Poly Ultra Plastics, Inc.

POLY ULTRA PLASTICS, INC. Poly Ultra Plastics, Inc. and United Steelworkers of America, AFL-CIO-CLC. Cases 6-CA-8714 and 6-RC-7276 August 30, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On November 18, 1976, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and the General Counsel filed limited excep- tions to the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge, to modify his remedy, 3 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Poly Ultra Plastics, Inc., Ridgway, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order except that the attached notice is substituted for that of the Administrative Law Judge. IT IS FURTHER ORDERED that Case 6-RC-7276 be severed and remanded to the Regional Director for Region 6 and that said Regional Director shall take the action set forth by the Administrative Law Judge in his recommended Order concerning the challenges and objections in that case. The Administrative Law Judge found that Respondent did not violate Sec. 8(a)(l) of the Act by comments allegedly made by its president. Allen, to employee Frantz regarding changes in pay and vacations if the Union came into the plant. In the absence of exceptions thereto. we adopt these findings proforma. z While we agree with the Administrative Law Judge that Respondent's involvement in the November 8, 1975. petition did not violate Sec. 8(aX)I) of the Act. we note that three, not two, employees were present when the petition was prepared. :1 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977). we shall apply the current 7-percent rate for periods prior to August 25. 1977. in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. 231 NLRB No. 124 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Act gives all employees these rights To engage in self-organization To form, join, or help a union To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOr do anything that restrains or coerces you with respect to these rights. More specifically: WE WILL NOT issue warning letters or repri- mands, reduce wage rates, place on probation, or deny recall to laid-off employees, or in any other manner discriminate against employees because they join or support United Steelworkers of America, AFL-CIO-CLC, or any other labor organization. WE WILL NOT maintain rules prohibiting you from discussing any grievances during nonwork- ing time nor will we maintain a rule prohibiting you from engaging in work stoppages under circumstances protected by the National Labor Relations Act. WE WILL NOT threaten to blacklist employees who show an interest in representation by a union. WE WILL NOT question our employees concern- ing their union activity. WE WILL NOT segregate employees for the purpose of limiting union activity. WE WILL offer immediate reinstatement to June Haines and Valerie Marzella, giving Marzella the same hourly wage rates she enjoyed before the discrimination against her, and giving them backpay, plus interest. WE WILL delete and expunge from our records all reference to the warning letters issued against Valerie Mazella, dated October 10 and 28, 1975. WE WILL make whole June Haines and Cathy Steger for the loss of earnings they sustained by reason of the discriminatory layoff of October 14 through October 22, 1976, with interest. POLY ULTRA PLASTICS, INC. 787 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: Upon an unfair labor practice charge filed on October 17, 1975, a complaint was issued on May 25, 1976, alleging that Respondent violated Section 8(a)(l) of the Act by coercive- ly interrogating employees concerning union activity; making various threats of reprisal for engaging in union activity; participating in the preparation and circulation of an antiunion petition; creating the impression of surveil- lance; and maintaining a work rule threatening employees with immediate dismissal for engaging in activities protect- ed by the Act. The complaint, as amended, further alleges that Respondent violated Section 8(a)(3) and (1) of the Act by issuing a warning letter on October 14, 1975, reducing the pay, and placing on probation employee Valerie Marzella; on October 14, 1975, laying off employees June Haines and Cathy Steger for approximately 1 week; and on November 14, 1975, terminating employees Valerie Mar- zella and June Haines, all because of union activity. The complaint, as amended, also alleges that said termination of June Haines violated Section 8(a)(4) of the Act. In its duly filed answer, Respondent denied that any unfair labor practices were committed. Pursuant to a representation petition filed in Case 6-RC- 7276 on October 16, 1975, and a Decision and Direction of Election issued by the Regional Director for Region 6 on February 17, 1976, an election by secret ballot was conducted on March 15, 1976, among the employees in the unit found to be appropriate. The results of that election show that, of approximately 9 eligible voters, 10 ballots were cast, of which 2 were for, and 4 against, the Petitioner, with 4 determinative challenges. Thereafter, the Petitioner filed timely objections to conduct of the election. On May 25, 1976, the Acting Regional Director for Region 6 issued his "Order Directing Hearing on Challenged Ballots and Objections and Notice of Hearing" in which he concluded that challenges to the ballots of Valerie Marzella, Mary Lou Leslie, June Haines, and Steve Martin, as well as Petitioner's objections, raised issues best resolved by a hearing. Accordingly, since certain of these issues were encompassed in a complaint to issue against the Employer in Case 6-CA-8714, by order dated May 25, 1976, the Acting Regional Director for Region 6 consolidated Case 6-CA-8714 with Case 6-RC-7276 for hearing, ruling, and decision by an administrative lawjudge. Pursuant thereto a consolidated hearing was conducted before me in Ridgway, Pennsylvania, on August 10, 1976. After close of the hearing a brief was filed by the General Counsel. Upon the entire record in this proceeding, including my observation of the witnesses while testifying and consider- ation of the posthearing brief, I find as follows: I All dates refer to 1975 unless otherwise indicated. I Following a hearing in Case 6-RC 7276, Mark Marzella was found to be a supervisor within the meaning of the Act. I. THE BUSINESS OF THE EMPLOYER Respondent-Employer is a Pennsylvania corporation with its sole facility located in Ridgway, Pennsylvania, from which it is engaged in the manufacture and nonretail sale of expanded polystyrene products. During the 12- month period preceding issuance of the complaint, a representative period, Respondent shipped goods valued in excess of $50,000 from its Ridgway, Pennsylvania, facility directly to points outside the Commonwealth of Pennsyl- vania. The complaint alleges, the answer admits, and I find that Respondent-Employer is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Petitioner-Charging Party, United Steelworkers of Ameri- ca, AFL-CIO-CLC, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issues in this case are essentially factual and relate in the main to the period contemporaneous with an initial union campaign among Respondent's