provide sick days for employees. He said he could not make any promises then, but now that he knew of the complaints, the Company would be a better place to work. However, he said, the Company was not in a posi- tion to support a union and he was not going to support a bunch of organizers. And, if Mennen (the largest cus- tomer of Respondent) took away 40 percent of the Com- pany's business, production would slow down and em- ployees would be laid off. He added that he hoped she would be on his side and help defeat the Union and he would see that the place became a better place to work now that he was aware of her problems. President Contreras denied referring to Mennen or to possible adverse reaction from Mennen if Respondent became unionized, then changed his testimony to indicate he did not remember the conversation but was testifying from speculation, saying, if Mennen was mentioned it was with regard to quality or quality control, since his lawyer had told him never to say anything about losing business because a union was trying to organize the Company. Contreras forgot, of course, the prepared speech he gave that same month to all of the assembled employees (G.C. Exh. 2 discussed infra) in which he de- scribed how unionization could cost Respondent half of the business it received from Mennen. 13 15. Soliciting grievances President Contreras had several conversations with employee Christine Grus in December 1977. In the first conversation he asked her if she had any complaints against the Company. She told him of harassment by Foreman Ed Alegre. 16. Threats of reprisals In another conversation, according to employee Grus, President Contreras told her that, if the Union came in, customer companies, like Colgate, Mennen, and Proctor and Gamble, would not renew their contracts with Re- spondent because they were afraid of strikes, and as a result a lot of Respondent's employees would be laid off.14 Grus testified that she discussed this aspect of President Contreras' conversations with other employees, naming three, and told them that Contreras wanted them to vote against the Union and get others to do so. " L This explanation by President Al Contreras, Sr., of his conversation with employee Saracco was typical of his testimony, in which he was evasive, and had no independent recollection of his conversations with the employees (which was not surprising in view of the many hundreds of conversations he had). He was not a credible witness. 14 Significantly, President Contreras, having listened to Grus testify and having reviewed the transcript of her testimony (as he did in the case of all of the employee witnesses), did not deny having made this state- ment. 15 This latter also refers to a request made to employee Grus and em- ployee Christine Iwanicki by President Contreras, covered infra. PERMANENT LABEL CORPORATION 127 Employee Christine Iwanicki (a cousin of employee Grus) testified that, in a conversation with President Contreras 3 weeks before the election, he told her that the Union would be bad for the Company, that it would ruin him, that he did not want the Union and would do his best to stop it, and she should think about that. Fur- ther, he said, a lot of customer companies might not want to sign contracts with Respondent if the Union came in because they feared strikes and preferred to deal with nonunion companies; if the Union came in employ- ees would lose jobs and she might be one of them; more- over, if the Union came in he would sit back and no longer care about the Company because it would not grow. Contreras denied talking to Iwanicki of loss of company contracts or employee jobs, but I do not credit his denial. 17. Coercion to induce other employees to cease union support Several days before the election, President Contreras went to both employees Grus and Iwanicki (both with reputations as talkers and being well liked by the em- ployees) and, as Grus testified, asked them both to use the influence they had with fellow workers to persuade them to vote no, against the Union. Grus testified that she told this to several employees (naming three), along with Contreras' statement that there might be layoffs if the Union came in. I do not credit Contreras' denial that he asked this. 18. Promising benefits In a prior conversation with employee Grus in mid- December, President Contreras asked her if she was going to school. She said she was going to a computer school, learning to be a computer technician, and that a friend had indicated he might be able to get her a job at IBM. According to Grus, Contreras said, why there, why not with Permanent Label, which would grow and expand, if the Union did not come in, and would be needing and using computers, and why shouldn't she grow with the Company rather than look for work else- where. Grus testified that Respondent did not have a computer operator's job and that Contreras said he was not making her a promise because it would be against the Labor Board regulations. 19. Union insignia In the course of the conversation, Contreras observed that Grus was wearing a union button and, according to Grus, he asked her to take it off. She testified that this could have been a direct order, but she answered no and laughed and did not remove the button. Contreras claimed what he said was intended as a joke, but Grus testified she did not think it was a joke. 20. Interrogation, promising benefits, threats President Contreras had two conversations with em- ployee Linderoth. He asked Linderoth why he was wearing a union button. Linderoth responded that the employees needed representation, the Company had not treated them properly. On his part, Contreras replied that the Company did not need and the employees did not need a union, that he knew things were wrong in the plant, but now that he was there, and knew the things that were wrong, the plant would get better. In the second conversation, President Contreras told employee Linderoth that Respondent was going to diver- sify and do more than just label bottles, that the plant would be bigger and need more supervisors, but if the Union came in the expansion would slow down. He told Linderoth that he was financially well off (well-heeled was the expression used), and if the Union came in he was not going to work as hard for the business as he had worked. According to Linderoth, Contreras said, if the Union came in, it would tie him up with grievances, and he pointed out that unions had closed down some com- panies. ' 6 21. Promising benefits President Contreras engaged employee (Mia) Mehmeti in conversation in December 1977, before the election. He asked her if she was going to school and, when she said no, asked why. Mia said she had to support her mother and could not afford school, but that maybe some day she might be able to go. Contreras told her he thought she was too young to work in a place like this, and asked her what she wanted to be. She answered, a nurse. According to Mia, Contreras said he would go into the office and check to see if there was anything he could do for her and would get back to her. Mia testified she understood he was promising her assistance by help- ing to pay for her schooling, but he never returned. Con- treras testified that he told her she should pursue educa- tion in a nursing career but did not promise her any help. 22. Interrogation, union insignia Before their conversation ended, Contreras comment- ed on Mia wearing a union button. Employee Robert Linderoth, who was present during this part of the con- versation, testified that Contreras asked Mia why she wore the union button, and that she replied, because she believed in what the Union stood for. Contreras then said, as both Mia and Linderoth testified, that he wished he had a big company button saying "No" that she would wear in place of the union button. Mia answered that she preferred to wear the union button, it matched her green blouse. Contreras admitted the statement, but claimed that it was a form of joking. 23. Soliciting grievances, promising benefits Employee Helen Berry testified that, in President Con- treras' floor conversation with her, she discussed em- ployee problems and that he said to her, now that he 16 There was no contradiction of Linderoth's testimony by President Contreras. When asked, considering that Linderoth was a supervisor, as Respondent has contended, why he hadn't asked Linderoth to remove the union button he was wearing, Contreras said he did not know that Linderoth was a supervisor; that he talked with Linderoth at his job, while he was feeding bottles into a hopper or sealing a container. He also testified that he did not know that employees Dorothy Saracco and Alice Gorski were also (supposedly) supervisors when he talked to them; indeed, said Contreras, he had never seen any of the three at supervisors' meetings. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knows about them, give the Company a chance, I year from January to January, and they would straighten things out. He further told Berry, she said, that if she had any problems to come to him any time and, if he was not in the Clifton office, to reach him at the Bloom- field office. Contreras testified that he did not remember the problems employee Berry raised, but that he did not promise to straighten them out in a year, and that he told her that she and anybody at the Clifton plant could call him at the Bloomfield office. I credit Berry's testimony. 24. Interrogation, promising benefits Employee Eleanor Ott testified that, in the first of President Contreras' floor conversations with her, she was wearing a union button, and he asked why she felt she and the other employees needed a union. Ott an- swered, there were problems, such as an absence of medical benefits including her own lack of such cover- age. 17 Contreras told her the Company had a Blue Cross-Blue Shield program of insurance for which she was eligible. She answered this was the first she knew of it and thought that employees should be informed be- forehand. He offered to see that she got the necessary forms and jotted down a reminder for himself. Two days later Vice President Tancredi, who had also talked to employee Daly about his Blue Cross coverage, asked if other employees needed it, and learned that Ott had no coverage, came to Ott on the plant floor asking if he could help with her medical insurance problem. He handed her medical plan cards to complete, which she did, returning the completed forms to him the following day. Tancredi conceded that responsibility for handling medical insurance matters is assigned to Barbara Engel of the clerical staff and that soliciting for Blue Cross- Blue Shield was "out of channels" for him. The compa- ny handbook indicates that a current employee not en- rolled in the medical plan may not enter the program (under which the Company shares the Blue Cross-Blue Shield cost with the employee) except during open en- rollment days of February 25 and August 25 each year on application to be made 1 month in advance (G.C. Exh. 4). The solicitations here were in December. In a second conversation with employee Ott, President Contreras told her he saw no reason for a union to re- solve her problems, that the Union could make promises or benefits but only he could deliver on promises. 