Einhorn Enterprises, Inc.

576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Star Color Plate Service, Division of Einhorn Enter- prises, Inc. and Local 1, Amalgamated Lithog- raphers of America, International Typographical Union, AFL-CIO. Cases 29-CA-8280, 29-CA- 8407, 29-CA-8796, 29-CA-8811-2, and 29- RC-5121 28 April 1986 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE By CHAIRMAN DOTSON AND MEMBERS DENNIS AND STEPHENS On 17 March 1983 Administrative Law Judge Thomas T. Trunkes issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Union filed cross-exceptions and supporting briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the attached decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, find- ings,' and conclusions and to adopt the recom- mended Order as modified.2 The General Counsel has excepted to the judge's recommended dismissal of the complaint's allega- tions that the Respondent, through its alleged agent Pat Kotarski violated Section 8(a)(1) by soliciting employee support for Teamsters Local 363 (the In- tervenor), and threatening to discharge employees and to close the plant if the employees supported Local 1, Amalgamated Lithographers of America, International Typographical Union (the Union). We find merit in this exception. The primary question here is whether Kotarski, a clerical employee, functioned as the Respondent's agent when engaged in the allegedly unlawful con- duct. Kotarski worked in the Respondent's office, where she handled the Respondent's books, an- swered the phone, typed, kept track of inventory, checked orders, distributed timecards, maintained time records, and was the only nonsupervisory em- ployee to have access to payroll records. Kotarski ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 Contrary to the judge's recommendation, we find no need to remand Case 29-RC-5121 to the Regional Director for further disposition We shall certify the exclusive bargaining representative status of Local 1, Amalgamated Lithographers of America, International Typographical Union, AFL-CIO in this decision was treated as a confidante by management. She relayed confidential information obtained from management to rank-and-file employees and also relayed to management employee requests for raises. Furthermore, employees approached Ko- tarski with questions relating to policy and person- nel matters, such as sick leave and medical records. On 2 September 1980, shortly after the Union had filed its representation petition, Kotarski told employee LaCava that the Intervenor was already in the Respondent's facility and that Supervisor Rackmil wanted LaCava to join the Intervenor be- cause she was the employee with the most seniori- ty. Kotarski also stated that there were a few who were not going to be with the Respondent, and that there was a rumor about the Union trying to get in the Respondent's plant and, if it did, the Re- spondent would close its doors. The judge found that if Kotarski were an agent for the Respondent, her statements to LaCava would constitute an unlawful solicitation to join a union, as well as unlawful threats to discharge em- ployees and to close the plant. The judge conclud- ed, however, that Kotarski was not an agent for the Respondent. He noted that Kotarski did not formulate or participate in the making of labor policy, and that LaCava had testified that Kotarski had no supervisory powers and, in her opinion, Kotarski was not part of the management team. Therefore, the judge concluded that Kotarski spoke to LaCava in her capacity as secretary or confidential employee and not as an agent for the Respondent. Under the doctrine of apparent authority, the test for determining whether an employee is an agent is whether, under all circumstances, the em- ployees would reasonably believe that the employ- ee in question was reflecting company policy and speaking and acting for management.3 As the judge found, Kotarski acted as a conduit between man- agement and employees. Management used Ko- tarski in that capacity to relay information to em- ployees, and employees informed Kotarski of mat- ters they desired to have brought to the Respond- ent's attention. We find that, although Kotarski may not have been a managerial or supervisory employee within the meaning of the Act, LaCava would reasonably believe that Kotarski was acting on behalf of and reflecting the position of the Re- spondent when making the statements complained of here. Furthermore, even assuming that Kotars- ki's statements about the two unions and about the Respondent's reactions to them differed from the kinds of information Kotarski had conveyed in the 3 Community Cash Stores, 238 NLRB 265 (1978) 279 NLRB No. 82 EINHORN ENTERPRISES 577 past, it is not unreasonable, under the circum- stances here, to attribute her statements to the Re- spondent. First, according to LaCava's credited testimony, Kotarski identified one of the Respond- ent's acknowledged agents, Supervisor Rackmil, as the source of the request that LaCava join one of those two unions, the Intervenor. Second, Kotars- ki's testimony established that Rackmil had author- ized her to talk to LaCava about the Intervenor and to tell LaCava that things would be better with the Intervenor. Having thus given campaign- ing authority to a person known to serve as a con- duit of management decisions, the Respondent can reasonably be held liable for the likely effects of that person's statements within the general scope of that authority, i.e., for the impression that one in LaCava's position would believe that Kotarski was transmitting management's views on the competing unions. Consequently, we find Kotarski to be an agent for the Respondent and impute her state- ments to the Respondent. Accordingly, we find that the Respondent violated Section 8(a)(1) by re- questing LaCava to join the Intervenor and by threatening to discharge employees and to close the plant if employees supported the Union.' ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Star Color Plate Service, Division of Einhorn Enterprises, Inc., Jamaica, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(c). "(c) Instituting a policy of issuing routine disci- plinary warnings to its employees because they engage in protected concerted or union activities." 2. Insert the following as paragraphs 1(e) and (f) and reletter the subsequent paragraphs accordingly: "(e) Soliciting employees to join a labor organi- zation. "(f) Threatening to discharge employees and to close the plant if employees supported Local 1, Amalgated Lithographers of America, Internation- al Typographical Union, AFL-CIO." 3. Substitute the attached Appendix B for that of the administrative law judge. 4 We find it unnecessary to pass on whether the Respondent violated Sec 8(a)(t) (when Supervisor Rackmil told Kotarski that he had investi- gated a few of the Unions and what their demands were and the Re- spondent would be forced to close because expenses would be too high), inasmuch as any finding of a violation would be cumulative CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for Local 1, Amalgamated Li- thographers of America, International Typographi- cal Union, AFL-CIO and that it is the exclusive collective-bargaining representative of the employ- ees in the following appropriate unit: All lithographic production employees em- ployed by the Employer at its facility located on Jamaica Ave., Jamaica, New York, exclud- ing drivers, messengers, clerical employees, guards, and supervisors within the meaning of the Act. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT increase our work force in order to dilute support among our employees for Local 1, Amalgamated Lithographers of America, Inter- national Typographical Union, AFL-CIO, or any other labor organization. WE WILL NOT subject our employees to more onerous conditions of work by engaging in stricter supervision and withdrawing certain privileges pre- viously enjoyed by them because they have en- gaged in protected concerted or union activities. WE WILL NOT institute a policy of issuing rou- tine disciplinary warnings to our employees be- cause they engaged in protected concerted or union activities. WE WILL NOT solicit our employees to join a labor organization. WE WILL NOT threaten to discharge employees and to close the plant if employees support Local 1, Amalgamated Lithographers of America, Inter- national Typographical Union, AFL-CIO. WE WILL NOT deny our employees an opportuni- ty to train on our machinery or equipment, which training may result in an increase of pay, because they have engaged in protected concerted or union activities. WE WILL NOT lay off, suspend, or otherwise dis- criminate against our employees in regard to hire or tenure of employment or any other terms or conditions of employment because they are mem- bers of, or engaged in activities on behalf of, Local 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1, Amalgamated Lithographers of America, Inter- national Typographical Union, AFL-CIO, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make whole, with interest, Fred Becker, Steven Moss, and Mary Lou LaCava for any loss of pay or other benefits they may have suffered as a result of their discriminatory layoffs and suspension. WE WILL offer to Mary Lou LaCava the oppor- tunity to train on the "step-and-repeat" machine and, if found to be qualified to operate that ma- chine, she is to be transferred to that position, if she so requests, at such time that the position be- comes available, with an increase in pay as befits that position. WE WILL remove from our files and records any reference to the layoffs of Fred Becker and Steven Moss on 2 September 1980, and to the suspension of Mary Lou LaCava on 3 November 1980, and WE WILL notify them that this has been done and that evidence of these unlawful acts will not be used against them in any way. WE WILL remove from our files and records any reference to the disciplinary written warnings issued to Angel Cordero, Fred Becker, Steven Moss, Harry Goetz, and Mary Lou LaCava issued between 13 October 1980 and 17 July 1981, and WE WILL notify them that this has been done and that evidence of these unlawful acts will not be used against them in any way. STAR COLOR PLATE SERVICE, DIVI- SION OF EINHORN ENTERPRISES, INC. William Shuzman, Esq., for the General Counsel. Robert C. Gottlieb, Esq. (Martin H. Scher, Esq.), of Carle Place, New York, for the Respondent Employer. Michael F. O'Toole, Esq., and Andrew Irving, Esq. (Robin- son, Silverman, Pearce, Aronsohn, and Berman), of New York, New York, for the Charging Party Petitioner. DECISION STATEMENT OF THE CASE THOMAS T. TRUNKES, Administrative Law Judge. This proceeding, under Sections 10(b) and 9 of the Na- tional Labor Relations Act, was heard pursuant to due notice on July 13 and December 9-11, 14, 16, 18, and 21-23, 1981, and January 4-5 and 18, 1982, in Brooklyn, New York, based on a complaint and notice of hearing issued in Case 29-CA-8280 on October 23, 1980, an amended complaint and