previously unrepre- sented employees. A number of independent 8(a)(I) violations are imputed to Respondent, as well as varied acts of discrimination, including the issuance of formal warnings, the cutting of wage rates, layoffs, and the failure to recall employees. It is also alleged that Respondent terminated and denied recall to an employee in violation of Section 8(a)(4). B. Background Respondent is a small manufacturing operation engaged in the production of styrofoam packing materials. As of mid-October 1975,1 its work force consisted of only 14 production and maintenance employees. No union has ever represented Respondent's employees. Valerie Marzella, together with her brother, Mark,2 made the initial contact with the Union. Thus, in late September or early October, Mark Marzella circulated a petition amongst Respondent's employees urging them to sign if they wished representation by a labor organization. During this same time period, Arthur Kistler, a staff representative of the United Steelworkers Union, through the Marzellas, arranged and conducted a meeting with Respondent's employees at the Moose Hall in Ridgway. That meeting was attended by some eight to nine employees. Thereafter, employees met at the Marzella home; all of Respondent's employees attended, except three or four who worked on the night shift. At that time, a number of employees signed DECISION 788 POLY ULTRA PLASTICS, INC. authorization cards designating the Union as their repre- sentative. On October 13, 1975, Kistler, in the company of another union representative, visited Edmond Allen, Respondent's president. After introducing himself, Kistler handed Allen a letter, evidencing the Union's claim of majority status among Respondent's employees, offering a third party card check, and demanding recognition and bargaining. Allen admitted that he was "absolutely shocked" at this turn of events, and according to the uncontradicted and credited testimony of Kistler, Allen informed Kistler that the plant was not making money and that he would "shutdown," "file for bankruptcy," or sell the plant. On Tuesday, October 14, 1975, Valerie Marzella was given a warning letter, dated October 10, 1975, citing her with "insolence and verbal abuse ... directed toward . . . supervisors," and withdrawing a 10-cent increase given her on September 28, 1975, removing a 25-cent increment related to her prior position as bookkeeper-leader, and placing her on a 2-week probation.3 Also on October 14, 1975, employees June Haines and Cathy Steger were given a I-week layoff. Despite this layoff, Respondent hired new employees Barbara Carr, Debbie Warmbrodt, and Diane Northrup on October 13, 15, and 24, respectively. On October 16, 1975, the Union filed a petition in Case 6-RC-7276. In addition, the Union filed the unfair labor practice charges giving rise to this proceeding on that same date, alleging that Respondent demoted Valerie Marzella and laid off Haines and Steger in violation of Section 8(a)(3) of the Act. On October 28, 1975, Valerie Marzella received her second formal warning, reciting that she had demonstrated an "insolent and disrespectful attitude towards the supervi- sion . . . particularly on October 24, 1975," and further charging that, since her prior reprimand, her work performance had still not met expectations. The letter goes on to state that this was a final warning and that: "Any further displays of insolence, defiance, disrespectfulness or inferior workmanship will result in . . . immediate dis- charge." 4 On November 5, 1975, a preelection hearing was held in Case 6-RC-7276. On Saturday, November 8, 1975, Allen at the home of an employee, on request of two employees, assisted in the preparation of a petition, whereby signers indicated their request for withdrawal of their authorization cards. On November 14, 1975, Haines and Valerie Marzella together with four other employees were laid off. Only Haines and Marzella were not recalled. The foregoing chronology furnishes the background for the significant events placed in issue by the complaint, as discussed fully below. :' See G.C. Exh. 4. See G.C. Exh. 5. : I discredit the denial of Allen and Moyer that any reference to unions and blacklisting was made on that occasion. As between them, I consider Marzella the more credible witness. It is noted that Marzella received some corroboration from Judy Frantz. an incumbent employee, who on cross- examination by Respondent's counsel, related that Marzella, at the time of this meeting, informed Frantz as to Allen's blacklisting threat. On the other hand. the testimony of Allen and Moyer throughout this proceeding was C. Miscellaneous Instances of Interference, Restraint, and Coercion 1. Valerie Marzella testified that sometime in May 1975, well prior to any contacts with the Union, she went to Allen's office in the company of Respondent's plant manager, Jesse Moyer, to protest the absence of sufficient breaks for the female employees. On that occasion, according to the credited testimony of Marzella, Allen resisted her demands, stating, among other things, that if employees sought out a union, "he'd blackball us all over town and we wouldn't be able to get a job anywhere." Based upon her credited testimony I find that Respondent thereby violated Section 8(aX I) of the Act.5 2. At all times material, Respondent posted and maintained a set of "work rules." The published rules included the following: Employees will not become involved in on the floor discussions concerning work rule violations committed by himself or other employees. This restriction, when violated, subjects employees to prescribed forms of discipline. Section 7 of the Act gives employees a right, without fear of discipline or intervention by their employer, "to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection .... " The General Counsel correctly observes that this rule is unlawfully broad insofar as it tends to restrict employees from concerted action relative to terms and conditions of employment on nonworking time. It is of no moment that Respondent intended the rule to have a more narrow and legitimate operative scope, for from all appearances this limitation was never communi- cated to employees. Accordingly, I find that Respondent by maintaining this rule violated Section 8(aX )(1) of the Act. The work rules also include a second provision which provides as follows: Employees who take part in any work slowdown or work stoppage are subject to immediate dismissal. Section 7 of the National Labor Relations Act protects the right of employees to withdraw their services from an employer and to engage in a strike, subject to express statutory limitations. 