25. Interrogation, soliciting grievances The therimage department supervisor, Jack Studt, who said he was opposed to the Union coming into the plant, testified that, though he had been briefed not to inquire of employees about the Union, he talked in December 1977 with 90 percent of the employees on the several shifts in his department-about 80 employees-asking them individually why they thought they needed a union and if they had any major problems or grievances.'s8 '7 She also referred to her unjust firing on November 2, which he said to her was corrected by calling her back on November 16, see fn. 9, supra. s This testimony was elicited in cross-examination of Supervisor Studt. In the brief of General Counsel, motion was made to amend the complaint to allege additional violations by Respondent of Sec. 8(a)(l) of 26. Grant of benefits-yearend bonuses About a week before the election of December 30, 1977, Respondent paid yearend bonuses to all employees. Except for a very few employees with special skills or status who were given a greater amount on determina- tion by Vice President Tancredi and Plant Manager Con- treras, the employees were each given the equivalent of I week's pay if they had I or more years of service, and a prorated portion of 1 week's pay if they had less than a year of service. The payment of a bonus to employees with less than I year's service was a deviation from the announced and posted policy of Respondent of January 26, 1977, stating that to be eligible for a 1977 yearend bonus the employee had to be on the payroll as of December 31, 1976 (G.C. Exh. 6). Likewise such payments deviated from the bonus paid for the prior year at the end of December 1976, from which Respondent excluded all employees with less than 6 months' service. In 1975 and prior years, according to Vice President Tancredi, Respondent's yearend bonus policy had been to give the equivalent of 1 week's pay to all production and maintenance employes with over 1 year's service and a prorated portion of 1 week's pay for those with less than a year's service.9 However, said Tancredi, in mid-December 1976, Respondent decided that it needed to conserve cash for the expense of a hoped for move in 1977 of its two plants into one building in Saddlebrook, New Jersey. Tancredi testified that, without notifying the employees of either the contemplated plant move or the change in bonus policy, in the December 1976 bonus Respondent eliminated any bonus for employees who had not been on the payroll at least 6 months at the end of 1976. This action was followed by another bonus policy change, I month later on January 26, 1977, when Respondent posted a notice (G.C. Exh. 6) informing em- ployees that, to be eligible for the December 1977 bonus, employees would have to be on the payroll since De- cember 31, 1976. The purpose, although not told to the employees, said Tancredi, was to further increase the cash reserve for the plant move. The deal for the Saddlebrook plant fell through in March 1977, according to Vice President Tancredi; nev- ertheless, believing that consolidation of the two plants was in its interest, Respondent continued search and ne- gotiations for another plant location. Tancredi claimed that the last negotiation for a new plant (a so-called Berkey deal) came to an end in September 1977. Howev- er, Respondent's financial report for the third quarter of 1977, dated September 30, 1977, shows that the accrued moving expense (then over $65,000) "represents three the Act, comprising the interrogation of employees and solicitations of grievances from them by Supervisor Studt. While Respondent has not objected to grant of the motion, I believe it and the proposed amendment of the complaint are unnecessary, since the evidence of such violations, relating to similar and contemporaneous violations alleged in the com- plaint, has been adduced and litigated, and I am obliged to decide the issue regardless of whether it has been specifically pleaded. Monroe Feed Store, 112 NLRB 1336, 1337 (1955). 5' The employees with special skills or status were given special con- sideration and paid more than the equivalent of a week's pay, according to Tancredi. PERMANENT LABEL CORPORATION 129 quarters of the estimated cost of moving the company's plant in the latter part of 1977" (Resp. Exh. 20, fn. 5). The posted notice of January 26, 1977 (G.C. Exh. 6), explaining employee bonus eligibility for 1977, remained posted throughout 1977 until the end of November 1977, when both the union and company campaigns were in full swing. According to Plant Manager Douglas Con- treras and Vice President Tancredi, Contreras took down the notice at that time, but did not replace it with a new notice either explaining bonus eligibility or any change in the policy of January 26, 1977.20 27. Threats of reprisals On December 28, 2 days before the representation election of December 30, 1977, Respondent President Al Contreras, Sr., delivered a prepared speech to all em- ployees on each of the shifts (G.C. Exh. 2). Contreras claimed he read the speech without deviation or com- ment. Among other things, President Contreras told the as- sembled employees that the packaging industry was one of the fastest growing industries in the world and he ex- pected Respondent to grow substantially. He stressed, as he had in his individual talks, that the Union would hinder that growth. He said: Our largest customer, the Mennen Company, which accounts for some 40 percent of this plant's sales, is nonunion. We are the sole decorator of Mennen packages. They have felt comfortable with our clean record of no union trouble and no strikes at Permanent Label over the past 25 years. Sometimes when a company is unionized, customers divide their business between two or more vendors with different union contract expiration dates. They do this to eliminate the possibility of being cut off by a strike. I don't want to give the impression that just because a union is in a company there will be a strike, but we have shown you District 65's strike record, and you have seen the emphasis on strikes in their constitution. On cross-examination, President Contreras admitted that he had no knowledge of whether the Mennen Com- pany was concerned about the Union's organizational drive at Respondent's plant, nor did he know who in Mennen told him Mennen was comfortable with Respon- dent's clean record of no union trouble. Additionally, Contreras admitted that no one in Mennen told him that, if his Company was unionized, Mennen would split its purchase contract between Respondent and another com- pany; and he further admitted that he had no knowledge that Mennen, or other customers of Respondent, such as 20 Vice President Tancredi claimed that, internally, the Company had decided in March 1977, after the Saddlebrook plant deal fell through, to revert to "past practice" in regard to bonus policy, meaning, he said, past practice prior to December 1976, and offered minutes of an executive planning committee meeting of March 21, 1977, to bolster his claim (Resp. Exh. 18). However, the language of the document is not only am- biguous, but also notes a decision to continue to look for a new building and maintain the moving expense fund. The events that followed, and noted above, indicated that Respondent continued to accrue cash for moving and had not abandoned the intention to move. Helena Rubinstein, Revlon, Shulton, or Colgate, were considering dividing their purchasing contracts from Re- spondent with other packaging companies if Respon- dent's plant were unionized. D. The 8(a)(1) Findings 1. Coercive interrogation As related in section C, Foreman Bevilacqua's interro- gation of employee Daly in October 1977 to ascertain the status of the Union's organizational campaign consti- tuted coercive interrogation in violation of Section 8(a)(1) of the Act. That the interrogation might have been "friendly" did not lessen the interference with the employee's Section 7 rights, Quemetco, Inc., a subsidiary of RSR Corporation, 223 NLRB 470 (1976). Foremen Bevilacqua's inquiry of employee Maria Garcia as to which of her co-workers supplied her with a union authorization card was also coercive interroga- tion in violation of Section 8(a)(1) of the Act. Interrogation by Respondent President Contreras of employees, such as Linderoth, Ott, Mehmeti, and Sar- acco, and by the therimage department supervisor, Studt, of 90 percent of the employees in his department, on why they wanted a union, in the context of unequivocal opposition to the Union by the questioners, was likewise coercive interrogation in violation of Section 8(a)(1) of the Act, even addressed to employees who had openly declared their prounion sympathies, because such prob- ing reasonably tended to interfere with the free exercise of employee rights under the Act, Paceco, A Division of FreuhaufCorporation, 237 NLRB 399 (1978). 2. Soliciting grievances Respondent's reaction to learning of the employee in- terest in the Union was a campaign of opposition to the Union. One of the means it chose was to create the im- pression that it would correct unsatisfactory conditions, with the intention of bypassing the Union. On November 4, 1977, in connection with and follow- ing one of Vice President Tancredi's opening speeches to the three shifts of employees, employee Grus responded to Tancredi's invitation and talked with him of several grievances. Tancredi suggested she draft a list of the grievances and assemble a committee of employees to participate with management in the discussion. He dele- gated Plant Manager Contreras to obtain the list from Grus and to set a time to meet with the employee com- mittee. Tancredi also sought out employee Saracco and suggested that she gather a list of employee grievances and encourage the grievants to come to the office and discuss their problems. In campaigning among the employees individually for defeat of the Union, President Contreras asked employee Berry about matters of employee dissatisfaction and en- couraged her to contact him any time, even at his Bloomfield plant office, if there were other problems she wished to convey. President Contreras asked Dorothy Saracco what her problems with the Company were, and, after she told him, cautioned that he could not make a promise then, but now that he knew her complaints 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would make the Company a better place at which to work. President Contreras made inquiries of other employees about their grievances with the Company, and Supervi- sor Jack Studt testified that he asked 90 percent of the employees in the therimage department to tell him what their major problems were. In my view, Respondent's solicitation of the employee grievances in the preelection context carried an implied promise that the grievances would be remedied if the Union were defeated, and such solicitation was a viola- tion of Section 8(a)(1) of the Act. Landis Tool Company, Division of Litton Industries v. N.L.R.B., 460 F.2d 23 (3d Cir. 1972), cert. denied 409 U.S. 915; N.L.R.B.v. Rollins Telecasting, Inc., 494 F.2d 80, 86 (2d Cir. 1974); N.L.R.B.v. Eagle Material Handling, Inc., 558 F.2d 160 (3d Cir. 1977). Merely reciting a "no promises" formula, or that the employer was precluded from making com- mitments, does not cancel the inference that the griev- ances raised would be corrected, Landis Tool Company, supra; Reliance Electric Company, Madison Plant Me- chanical Drives Division, 191 NLRB 44, 46 (1971); Raley's Inc., 236 NLRB 971 (1978). 3. No-solicitation/no-distribution rules It was stipulated that Respondent's written rule in effect at the Clifton plant read in pertinent part: Employees shall not engage in solicitation or lit- erature distribution during work time in any portion of the premises, or during nonwork time, in work areas of the premises. (G.C. Exh. 5.) Also, as set out in section C above, on November 18, 1977, Foreman Bevilacqua warned employee Saracco that she could not pass out union cards on company time (in which he expressly included lunch or breaktime saying, however, that she might talk on lunch or break- time) and that she could not pass out union cards or union literature on the production floor or in the parking lot at any time because it was private property. Saracco's activity, involving solicitation by passing a union card to another employee, occurred during the lunch break on the production floor. Additionally, as set out in section C above, on Novem- ber 29, the hot stamping department supervisor, Sanders, interfered with distribution of union literature by em- ployee Roberts on company property outside the plant between the parking lot for employees and a building en- tranceway for employees, because the distribution was done on company property. (Roberts was not in the truck loading zone, and Respondent's statement, in its brief that he was, was erroneous.) Roberts engaged in the distribution of the union literature in his off-duty hours and was warned of disciplinary action if he persist- ed. The Board and courts, in protecting employees' self- organizational rights at their places of work, have a drawn distinction between solicitation for union member- ship and distribution of union literature, based on the dif- ferent problems both pose for employer and employees. As a result, it has been established that the Act protects the rights of employees, during nonworking time, to so- licit union membership while on company premises and to distribute union literature in nonwork areas on the company premises, unless the employer can demonstrate that unusual circumstances necessitate some restriction on that right in order to maintain production or disci- pline. Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793 (1945); Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 616-623 (1962). Therefore, the portion of Respondent's written rule that prohibits the employees from engaging in union so- licitation during nonworktime in the work areas of the premises is overly broad and presumptively invalid, Stod- dard-Quirk Manufacturing Co., supra at 617. Even with- out evidence of enforcement, an overly broad no-solicita- tion rule has an inhibiting effect on lawful organization activities and is illegal, Joseph Horne Co., 186 NLRB 754, fn. 1 (1970); nevertheless, here, Foreman Bevilacqua sought to enforce the rule by warning employee Saracco against solicitation on the production floor at any time, although he enveloped the rule in a new and broader statement of its scope. In this connection, Bevilacqua equated the handing of a union authorization card to an employee being solicited with the distribution of union literature, whereas, under the law, the solicitation pro- cess includes the giving of a union card to an employee, the signing by the employee, and the return of the card to the solicitor, Farah Manufacturing Co., Inc., 187 NLRB 601, 601-602 (1970). Thus Respondent's written rule, with or without Foreman Bevilacqua's enforcement of it, prohibiting employees from engaging in solicitation for the Union during nonworktime in the work areas of Respondent's premises was a violation of Section 8(a)(l) of the Act. Of course, Foreman Bevilacqua's restatement of the rule to employee Saracco on November 18, 1977, went even further than the written rule by precluding Saracco from union solicitation with cards on "company time," in which he expressly included breaktime or lunchtime,2 1 or at any time if done on Respondent's property, and from distribution of union literature at any time on Re- spondent's property including the parking lot. Such pro- hibitions obviously violate Section 8(a)(1) of the Act.2 2 Respondent's written rule on distribution of literature, excluding distribution on nonworktime only in work areas, appears to be valid on its face. However, the revi- sion announced by Supervisor Sanders on November 29, to prohibit employee Roberts from distributing union lit- " Compare Essex International, Inc., 211 NLRB 749, 750 (1974), where an exclusion of union solicitation and distribution of union litera- ture by employees during "working hours" (as distinguished from "work- ing time" or "work time"), without clarifying the employee rights to so- licit and distribute during lunch and breaktime, was held to be unduly restrictive of employee rights. Z2 There was no showing of unusual circumstances that might excuse the restrictions stated and enforced. The fact that the hot stamping de- partment worked while the therimage department lunched was not such a circumstance, since each had its own location. Moreover, the evidence of other nonoccupational solicitations permitted on the plant production floor, including church fundraising by rafes and sales of candy and the sale of Avon products, while denying employees the privilege of engag- ing in union solicitation, was a discriminatory application of the rule in violation of Sec. 8(a)(1) of the Act, Imco Container Company, 208 NLRB 874, 878 (1974) PERMANENT LABEL CORPORATION 131 erature on his off-duty time in a nonwork area of Re- spondent's property, adjacent to the parking lot and em- ployee entranceway to the plant building, was beyond the orbit of permissible exclusion. Moreover, since the ban enunciated by Sanders was a more stringent rule than existed, promulgated orally at a time and in circum- stances of employer hostility to and campaigning against the organizing activity of its employees, it was obviously announced and enforced for a discriminatory purpose, Heritage House of Connecticut, Inc. d/b/a Alliance Medi- cal Inn-New Haven, 192 NLRB 1081, 1081-82 (1971). Re- spondent's claim that employee Roberts was ordered to desist from his distribution in order to prevent creation of a safety hazard was not established, and appeared to be an afterthought (see sec. C above). The promulgation and enforcement of the rule by Supervisor Sanders was an interference with the employee's right of self-organi- zation in violation of Section 8(a)(l) of the Act. 4. Promise of benefits to discourage union support As set out in section C, President Contreras and Vice President Tancredi promised employee Ott Blue Cross- Blue Shield benefits. Contreras promised employee Meh- meti the possibility of furthering her education. Con- treras told employee Linderoth and Grus that they would have a future with the Company if the Union did not come in and, in Grus' case, the possibility of employ- ment as a computer technician. Contreras urged employ- ee Berry, and Supervisor Studt urged employee Demon- teverde, to give Respondent a year, from January to Jan- uary, to rectify past problems. Contreras promised em- ployee Saracco that, if the Union lost, Contreras would see that the Company was a better place at which to work. Promises of benefits by an employer, during a union organizational campaign or pending a representation election, have a coercive effect, because employees are not likely to miss the inference that the source of benefits presently conferred is also the source from which future benefits must flow, that may dry up if not obliged, N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409 (1964). The promise of benefits need not be specific in nature or as to the time of its implementation, and need not be expressly conditioned on abandonment of union support. Thus, a promise that the Company would someday better itself and offer the employees more constituted a promise of future benefits in violation of Section 8(a)(l), JFB Manufacturing, Inc., 208 NLRB 2, 6, fn. 1 (1973). In Hubbard Regional Hospital, 232 NLRB 858, 870 (1977), a statement of the hospital board communicated to the nurses, saying that the board realized management mis- takes had been made and it was willing to correct them and asked the nurses to give the board another chance, was held to be a promise of benefits in violation of Sec- tion 8(a)(1) because, "while the benefits promised were not spelled out, the message was nonetheless clear that the improvements would come if the nurses gave the hospital another chance, i.e., rejected the Union." Respondent's promises to its employees, made in the context of the impending representation election, were promises of benefits designed to induce and coerce the employees to abandon their support of the Union, and were in violation of Section 8(a)(1) of the Act. 5. Grant of benefits-yearend bonuses As recounted in section C above, I year before the representation election of December 30, 1977, namely, at the end of December 1976, Respondent changed its prior unwritten policy of including all employees in the year- end bonus. Instead, it excluded those employees with less than 6 months of employment at the end of December 1976. And it did this, without notifying any employees, in advance, of either the fact or the reason for it. Indeed, Respondent concealed the reason, which was that it contemplated a plant move to another town, Saddlebrook, New Jersey, in 1977, which involved moving both the Clifton and Bloomfield plants and con- solidating them into one plant, and Respondent had de- cided to put part of the cash otherwise available for bo- nuses into a moving expense account. In January 1977, to increase the size of the moving ex- pense account, Respondent decided to increase the exclu- sions from the bonus for the year ending December 1977, by excluding persons with less than 1 year's service. This time Respondent posted in the plant a notice to the em- ployees on January 26, 1977, informing them that only employees on the payroll on December 31, 1976, would be eligible for a bonus. Again, no reason was revealed, because Respondent feared that, if the employees were informed of the contemplated move, many might quit before Respondent was ready to move and consolidate the personnel of the two plants it would need for the one plant. Although Respondent claimed that it decided internal- ly, in March 1977, when the deal for the Saddlebrook plant fell through, to restore, for the end of 1977, the bonus policy of 1975 and prior years of including all em- ployees in the bonus, this was not established. The con- trary appeared to be the case, because Respondent con- tinued the search for another suitable building and, as its September 30, 1977, third-quarter financial statement showed, Respondent continued the growing moving ex- pense account for a move in the latter part of 1977. The notice of January 26, 1977, establishing which of the em- ployees were included in and which were excluded from the 1977 bonus, remained posted in the plant until the end of November 1977 when, without notice or explana- tion to the employees, the notice was taken down by Plant Manager Contreras and nothing on bonuses put up in its place. The union organizational campaign and Re- spondent's antiunion campaign were then in full swing. In view of the employee experience with the prior bonus in December 1976, when a group of them were excluded from sharing in the bonus without notice or ex- planation, it was not unreasonable for the employees to infer that the removal of the January 1977 bonus policy notice at the end of November 1977, without substitution or explanation, presaged either a denial of bonuses to all employees or an increase in the class to be excluded, due to the employees' current organizing attempt. By the same token, when, just prior to the election of December 30, 1977, Respondent, again without notice or explana- tion, paid all employees a bonus, including those who 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were not eligible under the January 1977 posted policy, it was not unreasonable for the employees to infer that Respondent sought to influence their voting selection by paying for votes against the Union with this 11th hour show of generosity. In my view, the December 1977 bonus benefit was conferred on all employees at a time and in a manner in- tended to influence the employees' choice against union representation, in violation of Section 8(a)(1) of the Act. N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409; The Baltimore Catering Company, 148 NLRB 970, 973-974 (1964). 6. Discouraging wearing of union insignia As set forth in section C above, President Contreras asked employees Grus and Mehmeti to remove the union button that each wore. Respondent contends this was done as a joke, and, if the employees understood the statements were made as jokes, there was no violation. The evidence showed that each of the employees took her wearing of the union in- signia seriously, did not regard the Contreras request as a joke, but declined to remove the button. The right to wear union insignia at work is a protected activity under Section 7 of the Act, particularly in an or- ganizational campaign, Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, 802, fn. 7. Such right was inter- fered with by the request of Respondent President Con- treras in asking the employee to remove the insignia. It is not essential in finding a violation that there be an explic- it threat of reprisal, as it is implicit that the employee dis- obeys at his peril, The Great Atlantic & Pacific Tea Com- pany Inc., 192 NLRB 645, 659 (1971). Respondent's inter- ference was a violation of Section 8(a)(1) of the Act. 7. Coercing employees to induce other employees to cease union support The evidence was (sec. C above) that President Con- treras asked employees Grus and Iwanicki, both with reputations of being voluble and well liked by fellow em- ployees, to use their influence with fellow workers to persuade them to vote against the Union, and Grus told this to several employees. While an employer may lawfully ask employees to vote against a union, he violates Section 8(a)(1) when he asks an employee to make the same request of other em- ployees, such as "talk the union down," Federal Stainless Sink Div. of Unarco Industries, Inc., 197 NLRB 489, 500 (1972); or "convince them it was better for the store not to go Union," Montgomery Ward & Co., Incorporated, 226 NLRB 184, 201 (1976). The effect upon an employee so asked is coercive, whether or not the employee is in fact coerced into complying. Respondent's conduct