notice of hearing issued in Case 29-CA-8280 on November 26, 1980; a complaint and notice of hearing issued in Case 29-CA-8407 on January 12, 1981; and an order consolidating cases, complaint, and notice of hearing issued in Cases 29-CA-8796 and 29-CA-8811-2 on June 25, 1981. The petition in Case 29-RC-5121 was filed on August 29, 1980. The hearing on the issues raised by the petition resulted in a Decision and Direction of Election issued on March 5, 1981, pursuant to which an election by secret ballot was conducted on March 31, 1981.1 There were challenged ballots which were sufficient in number to affect the results of the election.2 On April 7, 1981, the Petitioner filed timely objections to conduct affecting the results of the election Thereaf- ter, on June 30, 1981, the Regional Director for Region 29 issued a supplemental decision, an order consolidating cases, and a notice of hearing,3 whereby the Regional Director resolved certain challenged ballots, directed a hearing thereon, and, as the unfair labor practice com- plaints involved essentially the same issues as listed in most of the objections, consolidated the representation case and the unfair labor practice cases for hearing. The issues presented concern the challenges to the bal- lots of Fred Harber, Richard Darienzo, Herbert Reimer, Carlos Agudelo, Rosalie Anderson, and Sidney Fisch. The Regional Director further directed that resolution to the challenge of the ballot of Angel Cordero be deferred pending disposition of Case 29-CA-8407 Following a Request for Review by the Petitioner, the National Labor Relations Board included the ballot of Michael Fayne, challenged by the Petitioner, to be resolved at a hearing. The unfair labor practice issues concern independent violations of Section 8(a)(1) of the Act, together with several allegations of discriminatory conduct in violation of Section 8(a)(1) of the Act. The majority of the alleged violations occurred between the filing of the petition and the conduct of the election. Thus, such conduct is also an issue as objections to conduct affecting the results of the election. All parties were afforded full opportunity to partici- pate in this proceeding. Briefs have been filed by the General Counsel, Respondent, and the Charging Party.4 On the entire record in the case and from my observa- tion of the witnesses, I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION Star Color Plate Service , Division of Einhorn Enter- prises, Inc. (Respondent, the Employer, or Star Color), a The unit found to be appropriate was, All lithographic production employees employed by the employer at its facility located on Jamaica Avenue, Jamaica, New York, exclud- ing drivers, messengers, clerical employees, guards, and supervisors within the meaning of the Act 2 The tally of ballots revealed that there were 6 votes cast for the Peti- tioner, 5 votes cast for the Intervenor, no votes cast against the partici- pating labor organizations , and 15 challenged ballots 3 In Cases 29-RC-5121, 29-CA-8280, 29-CA-8407, 29-CA-8796, and 29-CA-8811-2 4 Local 363, International Brotherhood of Teamsters, Chauffeurs, War- ehousemen, and Helpers of America (Party to the Contract, the Party in Interest, and the Intervenor), did not participate at the hearing and did not file a brief EINHORN ENTERPRISES 579 New York corporation, at all times material has main- tained its principal office and place of business in Jamai- ca, located in the Borough of Queens, City and State of New York, where it is engaged in the manufacture, sale, and distribution of lithographic plates, film, and related products. During the past year, Respondent manufac- tured, sold, and distributed at its Jamaica place of busi- ness products valued in excess of $50,000, of which prod- ucts valued in excess of $50,000 were shipped from the place of business in interstate commerce directly to States of the United States other than the State of New York. As admitted by Respondent, and based on the foregoing, I conclude and find that Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. IT. LABOR ORGANIZATIONS5 Local 1, Amalgamated Lithographers of America, International Typographical Union, AFL-CIO (Local 1, Charging Party, the Petitioner, or the Union) is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act, as admitted by Re- spondent. III. CREDIBILITY OF WITNESSES Before one can judicially make findings and conclu- sions about whether any of the alleged violations did occur, as contended by the General Counsel, it is neces- sary to make credibility findings with respect to the testi- mony of the various witnesses presented at the hearing. In addition to considering the demeanor of the witnesses, the Board has stated, "[I]t is abundantly clear that the ul- timate choice between conflicting testimony also rests on the weight of the evidence, established or admitted facts, inherent probabilities, reasonable inferences drawn from the record, and, in sum, all of the other variant factors which the trier of fact must consider in resolving credi- bility. Northridge Knitting Mills, 223 NLRB 230, 235 (1976). After carefully listening to the testimony of witnesses, analyzing the briefs, and reviewing the transcribed testi- mony, I have concluded that at various times most of the witnesses presented testified with their own self-interests paramount. I have concluded that, for the most part, it has been necessary to reconstruct this case with a limited amount of credible evidence in order to arrive at various conclusions. Thus, there are occasions when I have cred- ited and discredited testimony of the same witness, whether he be for the General Counsel, the Charging Party, or the Respondent. This is so because at times I have found that various portions of testimony of wit- nesses were unreliable, whether through faulty recollec- tion of facts or deliberate fabrication. Accordingly, I have made findings and drawn conclusions based on what I consider to be a logical sequence of events. Thus, although I have concluded that Respondent, being aware of the union activity of the various alleged discrimina- tees, attempted to discourage union activity of its em- ployees from the commencement of the organizational drive of the Charging Party, and have concluded that many of the allegations of the General Counsel have been sustained by him, I have also concluded that al- though Respondent may have demonstrated animus both toward the Charging Party and its employee-members, Respondent had good cause in several specific instances to act in the manner that it did. Thus, in these specific instances, I have concluded that the General Counsel has failed to sustain his burden of proof. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Operations of Respondent The evidence reflects that at the time of the hearing in the representation proceeding, Respondent employed ap- proximately 16 individuals in 4 departments, including the camera department, the stripping department, the contact department, and the plating department. Of these 16 individuals, 2 were drivers, 1 a messenger, and ap- proximately 7 spent the majority of their working time performing various tasks, including black-and-white and color camera work, dot etching, contact work, stripping work, and "step-and-repeat" work. The balance of the individuals in the work force performed both clerical and lithographic tasks. The record also revealed that the Intervenor and Star- Kendall Plate Service, Division of Einhorn Enterprises,6 were parties to a collective-bargaining agreement cover- ing all production and maintenance employees employed at Respondent's place of business. The unit description of this agreement included truckdrivers, but excluded all clerical and office employees, guards, professional em- ployees, and supervisors. The effective dates of the agreement were from June 1, 1972, to June 1, 1975, with an automatic year-to-year renewal provision if neither party sought to modify or terminate the agreement at least 60 days prior to any expiration date. Respondent voluntarily recognized the Intervenor after a check of union-authorization cards indicated that the Intervenor enjoyed majority status. In his Decision and Direction of Election dated February 21, 1981, the Regional Director found that the collective-bargaining agreement between Respondent and the Intervenor was not a bar to the processing of the petition in Case 29-RC-5121. All the employees of Respondent work on one floor of its facility. The various work areas are divided in some fashion. The plating and stripping departments are sepa- rated by a line of shelves approximately 6 feet in height. The "step-and-repeat" and film processing areas are adja- cent to the stripping area. The contact, color enlarging, and camera areas follow in a line adjacent to the "step- and-repeat" area. There is an office adjacent to the strip- ping and plating areas and wrapping tables and layout tables across from the "step-and-repeat," contact, and camera areas. No evidence was received relating to the status of the Intervenor who did not appear at the hearing This was the previous name of Respondent 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Union Activity In August 1980 Local I began its organizational drive among Respondent's employees . Following a number of meetings held in the office of Union Vice President Joseph Cincotta, various employees of Respondent, in- cluding Mary Lou LaCava, Fred Becker, Steven Moss, Bob Chase, Douglas Wolder, Adrian Fields, Harvey Goetz, and, later, Angel Cordero, signed a letter identi- fying themselves as supporters of the Union. The letter of August 27, 1980, was sent to Respondent, notifying it that the Union had filed a petition with the Board. On August 297 the Union filed its petition in Case 29-RC- 5121. C. Supervisory Status of Michael Rackmil and Ronald Collman Although originally Respondent denied in its answer that either Michael Rackmil or Ronald Collman were su- pervisors within the meaning of Section 2(11) of the Act, at the hearing Respondent stipulated, and I find, that both Rackmil and Collman are supervisors within the meaning of Section 2(11) of the Act. D. Status of Patricia Kotarski In his Decision and Direction of Election in Case 29- RC-5121, the Regional Director found the following set of facts relating to Kotarski: The record discloses that Pat Kotarski was ini- tially hired by the Employer to perform only office work some six years ago. Since that time her duties have evolved to the extent that she checks materi- als, orders supplies, types delivery orders and labels, calls customers, answers the telephone, keeps track of accounts receivable and does some bookkeeping. She also makes coffee, collects coffee money, brings supplies to employees, checks packages and deliv- eries and keeps track of inventory. On occasion, perhaps once or twice a week, she cleans film at the stripping table in the early morning. She has access to employee personnel records, as do Stanley Em- horn and Michael Rackmil, and