6 Here again the rule's threat of discipline restrains and coerces employees without differ- entiating between protected and unprotected strike action, and accordingly this provision of Respondent's rules also violates Section 8(aX)(1) of the Act. 3. Kistler testified, and Allen acknowledged, that in the course of their meeting on October 13, when the Union demanded recognition, Allen received a telephone call from employee Darla Zuchelli. Kistler testified, without often improbable and the substance thereof and their demeanor convincing- ly suggested that they had something to hide. 6 Sec. 13 of the Act, as amended, provides as follows: Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications of that nght. 789 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contradiction, that Allen asked her if she had signed a union card. 7 By this inquiry to a rank-and-file employee, during early stages of an organizational drive, I find that Respondent engaged in coercive interrogation violative of Section 8(a)(1) of the Act. 4. An allegation that Respondent violated Section 8(a)(I) by threatening reduced wages and benefits if employees engaged in union activity is based upon the testimony of Judy Frantz. According to Frantz, in mid- October, while discussing the pros and cons of the Union with fellow employee, Scott Jacobs, Allen approached them saying that if a union came into the plant, vacations would be different "and pay would be back where . . . [employees] ... started from." On cross-examination, Frantz indicated that Allen stated that negotiations would start all over again. Allen could not recall the conversation in question, nor could he recall ever having said that wages would be lower if the Union came in.8 In any event, the testimony of Frantz is sketchy and vague, while confused further by her concession that Allen referred to the reductions in the context of negotiations. At best, from the General Counsel's view, her testimony as to this 8(a)(1) allegation is to be considered in the light of precedent concerning the familiar "bargaining from scratch" type of propaganda. Such statements, when made in a context indicating that the employer might abrogate existing benefits if the employees exercise their right to select a bargaining representative, have been deemed violative of Section 8(a)(l) of the Act.9 Nonetheless, in the circumstances presented here the General Counsel has failed to make out a violation of Section 8(a)(1). The incident was isolated, and apparently the statement imputed to Allen was uttered spontaneously, and in an argumentative vein, reaching only two employees.'o More importantly, the cryptic nature of the Frantz' account seriously prejudices any fair conclusion as to whether Allen's remarks on that occasion, even when considered in conjunction with other unfair labor practices found on this record, exceeded permissible bounds of free speech protected by Section 8(c) of the Act. 5. The General Counsel also contends that Respondent violated Section 8(a)(1) through Allen's involvement in the preparation and circulation of a petition dated November 8, an instrument designed to facilitate those employees intent on revoking their authorization cards. Employee Roxanne Burkett testified that this document was prepared with fellow employee Debbie Cicuzza at Burkett's home on November 8. Allen admittedly was present during the preparation of that document, but solely because his assistance was requested, as Burkett relates: "to help us to I Zuchelli did not testify. Any claim by Respondent that Zuchelli was a supervisor is lacking in credible support from this record. The attempt by Allen to portray her as possessed of responsibility to exercise independent judgment in assigning work to production employees struck me as exaggerated and unbelievable. Scott Jacobs did not appear as a witness. "See, e.g., Astronautics Corporation ofAmerica, 164 NLRB 623 (1967). ~" See, e.g.. Daiton Tire & Rubber CompanY, a Division of the Firestone Tire and Rubber Company, 206 NLRB 614. 624-625 ( 1973). " The testimony by June Haines that the petition was shown to her during working hours does not establish or provide a basis for inferring that write something up that would tell the Labor Relations Board that we thought we were misrepresented and we just wanted to know more about the Union, really, before we got roped in." Allen simply helped them "figure something out to write down." The claim by the General Counsel that Allen's involve- ment violated Section 8(a)(l) turns exclusively upon Allen's providing assistance to the employees in the phrasing of the petition. The evidence does not support the General Counsel's claim that Allen permitted the petition to be circulated during working hours" or that Allen's approval was established by his receiving reports as to employee support of the petition. 2 The Board has held that employers may not "lend more than minimal support and approval" to employee efforts directed toward removal of a union as an employee representative.' 3 However, here, Respondent did not initiate, sponsor, or assist in the circulation of the petition. Its conduct was limited to aiding employees in the expression of their predetermined objectives through a document that could be utilized to accomplish said purposes. Allen's limited assistance to Cicuzza and Burkett was not witnessed by other employees, nor does it appear that this fact was communicated to any other employees. In the circumstances, I find that Allen's participation in the preparation of the petition was "too minimal" to impair employee rights protected by Section 7 of the Act. Accordingly, I shall dismiss the 8(a)(1) allegation in this regard. 6. The complaint alleges that Respondent violated Section 8(a)(1) through Moyer's creating the impression that union activity was subject to surveillance. The General Counsel's brief does not specify the evidence relied on in support of this allegation. In canvassing the record, the only testimony-apart from that of Haines which shall be discredited, infra-tending to conform to this allegation is that of employee Debbie Warmbrodt, who relates that following a conversation with Valerie Marzella, Moyer took her aside and told her not to become involved with Marzella or the Union. This testimony is too vague to support the allegation in question, which shall be dis- missed. In addition to the foregoing, the complaint alleges other independent violations of Section 8(aX)(I), concerning matters linked to the appraisal of events material to the issues of discrimination. Findings with respect to these allegations shall be made below. Respondent was mindful that working hours were used for this purpose, or that this practice was authorized or condoned by Respondent. 12 In this respect, General Counsel relies on testimony by Haines that she overheard Roxanne Burkett tell Allen and Moyer that she (Burkett) was mad because nobody on the second shift would sign the petition. In this respect, Haines' testimony indicates nothing more than an officious, personal expression on the part of Burkett. Haines does not indicate that any response was made by Moyer or Allen and, in these circumstances, no basis exists for inferring the latter did anything on that occasion to signify their approval or interest in such reports. 13 See, e.g.. Placke Toyota, Inc., 215 NLRB 395 (1974). 