here violated Section 8(a)(1) of the Act. 8. Threats of reprisal As set out in section C above, President Contreras, in his individual conversations with employees, separately told employees Linderoth and Iwanicki that, if the Union came in, he was not going to work as hard for the busi- ness as he had worked and would sit back and no longer care about the Company. Again, in individual conversation, President Contreras told employee Iwanicki that she should think about the fact that the Union would be bad for the Company and ruin him, that a lot of customer companies might not want to sign contracts with Respondent if the Union came in because they feared strikes and preferred to deal with nonunion companies, and that employees would lose jobs and she might be one of them. He told employ- ee Grus that customer companies, like Colgate, Mennen, and Proctor and Gamble, would not renew their con- tracts with Respondent if the Union came in, because they were afraid of strikes, and as a result a lot of Re- spondent's employees would be laid off. He told employ- ee Saracco that if Mennen (Respondent's largest custom- er) took away 40 percent of Respondent's business, pro- duction would slow down and employees would be laid off. At the meetings with all employees 2 days before the representation election, President Contreras told them that Mennen is Respondent's largest customer, for whom Respondent is the sole decorator of packages and who provides 40 percent of the Clifton plant sales; that Mennen is nonunion and feels comfortable with Respon- dent's past record of no union trouble and no strikes; that sometimes when a company is unionized, customers divide their business between two or more vendors with different union contract expiration dates to eliminate the possibility of being cut off from supply by a strike; and to bear in mind the Union's strike record and the Union's emphasis on strikes in its constitution, which documenta- tion, he reminded them, had been shown to them. In connection with his references to Mennen and other customer companies, President Contreras admitted that he did not know whether they were concerned about the Union's organizational drive at Respondent's plant, or who in Mennen told him that Mennen was comfortable with Respondent's record of no union trouble; further, he admitted, that no one in Mennen told him Mennen would split its contract between Respondent and another supplier if Respondent's plant were unionized, and that he had no knowledge that Mennen or any other custom- er of Respondent was considering dividing their pur- chase contracts from Respondent with other packaging companies, if Respondent's plant were unionized. The statements by President Contreras to the assem- bled employees, and to them individually, that unioniza- tion of the plant would result in loss of business from customers and that employees would lose jobs, was not privileged, under Section 8(c) of the Act, as either gener- al opinions about unionism, or predictions based on ob- jective fact to convey the employer's belief as to demon- strably probable consequences beyond his control, N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969). Respondent admittedly had no basis in objective fact for these assertions. Hertzka & Knowles, 206 NLRB 191, 194-195 (1973); Kranco, Inc., 228 NLRB 319, 322 (1977);23 and see Ethyl Corporation, 231 NLRB 431, 433 2a Respondent relied on Southern Frozen Foods. Inc., 202 NLRB 753 754-755 (1979), affd. 501 F.2d 868 (D.C. Cir. 1974), in its claim that as- Continued PERMANENT LABEL CORPORATION 133 (1977), holding that the supposition of a greater likeli- hood of strikes does not constitute objective fact within the meaning of Gissel, supra. The statements by Con- treras were impermissible threats designed to coerce the employees into adopting Respondent's antiunion position, and violated Section 8(a)(1) of the Act. President Contreras' statement to employees, that, if the Union came in, he was not going to work as hard for the business as he had in the past and would sit back and no longer care about the Company, was the counterpart of his promises to employees that if the Union did not come in, the business would grow, the employees would grow with it, he would take care of their grievances, and he would make the Company a better place to work. The counterpart statements were thus a thinly veiled threat that Respondent would be less responsive to the employees' needs for changes if they chose the Union than if they rejected it, Southern Frozen Foods, Inc., supra at 755, and violated Section 8(a)(l) of the Act. 9. Instructing three nonsupervisory employees to cease support of union At the Board conference concerning the representation case on November 29, 1977, Respondent took the posi- tion that in addition to the department heads and shift su- pervisors, who the Union agreed were statutory supervi- sors, there were several other employees whom Respon- dent regarded as statutory supervisors and whom it cate- gorized as "assistant supervisors" for purposes of exclu- sion from the description of the bargaining unit which was evolved. There was no plant title of assistant super- visor, no employee had been designated as such, and, of course, the Union did not agree that there were any such who were statutory supervisors even without the title. In the week of December 6, 1977, Plant Manager Douglas Contreras held a meeting of the department heads (called department supervisors) and shift supervi- sors (called foremen), to which he summoned employees Robert Linderoth, Alice Gorski, and Dorothy Saracco. In the presence of the others, Contreras read to them the Act's definition of a supervisor, and told the three em- ployees, for the first time since the employment of each began, that Respondent considered each to be a supervi- sor; further, as supervisors it was unlawful for them to engage in union activity and, if they did, Respondent had the right to take action against them. Contreras dis- claimed threatening them with discharge, when asked about it by Linderoth, but went on to indicate, by an analogy, that he was indeed threatening them with dis- charge if they continued to be involved in union activity. All three employees left the meeting understanding that they were in jeopardy of discharge if they had anything more to do with the Union. serting there would be a loss of business and jobs was a permissible pre- diction; but the case is distinguishable from the cases cited above and the facts here, in that the Board found factual support for the supervisor's campaign assertion (that unionizing would cost the employees jobs) in company history set out in a supplemental company campaign letter to the employees, telling them that some of their work was work taken from another of the employer's plants because the same union, in that plant, allegedly insisted upon a change in method of operations, which, if carried over to the plant being organized, would result in loss of work and jobs. As detailed in section C above, although the three em- ployees had 8, 5, and 2 years' employment, respectively, this meeting in early December 1977 was the first occa- sion any of them had been informed that he or she was a supervisor, and was the first and only meeting of super- visors that any of them attended. No employee testified that he or she considered Linderoth, Gorski, or Saracco to be a supervisor and a goodly number testified that they did not know, or consider, them to be supervisors. a. Gorski's status Alice Gorski was an employee of Respondent for 8 years (at the time of the hearing), who had always worked on the therimage department production line, as feeder-packer-inspector or line attendant, both before and after the election December 30, 1977. In August 1977, she was asked by her supervisor, Foreman Ed Alegre, to perform an additional function as "floor lady" on a tem- porary basis, continuing at her same hourly wage of $3.91 per hour; and after the election she resumed full time as a line attendant.24 As floorlady, employee Gorski continued to work on the production line, wherever she was needed, but she was additionally responsible to rotate the feeder-packer- inspectors every 1-1/2 hours from feeding and packing to inspecting, and vice versa. Rotation was necessary, said Gorski, because feeding and packing was harder physical work, whereas inspecting involved sitting and watching, and each girl was expected to do her share of both types of work. While tending to the rotation re- lieved Foreman Alegre of doing this, rotation neverthe- less was purely routine and involved no exercise of dis- cretion by employee Gorski. Gorski also helped out new workers but she was not asked to assess how they were doing. If Foreman Alegre told her to lay off an employ- ee she did so, but she made no recommendations for layoff; indeed, she testified, when she once suggested to Alegre that he use seniority as the basis for layoffs he de- clined to follow her suggestion. As floorlady, employee Gorski continued to punch a timeclock and needed permission from a supervisor to work overtime. Foreman Alegre did not testify, and there was no con- tradiction of employee Gorski's testimony. Since what- ever instructions Gorski issued originated with Alegre, and since she used no independent judgment or discre- tion in performance of her duties, her status never rose to that of a statutory supervisor. Maremount Corporation, 239 NLRB No. 37 (1978). Moreover, her situation as floorlady was at best tem- porary and experimental; she was not told that she was, or was to become, a supervisor; and there was no evi- dence that any employee regarded her as a supervisor. On the contrary, employee Ott on her shift testified that Gorski was not a supervisor and was not regarded as such. I find that employee Gorski was not a supervisor within the meaning of the Act. "4 Vice President Tancredi claimed that it was a trial arrangement, and if it had worked out, she would have been given a wage increase. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. Saracco's status In the 5 years of her employment at the time of the hearing, employee Dorothy Saracco had been the quality control person on the first shift of the therimage depart- ment. Her duties comprised checking the production lines for quality defects to see that they were producing labeled bottles according to expectations, and occasional- ly taking presamples of the line. Employee Saracco's supervisor was Department Su- pervisor Jack Studt. This was simply a matter of choice rather than logic on the part of Plant Manager Contreras (as he indicated) in dividing up supervisory responsibil- ities between Studt and the first-shift foreman, Bevilac- qua. In practice Saracco turned to Bevilacqua more often than Studt when correction on the production line was needed; and in turn Saracco carried out certain re- quests Bevilacqua made, such as telephoning people to come in to work. Employee Saracco's pay in October 1977 was $4 per hour, and she punched a timeclock. It was conceded by Respondent that no employee reported to her, and there was no evidence that she supervised any of the other em- ployees. Employee Saracco's counterpart in quality control on the second shift (with whom on occasion she traded shifts) was Tessie Wangrycht. Though Wangrycht and Saracco had the same responsibilities, as Foreman Bevi- lacqua and Saracco pointed out, there was no contention that Wangrycht was a supervisor. Respondent's claim that Saracco exercised supervisory or, more accurately, managerial authority rested on two contentions. The first was that she had authority to stop a production line that was not labeling the bottles prop- erly. However, Saracco pointed out, without contradic- tion, that any one of thefeeder-packer-inspector girls who was doing inspection could do the same thing. Sar- acco testified that when she halted a production line she immediately reported to Foreman Bevilacqua, who pro- vided the necessary correction, but his decision con- trolled the restart. (Bevilacqua testified in accord.) The second contention was that employee Saracco hired new employees. Saracco testified that in the period August-December 1976, before Foreman Bevilacqua was brought in to supervise the first shift of therimage (Bevi- lacqua began as first-shift therimage department foreman in the third week of December 1976), Supervisor Studt was doing the hiring and asked her as a favor to do some of the