reports directly to Stanley Einhorn or Michael Rackmil. She performs her clerical tasks in her office lo- cated at the front of the shop adjacent to the plating and stripping areas. At the hearing she testified that her various duties require her to be in the plant area approximately twenty percent of the time. The record indicates that she reports to work approxi- mately one hour earlier than the other employees, as do Rackmil and Baer . She is paid on a salary basis and earns almost as much as William Einhorn. Although she does not punch a timeclock, as do other employees, she occasionally signs employee timecards. The record reflects, however, that em- ployees occasionally sign their own corrections on. timecards. I All dates of events from August through December occurred in 1980 and from January through July occurred in 1981 In addition to the above set of facts, the evidence ad- duced at the instant proceeding revealed that Kotarski was the only employee other than the supervisory staff to have access to the payroll records. Further, she was permitted to make changes on employee timecards with- out approval of any of the owners. She was treated as a confidante by management and had knowledge of the in- ternal operations of Respondent. She socialized with two of Respondent's owners and was informed, via confiden- tial conversations with both Rackmil and Stanley Em- horn, the former owner of Respondent, of an impending change of ownership long before it was made known to the rank-and-file employees. Kotarski acted as a conduit between management and employees. For instance, she relayed confidential information obtained from manage- ment to rank-and-file employees and, conversely, relayed to management employee requests for raises. Employees approached Kotarski with questions relating to policy and personnel matters , such as sick leave and medical benefits. According to Kotarski, Rackmil never asked her to speak to any employees about Local 1 nor did he ask her to inform employees that if Local 1 came into the shop the plant would be closed. However, Kotarski does concede that Rackmil once informed her, "that he had investigated a few other unions and that what their demands and everything were-we would probably be forced to close eventually. It would put us out of busi- ness. The expenses were too high." However, Rackmil did not tell her to relay that information to any other employee. Discussion Both the General Counsel and Respondent concede that the critical issue in determining whether or not Ko- tarski is an agent is whether, under all circumstances, the "employees would reasonably believe that [Kotarski] was reflecting company policy, and speaking and acting for management." Community Cash Stores, 238 NLRB 265, 266 (1978). The Regional Director, with approval from the Board, found that Kotarski was not a supervisor as defined in Section 2(11) of the Act. The issue then becomes whether or not Kotarski acted as an agent for Respondent. The evidence unfolded at the hearing revealed that the only incidents relating to Kotarski occurred in conversations she had with Mary Lou LaCava, one of Local l's most ardent supporters.8 No evidence was presented that Kotarski made any state- ments to any other employees which could be interpret- ed as violative of Section 8(a)(1) of the Act. It is clear, as the General Counsel contends, that Ko- tarski enjoyed special privileges not enjoyed by other employees of the plant. It is further clear that Kotarski, although perhaps classified as a secretary, was a confi- dante of many of the hierachy of Respondent and, in fact, performed various duties of such a nature that it may be concluded that Kotarski was a confidential em- 9 The record established that LaCava's activities included being a member of the in-plant organizing committee, signing a letter addressed from the Union to Respondent, testifying at the representation hearing, and soliciting union-authorization cards EINHORN ENTERPRISES 581 ployee, as she had knowledge and information relating to formulation of labor policies of Respondent. However, no evidence was adduced that Kotarski was a formulator of, or participated in, the making of any labor policy. Al- though the General Counsel contends that Kotarski was "also asked by Rackmil to talk to the employees about the Union," the record establishes that "the Union" referred to was the Intervenor, and not Local l.s As stated above, in deciding whether Kotarski is an agent of Re- spondent, it must be decided whether employees would reasonably believe that her statements and actions re- flected company policy and that she was acting for man- agement. LaCava conceded that Kotarski had no super- visory powers and, in her opinion, Kotarski was not part of the management team. Thus, it is logical to conclude that during a conversation that Kotarski had with LaCava on September 2, 1980, LaCava understood that Kotarski was not speaking to her as part of the manage- ment team, but as a secretary in the plant and as a friend of LaCava, as Respondent so contends. Accordingly, I have concluded that Kotarski at no time was acting as an agent for Respondent, and that any statements or actions performed by her cannot be imputed to Respondent. E. The Alleged 8(a)(1) Allegations 1. Solicitation of Employees to Join a Union Other Than Local 1, Threats of Plant Closure, and Warning and Directing Employees To Refrain From Becoming Members of Local 1 All the evidence relating to these allegations consisted of conversations that Kotarski had with LaCava on Sep- tember 2. There is no dispute that these conversations did occur, as testified to by LaCava. Thus, should it be concluded that Kotarski was an agent of Respondent, it would follow that the allegations, as listed in this section, would be found to be violations of Section 8(a)(1) of the Act. However, as I have found Kotarski not to be an agent of Respondent, but spoke in her capacity as a sec- retary or a confidential employee, I shall recommend that this portion of the complaint be dismissed. 2. Interrogation of employees The General Counsel alleges in his complaint, "On or about October 1, 1980, Respondent by Ronald Collman, itrs supervisor and agent, interrogated its employees con- cerning the employees' membership in, activities on behalf of, and sympathy in and for Local 1." To support this allegation, the General Counsel pre- sented two witnesses, LaCava and Sheldon Jacoby, a former unit employee and alleged discriminatee. The undisp8uted evidence established that on October 1, LaCava entered the area where Jacoby worked. Collman was nearby at the time. LaCava requested that Jacoby sign a union-authorization card, which he did. According to Jacoby and LaCava, at the time of the card signing, Collman positioned himself close enough to the signing to see what was happening, an allegation which was denied by Collman. After LaCava left the room, accord- 9 No evidence was adduced that any of Respondent 's supervisors asked Kotarski to speak to employees about Local I ing to Jacoby, Collman asked him what he had signed, to which Jacoby replied that it was of no importance. At the end of the day, once again Collman asked Jacoby what he had signed, and once again Jacoby responded that it was of no importance. No further evidence was obtained from Jacoby relating to this alleged "interroga- tion." Collman denied questioning Jacoby immediately fol- lowing the signing of the union-authonzation card. He does admit that later in the day he asked Jacoby what he had signed. The explanation rendered by Collman was that he had found a raffle ticket on the floor in the work area that day and thought that if it was the document that Jacoby had signed earlier that day, he would return it to him. Discussion I credit Collman's version that he did not see what had been signed by Jacoby for the following reasons: 1. Had he seen that Jacoby had signed a union-authori- zation card, there would have been no reason for him to have questioned Jacoby about what he had signed. 2. There is no evidence that any questions relating to the signing of a union-authorizaton card were asked, nor were any threats made by Collman to Jacoby relating to such activity. 3. Collman, as a supervisor of Respondent, had every right to inquire of Jacoby, a unit employee, what he was doing on company time in the work area. 4. Inasmuch as Jacoby had not informed Collman about his "union activity," no further followup was made by Collman at that time or any other timne subsequently which would be construed as a violation of Section 8(1)(1) of the Act with respect to this particular allega- tion of the complaint. As the Board indicated in Arvin Industries, 226 NLRB 925, "[W]e do not find that [supervisor's] conversation with [the employee] tended to interfere with employee Section 7 rights in violation of Section 8(a)(1). [Supervi- sor's] remarks were neither coercive nor uttered under circumstances that would induce fear of reprisal among employees. The exchange between [supervisor] and [em- ployee] essentially was limited to [supervisor's] casual query... ." The circumstances in the case cited in- volved specific union activity in the "casual inquiry" of a supervisor to an employee. In the instant case, there is no evidence that Collman was aware of any union activi- ty of Jacoby, nor was evidence adduced that the casual inquiry by Collman was made for the purposes of induc- ing any fear of reprisal for union activity on the part of Jacoby or any other employees of Respondent. Accord- ingly, I find and conclude that the General Counsel had not sustained his burden of proving a violation of Seciton 8(a)(1) of the Act in this portion of the complaint. F. Alleged 8(a)(3) and (4) Violations In, Case 29-CA-8280, the General Counsel alleges that "On or about September 2, 1980, Respondent laid off employees Fred Becker and Steven Moss, and on or about October 3, Respondent discharged Sheldon Jacoby, and since those dates have failed and refused to 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recall or reinstate the employees because they joined and assisted Local 1 and engaged in other concerted activity for the purpose of collective bargaining and mutual aid and protection." In Case 29-CA-8407, the General Counsel alleges- "Since on or about October 1, 1980, Respondent by M. Rackmil, its agent and supervisor, and by other agents and supervisors presently unknown, assigned its employ- ees to more arduous and less agreeable job tasks, subject- ed said employees to more onerous conditions of work by engaging in stricter supervision of said employees, in- creasing the work load of the employees and withdraw- ing certain privileges previously enjoyed by them." In Cases 29-CA-8796 and 29-CA-8811-2, the General Counsel further alleges: "On various dates since October 6, 1980, and on April 6 and 13, 1981, Respondent Mi- chael Rackmil, its supervisor and agent, and by other su- pervisors and agents presently unknown, subjected its employee Mary Lou Lacava, to more onerous