790 POLY ULTRA PLASTICS, INC. D. The Alleged Discrimination 1. Valerie Marzella's reprimand of October 14, 1975 Valerie Marzella had been employed since the inception of Respondent's operations, having been hired on Septem- ber 26, 1974, a month before production began at the Ridgway plant. She was initially hired as a "packer" but also worked in the office as Respondent's bookkeeper. The testimony of Moyer attests to the skills acquired by Marzella in the course of her employment. He relates that: "she knew most everything there was to know about the hot wiring. . . the preexpanding, and the identification of parts . . . so she was kind of a trainer for the other girls that came on." On September 28, 1975, Marzella received a 10-cent hourly increase. Previously, during the summer of that year, Marzella informed Moyer that she no longer wished to do office work, expressing a preference to work in the plant exclusively. In late September 1975, Moyer called her to his office, offering Marzella the choice of working either in the plant or the office, or continuing to do both. At that time, Marzella indicated that she preferred to work in the plant. Moyer then solicited her recommendation for a replacement in the office job. Marzella named Darla Zuchelli. who ultimately was selected to fill that position.'4 Thereafter, following Zuchelli's selection as her replace- ment, Marzella assisted Zuchelli in adapting to the new position as bookkeeper. Marzella did not begin perfor- mance of plant work on an exclusive basis until October 10. Also beginning in late September, Marzella, together with her brother, initiated union activity at the plant. She signed the petition circulated early in the campaign thereby designating her union support, attended the very first meeting with Union Representative Kistler, and hosted a meeting at her home, where a number of employees signed authorization cards. Subsequently, on October 13, the Union, through Kistler, formally demanded recognition, claiming majority status. As will be recalled, Allen handed Marzella a letter, on October 14, the day after the Union's formal demand for recognition, which stated as follows: October 10, 1975 Valerie Marzella It has been two weeks since our decision to remove you from the bookkeeping position because of the great discrepancies and errors uncovered within the record keeping system. It was our intent to observe your performance within the plant in an effort to give you every opportunity to retain your employment in a l One aspect of Marzella's testimony suggests that this conversation took place on October 10. However, I do not believe that Marzella intended to create that impression. for said date was suggested in a question put to her by the General Counsel. Based on subsequent, more convincing. evidence that Marzella's handwriting did not appear on the books dunng the first 2 weeks of October, and her indication that Zuchelli had assumed the office position during that period, I find that this conversation occurred in late September. different position. At this point it should be brought to your attention that we have grave doubts as to your ability to perform in the new capacity. These doubts have been raised as a result of your actions in attempting to perform the functions given to you and the insolence and verbal abuse which you have directed towards your supervisors. In all fairness I should point out that attitude is a very important ingredient in being a good employee and your overall transition from bookkeeper/leader to plant worker during your proba- tionary period has left much to be desired. As a consequence I must take the following action: i. Withdrawl [sic] of the $.10 per hour increase given you on 9/28/75. 2. Remove the $.25 per hour which had previously been given because of your position as bookkeep- er/leader. 3. Place you on final 2 weeks probation during which time we will give your overall performance final review and determine your future as an employee. /s/Edmund P. Allen In addition to the above letter, Allen and Moyer concede that during October and in advance of the layoff of Marzella on November 14, while working in the plant as a packer, Marzella was deliberately assigned one man tasks, which isolated her from other employees. Allen testified that he and Moyer decided to segregate her from other employees because she was "inciting some of the other employees to give our supervisory people problems," and there were questionable things being done relating to quality determinations,t5 while adding that Marzella had been creating "friction" among the other girls. Allen denied that Marzella's union activity played any part in the decision to segregate. Moyer simply testified that Marzella was given the one man jobs because she knew how to run them. In this connection, it is significant that Debbie Warm- brodt credibly testified that in mid-October Moyer called her to his office and accused her of discussing the Union with Marzella. When Warmbodt denied this charge, Moyer told her "to stay away from Val, that it would just mean trouble." Moyer admits that a conversation to this effect occurred. However, he in effect denies that the Union was mentioned in that conversation, claiming that, as Warm- brodt was a new employee, whose work was going fairly well, he indicated to her that there had been "some conflicts and various things happening" and she would probably do better to stay out of such matters, and to "keep neutral on everything that was happening and do what her mind dictated." 16 On October 28, Marzella was given a second warning letter, which stated as follows: 1s Apparently the packers arc responsible for determining the quality of goods shipped. There is no reference in the record to the nature of Marzella's mishandling of this responsibility. nor does it appear that Respondent had a reasonable basis for believing that she was guilty of fault) inspection. If Moyer's claim that he did not know of Marzella's involvement with the Union until just before the preelection hearing in Case 6-RC-7276. which was conducted on November 5, seems incompatible with his admitted (Continued) 791 DECISIONS OF NATIONAL LABOR RELATIONS BOARD October 28, 1975 Valerie Marzella Two weeks have now past since we informed you of our concern about your overall work performance. Since that time we have determined that your work performance has still not been up to our expectations. Furthermore, your insolent and disrespectful attitude towards the supervision within the plant, particularly on Oct. 24, 1975, indicates that your position within the company has become even more precarious. The only thing that prevents me from discharging you at this time is the fact that you have been an employee as long as you have. I am of the opinion that you are capable of performing your duties in a much more efficient manner and I want to be as fair as possible in giving you the chance to improve your work performance and resolve the attitude problem which you have been displaying. I feel that your performance and attitude is beginning to effect your fellow employ- ees and it is extremely important for us to maintain a high level of performance and at the same time maintain order within the manufacturing complex. I am going to be very frank at this time and state that this is your final warning. Any further displays of insolence, defiance, disrespectfulness or inferior work- manship will result in your immediate discharge. /s/Edmund P. Allen