job applicant interviewing and relieve him from being pulled off the production floor in their then busy season; but that when Bevilacqua came in, in December 1976, he did his own hiring including interviewing the aplicants. It should be noted that Vice President Tan- credi testified, on cross-examination, that it was Studt who decided on asking Saracco to assist him with the hiring, that Saracco was given no increase in pay for the additional duty but did get an extra $100 bonus at the end of the year 1976. Tancredi conceded he did not know if Saracco made evaluations of applicants, or how many employees she hired, or whether she merely called in previously approved applicants. Supervisor Studt agreed that he asked and used Sar- acco, in that rush summer period, to aid him in looking at job applicants before he obtained Bevilacqua as his first-shift foreman. There was no list of requirements for the job of feeder-packer-inspector, said Studt, because there was no special training or skill needed for the job, and Saracco's appraisal of the applicant amounted to as- certaining if the applicant had any physical handicap in the hands, and looking at the job application to see what type of work the applicant had previously done, if any. While Respondent preferred applicants who could read English, to pick up any defects in labels, said Studt, Sar- acco did not give any English tests. Studt said that, after Bevilacqua became foreman of the first shift, Saracco as- sisted Bevilacqua with job applicants; but what this amounted to, according to Bevilacqua, was handing her a batch of applications of persons who had been in and had filed, and having her telephone them to come in to work if available. Saracco testified that when Studt pre- viously had done the hiring he had followed a similar pattern in having her call in new people. Studt testified that he learned for the first time that Saracco was considered a supervisor at the December 1977 meeting when Saracco, Linderoth, and Gorski were told they were supervisors. No employee testified that he or she considered Saracco to be a supervisor, and em- ployee Garcia testified that she did not know, or regard, Saracco to be her supervisor. The use of employee Saracco as a temporary, part- time adjunct in the hiring process involved her purely in a routine process of gathering information for those charged with doing the hiring, plus notification of appli- cants whom Respondent was prepared to hire to report for work. This function did not require any managerial or supervisory judgment, and there was no basis for find- ing Saracco to have been a supervisor or part of manage- ment. She was an employee within the meaning of the Act. c. Linderoth's status Employee Robert Linderoth, whose employment began in January 1976, was the senior material handler of the eight material handlers on the second shift of the therimage department. He was an hourly paid employee who punched a timeclock and was paid (in the October- December 1977 period) $3.91 per hour. Employee Mi- chael Roberts, who began work with Respondent as a material handler on the same second shift 10 months later, was paid at the same rate of $3.91 per hour. The responsibility of the material handler was to pro- vide clear bottles for the line he was working and remove the labeled bottles in cartons. The line was horseshoe-shaped and, after the labeling was completed, the bottles came back to the point of origin and were automatically placed into boxes, which the material han- dler sealed, put on a skid, and removed to an area back of the line. All material handlers were expected to work on all lines, but on a rotation basis in order to spread the physical burdens, so that each handler shared the faster and slower lines over the period of the shift. Employee Linderoth's supervisor was the second-shift foreman, Alegre, who although in Respondent's employ at the time of the hearing was not proffered as a witness and did not testify. Linderoth testified that at the start of ---- ------ --- PERMANENT LABEL CORPORATION 135 the shift Alegre would hand Linderoth, as the senior ma- terial handler, a priority list of the day's projects, and Linderoth would assign each of the eight handlers, in- cluding himself, a starting line and the order of rotation. There was no need for making judgments as to which material handlers worked better or faster, said Linderoth, because the rotation would equalize the performance, as well as the burden, of the work. Linderoth said he took between I and 2 minutes to make the starting assign- ments and then worked manually at the production lines for the rest of the day. If any of the material handlers did not come in on a given day, it was up to Foreman Alegre to decide which lines would run when he handed Linderoth the priority list. Linderoth testified that, while in a "loose fashion" the rotation assignment function would seem to suggest that he was in charge of the material handlers, such was not the fact. The handlers usually reported their problems to Foreman Alegre, said Linderoth. Alegre checked them himself and, if they appeared to exist, might come to Linderoth for verification or consultation, as, for exam- ple, in the case of employee McNair who was fired for openly sitting on the production floor, which fact came first to Alegre's attention from other employes. Linder- oth testified that he did not have time to check if other material handlers were performing properly because he ran his own lines for the duration of the workday. Further, said Linderoth, if a handler ran out of stencils for marking the boxes, the handler went to the quality control girl for stencils. If the handler ran out of material from the warehouse, the handler would go to the forklift drivers to bring the material. If something went wrong with the counters that automatically filled the boxes, the handler would go to a line mechanic for assistance. Employee Linderoth testified that he had no authority to give time off or to correct timecards, that he did not attend production meetings or supervisors meetings, and that he received the same half-hour meal break and the same scale of vacation time alloted to all other employ- ees who were not supervisors. Respondent claimed that employee Linderoth partici- pated in the layoff process affecting material handlers. However, Linderoth testified that Foreman Alegre con- sulted him only for information on the seniority aspect in connection with layoffs, and Linderoth named employees Crespo and Wilder, in the category of lowest seniority layoffs, employee Bonafield a voluntary layoff, and em- ployee McNair, noted above, a discharge for sitting down on the job. In each of the cases, said Linderoth, the decision was Alegre's decision; and Alegre asked him to inform the employee of Alegre's decision. 25 Respondent never told employee Linderoth he was a supervisor until the preelection meeting of early Decem- ber 1977 when, for the first time, the three employees in- cluding Linderoth were told so. His chief, Department Supervisor Jack Studt, also learned of it then for the first time. The president of the company, Al Contreras, Sr., 2a Since Foreman Alegre did not testify and no reason for his failure to testify was offered, it may be inferred that his testimony would be un- favoraable to Respondent and would not contradict employee Linderoth, Goodyear Tire & Rubber Company Highway Transportation Department, 190 NLRB 84, 86, fn. 3 (1971), affd. 456 F.2d 465 (5th Cir. 1972). did not know of it until sometime after that meeting, and after he had had two conversations on the production floor with Linderoth.2 6 Significantly, Contreras testified that, during his conversations on the plant floor with Linderoth in December 1977, Linderoth was performing his regular work of feeding bottles into a hopper and moving boxes of labeled bottles from the production line. No employees testified that they regarded Linderoth as a supervisor, and six employees of therimage second shift (identified in sec. C above) testified that they did not know or regard Linderoth to be their supervisor or any employee's supervisor. At most, employee Linderoth's position among the material handlers of the second shift was that of lead- man, or lead person, the superior worker who exercised the control of a capable worker over less capable em- ployees, but who did not enjoy supervisory status in that capacity because he did not also share the power of man- agement, N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d 275, 279 (5th Cir. 1962). Congress intended to leave the leadman category under the protection of the Act, N.L.R.B. v. Security Guard Service, Inc., 384 F.2d 143, 146-148 (5th Cir. 1967). The kind of instructions he gave helpers on how to help did not denote the exercise of su- pervisory discretion or independent judgment, but only the exercise of routine authority, N.L.R.B. v. Whittin Machine Works, 204 F.2d 883, 886 (Ist Cir. 1953). The ultimate controlling judgment in regard to em- ployee Linderoth, as well as to employees Saracco and Gorski, is that neither their respective positions with Re- spondent, nor their respective responsibilities in those po- sitions, identified them with management, International Union of United Brewery, etc., Workers v. N.L.R.B., 298 F.2d 297, 303 (D.C. Cir. 1961), cert. denied sub nom. Gulf Bottlers, Inc. v. N.L.R.B., 369 U.S. 843 (1962). Lin- deroth, Saracco, and Gorski were employees within the meaning of Section 2(3) of the Act and were not supervi- sors (or managerial employees) within the meaning of Section 2(11). d. The 8(a)(1) violation Admittedly, Respondent had knowledge of the union activities of employees Linderoth, Saracco, and Gorski prior to the representation conference at the Board on November 29, 1977, if only from their participation with Union Organizer Acosta as part of the in-plant organiz- ing committee that requested union recognition in early November 1977.. I agree with General Counsel that Respondent's meet- ing thereafter, in early December 1977, of "assistant su- pervisors," aimed at Linderoth, Saracco, and Gorski, was part of a scheme, made obvious by the flimsy basis and timing of it, to eliminate three of the most active union supporters and to thereby discourage further union ac- tivities of other employees. Plant Manager Contreras' threat of discipline for the three employees, if they con- tinued providing assistance to the Union, was intended to a' The same was true in the cases of employees Saracco and Gorski, and in the case of all three employees President Contreras testified that he never saw any of them at a supervisors' meeting. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stamp out any further expression of prounion sentiments by them. Singling out union adherents in a special meeting with supervisors, to lecture and warn the employees about their union activities, has an intimidating and coercive effect upon their Section 7 rights, in violation of Section 8(a)(1) of the Act, Carolina Steel Corporation, 225 NLRB 20, 22-23 (1976); and the threat to discipline them, if the employees did not desist, aggravated the violation. The employer's mistaken impression or opinion that the em- ployees were supervisors is no defense to the 8(a)(l) vio- lation, Berton Kirshner, Inc., 209 NLRB 1081, 1087 (1974); Answering, Inc., 215 NLRB 688, 689 (1974).27 E. The 8(a)(3) Findings As summarized in sections B and C above, after a ten- tative, aborted start in early 1977, employee Daly initiat- ed the Union's organizing drive in the Clifton plant in September-October 1977. He recruited others, in and about the shop, leading to the union meetings of the em- ployees starting in mid-October and the establishment of the in-plant organizing committee; he was among the first to sign a union authorization card; and he solicited signing by other employees in the company parking lot and elsewhere. Daly interested his personal friend and coworker Eleanor Ott (who worked the second shift with him, accompanied him to and from work, and spent time with him on plant breaks) to become active, and she attended the October and later union meetings, discussed the Union with coworkers, signed a union authorization card, and became a member of the in-plant organizing committee. Daly had been warned earlier by Foreman Bevilacqua that he could be fired for talking for the Union, and was interrogated twice in late October by Bevilacqua about the union organizing. Without germane notice or warning, Respondent dis- charged employees Daly and Ott, notifying Daly out of hours in the early morning of November 2, 1977, and Ott at the plant a few hours earlier, at or about midnight of November 1, with the end of the second shift. (For all practical purposes both discharges were simultaneous and effective November 2.) Both employees were told that they were discharged because of their absences. Apart from the fact that the record of the absences of each was overstated and inaccurate, there was good cause for inferring that Respondent's stated reason for the discharge of Daly and Ott was not the real reason. Respondent's union animus was clear and unrelenting. As President Contreras stated, there had been attempts to organize the plant before this attempt, he was con- stantly vigilant against renewed attempts, and he had been successful in keeping out the Union. The summary of his actions in this case, together with the related ac- a? General Counsel is correct in pointing out that, even if employees Linderoth, Saracco, and Gorski were held to be supervisors, the warning and threat to them would still violate Sec. 8(a)(l), on the ground that the employer's action had the necessary and intended effect of interfering, not with the rights of the supervisors, but with the rights of nonsupervi- sory employees who become aware of the discrimination and are thereby coerced in the enjoyment of their own statutorily protected rights, Vada of Oklahoma, Inc., 216 NLRB 750, 759 (1975), and cases cited. tions of the other managerial and supervisory staff of Re- spondent, denoted a spirit and willingness to take any means deemed necessary to defeat the Union and to de- prive the employees of an untrammeled choice of a bar- gaining representative, including unlawful means. While most of Respondent's unfair labor practices occurred in the 2-month period immediately following the discharge of employees Daly and Ott, such actions were relevant to and reflected Respondent's attitude immediately prior to the discharge, Angwell Curtain Company, Inc. v. N.L.R.B., 192 F.2d 899, 903 (7th Cir. 1951). Respondent's awareness, before the discharge, that em- ployee Daly was engaging in union organizing activity was shown by Foreman Bevilacqua's interrogation of him concerning union organizing. In employee Ott's case, Respondent either knew, or correctly surmised, that she too was so engaged through her close relation- ship with Daly. A discharge motivated by the employ- er's belief or suspicion that an employee was engaging in union activity violates the Act, N.L.R.B. v. Clinton Pack- ing Co., Inc., 468 F.2d 953, 955 (8th Cir. 1972).28 Also, the fact that the plant was small (about 120 em- ployees) and divided into shifts (complement of the second shift about 40 employees) helps sustain an infer- ence of Respondent's knowledge of Daly's and Ott's union organizing activity, A to Z Portion Meats, 238 NLRB No. 57 (1978). Further, even if the direct evidence, which is present here, were not available on the issue of employer knowl- edge of the employees' union activity, such knowledge may reasonably be inferred from an obvious pretextual discharge; thus, the employer's knowledge of union ac- tivity may be proved by the same evidence used to es- tablish his antiunion motivation in discharging the em- ployees, N.L.R.B. v. Wal-Mart Stores, Inc., 488 F.2d 114, 117-118 (8th Cir. 1973). Respondent's contention that it did not know that there was union activity among its employees until the end of the day of November 3 (the day following dis- charge of Daly and Ott) was not credible. Vice President Tancredi and Plant Manager Doug Contreras claimed they were first told of the union activity at the end of the day of November 3, when the therimage department supervisor, Studt, burst into Tancredi's office, without knocking, to tell them there was a problem, a union was being formed. Tancredi said he asked Studt now did he know, and Studt replied, he overheard some discussion of it on the production floor. Tancredi told Studt to learn more. Tancredi testified that he was not overly concerned; he was not sure it was true or if true how serious. Nevertheless, he notified President Al Contreras Sr., although, said Tancredi, there was nothing of sub- stance to relate. Supervisor Studt testified that, at or about 4 p.m. of November 3 he was standing at the entrance to the cafe- teria engaged in conversation, when he heard voices just inside the cafeteria saying that a good turnout of employ- ees on the second shift had signed union cards. Studt fur- z2 An see L. B. Foster Company, 192 NLRB 319 (1971), holding that a layoff of employees sympathetic to a union and employees whose sympa- thies were unknown discouraged union activities of all employees and violated Sec. 8(aX3) of the Act. PERMANENT LABEL CORPORATION 137 ther testified that he did not know if the voices were the voices of employees or who the persons were, though by simply turning and looking, he said, he could have seen who they were; however, he was not interested, he said, even though he had never heard union talk in the plant before, and he continued his conversation with the person to whom he was talking, who, and the subject of the conversation, he could not remember. Studt said he went immediately to Tancredi's office, burst into his office, without knocking, 29 and told what he had overheard. Studt testified that Tancredi did not tell him to find out who were involved in the oragnizing or who were with the Union, but only to let him know if he heard anything more. What added a further touch of unreality to this testi- mony was that although Vice President Tancredi was not, as he said, overly concerned by Studt's report and was not sure that it was true, by early next morning, No- vember 4, he had already consulted a labor lawyer, whom he had not known before, had prepared a written speech opposing the Union, and assembled the employ- ees to formally launch Respondent's countercampaign against the Union. I think it was evident that Respondent had much more and earlier knowledge about the union organizing than it was willing to admit, well before No- vember 3; and, of course, Foreman Bevilacqua's interro- gation of employee Daly, in late October 1977, on union organizing, was an indicia of that. Thus, the discharge of employees Daly and Ott was the real opening gun in Respondent's countercampaign, and the second-shift employees sensed it and used the oc- casion of Respondent's November 4 speech to petition for reinstatement of Daly and Ott. Looking at the alleged reason for the discharge of Daly and Ott, their absences from work, while it was true that each had a record of absences, Respondent sought to exaggerate the record at the hearing. Even more significantly, in connection with the later reinstate- ment of Daly and Ott, Vice President Tancredi and President Contreras conceded that examination of Re- spondent's records revealed many more employees, with records of many absences, who were not discharged or disciplined for absences as Daly and Ott allegedly were. It was also established that Respondent had never given employees Daly and Ott any prior warnings or dis- cipline for absences. Respondent's concern regarding ab- sences did not become evident until the organizing drive of the Union began, which would indicate that prior thereto Respondent did not regard the absences as im- portant or had otherwise condoned the absences. Considering Respondent's intense hostility to the Union and the contemporaneous commission by Respon- dent of other unfair labor practices, the abrupt discharge of employees Daly and Ott, without notice or warning, for a pretextual reason, on November 2, 1977, leaves the inescapable inference that both were discharged because of their role in the ongoing union organizing campaign, in order to discourage union activities and union mem- bership of Respondent's employees, in violation of Sec- 29 Everyone who testified about this incident, including President Al Contreras, Sr., who was not there, remembered it was "without knock- ing." tion 8(a)(3) and (1) of the Act. And see Borek Motor Sales, Inc. v. N.L.R.B., 425 F.2d 677, 680-681 (7th Cir. 1970), cert. denied 400 U.S. 833, holding that even the presence of valid grounds for an employee's discharge does not legalize a dismissal which was nevertheless due to a desire to discourage union activity. The reinstatement of employees Daly and Ott on No- vember 16, 1977, and the commutation of the discharge to suspension without pay for 2 weeks, did not purge the discriminatory motive of the discharge but merely re- duced the extent of the discriminatory discipline. F. The 8(a)(4) Findings The facts concerning and surrounding the attendance of employees Roberts, Linderoth, and Ott at the Board conference of November 29, 1977, to assist the Union on the representation petition, were detailed in section C, above. They attended during the day on their own time, not on company time; and, when it appeared that the Board conference might extend beyond the 4 o'clock start of their shift, agreed that employee Roberts should notify the plant beforehand. He called at or about 3:30 p.m., when it looked like the three of them would no longer be involved in the conference, and informed Su- pervisor Sanders where they were and that they could arrive at the plant about 5 or 10 minutes late. However, Vice President Tancredi, who was attending the Board conference for Respondent, had already called the plant ahead of employee Roberts, without talking to any of the three employees, to advise Plant Manager Contreras that there were three second-shift employees at the conference who he did not believe could get to work on time. As a result of Tancredi's call, Contreras claimed he made arrangements for other employees to cover the places of the three employees, and told Super- visor Sanders to tell Roberts and the other two not to come in. Sanders told Roberts that Respondent had insti- tuted a policy that employees who did not start the shift on time would not be permitted to work, and the three should not bother to come in that day but consider them- selves suspended without pay for the day, and report for work the next day. If this was a policy, it was new and unannounced pre- viously, and was contrary to existing company practice that did not exclude employees from work who arrived late (whether on advance notice or not). In my view, the I-day suspensions of the three em- ployees, who attended the Board conference on Novem- ber 29 to assist the Union in the matter of the representa- tion petition, were discriminatory and retaliatory actions against them by Respondent, because of their assistance to the Union. As such, the actions violated Section 8(a)(4) of the Act, which protects employees against em- ployer reprisals in their attendance at, or participation in, Board proceedings, whether they are formal or informal or investigative, or whether the employees attend or par- ticipate under subpena or voluntarily, N.L.R.B. v. Robert 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Scrivener, d/b/a AA Electric Company, 405 U.S. 117 (1972).30 G. The Bargaining Unit and Union Majority The parties stipulated in the representation case that an appropriate unit comprised: All employees employed by the Employer at its Clifton, New Jersey facility but excluding all office clerical employees, professional employees, manage- rial employees, guards, assistant supervisors and all other supervisors as defined in the Act. The parties also stipulated that when the Union made its request for recognition on November 11, 1977, the unit consisted of at least 118 employees, plus a possible additional 8 employees depending on determination of the status of each. I have already determined that employees Daly and Ott, who were discharged and retroactively in suspen- sion for the period that included November 11, 1977, had been unlawfully discharged and suspended and were part of the unit as of November 11 (see sec. E, above). I have also determined that employees Linderoth, Saracco, and Gorski were not supervisors within the meaning of the Act (see sec. D, q, a, b, and c (above)) and, of course, they are not assistant supervisors or supervisors as those terms are used in the stipulation of the appropriate unit. Therefore, all three of them were properly part of the unit on November 11, 1977. Adding these 5 employees brings the unit to 123 employees. i. Stanley