conditions of employment, prevented her from associating with other employees in the course of her work by requiring her to remain in the darkroom and directing her not to associate with pro-Local 1 employees, and withdrew the privilege previously accorded to her of sitting in the office when there was no work for her to do." 10 1. Layoffs of Becker and Moss The undisputed evidence established that on Septem- ber 2, at the end of the workday, Ronald Collman, one of the supervisors of Respondent, informed Fred Becker, a color cameraman, and Steven Moss, a dot etcher, that they were being laid off for lack of work. At the time this occurred, an employee working as a black-and-white cameraman was about to terminate his employment. Becker, who was qualified to perform work as a black- and-white cameraman, offered to continue employment at a reduction in pay to perform that function. However, the offer was refused. The record further indicated that both Becker and Moss were recalled by Respondent in October 1980 (exact date not clear). The record further disclosed that Respondent uses a piece of equipment known as the Rayne enlarger, capa- ble of performing color work in the camera department. Approximately 2 weeks before the layoffs of the two in- dividuals, the Rayne enlarger became inoperative and had to be sent out for repair. Collman testified that the work performed by the Rayne enlarger could not be performed by the color camera. Thus, it was necessary for Respondent to sub- contract work done by Becker and Moss to other shops. Rackmil testified that even prior to the breakdown of the Rayne enlarger, work to which Moss and Becker were assigned slowed down tremendously during the summer of 1980. The undisputed evidence also established that the same Rayne enlarger had broken down in the past on at least six separate occasions, as much as for a 2-week duration and, although work was subcontracted to other printing 10 This allegation is, in effect, a more detailed specification of the alle- gation in Case 29-CA-8407 shops because of the malfunction of the Rayne enlarger, no employees were ever laid off. Discussion In reviewing, studying, and analyzing the entire record, despite the valiant efforts of Respondent's coun- sel, both at the hearing and in his brief, the weight of the evidence, in its entirety, has convinced me that Respond- ent, through its supervisors and managers, on being in- formed of the union activity of its employees in favor of the Charging Party, engaged in a series of actions with the purpose of discouraging its employees from the ac- tivity. Although in some specific instances, the General Counsel and the Charging Party have not convinced me that the General Counsel has sustained her burden in specific allegations. On the whole, I am convinced that Respondent, principally through Michael Rackmil, with aid from various other supervisors, has committed sever- al violations of Section 8(a)(1) and (3) of the Act. I base my conclusion principally on the fact that prior to the advent of activity of the Charging Party in August 1980, the turmoil that later evolved in Respondent's plant was entirely absent. On receiving notice of the Charging Party's representation petition, Respondent immediately attempted to nip in "the bud" the activity of its employ- ees. Having been advised by the Charging Party that sev- eral employees were active adherents of the Union, in- cluding Becker and Moss, Respondent used as a pretext the lack of work in its plant to lay off both employees precipitously without any advance notice I was not im- pressed with the testimony of Collman about the reasons for the discharge. Nor was I impressed with the abun- dance of testimony and documents submitted by Re- spondent to demonstrate what "terrible" employees, es- pecially Becker, there were in the plant deserving of lay- offs, suspensions, warning notices, and discharges. I do not condone the various acts of "horseplay" attributed without dispute to Becker in the plant Such "horseplay" and "fooling around" lead me to believe that many of the employees, especially Becker, were not model em- ployees. Nevertheless, the record establishes that Re- spondent accepted these employees at face value with all their various idiosyncrasies and instituted no disciplinary action against anyone prior to the organizational activity of the Charging Party. Accordingly, I am convinced that Becker and Moss were laid off discriminatorily for the following reasons: 1 The representation petition of the Charging Party was filed and received by Respondent immediately prior to the layoffs of Moss and Becker. 2 The Charging Party made known to Respondent that Moss and Becker were two of its adherents. 3. Without warning, the employees were abruptly in- formed of their layoffs at the close of business on Sep- tember 2. 4. No offer of other employment at the plant was made to either employee, despite the fact that Becker had experience in and was qualified to perform black- and-white camera work. EINHORN ENTERPRISES 583 5. Although I credit Collman that Becker requested the black-and-white camera work and that he be paid "off the books," Respondent rejected the proposal out of hand without offering Becker an opportunity to work "on the books " 6. Although Respondent contends that as a result of the breakdown of the Rayne machine, the layoffs of these two employees were necessary, it is undisputed that at no time in the past when the machine broke down, or for any other reason, had any employees been laid off. 7. Although Collman testified that it was Einhorn, the former owner of Respondent, who had decided to lay off the two employees, the evidence presented by both Coll- man and Rackmil revealed that it was Rackmil who de- cided not to retain Becker following his offer of "work- ing off the books." In addition, Collman and Rackmil as- serted inconsistent reasons why Becker was not retained. 8. Although Respondent defended its decision for not retaining Becker, no evidence was adduced to establish why Moss was not retained at some other position. 9. Evidence was adduced at the hearing that Respond- ent had been advertising for strippers throughout the summer of 1980 and, indeed, several part-time strippers were hired in October. No evidence was submitted that Moss was offered any opportunity to train as a stripper in order to continue his employment at Respondent. 10. Although Respondent asserted that the principal reason for the layoffs of the two employees was lack of work, and that it refused to hire Becker to perform black-and-white camera work because he wanted to work "off the books," Respondent further claimed that Becker protested performing black-and-white camera work when asked to do so in the past and preferred not to perform this operation. Becker does concede that he preferred color to black-and-white camera work. How- ever, I was not convinced by the evidence that Becker refused to perform black-and-white camera work, or that he was disinterested in performing the work, considering the fact that the alternative was a layoff. 11. The fact that Becker was recalled to work approxi- mately 6 weeks later convinces me that despite Respond- ent's assertion that Becker was constantly "fooling around," his work was apparently good enough for Re- spondent to reacquire his services. Accordingly, I have concluded that the Respondent violated Section 8(a)(3) and (1) of the Act by laying off Becker and Moss on September 2, 1980. 2. Discharge of Sheldon Jacoby Sheldon Jacoby began employment for Respondent on September 4 as a black-and-white cameraman. i i Jacoby worked for Respondent until Friday, October 3 During this period of employment, Jacoby testified that Collman, his immediate supervisor, had indicated to him on nu- merous occasions that he was performing good work. However, on the second Saturday of employment, Jacoby conceded that Collman did state that he had to work a little faster. Jacoby responded that the speed was being impeded by faulty equipment, to which Collman replied that he would speak with Rackmil about repair- ing or replacing the equipment. On Friday, October 3, 12 Rackmil informed Jacoby that because his work was slow he was being let go. Ac- cording to Jacoby, Rackmil cited no specific examples of slow work but, in fact, admitted that the work was not slow or of poor quality, and that he dust wanted to lay off Jacoby. Jacoby testified that after Rackmil left his work area, he overheard Rackmil speaking to Collman, Baer, and LoPresti, three other supervisors of Respondent, that he did not want a union at the plant. He further heard Baer make a similar comment at this time. Rackmil shortly thereafter returned to Jacoby's work area and was asked by Jacoby for examples of his poor work. Rackmil did not inform Jacoby of any examples and, in fact, acknowledged that his work had not been so bad. Jacoby asserted that during this conversation he heard Collman state that Rackmil was changing his story with respect to Jacoby's discharge. Rackmil testified that at the time he hired Jacoby, he explained that it was necessary that work be performed at a quick pace. In addition, he informed Jacoby that there would be a probation period and if his work was satisfactory, he could retain his employment Rackmil further asserted that he had checked Jacoby's work on many occasions and found that his negatives were over- exposed and he failed to work fast enough. Rackmil fur- ther testified that he had no knowledge of any union ac- tivities of Sheldon Jacoby. Collman testified that on several occasions prior to the termination of Jacoby, he had advised Jacoby that he was displeased with both the quality and the speed of his work He further stated that he reported to Rackmil that Jacoby's performance was unsatisfactory. Also, it should be noted that Collman denied looking over Jacoby's shoulder on October 1 and observing him signing a union-authorization card for Local 1. Discussion Other than his signing of the union-authorization card handed him by LaCava on October 1, no evidence was adduced at the hearing of any union activity by Jacoby I credit Rackmil's testimony that, on being hired, Jacoby was informed that he would be on probation on a tryout basis and that during the tryout period he was constantly criticized by Collman, his immediate supervisor. In fact, Jacoby acknowledged that Collman informed him that if his work did not speed up, he would be fired. The General Counsel argues that as Jacoby heard that the supervisors discussed among themselves within his hearing range the reason for his discharge, one must con- clude that Jacoby was discharged for signing the union- authorization card in violation of Section 8(a)(3) of the Act. I find no merit in this argument. The evidence pre- " It should be noted that his commencement of work as a black-and- white cameraman occurred 2 days after Becker, who was denied work as a black-and-white cameraman, was laid off for lack of work ' 2 It is noted that this occurred 2 days following the incident whereby Jacoby alleged that Collman had observed him signing a union-authoriza- tion card handed to him by LaCava 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sented at the hearing has failed to convince me that Jacoby heard any discussion regarding his discharge by supervisors. I do not believe that any Respondent super- visors would speak in the plant so loud as to be over- heard by unit employees respecting the reasons for Ja- coby's discharge. Furthermore, as Respondent points out in its brief, in Jacoby's affidavit submitted to a Board agent shortly after the alleged incident occurred, he ac- knowledged that "they were all speaking at once and I do not know who said what." Despite my conviction that Respondent engaged in various deeds which consti- tute violations of the Act, I cannot attribute the dis- charge of Jacoby to Respondent's eagerness or desire to rid itself of a union adherent. Although I recognize that this discharge occurred during the very active period of Respondent's antiunion activity, I do not believe that the General Counsel has sustained his burden that Jacoby's discharge was the result of any union or protected activi- ty. Accordingly, I recommend that the allegation that Jacoby was discriminatorily discharged in violation of Section 8(a)(3) of the Act be dismissed. 