Allen testified that the October 24 incident referred to in the above letter concerned conduct by Marzella at a general plant meeting conducted on that date. Allen did not attend that meeting, but he claims that Moyer reported immediately after this meeting that he was constantly interrupted and shown disrespect by Marzella. Allen indicates that the purpose of the meeting was a "general discussion about the way things were going in the plant" involving an attempt to establish work rules within the plant and procedures. Allen could not testify as to his knowledge of exactly what Marzella reportedly said on that occasion, or how frequently she interrupted. Moyer testified that the general plant meeting was called on October 24 to announce a layoff. He claims that after he read the list of those to be furloughed, a list which included Marzella, she kept interrupting asking about seniority. Moyer also claims that she disrupted by raising such irrelevancies as the Company's failure to maintain candy machines for employee use. The issues involving Marzella do not relate to an employee historically derelict in work performance. In- stead, from the credible evidence it appears that Marzella participation in such a discussion. In any event, his allegedly belated acquisition of such knowledge is even more difficult to believe when considered in the light of service of the unfair labor practice charge in this proceeding, which admittedly was effected on October 18, 1976, and specifically named Marzella as a victim of discrimination. In any event, as shall be seen, infra, I believe that the circumstances justify an inference that both Moyer and Allen either knew or suspected that Valerie Marzella was a key exponent of the Union as early as October 14. 17 Allen testified that during October 1975 Zuchelli "immediately" ran into problems with Marzella after replacing the latter, going on to state that the "feed-back" from the plant was that this was because Valerie was was an employee whose performance soured in the eyes of her employer at a time corresponding to her efforts to obtain union representation. The effort of Allen and Moyer to justify the warnings, deprivations, and segregation of Marzella - based upon accusations as to her inadequate job performance, bad attitude, and incitation of other employees-was not persuasive. In most respects this testimony was vague, conclusionary, and unsubstantiated by detailed evidence. Moreover objective factors in the record demonstrate the incredulity of their testimony. No effort was made by Respondent to explain why, if Marzella had been guilty of serious discrepancies in her role as a bookkeeper, she received a 10-cent increase on September 28, only slightly more than 2 weeks prior to her receipt of the first warning letter. Nor is it explained why, until that letter was submitted to her, she continued to enjoy the 25-cent hourly rate differential despite her replacement on the bookkeep- ing job. Also incomprehensible is the fact that, despite her alleged incompetence, Moyer, as late as September 28, afforded Marzella the option to remain exclusively in bookkeeping work. Contrary to the impressions Allen and Moyer sought to convey, the foregoing, together with the solicitation of her recommendation as to a successor, and the fact that this recommendation was ultimately acted upon stand objectively in support of a conclusion that as late as September 28 Marzella was regarded as a trusted and valuable employee.t7 Considering the objective circumstances against which the action against Marzella occurred, the evidence does not warrant a conclusion that, contemporaneous with her union activity, Marzella changed her attitude towards her employment; rather, the record convincingly demonstrates that it was Marzella's union activity that altered Respon- dent's attitude towards Marzella. As the first step in what I find to have been an unlawful deliberate campaign of harassment against Marzella, Allen on October 14, 1975, delivered the formal reprimand dated October 10.18 That letter attests to the guile with which Allen would proceed in the effort to build a case against Marzella. Indisputably the description of the transfer of Marzella from bookkeeping to plant work while highly prejudicial to Marzella was patently false. The reference to this transfer is drafted in terms designed to convey that it was a unilateral act of management prompted by Marzella's inadequate perfor- mance in the office. The fact that Marzella was transferred from the office job by exercise of a personal preference, and not because of any work inadequacies, is conceded on Respondent's own evidence, and further, as heretofore mentioned, the option given Marzella to remain in office work and the 10-cent increase of September 28 belie the charge that, prior to advent of the Union, Respondent had "enticing the people not to co-operate with her [Zuchelli ." I discredit Allen in this respect. Not a single witness was called to corroborate Allen as to either the real or rumored existence of such a problem. I credit the testimony which is perfectly plausible, and stands uncontradicted, that, after Zuchelli's designation, Marzella spent at least 10 days training Zuchelli. Aside from my mistrust of Allen, I think it improbable that Marzella would have attempted to undermine a successor, who had been named to replace her on her recommendation, on a job Marzella no longer wished. 1I I credit Marzella and employee Judy Frantz, over Allen and find that the letter though dated October 10, was delivered on October 14. 0 792 POLY ULTRA PLASTICS, INC. significant misgivings concerning her performance. The assertions in the letter of October 14, together with the date appearing thereon, reflected a careless attempt to conceal the real animus with which it was drafted. It is true that there is no direct evidence that Respondent as of October 14 knew specifically of Marzella's role in the union campaign. However, the shop was small, there is uncontradicted evidence of Allen's interrogation of an employee concerning union activity, and other evidence indicates that union activity was an object of discussion between various employees and Allen and Moyer. On the total record, including Respondent's transparent attempt at pretext, a reasonable basis exists for imputing such knowledge to the Respondent, or at a minimum, warrants an inference that Respondent, at least, suspected that Marzella was a prime protagonist of the Union as early as October 14. Accordingly, I find that Respondent violated Section 8(a)(3) and (1) of the Act by issuing the October 14 warning notice to Marzella, and, through such action, by rescinding a previously given 10-cent increase, withdrawing the 25-cent hourly increment she allegedly received as bookkeeper-leadman, 19 and placing her on 2 weeks' probation. I also find that Respondent violated Section 8(a)(1) of the Act by assigning Marzella work tasks which insulated her from her fellow employees and by the conduct of Moyer, in a not dissimilar vein, of instructing newly employed Debbie Warmbrodt to refrain from involvement with Marzella or the Union. The complaint does not specifically challenge