Newick's status One of the remaining three persons whose status re- quires determination is Stanley Newick, employed by Respondent 14 years. Prior to his present post, he was in charge of plant production. At the time of the hearing and for the prior 4 years, Newick had been in charge of plant maintenance, as he testified. As such he had two employees in his charge, John Slavick and Steve Phillips, whose work he direct- ed. The plant maintenance of which Newick was in charge did not include the plant production machinery, which was separately cared for as discussed infra, but covered all else, in the plant, including building repair and cleanliness, and maintaining the exterior, including the grass. In addition, Newick was in charge of labels and had responsibility for inventory control of labels. He did buying of materials, for which he issued purchase orders pledging the Company's credit. He had separate office space, and also a special stockroom. He had a key to the plant. Newick was paid a salary of $350 per week, whereas unit employees are paid on an hourly basis and receive 'o Respondent's reliance on John Wanamrnaker. Philadelphia, Inc., 199 NLRB 1266 (1972), for authority to discipline these employees unless they were attending the Board conference pursuant to subpena, is mis- placed. In that case a majority of the Board found that two employees who had not engaged in union activity were legitimately discharged for failing to clock out on 2 days for which they expected to be paid, and had absented themselves for "personal reasons. less than half this amount. He was not additionally com- pensated for overtime as unit employees are, and did not punch a timeclock as unit employes are required to do. His yearend bonus for 1977 was $1,500, more than four times the amount received by unit employees. He re- ceived Blue Cross-Blue Shield and insurance coverage totally paid for by Respondent, whereas unit employees were required to pay half the Blue Cross-Blue Shield premiums and were not eligible for the company life in- surance plan. In connection with the employees under his direction he initialed their timecards where there were irregular- ites, granted permission to leave work early, and effec- tively recommended a pay raise for employee Slavick. Newick reported directly to Plant Manager Doug Contreras. Contreras, in his testimony, made the claim that Newick was simply a general utility man, but did not contradict the details of Newick's testimony, as sum- marized above. Newick's testimony credibly refuted Contreras' claim. I find that Stanley Newick possessed sufficient indicia of supervisory status and identity with management to be classified as a supervisor within the meaning of the Act. As such he is excluded from the bargaining unit. 2. Status of Bubrowski and Rechsteiner Leonard Bubrowski had been employed by Respon- dent since December 1970; Robert Rechsteiner was a more recent employee, having started in May 1976. While they described themselves as "machinists and maintenance mechanics," basically their work was to build and repair production equipment. In their terminol- ogy, building meant assembling and reassembling the parts of existing equipment into different configurations for different jobs, and testing the newly assembled equip- ment before it was put on the production floor. Thus their principal work was done in a separate area of the plant, away from the production floor, each at his own workbench. They appeared to work independently of each other, with Rechsteiner concentrating more than Bubrowski on new equipment. Their supervisor was the plant engineer, Arthur Peck, who provided them with sketches and blueprints from which to assemble the equipment. Both Bubrowski and Rechsteiner had special schooling, and on-the-job train- ing in other industrial plants, as machinists before coming to Respondent. Neither of them required constant super- vision by Plant Engineer Peck. They worked with spe- cial tools and needed ability to read the sketches and blueprints provided them. Both are considerably different, in schooling, training, skills, and functions, from the production line mechanics (such as was Bernard Daly) who set up the new assem- blies on the production lines and did any needed correc- tions of malfunctioning or breakdown that could be done in place on the floor. When the corrections could not be done on the floor, the equipment would be taken to the workbench of either Bubrowski or Rechsteiner and done there. Occasionally either one of them would try to do the needed repair work on the production floor, usually in connection with things of which he had special PERMANENT LABEL CORPORATION 139 knowledge and the line mechanic did not (such as a compressor or certain therimage equipment). The foregoing differences help explain the difference in compensation between machinist-mechanics Bu- browski and Rechsteiner, on the one hand, and the pro- duction and maintenance employees on the other. Bu- browski was paid a salary of $325 per week and the Company paid for all his medical and insurance cover- age. Rechsteiner, much junior in point of service to Bu- browski, was hourly paid like most employees, except that his rate was $6.60 per hour, about double the rate for other employees. General Counsel contends that Bubrowski and Rech- steiner had a special status-as managerial employees- and were thereby excluded from the stipulated bargain- ing unit and that I should so find. The difficulty with the contention is that, while Bu- browski and Rechsteiner may have had a special status, it was not that of managerial employee, as that term or status has been developed by the Board and the courts, but more accurately was that of technical employee. To be a managerial employee, the employee must be one who formulates and effectuates management policies by expressing and making operative the decisions of the employer, N.L.R.B. v. Bell Aerospace Company, Division of Textron, 416 U.S. 267 (1974). That description does not appear to fit Bubrowski or Rechsteiner. Indeed, in unit determinations the Board has distinguished between managerial employees and technical employees, who may exercise some independent judgment in carrying out their functions but based essentially on their technical knowledge, see, for example, American Standard, Inc., Industrial Products Group, Industrial Products Division, 237 NLRB 45 (1978). If the two employees in issue were managerial employ- ees, they would no doubt be excluded from the unit by operation of law as are supervisors, Bell Aerospace. supra, but technical employees are not excluded by operation of law, and under the cases are not automatically excluded from unit determinations, but may be excluded in a unit determination on a finding of lack of community of inter- est with the other involved employees, The Sheffield Cor- poration, 134 NLRB 1101, 1103-05 (1961). Here, I am not involved in a unit determination to de- cided what is an appropriate unit. Rather, my function is to determine whether the two challenged employees were part of the unit to which the parties stipulated as appropriate for their purposes. The parties agreed upon a unit of all employees except specified classes. In my view Bubrowski and Rechsteiner were technical employees and as such were neither expressly excluded from the stipulated unit by the listed exclusions, such as managerial employees, professional employees, or super- visors, nor excluded by implication.s ' Adding these two employees to the unit brings the final unit count to 125 employees. sl As, for example, if the affirmative inclusion had been "all produc. tion employees" rather than "all employees." arguably there might have been an implied exclusion of technical employees, particularly those who did not share a community of interest with production employees. 3. The union majority At the hearing General Counsel produced 71 valid union authorization cards signed by employees of Re- spondent. The Union had obtained 67 of them by No- vember 11, 1977, when it made its request for recogni- tion, and the other 4 cards came in shortly thereafter in November. 32 The cards explicitly designated the Union as the bargaining representative of the signatory employ- ees. The Union had a majority of the 125 bargaining unit employees. 3 3 H. Setting Aside the Election The Union's unresolved objections in the representa- tion case to the conduct affecting the results of the elec- tion were encompassed in the unfair labor practices alle- gations of the complaint. The commission of these unfair labor practices has been established, and a fortiori the Union's objections to the conduct of the election have been established. These substantial violations by Respon- dent of Section 8(a)(l), (3), and (4) of the Act interfered with the free choice of the unit of Respondent's employ- ees at the Clifton plant in the December 30, 1977, elec- tion, and therefore destroyed the "laboratory condi- tions," Neuhoff Bros Packers, Inc. v. N.L.R.B., 362 F.2d 611, 613 (5th Cir. 1966), desirable for the conduct of a Board election. Accordingly, the results of the Decem- ber 30, 1977, election must be set aside. I. The 8(a)(51 Finding, Bargaining Order The question arises whether a rerun election would be an adequate remedy, or would appear to be a futile act that would permit Respondent to benefit by its miscon- duct in the preelection period, requiring instead the remedy of a bargaining order under the principles enun- ciated in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575. In Gissel the Supreme Court recognized two categories of unfair labor practices committed by an employer where a bargaining order would be the more appropriate remedy. 32 In addition to authentication of some of the cards by the signers, a large number were proven by a handwriting expert, comparing the signa- tures with signatures on records held by Respondent. The purpose of using this method was to avoid loss of working time by the employees involved and disruption of the plant's operation. The method has been sanctioned, Aero Corporation, 149 NLRB 1283, 1287 (1964), enfd. 363 F.2d 702 (D.C. Cir. 1966), and there was no objection to the authenticity of the 71 cards. 3S In connection with its contention that employees Linderoth, Sar- acco, and Gorski were supervisors, Respondent argued that their authori- zation cards were invalid, and any given out or obtained by them were tainted and also invalid. The argument falls, of course, with the holding above that Linderoth, Saracco, and Gorski were not statutory supervi- sors. Nevertheless, General Counsel has validly counterargued, with full documentation in the brief, that if the supervisory holding were the other way, while the cards of the three "assistant supervisors" would be ex- cluded, the signed cards identified as distributed or obtained by any of the three would not be automatically tainted and eliminated; and, the facts covering these cards (referred to in sec. C., above) showing an ab- sence of pressure or coercion, would sustain their validity, and still leave a union majority of 68 cards in the unit reduced to 122. In view of my disposition of the supervisory contention, it would appear unnecessary to deal at length with the arguments. Respondent has not otherwise chal- lenged the validity of the 71 authorization cards. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The first category involves "outrageous and perva- sive" unfair labor practices, the coercive effects of which cannot be eliminated by application of traditional reme- dies, with the result that a fair and reliable election or rerun election cannot be had. In such cases, the Board may issue a bargaining order without inquiring whether the union possessed a card majority, 395 U.S. at 613-614. The second category involves "less pervasive" unfair labor practices which nonetheless still have the tendency to undermine majority strength and impede the election processes. In this situation, the Board may issue a bar- gaining order if the union had at one point a valid major- ity and the Board finds that the possibility of erasing the effects of the unfair labor practices and of ensuring a fair election or rerun election by the use of traditional reme- dies, though present, is slight, and that employee senti- ment once expressed through cards would, on balance, be better protected by a bargaining order, 395 U.S. at 614-615. In the case at bar, upon becoming aware that the Union had begun organizing and was seeking representa- tive status, Respondent engaged in a campaign designed to thwart the organizing and destroy any majority the Union may have succeeded in obtaining. Commencing about 2 weeks before the Union requested recognition on November 11, 1977, Respondent engaged in 8(a)(1) inter- rogation of the leading union proponent among the em- ployees concerning organizing, then discharged him, and a coworker associated with him in organizing activity, in violation of Section 8(a)(3), and launched a countercam- paign against the Union affecting all employees, starting with "captive audience" employee meetings used to convey its antiunion hostility and to sound warnings of the dire consequences of bringing in the Union. When the Union requested and was refused recognition on No- vember 11, it had a valid card majority of 67 in the unit of 125 employees, which was later increased to a major- ity of 71. Respondent continued its countercampaign during No- vember and December until the election of December 30, with its president interviewing every employee on the plant floor between one and five times each, fol- lowed by a final "captive audience" speech; and by its vice president, plant manager, department heads, and shift foremen engaging in discussions with employees on and off the plant floor. In the course of this barrage of campaigning against the Union, Respondent's officers and supervisors overstepped the bounds of legality many times. Employees were promised benefits and correction of solicited grievances if they would forget the Union, and threatened with no correction of grievances and loss of jobs if they brought the Union in. A substantial group of employees, not entitled to yearend bonuses under Re- spondent's written policy, were paid a bonus along with the other employees just prior to the election. Respon- dent illegally interfered with the employees' self-organi- zational rights by coercive interrogation concerning their union interest, interference with wearing of union insig- nia, interference with employee solicitation of union memberships, and distribution of union literature by pro- mulgation and enforcement of illegal rules, coercion to induce influential employees to induce other employees to cease union support, threatening discharge of three leading union supporters unless they ceased union activi- ties under a sham claim that they were supervisors, and disciplining three employees for attendance at a Board conference to assist the Union on the representation peti- tion. In sum, Respondent sought to impress upon the em- ployees the futility of voting the Union in, and that there would be harsher dealing and reprisal if they did. The mass of violations of Section 8(a)(1), (3), and (4) of the Act constituted egregious unfair labor practices, which had the tendency to undermine, and undermined, the Union's majority strength in the election of December 30, 1977, and prevented the holding of a fair election. By refusing to recognize and bargain with the Union, as requested on November 11, 1977, and instead engag- ing in this course of unlawful conduct which undermined the Union's majority status and prevented the holding of a fair election, Respondent also violated Section 8(a)(5) of the Act, Trading Port, Inc., 219 NLRB 298, 300-301 (1975). Under the circumstances of this case, the sentiment of the unit employees expressed through the union authori- zation cards is a more reliable measure of their desires on the issue of representation than the election held Decem- ber 30, 1977. To remedy Respondent's unfair labor prac- tices, including its 8(a)(5) refusal to bargain, a bargaining order is necessary, whether the violations be viewed as category one unfair labor practices under Gissel, supra, see J. P. Stevens & Co., Inc., Gulistan Division v. N.L.R.B., 441 F.2d 514, 521-522 (5th Cir. 1971), cert. denied 404 U.S. 830, or as category two unfair labor practices, see N.L.R.B. v. Kaiser Agricultural Chemicals, etc., 473 F.2d 374, 382-383 (5th Cir. 1973). The bargain- ing order will be issued as of the end of October 1977, when Respondent embarked on its course of unlawful conduct. 34 CONCLUSIONS OF LAW i. In October-December 1977, by soliciting grievances and promising benefits and correction of grievances if the employees would forget the Union, and by threaten- ing no correction of grievances and loss of jobs if they brought the Union in; by granting bonus benefits, just prior to the election; by coercive interrogation of em- ployees concerning organizing, who supplied union cards, and employee interest in the Union; by interfering with the employees wearing union insignia; by promul- gating and enforcing rules prohibiting solicitation by em- ployees of union memberships in plant work areas on nonworktime, and distribution of union literature by em- ployees in nonwork areas during nonworktime; by coer- cion to induce or attempt to induce influential employees to induce other employees to cease union support; and by instructing nonsupervisory employees, under threat of discipline, to cease support of the Union, Respondent en- gaged in unfair labor practices in violation of Section 8(a)(l) of the Act. 34 This date, although earlier than the November II date of refusal of recognition, is more comprehensive and justified under Trading Port, 219 NL.RB at 301, and see Broadmoor Lumber Company, 227 NLRB 1123, fn. 2 1977), commenting on a similar point. PERMANENT LABEL CORPORATION 141 2. By discharging employees Bernard Daly and Elea- nor Ott on November 2, 1977, because of their union ac- tivity and to discourage employees' interest and member- ship in the Union, Respondent engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. The change of their discharge, on November 16, 1977, to suspension without pay for the prior 2 weeks, reduced the severity of the discriminatory action but continued the violation of Section 8(a)(3) and (1) of the Act. 3. By suspending for I day without pay, on November 29, 1977, employees Michael Roberts, Robert Linderoth, and Eleanor Ott, because they attended a Board confer- ence to assist the Union with the representation petition, Respondent engaged in unfair labor practices in violation of Section 8(a)(4) of the Act. 4. By refusing to recognize and bargain with the Union as representative of a majority of the employees as requested on November 11, 1977, but instead engaging, from the end of October to the end of December 1977, in commission of the unfair labor practices enumerated in paragraphs 1, 2, and 3 above, Respondent undermined the majority in the unit of employees that the Union rep- resented, and made impossible the holding of a fair rep- resentation election. Respondent's refusal to bargain and embarking upon this course of misconduct constituted an unfair labor practice in violation of Section 8(a)(5) of the Act. 5. The described unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent's preelection unfair labor practices nulli- fied the results of the December 30, 1977, representation election, and these unfair labor practices cannot be cor- rected by conventional remedies, including a rerun elec- tion. Accordingly, it is appropriate and necessary that Respondent be ordered to bargain with the Union as of the end of October 1977, when it first embarked upon its course of misconduct to undermine the union majority and prevent the holding of a fair election. THEi. RELNEtD It will be recommended that the Respondent: (I) Cease and desist from its unfair labor practices. (2) Give backpay to employees Daly and Ott for the time of their suspensions, November 2 to 16, 1977, and to employees Roberts, Linderoth, and Ott for the day of their suspensions, November 29, 1977, said backpay to be computed on a quarterly basis as set forth in F W Woo/- worth Company, 90 NLRB 289 (1950), approved in N.L.R.B. v. Seven-Up Bottling Co., 344 U.S. 344 (1953), with interest as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). 3 5 (3) Bargain with the Union, upon its request. (4) Post the notices provided for herein. Because the Respondent violated fundamental employ- ee rights guaranteed by Section 7 of the Act, and be- cause there appears from the manner ,if the commission of this conduct an attitude of opposition to the purposes of the Act and a proclivity to commit other unfair labor 13 See, generally, lvis Plumnlg & Heating c(a, 138 NLR8 716 (1962[ practices, it will be further recommended that the Re- spondent: (5) Cease and desist from in any manner infringing upon the rights guaranteed by Section 7 of the Act. :.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941); P. R. Mallory and Co. v. N.L.R.B., 400 F.2d 956, 959-960 (7th Cir. 1968), cert. denied 394 U.S. 918 (1969). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER36 The Respondent, Permanent Label Corporation, Clif- ton, New Jersey, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Coercively interrogating employees as to their union organizing, as to who is supplying them with union cards, and as to their interest in District 65, Dis- tributive Workers of America. (b) Threatening employees with loss of jobs if employ- ees bring in the above-named Union. (c) Threatening no correction of grievances if employ- ees bring in the Union. (d) Discharging, suspending, or otherwise disciplining employees for engaging in union activities. (e) Soliciting grievances and promising benefits or cor- rection of grievances to induce employees to abandon the Union. (f) Granting bonuses or other benefits to induce em- ployees to abandon the Union. (g) Interfering with employees' wearing of union insig- nia. (h) Instructing employees under threat of discipline to desist from engaging in union activities. (i) Promulgating or enforcing rules prohibiting solicita- tion by employees of union membership in plant work areas on nonworktime, or distribution of union literature by employees in nonwork areas during their nonwork- time. 0() Coercively inducing or attempting to induce influ- ential employees to induce other employees to cease sup- port of the Union. (k) Suspending or otherwise disciplining employees for attending Board conferences to assist the Union in con- nection with union representation of the employees. (I) Discouraging employees from support of, or mem- bership in the Union or any other labor oraganization, by discharge, suspension, or other discrimination affecting their tenure or other condition of employment. (m) Refusing, upon request, to bargain with the Union as the exclusive collective-bargaining representative of the unit of Respondent's Clifton plant employees de- scribed in section G of this Decisiotn. I the1 CLClit noi cJ.lpionls are fileld : pr l tided bh Scc 112 46 of the Rulc. :lld Rcgul.:i..s *i f the Nalional .aboi r 1ci}tio n H Ioard. the findinllg, ,lclusilln,, . id rccomrlmended O()idcr herein shall. as provided it Sec I102 4 of the Rules and Reyulaill(on,, he adopted by the Board and hccroucl I idings. conclusiolns, and Order, and dl; objections thereto shall be delemcd .aived for ll purposes 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (n) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Upon request, as of the end of October 1977, bar- gain collectively with the Union as the exclusive collec- tive-bargaining representative of the above-described unit of Respondent's Clifton plant employees, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if an agreement is reached, embody the agreement in a written contract. (b) Make employees Bernard Daly and Eleanor Ott whole, in the manner set forth in the section of the Deci- sion entitled "The Remedy," for any loss of earnings in- curred by each as a result of their discharge reduced to suspension from November 2 to 16, 1977, and in the same manner make employees Michael Roberts, Robert Linderoth, and Eleanor Ott whole for the loss of earn- ings incurred by each as a result of their suspension for the day of November 29, 1977; and expunge from Re- spondent's records references to any discipline of such persons on these occasions. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (d) Post in the Clifton, New Jersey, plant copies of the attached notice marked "Appendix."3 7 Copies of said notice, on forms provided by the Regional Director for Region 22 (Newark, New Jersey), after being duly signed by one of its authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. S' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."