13 3. Assignment to more arduous and less-agreeable job tasks The General Counsel supported this allegation through the testimony of Harvey Goetz, a unit employee, who testified that following his testimony at a representation hearing, he was asked to scrub out the sink, sweep the floor, and empty garbage, work that he had never per- formed prior to his testimony at the representation hear- ing. On cross-examination, however, Goetz admitted that he never was subject to discipline for refusing to scrub the sink, and he further admitted that as part of his normal work routine, he was obliged to clean out the sink. He also admitted that prior to the hearing, Rackmil had requested him to maintain the cleanliness in his work area and that he did maintain cleanliness of his area prior to the hearing. He further admitted that he smoked and dropped his cigarette butts on the floor many times as there was no ashtray present and, as the area required cleanliness, he did pick up his cigarette butts. He conced- ed that on approximately three occasions he did not sweep up when asked to by Rackmil, but was not disci- plined for his failure to do so. 4. More onerous conditions of work and stricter supervision Goetz testified that after the representation hearing, "It got very difficult to work." He explained that Rack- mil would assign him work at the beginning of the day and return approximately every half hour to assign him another detail prior to his completion of his first assign- ment. In addition, Goetz asserted that "He would be constantly on my back all day for various different rea- sons, even if I went to the bathroom." He amplified his testimony by explaining that Rackmil , on a daily basis when Goetz was required to visit the bathroom, yelled at 13 It is to be noted that the allegation relating to the discharge of Jacoby is intertwined with the alleged 8(a)(1) interrogation of Jacoby I have discussed this at length, supra, wherein I concluded that the Gener- al Counsel had not sustained his burden of proving that allegation him, asking him what he was doing and requesting that he come out According to Goetz, this all began in Sep- tember 1980, prior to his appearance at the representa- tion hearing, but after the advent of the Union at the plant Moss, employed by Respondent from May 1980 to September 1981, testified that on his return from a layoff14 Rackmil commenced to complain with respect to the speed of his work on a daily basis. According to Moss, prior to the advent of the Union, his speed had not been questioned, and it remained constant during his entire term of employment with Respondent. LaCava testified that prior to October 1980 she was able to visit the stripping area to talk to strippers and, although there were supervisors present, her visits oc- curred without comment. However, in October 1980, Rackmil prohibited her from talking to the strippers In addition, Rackmil ordered LaCava to cease going into Kotarski's office, something that she had been doing from the time she started employment at Respondent. On cross-examination , LaCava conceded that although prohibited from speaking to the strippers while in the stripping department, she ignored these instructions from Rackmil and continued to speak to the employees as before. 5. Withdrawal of certain privileges previously enjoyed by employees Angel Cordero, a former stripper and an alleged dis- criminatee, testified that prior to the discharge of Doug Wolder, a full-time stripper, he had been accustomed to taking more than his normal half-hour lunch period. However, after Wolder's discharge, 15 Rackmil began to complain about Cordero's excessive lunch periods. LaCava testified that prior to the advent of the Union, during slack periods of work, she spoke to other employ- ees and sat in the lunch area without any complaint from Respondent . However, following the advent of the Union, Rackmil ordered LaCava to stay in the contact room when she was not actually working. She further asserted that prior to the advent of the Union, she had employed a practice of cashing her paycheck at the same time as other employees. However, subsequent to the advent of the Union, Rackmil compelled her to cash her paycheck alone. On cross-examination, LaCava conceded that although ordered by Rackmil to remain in the contact room rather than wander around and stay away from the lunch table, she disobeyed his orders and continued her usual routine She further admits that she was not disciplined in any manner for disobeying Rackmil's orders. 6 Written warnings The General Counsel alleges, "On or about October 1, 1980, Respondent instituted a policy of issuing written disciplinary warnings, and since that time has issued said warnings to certain of its employees " 14 Discussed in detail supra 's Wolder's discharge was not alleged as an unfair labor practice EINHORN ENTERPRISES 585 Through testimony of witnesses and documentary evi- dence, the General Counsel established that commencing in October 1980 written warnings were issued to many employees, all who were supporters of Local 1, for vari- ous infractions of company rules and regulations. October 13, 1980-A notice for playing a radio too loud in the work area which distracted other employees. October 14, 1980-Lateness for 20 minutes. November 22, 1980-Failure to report an alleged illness in which Goetz was absent I day and failure to complete a work assignment before leaving for lunch without noti- ficaion. December 19, 1980-Arriving late 1 hour and leaving the workplace in early afternoon without reporting to management . In addition, Goetz failed to report his ab- sence from work due to illness until his mother tele- phoned at 11 a.m. on the date of his absence In addition, Goetz was criticized for unsatisfactory work perform- ance and quality of work produced. January 13, 1981-Late"for work 5 of the last 6 work- ing days, failure to produce evidence of his whereabouts on January 9, resulting in a 2-day suspension January 23, 1981-Reprimand for leaving at 2 p.m. for a medical appointment. Unacceptable to Respondent February 3, 1981-Warnings for excessive lateness in January and February. Suspended for 2 days without pay. February 18, 1981-Lateness for 40 minutes, resulting in final warning notice prior to termination. February 6, 198116-Lateness on nine separate occa- sions ranging from 8 to 45 minutes . This resulted in the termination of Goetz. Goetz testified without contradiction that all the in- fractions of company rules for which he received written warnings subsequent to October 1, 1980, were broken by him on various occasions prior to October 1, 1980, with full knowledge of Respondent. However, although ver- bally reprimanded by Respondent's supervisors, at no time were any written warnings given to him. Fred Becker received the following written warnings subsequent to October 1980: November 22, 1980-For engaging in horseplay and stealing time and material from the Company and for in- subordination, Becker was suspended for 2 days. December 9, 1980-For failing to complete an assign- ment. July 9, 1981-For playing dice and having a radio in the camera department July 17, 1981-Unauthorized use of camera and materi- al. Steven Moss received the following written warnings: December 9, 1980-Absence for an entire day without notifying Respondent. February 5, 1981-lateness on two occasions without notification to Respondent. This resulted in a 2-day sus- pension. Angel Cordero received the following written warn- ing: 1e This notice is obviously misdated as the body of the written repri- mand indicates various infractions by Goetz up to and including April 9, 1981 A handwritten note at the bottom of this reprimand indicated that it was received by Goetz on April 9, 1981 October 21, 1980-Failure to report to work on two dates without notification to Respondent. Mary Lou LaCava received the following written warnings: October 21, 1980-Failure to receive permission from Respondent for leaving the shop at 11 a.m. and failure to notify Respondent that she would be absent for the entire day. October 31, 1980-Removing timecards of employees without authorization, resulting in a 2-day suspension. It is undisputed that no written warnings were ever given to employees for infractions of company rules prior to October 1980. ' Rackmil asserted that the employees had constantly been warned verbally of various company infractions throughout the years. Matters worsened in the summer of 1980. However , inasmuch as the ownership of the Company was in the process of being changed, he assert- ed that no company policy change was performed at that time. However, as the infractions became more frequent and more serious, more strict disciplinary measures had to be taken by Respondent. ' Discussion The General Counsel alleges that "Commencing ap- proximately October 1, Respondent engaged in 'a series of discriminatory acts for the purpose of discouraging its employees from engaging in union and concerted activi- ties in violation of Section 8(a)(3) and (1) of the Act." Respondent, on the other hand, claims that inasmuch as Respondent was losing control of the employees who had been engaged in various unbusinesslike activities for a long time, it was necessary for Respondent to instill more strict work rules to obtain more productivity from its employees. The stricter rules had no relation to or bearing on the protected concerted activities engaged in by its employees, and, therefore, the Respondent argues that the allegations with respect to these enumerated matters should be dismissed. I find merit in the General Counsel's position The record indicates that having disposed of Becker and Moss on September 2, Respondent remained, dor- mant in its activities against its employees during the month of September However, the record further re- veals that a hearing on the representation' petition filed by the Charging Party was conducted in late September and early October, and both LaCava and Goetz testified for the Charging Party at the'hearing. Shortly thereafter, Respondent engaged in a series of acts, as enumerated supra, particularly against LaCava and Goetz. The evi- dence is undisputed that the following did occur: 1. More strict supervision of Goetz and LaCava 2. Withdrawal of privileges previously held by Cor- dero (shortening his lunch period) and by LaCava (pro- hibiting her from speaking with employees, sitting in the lunch area during her lunchbreak, and cashing paychecks with other employees). 