the formal reprimand of October 28, 1975, and final warning con- tained therein. However, the motivation issue placed into question by that document was fully litigated. Considering the illegal campaign of intimidation which furnished the foreground against which the reprimand was issued, and my disbelief of Moyer and Allen as to its justification, I find that Respondent further violated Section 8(a)(3) and (1) of the Act by this extension of an overall pattern of conduct whereby Respondent sought to discredit Marzella because of her role in the organizational campaign. E. The i-Week Layoff of Employees June Haines and Cathy Sieger The complaint alleges that a layoff of 1 week between October 14 and 22 involving June Haines and Cathy Steger violated Section 8(a)(3) and (1) of the Act. Haines was hired on August 25, 1975. She executed an authorization card and also endorsed the petition signed by Union supporters during the very early stages of the campaign. Steger was hired on June 21, 1975. She too signed an authorization card and her signature appears on the petition circulated early in the organizational campaign. 1t The reprimand recites that this differential was linked with the position of bookkeeper leader. However, Respondent's witnesses indicate that Marzella was relieved of this position in late September. Yet, no action was taken to rescind the increment until the discriminatory warning of October 14. The circumstances warrant the inference that when Marzella elected to work in the plant. Respondent either by reason of her length of service or value as an employee, or both, had no intention of eliminating the 25-cent differential. At the time of their layoff, Steger and Haines were among approximately five packers actively employed in the plant. On October 14, the same day that Marzella received the first of her formal warning letters, Haines and Steger were informed that they would be the object of a temporary layoff, which was effective that day. It will be recalled that the unfair labor practice charge served on Respondent on October 18, among other things, alleged that this layoff was discriminatory. The layoff ended on October 22 when Haines and Steger were recalled. In the interim, Respondent hired Barbara Carr on October 13 and Debbie Warmbrodt on October 15. In addition a third new hire, Diane Northrup, began her employment on October 24. A great deal of suspicion emerges from Respondent's testimony as to the reason behind, and circumstances attendant in, this layoff. Thus, according to Moyer and Allen, they decided that during this period when there was a limited amount of work available in the plant, they would train new employees, so as to avoid the need for such training when an anticipated increase in orders material- ized.20 This, according to Respondent, could be achieved in October, but would require a layoff from among the existing work force in order to accommodate the hiring of new employees during this period of slack work. Although there was testimony on behalf of Respondent that this technique had been considered in the past, this was the first occasion on which it was implemented, and its application was limited to the packer classification. Moyer and Allen testified that after completion of a I-week layoff and training cycle, if work volume had not picked up, the newly trained employees and five incumbents in the packer classification would on a rotating basis share the work hours available. Though professing a concern for the morale of his workers, Allen acknowledged that he was aware that the cost of training under this method was thrust upon his employees, whereas, if training were deferred to periods of high output no one would suffer. The effort to explain that special training was important to the type of routine work performed in the packer classification struck me as shifting, argumentative, and in part at least, inherently incredulous. In this latter category was the testimony that packers had to be trained to identify different parts for different customers. Despite Moyer's testimony in this respect, Allen had previously testified that during the period of the layoff in question, Respondent was producing a single part for a single customer. It was my definite impression that the training of new hires during periods of high output would be far more effective with respect to this unskilled classification. Note also that although Respondent claims that Haines and Steger were separated to make room for the trainees, only one in that group was on the payroll for the entirety of the layoff.21 Also noteworthy is the fact that neither Allen nor Moyer could testify as to the precise basis for selecting Steger and 0 Note that this planned increase in orders never did materialize, and. on November 14, six employees were laid off. with most not recalled until January 1976. 21 The newly hired employees were not called to testify as to the nature of the so-called training they received in the period October 14-22. One of those employees, Warmbrodt, appeared as a witness for the General (Continued) 793 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Haines for layoff. Allen had no recollection whatsoever. Moyer argumentatively testified that they were "probably" the poorest workers among the existing packers. Finally, an attempt to explain the timing of the layoff did not reflect favorably in the credulity of Respondent's evidence. Thus, Moyer testified that this layoff was discussed and planned about a week before it occurred. However, he also testified that under Respondent's normal practices, layoffs are effected usually at the end of the week, particularly when they are preplanned. October 14 was a Tuesday. Nonetheless, Moyer explained that the Company wished to start the new hires together, and when one of the girls could not make the original date, the layoff was deferred until October 14. It will be recalled that Carr started on Monday, October 13, Warmbrodt's employment did not begin until Wednesday, October 15, and Northrup did not start until after reinstatement of Haines and Steger. Concededly the General Counsel's case as to this layoff is not ironclad. For, there is no direct evidence that Respondent had knowledge that Haines and Steger were union supporters.2 2 And, indeed, their union activity was no more substantial than that manifested by a number of employees in the unit. Furthermore, there is little in the way of proof tending to substantiate the General Counsel's theory that this layoff was born of Respondent's design to "pad" its payroll in order to defeat the Union.23 Nonetheless, the elements of timing and union animus have been established by the record. These considerations, together with the unbelievable nature of the defense, lend convincing weight to the inference that, like the warning letter to Marzella of the same date, this ill thought out and precipitant layoff was another step in Respondent's union- oriented campaign of retribution against its employees. From the totality of the record, including Allen's hostility toward union activity, the palpably false explanation for the layoff, considered with the unlawful pattern of conduct commencing immediately after the Union's demand for recognition, I find that a preponderance of the evidence warrants the inference that Respondent laid off Haines and Steger in violation of Section 8(a)(3) and (1) of the Act. Counsel and was available at the hearing. Although I draw no adverse inference from Respondent's failure to examine Warmbrodt, the testimony of Allen and Moyer was unbelievable and that conclusion was hardly diminished by the absence of corroboration. 22 I discredit the testimony of Haines that, on October 22, she had the conversation with Moyer in which he asked Haines if she had "signed the petition." Haines averred that, on that occasion, Moyer also expressed his thought of not recalling Haines or Steger because they were taking him to court. With respect to the latter aspect of her testimony, after extensive examination of Haines, I was not persuaded that Moyer made such a statement, and indeed my disbelief, as to this matter, aroused doubt as to her general reliability. Accordingly, I shall dismiss the allegations of interrogation and creating the impression of surveillance insofar as based on this phase of her testimony. z:' The RC petition in Case 6-RC-7276 was not filed until after the layoff was effected. 24 Respondent's principal customer during the period in question was Fisher-Price Toys. Uncontradicted testimony establishes that during the period of October. Respondent was engaged almost entirely in the production of packaging materials for Fisher-Price. Unlike other aspects of F. The Termination of Valerie Marzella and June Haines On November 14, Valerie Marzella and June Haines were laid off. Neither was ever recalled. Respondent's claim that this layoff was based on legitimate economic considerations has not been refuted on this record. Thus, Marzella and Haines were within a group of six employees laid off on November 14. No evidence was adduced tending to show that Marzella and Haines were discriminatorily included in this group. Following the layoff, no new employees were hired until January 1976. In these circumstances the record provides no reasonable basis for inferring that the layoff was predicated upon anything other than Respondent's claim that its principal customer failed to come through on an anticipated order.2 4 On the other hand, no evidence was offered by Respondent as to why it failed to recall Marzella and Haines. In this connection, it is noted that of the six employees laid off on November 14, only Haines and Marzella were denied recall. This, despite the fact that commencing in January 1976 Respondent hired some 15 new employees. With respect to Marzella, the conclusion is inescapable that the denial of recall represented the final step in Respondent's staged out campaign of harassment, which commenced with the unlawful warning letter of October 14. Accordingly, I find that the failure to recall Marzella was based on the same considerations underlying earlier acts of discrimination against her and represented the final step in Respondent's effort to rid itself of one of the key employee protagnists of the Union, and that Respondent thereby violated Section 8(a)(3) and (I) of the Act. In the case of Haines, I have heretofore found that Respondent discriminatorily laid off Haines and Steger on October 14.25 Against the background of other unfair labor practices committed by Respondent and its recall of other laid-off employees, the failure of Respondent to offer any justification for this treatment of Haines warrants the conclusion that here again, Respondent violated Section 8(a)(3) and (1) of the Act.26 his testimony, there is no reason to doubt Allen's testimony that in advance of the Christmas season, Respondent expected an increase in orders prior to November, but that the first significant order was not received until January 1976. 2s Steger quit Respondent's employ on November 12 and was not employed at the time of the layoff. 26 The record, in my opinion, does not support the alleged 8(aX4) violation in this respect. I have heretofore discredited the testimony of Haines that upon her recall on October 22, Moyer expressed hostility towards her participation in a suit against Respondent. It is a fact that, on October 18, Respondent was served a copy of the unfair labor practice charge naming Haines as a victim of proscribed discrimination, and it is entirely probable that, by virtue of this information, Respondent strongly identified Haines with the union movement. Nonetheless, based on the entire record, the more clearly supported inference is that, as part of the aftermath of the November 14 layoff, Haines was again victimized by discrimination upon the very considerations underlying the act of discrimi- nation described in that charge. Accordingly, I find that Respondent's refusal to recall Haines was not based on considerations proscribed by Sec. 8(a) 4) of the Act. 794 795 POLY ULTRA PLASTICS, INC. IV. CASE 6-Rc-7276 A. The Challenges With respect to the determinative challenges, I have heretofore found that Valerie Marzella and June Haines were discriminatorily denied recall in violation of Section 8(a)(3) and (I) of the Act. The record amply demonstrates Respondent's practice of recalling employees laid off for economic reasons as work became available. Accordingly, at the time of the election, Valerie Marzella and June Haines were eligible voters, and the challenges to their ballots are overruled. At the election, the Board agent challenged the ballot of Mary Lou Leslie because her name did not appear on the list of eligible voters submitted by the Employer. At this stage of the proceeding, no position with respect to the status of Leslie was expressed by either the Petitioner or the Employer. It does appear, however, that while the matter was pending in the Region, the Employer claimed that Leslie was permanently terminated prior to the election, and therefore was ineligible, while Petitioner urged that she had a reasonable expectancy of recall in the foreseeable future, and hence was eligible to vote. The record is almost entirely devoid of reference to Leslie. Although it does appear that she was on Respondent's payroll as of October 13, her name is not again mentioned and no evidence was adduced as to when, how, and for what reason she was terminated. In my opinion, the circumstances, including her exclusion from the eligibility list submitted by the Employer, together with the absence of any apparent dispute as to the fact that she was terminated, sufficed to place the onus upon Petitioner, if it seriously held such a position, to establish her expectancy of recall. Having failed to produce proof with respect to this issue, Petitioner has not met its burden, and, accordingly, I find that Mary Lou Leslie was not an eligible voter, and the challenge to her ballot is sustained. The final challenge involves Steve Martin, who was challenged by the Petitioner on grounds that he occupied a supervisory position. As I indicated at the hearing, since Petitioner adduced no proof as to the status of Martin, the challenge to his eligibility was unsubstantiated. According- ly, I find that Steve Martin was an eligible