3. The issuance of written warnings to. Cordero, Becker, Moss, Goetz, and LaCava for infraction of com- pany rules, something never done previously for. similar infractions. I recognize that most of Respondent's em- 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees may not be as industrious, loyal, conscientious, trustworthy, or ambitious as Respondent would have them be. I do not condone the various activities of these employees, e.g, LaCava being absent for an entire day without notification to Respondent and her handling of timecards in October, or Becker's "fooling around" in the plant and using equipment and materials of Respond- ent for personal use. Nevertheless, the record revealed that various infractions and misbehavior of employees had been occurring for a long time, and there was no change in their behavior from their preunion activities to their postunion activities. Respondent had condoned these unbusinesslike activities of its employees for a long time. Although Respondent asserts that in the summer of 1980 it had decided to become more strict in relation with its employees, the strictness applied to these em- ployees did not commence until following the filing of the petition by Local 1 and the hearing in late Septem- ber. The "crackdown" commencing in October may have been warranted under normal circumstances. How- ever, the timing of Respondent's actions against the known union adherents is too coincidental not to take due notice. Although the Board has held that timing, standing by itself, may be insufficient to find a violation, the Board looks to certain established factors such as knowledge of union activity, animus, and the validity of reasons asserted for the discriminatory conduct of an em- ployer.17 I am cognizant of the fact that Board decisions can be cited by both the General Counsel and Respondent to support their respective positions with respect to issu- ance of written warnings. However, each case must be analyzed on its own merits. In this particular case, I do not credit Rackmil's testimony that various disciplinary actions, including the written warnings, were instituted because of business reasons. I find and conclude that the various restrictions of employees' activities, the with- drawal of privileges, and the myriad of written warnings were all done for the purpose of discouraging the union activities of the employees of Respondent. is In arriving at my decision, I have taken into consider- ation the arguments of Respondent in its brief and its cases cited to support its position. However, each case must be judged by its own particular facts and, in this case, I cannot agree with Respondent's position. Although the General Counsel alleged as one of the discriminatory actions of Respondent its ordering Moss to deliver plates to Rackmil rather than directly to the platemaker, I do not find this to be a violation of the Act. I find it to be a managerial prerogative, not onerous or demeaning . Although it may take more time to do the job, as Moss suggests, that had no harmful effect on Moss or any other employee. Furthermore, Rackmil's complaint that Moss was working too slowly and asked him to speed up does not constitute a violation. Again, it is managerial prerogative to require employees perhaps to work faster than they are working, no written repri- 17 Jenks Cartage Co, 219 NLRB 368, 369-370 (1975), in which the Board adopted the rationale of Administrative Law Judge Samuel Singer 18 See, for example, Shirt Shed, Inc, 252 NLRB 292, 300 (1980) mand was accorded to Moss, and no deleterious effect resulted from Rackmil's request. I also have considered the fact that LaCava ignored many of the orders of Rackmil and that she continued to associate with unit employees and wandered around the plant area instead of remaining at a specific spot. Her disobedience of Rackmil's orders are irrelevant. The vio- lation occurred when Rackmil issued the orders. The fact that she was not disciplined at a future time for dis- obedience cannot be used as a defense for Respondent to its unfair labor practices. With respect to the assignment of employees to more arduous and less agreeable job tasks, I am in accord with Respondent's contention that the work assignments re- quested of Goetz are an ancillary task to his prime task as platemaker, work that had been performed by him on occasion prior to the advent of the Union, and which ap- pears to be a normal task for one in his position to per- form. The Genral Counsel offered no further evidence to sustain his position with respect to this allegation, i.e, no other employees offered any testimony to establish that they were assigned more arduous work following the advent of the Union 19 Accordingly, I shall recommend that this portion of the allegation referred to herein be dismissed. 7 Increasing workload of employees, termination of Angel Cordero, and refusal to pay Cordero earned wages Cordero testified on direct examination that he began working for Respondent in May 1980 as a stripper.20 At that time two other strippers were employed, named Steve and Richie. Both Steve and Richie were full-time employees. In addition, another employee named Frankel was employed part time at night. In early October 1980, Richie left the employ of Re- spondent and was replaced by Doug Wolder. Later that month Steve also left Respondent, was not replaced, and his work was divided between Wolder and Cordero. On October 22, Wolder was discharged. He was not re- placed, and all stripping work in the daytime was per- formed by Cordero. Cordero told Rackmil that if he needed a stripper, Cordero could recommend a friend, to which Rackmil replied, "Not right now because I have problems, and I'll let you know later." Rackmil did not bring up the subject of a stripper replacement to Cordero at any time thereafter. Cordero further testified that although permitted a one-half hour lunch period, prior to Wolder's discharge he averaged approximately 45 minutes for lunch. There- after, when he took more than one-half hour for lunch, Rackmil advised that he could not do that in contrast to prior times when Cordero's excessive lunch hour evoked no comment from any of Respondent's supervisors. 19 One of the alleged discrimmatees , Angel Cordero, in fact, denied having any knowledge of any assignments of "more arduous work" to either himself or any other employee, as alleged by the General Counsel 20 Cordero originally worked for Respondent approximately 9 months in 1976 or 1977 21 Steve, Richie, and Frank were not identified by last names EINHORN ENTERPRISES 587 Also, following Wolder's departure, Rackmil requested Cordero to come to work earlier and remain later. Cor- dero thereafter reported to work approximately 7:30 a.m. rather than his normal time of 8 a.m. He asserted that he left his regular time at 5 p.m. because he was tired. On Thursday, October 23, in a letter handed to Rack- mil, Cordero requested a $50 raise. Rackmil stated that he had no authority to grant the request, but would speak to Einhorn, at that time still the owner of Re- spondent. Later that same day, Rackmil informed Cor- dero that Einhorn would not grant the raise request on the basis that Cordero was irresponsible for having taken off days without notifying Respondent. Cordero com- pleted his work that day. He did not report to work the next 3 working days. On Wednesday, October 29, he re- turned to Respondent's facility to pick up his paycheck for the previous week. He requested his paycheck from Kotarski, who stated that she could not give him the check unless he submitted to her a letter of resignation LoPresti also requested that he sign a letter of resigna- tion which he refused to do. Cordero contacted LaCava and thereafter telephoned Concotta, vice president of Local 1, who advised Cordero to submit his own letter of resignation. Cordero composed a letter, stating that he was resigning because of harassment as a result of his union activities on behalf of Local 1. He handed the letter to LoPresti who, after reading it, stated he could not accept the letter and would not hand Cordero his paychek. He then telephoned Martin Scher, Respond- ent's labor attorney, who spoke with Cordero. Accord- ing to Cordero, Scher advised that Respondent's owners were "nice people" and "I should drop charges." Fol- lowing the telephone conversation, LoPresti informed Cordero that if he wanted his money, he should get a lawyer Cordero responded that he would do that and would see him in court. The following day, Cordero telephoned Respondent and again spoke with LoPresti, requesting his paycheck. LoPresti responded that he had mailed the check to Scher. He further stated that the res- ignation letter of Cordero would not be accepted as it "was all lies." Cordero then telephoned Scher, request- ing his paycheck. Scher responded that he had not re- ceived it yet, but if he would sign the letter of resigna- tion he would get his paycheck. He further informed Cordero that if he dropped his charges, he could prob- ably get his job back.22 Cordero refused to do as re- quested. Thereafter, Cordero telephoned Rackmil, again requesting his paycheck. Rackmil responded that he would not receive his paycheck unless he signed the letter of resignation, to which Cordero responded that he would see him in court. On January 14, 1981, Cordero received his final pay- check after signing a letter of resignation, as requested by Respondent. By letter dated February 23, 1981, Cor- dero notified Respondent that he signed the resignation letter of January 14 under financial pressures, but that his true reason for leaving the employ of Respondent was because he was "forced by you to quit because of my union activities." 