voter, and the challenge to his ballot is overruled. Based on the foregoing, it shall be recommended that the determinative ballots of Valerie Marzella, June Haines, and Steve Martin be opened and counted by the Regional Director and that a revised tally be furnished the parties. I shall further recommend that if the revised tally indicates that the Union has been designated by a majority of the valid ballots cast, that the Regional Director shall issue a Certification of Representative. B. The Objections The objections to the election are based on the discrimi- natory layoffs of November 14, and Respondent's partici- pation in the preparation of a petition seeking revocation of signed authorization cards. I have heretofore found that Respondent did not violate Section 8(aXI) of the Act, through Edmund Allen's participation in the preparation of said petition. On the other hand, Respondent violated Section 8(aX3) and (1) of the Act by its discriminatory failure to recall Valerie Marzella and June Haines. These unfair labor practices occurred and continued unremedied throughout the critical preelection period. Based thereon I find that Respondent has unlawfully interfered with the conduct of the election. Accordingly, I shall recommend that, in the event that the revised tally of ballots does not disclose that the Union was designated by a majority of the ballots cast, that the election conducted on March 15, 1976, be set aside and that a rerun election be directed. CONCLUSIONS OF LAW 1. Respondent-Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Charging Party-Petitioner is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. Respondent independently violated Section 8(aX1) of the Act by threatening employees with "blacklist" because they engaged in union activity, coercively interro- gating employees concerning their union membership, segregating a union supporter from other employees, and by maintaining work rules which threaten employees with discipline for engaging in activities protected by Section 7 of the Act. 4. Respondent violated Section 8(a)(3) and (1) of the Act by issuing warning letters to, reducing the pay of, and placing on probation, employee Valerie Marzella, in reprisal for her union activity. 5. Respondent violated Section 8(aX3) and (1) of the Act by laying off employees June Haines and Cathy Steger for I week on October 14, 1975, in reprisal for union activity. 6. Respondent violated Section 8(a)(3) and (1) of the Act by failing to recall Valerie Marzella and June Haines, after a layoff on November 14, 1975, in reprisal for union activity. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily issued warning letters to Valerie Marzella, I shall recommend that Respondent expunge and delete said warnings from its records. In view of the discriminatory refusal to recall Valerie Marzella and June Haines, it shall be recommend- ed that Respondent offer them immediate recall, and, in doing so, to restore the discriminatorily denied pay increments to Valerie Marzella, and to provide both their former positions, without loss of seniority or other benefits, and make whole Valerie Marzella for any loss of pay resulting from the discriminatory reduction of her wage rate, and make whole Valerie Marzella and June Haines for losses of earnings resulting from Respondent's discrimi- DECISIONS OF NATIONAL LABOR RELATIONS BOARD natory refusal to recall them, by payment of a sum of money equal to the amount they normally would have earned as wages from the date they would have been recalled but for the discrimination against them, to the date of a bona fide offer of reinstatement. Backpay shall be computed on a quarterly basis in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and shall include interest at 6 percent as provided in Isis Plumbing & Heating Co., 138 NLRB 716(1962). Finally, as the unfair labor practices committed by Respondent, particularly the various forms of discrimina- tion, strike at the heart of the Act, a broad cease-and-desist order shall be recommended, precluding Respondent from "in any other manner" interfering with, coercing, or restraining employees in the exercise of their rights guaranteed by Section 7 of the Act. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER27 The Respondent, Poly Ultra Plastics, Inc., Ridgway, Pennsylvania, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Coercively interrogating employees concerning their union activities, threatening to blacklist employees because they have engaged in union activities, maintaining work rules which subject employees to discipline for engaging in activity protected by the Act, and segregating employees to limit union activity. (b) Discouraging membership in a labor organization, by issuing warning notices, placing employees on probation, reducing wage rates, refusing to recall employees from layoff, or any other manner discriminating against employ- ees because they have or are suspected of having engaged in union activity. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Valerie Marzella immediate and full reinstate- ment to her former position, if available, or, if that position no longer exists, to a substantially equivalent position, restoring her with the wage rate she enjoyed as of October 1, 1975, plus any general increases, and without prejudice to her seniority or other rights and privileges, and make her 27 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. whole for the loss of earnings suffered by reason of the discrimination against her in the manner set forth in the section of this Decision entitled "The Remedy." (b) Offer to June Haines immediate and full reinstate- ment to her former position, if available, or, if that position no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for loss of earnings sustained by reason of the discrimination against her in the manner set forth in the section of this Decision entitled "The Remedy." (c) Make whole June Haines and Cathy Steger for the loss of earnings they sustained by reason of the discrimina- tory layoff of October 14 through 22, 1976, with interest. (d) Delete and expunge all reference from its records to the warning letters issued against Valerie Marzella, dated October 10 and 28, 1975. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due. (f) Post at its Ridgway, Pennsylvania, plant, copies of the attached notice marked "Appendix." 28 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that Case 6-RC-7276 be severed and remanded to the Regional Director for Region 6 for the opening of the ballots of Valerie Marzella, June Haines, and Steve Martin. Thereafter, the Regional Director shall issue a revised tally of ballots, and, if said tally indicates that the Petitioner was designated by a majority, issue a Certification of Representative. Should the revised tally of ballots fail to disclose that the Petitioner has been designated by a majority, the election conducted on March 15, 1976, shall be set aside and said Regional Director shall conduct a rerun election at such time as he deems the circumstances permit a free choice on the issue of representation. 28 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 796