22 Cordero did not identify further to what charges Scher was refer- ring On cross-examination, Cordero stated the following- Rackmil told Cordero to bring in a letter of resignation and he would receive his paycheck on the normal Thurs- day payday, October 30. When he reported on October 30, Rackmil was not there. He asked Kotarski for the paycheck, she asked for the letter, and he said he did not have it and would bring it in later. He further informed Scher on the telephone that his reason for resigning was that he could not get the requested $50 raise or hospital benefits. Cordero conceded that it was Rackmil, not Scher, who stated that if he signed a letter of resignation he would receive his pay. Scher simply stated that he should drop the charges. He further admitted that his resignation letter was handwritten by LaCava as dictated by him and signed by him. Cordero further acknowledged that on October 29 he did not tell Rackmil he was leaving because he was har- assed for his union activities, nor was he leaving because other employees were being harassed for their union ac- tivities. Cordero stated that the reasons he left were because "they wouldn't hire nobody else. And, I was doing double work. And, I wasn't making no money; and, be- cause of the Union. Because they had a union and we didn't. That was one of the main reasons I left. That's what turned me off on them all the way." In reference to the matters concerning Cordero, Rack- mil testified as follows: Rackmil essentially confirmed the conversation he had with Cordero on October 23 when Cordero requested a raise in writing and was rejected by Respondent. He fur- ther testified that on October 29, at approximately 9 a.m., he observed Cordero entering Respondent's prem- ises through the back door, approached one of the tables, and started to pack up his tools. He then observed LaCava conversing with Cordero for "a couple of min- utes," after which Cordero began to walk out the front door. Rackmil intercepted him and asked, "What's hap- pening?" Cordero responded that it was obvious that he was quitting because he did not receive his raise, and that he would pick up his paycheck on Thursday. Rack- mil suggested that if he was going to pick up the pay- check Thursday, rather than Respondent mailing it, he needed Cordero to bung a letter that he had resigned. Rackmil further stated that after Cordero left that after- noon, he instructed Kotarski that when Cordero returned on Thursday he should receive his paycheck, providing he submitted a letter of resignation The following day, by telephone, he also spoke with Ken Bahr and Kotarski to remind them of his instructions. Rackmil further testified that although he had received resignation letters from several employees, in addition to Cordero, no one prior to Cordero's resignation from em- ployment had been requested to submit a letter of resig- nation. However, Respondent failed to produce any doc- umentary evidence of letters of resignation from any other employee. When asked by the General Counsel why Cordero's paycheck was being held up, Rackmil replied, "Because of his behavior in that he did not come in for three days prior to asking for a raise. When he walked into the shop 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he came in, picked up his tools and started to walk out the door. He never stopped to even come and tell me he was leaving until I approached him halfway out the door. And at that time he told me he was leaving be- cause he did not receive his raise, and that was the reason. I said, `Fine; give it to me in writing, give it to me in a letter and you come tomorrow to pick up your paycheck.' And he said to me, `Fine, no problem, O.K."' Scher testified as follows: On October 29 Rackmil tele- phoned Scher, informing him that Cordero was quitting. Scher advised that in view of the fact that charges had been filed by LaCava and Jacoby relating to unfair labor practices, it would be a good idea to obtain a letter of resignation from Cordero with the reasons for his resig- nation. The following day, October 30, LoPresti tele- phoned and asked Scher to speak to Cordero in refer- ence to the resignation letter. Cordero requested the reason for a resignation letter, to which Scher respond- ed, "So that it will be perfectly clear that you are leav- ing the company, and why you are leaving and just put it in writing so we will have it for the record and that's the end of it. No other reason." Cordero agreed to the suggestion of Scher. Sometime later Scher again received a telephone call from LoPresti who read the resignation letter that Cordero had written out with the help of LaCava and Concotta. Scher then engaged in a second conversation with Cordero. Scher asked Cordero, "Why are you giving us that kind of a letter?" Cordero re- sponded that after he had telephoned the Union and spoken to LaCava, she wrote the letter for him. Scher further testified that Cordero informed him that LaCava stated that this was the letter the Union wanted Cordero to give to Respondent. LoPresti then asked Scher if it was all right to give him his paycheck. Scher answered that he had better wait until Rackmil returns. The following week LoPresti again telephoned Scher to inform him that Cordero had returned, demanding his paycheck. LoPresti stated that Rackmil had instructed him that if he did not receive a truthful resignation letter from Cordero he was not to give him the paycheck. Lo- Presti then informed Scher that he had told Cordero that he had mailed the check to Scher. On receiving the check, Scher mailed it back to Respondent's office. Sometime later, Scher was informed by Respondent that it had received a letter from the New York State De- partment of Labor indicating that a complaint had been filed stating that final wages had not been paid Cordero. Scher advised Rackmil that following a hearing on the matter, hw would probably be ordered to give the final paycheck to Cordero. In addition to the testimony of Cordero, Rackmil, and Scher relating to Cordero's departure from Respondent's employment, the evidence established that during the month of October, Frederic Harber, Sidney Fisch, Her- bert Reimer, and Richard Darienzo all were hired by Respondent to perform part-time work as strippers on the evening shift.23 22 Details of this employment will be discussed , infra, in the section entitled, "Objections to the Conduct of the Election " Discussion It is the General Counsel's contention that "Cordero quit his job because he was doing double work, no new strippers were being hired, the employees were not unionized, and because of the harassment he received be- cause of his organizing activities on behalf of the Union." On the other hand, Respondent argued that, "Most sig- nificant was that Cordero himself testified that he quit because he was not receiving a raise." On the subject of constructive discharges, the Board has held the following: There are two elements which must be proven to es- tablish a "constructive discharge." First, the burden im- posed on the employee must cause, and be intended to cause, a change in his working conditions so difficult or unpleasant as to force him to resign. Second, it must be shown that those burdens were imposed because of the employee's union activities. Crystal Princeton Refining Co., 222 NLRB 1068, 1069 (1976). For the reasons stated below, I have concluded that the General Counsel has failed to sustain his burden of a violation of the Act and, accordingly, I am recommend- ing that the allegation with respect to Crodero's con- structive discharge be dismissed. The record indicates that prior to the termination of employment of Cordero, Respondent hired a number of part-time employees as strippers to work on its night shift.24 Thus, although two strippers had recently left the employ of Respondent, Cordero was not left alone to perform the work of three individuals. The record estab- lishes that no full-time strippers were hired to replace the two recently terminated employees. However, although Cordero may have not been cognizant of the fact, the part-time workers did, in fact, replace the two full-time strippers who had worked the daytime shift with Cor- dero. Although I have found that Respondent engaged in a series of unlawful acts to discourage union and protect- ed concerted activity of its employees, including a writ- ten warning issued to Cordero, I do not regard this act against Cordero sufficient to make his working condi- tions intolerable. The record reveals that Corder's lunch- time was reduced, and that he did work longer hours than his normal amount per week. However, Cordero did receive overtime pay for this extra work, and did not work as long hours as requested by Respondent for his own personal reasons. I conclude that Cordero, perhaps believing that he was the only stripper available and at- tempting to take advantage of this fact, requested a raise from Respondent which was denied. Thus, as admitted by him, he immediately voluntarily terminated his em- ployment. I do not consider that his letter of resignation in which he claimed he resigned because of harassment by Respondent for his union activities is significant. I note that following his resignation, he consulted with La- Cavca and Cincotta, and I have drawn the conclusion that under their advice and guidance'25 the letter was 24 Full details of these part-time employees will be discussed more fully under the section, infra, entitled "The Challenged Ballots " 25 The record is clear that it was LaCava who wrote the letter of res- ignation for Cordero I do not credit Cordero or LaCava that it was Cor- Continued EINHORN ENTERPRISES written as a self-serving declaration for the benefit of the Union. Accordingly, I am recommending that the allega- tion with respect to Cordero's termination as a violation of Section 8(a)(3) and (1) of the Act be dismissed.26 I further recommend that the allegation that employ- ees received an increase in their workload in violation of Section 8(a)(3) and (1) of the Act be dismissed. As for the refusal to pay Cordero wages by Respond- ent, the General Counsel contends that "With respect to the withholding of Cordero's final paycheck, it is obvi- ous that at least one of the reasons for Respondent's con- duct in this regard was the charge filed against Respond- ent by the Union." Respondent, on the other hand, contends that "The evidence makes clear that Star Color acted reasonably in withholding Cordero's last paycheck, when it was pre- sented with a fallacious resignation letter drafted by a union leader." For the reasons listed below, I have concluded that the General Counsel has not sustained his burden of proof The creditable facts are as follows: On being informed by Cordero that he was quitting because of Respondent's failure to grant him a pay raise, Respondent requested Cordero to submit a letter to that effect, and Rackmil instructed LoPresti not to deliver Cordero's final paycheck until a resignation letter was received Thereafter, when Cordero submitted a letter which indicated that he left because of the harassment of Respondent for his union activity, Respondent rejected the letter. At this point, Martin Scher, attorney for Re- spondent, was advised of the situation by telephone. On two different occasions he spoke to Cordero on the tele- phone. The General Counsel's brief states: Shortly after his letter was rejected, Cordero spoke with Respondent's attorney, Martin Scher, who stated inter alia that Cordero should drop his charge. (1035) In a vacuum this comment has no meaning whatsoever, however when viewed in light of then-outstanding NLRB charges filed against Respondent by the Union, it becomes clear that this was what Scher was referring to. The fol- lowing day, Scher removed all doubt why Cordero was not receiving his paycheck unless the charge was withdrawn. The transcript, at 1035, referring to the first conversa- tion between Cordero and Scher, discloses the following question and answer: Q. Was anything else said? A And, he just told me that I should drop charges. That I shouldn't be like that, that they are very nice guys. That they just got the place. dero who dictated the letter and it was LaCava who wrote it because of his illegible handwritting 28 Cordero also is a subject of a challenged ballot to be discussed, infra, under the section entitled "The Challenged Ballots " 589 In the second conversation, which occurred after Cor- dero was told by LoPresti that he had forwarded his paycheck to Scher, Cordero telephoned Scher himself. According to the transcript, at 1038, the conversation in part relating to the subject matter is as follows: Q. OK. Was anything else said about the check? A. That if I would sign the letter of resignation that I would get it. And, I said, no, that I was gonna take them to Small Claims Court. Q. Did he say under what conditions he would give you the check? A. If I would give them a letter of resignation. And, he had told me that if I would drop charges that he could probably get my job back. Based on the transcript testimony, I conclude that there is no nexus between Cordero's receiving his last paycheck and the withdrawal of a charge. Were I to accept the conversation, as related by Cordero on direct testimony, I would agree with the General Counsel that the charge referred to was the NLRB charge filed by the Union on behalf of Cordero in Case 29-CA-8407. How- ever, I do not credit Cordero's version. Scher, an experi- enced labor attorney, by this time was well aware that the Union had been filing charges alleging various viola- tions by Respondent. Nothing would be gained by Cor- dero's withdrawal of a charge which was not filed by him and which was only one of many. I credit on the whole the factual account, as testified to by Rackmil and Scher, relating to this subject matter. I further conclude that the reason Respondent requested a letter from Cor- dero, although no letters were requested by other em- ployees who had voluntarily resigned employment, was, as Respondent contends, that charges had been filed by this time by the Union. Cordero was a known union ad- herent, and Respondent, in order to protect itself from any future charges as was done herein, attempted to ward off any unfounded charges by securing evidence of a voluntary termination by Cordero unrelated to any dis- criminatory conduct of Respondent. Accordingly, I rec- ommend that this allegation of an 8(a)(4) and (1) viola- tion be dismissed. 8. Suspension of LaCava on November 3, 1980 The General Counsel alleges that on November 3, 1980, Respondent suspended LaCava for 2 days, Novem- ber 3 and 4, because of her union and protected concert- ed activities. Respondent admits suspending LaCava for the days in- dicated, but denies the suspension resulted from her pro- tected activities. As related supra, LaCava was accused by Respondent of handling timecards of other employees without au- thorization and contrary to company rules. As a result, she received a written warning for this alleged infraction and thereafter was suspended without pay for 2 days. LaCava denied that she had touched anyone's timecard other than her own on that day. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Discussion There is obviously a credibility question between LaCava and Kotarski relating to the incident of the time- cards. On the facts of the case, I credit the version of Kotarski. First, I was impressed with the demeanor of Kotarski and not too impressed with that of LaCava. Kotarski had little to gain by accusing LaCava of han- dling other employees' timecards, as related by her. On the other hand, LaCava, undoubtedly aware of a compa- ny rule27 was unwilling to admit that she had handled a timecard in fear of eventual disciplinary action by Re- spondent. I have drawn the conclusion that the motive for LaCava touching timecards during this period was to obtain evidence for the Charging Party that Respondent had hired employees to "stack the unit" which may result in an eventual victory at the polls for Respondent. Accordingly, LaCava could not and would not admit to her surreptitious action. In addition, when LaCava was reprimanded by a warning and received her suspension, her nonresponse at the time reveals to me that she was not protesting that Respondent had incorrectly disci- plined her. Nevertheless, despite my finding that LaCava had handled Darienzo's timecard, I do credit LaCava's testimony that she had been seen many times by Kotarski in the past handling other employees' timecards and at no time did LaCava receive for this any reprimand or warning. Kotarski had an opportunity to deny having seen LaCava handle the timecards in the past, but did not dispute LaCava's statement I have concluded that although LaCava did, in fact, violate a company rule by handling a timecard not her own, she was punished by a 2-day suspension only be- cause of her union activity, and not because of her han- dling of the card. LaCava, without refutation, testified that no one had ever been suspended by Respondent in the past. I further note that Respondent charged LaCava with handling all the timecards of its employees, whereas Kotarski testified that she saw LaCava only with the timecard of Darienzo in her hand. Rackmil, in his anxie- ty to find a reason for disciplining LaCava, the most ardent union representative in the workplace, exaggerat- ed the misdemeanor on the part of LaCava by accusing her of a gross felony Respondent argues that in Fruehauf Corp., 237 NLRB 399, 406 (1978), the Board ruled that an employer did not violate the Act when it issued a written warning to a union adherent who punched another's timecard. I find the case cited by Respondent to be inapposite for the fol- lowing reasons: 1. There was a written rule of the Company in Frue- hauf calling for "some form of disciplinary action" against employees who punch other employees' time- cards. 2. LaCava did not punch anyone's timecard but, as the credible evidence revealed, simply copied Darienzo's timecard without altering any of the figures or writing on the card itself. Although the General Counsel pre- 27 No documentary evidence pertaining to the company rule of han- dling timecards was received into evidence Nevertheless , I credit Re- spondent's position that an oral rule existed and that employees were aware of this rule sented no evidence to establish that Respondent treated nonunion supporters differently, no evidence was pre- sented by Respondent to establish that any employee in the past, i.e., prior to the activities of the Union in August, had been suspended for any reason whatsoever. 3. Although technically -speaking, the Board adopted an administrative law judge's finding that a violation ex- isted in Freuehauf, it should be noted that following this decision, no exceptions were taken by the General Coun- sel for the Charging Party to the Board. Thus, the Board automatically adopted the judge's recommendation Accordingly, although I find that LaCava did, con- trary to company rules, in fact, handle another employ- ee's timecard for her own purpose, I find and conclude that Respondent used this as a pretext to punish LaCava for her union and protected concerted activities. Accord- ingly, I recommend that this action of Respondent be found to be a violation of Section 8(a)(3) and (1) of the Act. 9 Denying LaCava an opportunity to train The General Counsel alleges that on or about Novem- ber 5, 1980, Respondent denied LaCava an opportunity to train on the step-and-repeat28 machine, which training would have resulted in an increase in pay to her, because of her union and protected concerted activities Re- spondent denied the allegation. To prove the allegation, the General Counsel called LaCava as the principal witness who testified as follows: Following her 2-day suspension, LaCava returned to work on November 5. That day she was informed by Bob Chase, a unit employee, that he was going to move from the step-and-repeat job to the stripping area. The pay rate for step-and-repeat work, being higher than what LaCava had been receiving, caused her to ask Lo- Presti for the position. LoPresti responded that she could try out and, if she were able to do it, he would discuss it with Rackmil. Chase showed her what had to be done, including lifting the chaser.29 Chase reported to LoPresti that LaCava was able to lift the chaser A few days later, when LaCava discussed a request for the job transfer with Rackmil, Rackmil asked her, "Do you think it's fair to me what you did to me on December 17?"30 and, "Do you think it's fair what you did to me with the timecards?" Although LaCava insisted that she had not touched the timecards, Rackmil answered that he had proof she had. Thereafter, Respondent hired Edward Concharsky to perform the step-and-repeat work. Con- charsky informed LaCava that he had no experience at this position. On November 13, during a meeting conducted by Ein- horn, LaCava asked Einhorn why she was being turned down for promotions and job positions. He responded, "Well, I may be chauvinistic, but I feel that the jobs that 28 Step-and -repeat was described as making duplicates of a negative a number of times on one piece of negative 29 A chaser was described by Rackmil as "a piece of glass that is sur- rounded by a metal frame with two handles and weigh[ing] ap- proximately 40 lbs " 30 Rackmil was discussing the fact that LaCava left the plant for per- sonal reasons, did not return , did not call in, and left work uncompleted EINHORN ENTERPRISES you're seeking are not suitable for a woman, but I will train you in stripping." Thereafter, LaCava asked Rack- mil when he could train her for a stripping position. He responded that she would have to come in on her own time to train. LaCava testified that she was unaware that any other employees were required to train for new posi- tions on their own time, but was aware that other em- ployees had been trained for new positions, including stripping, on company time In response to the allegation, Respondent presented Rackmil who testified as follows: Rackmil confirmed LaCava's testimony that when she requested work on the step-and-repeat machine, he con- fronted her with two incidents of alleged misconduct. He also testified that in working on step-and-repeat, it was necessary to lift the chaser 20 to 30 times a day, which required a lot of strength. He felt that because of her slight stature, LaCava would not be able to keep up a hard day's production because it is difficult. He ex- plained this all to LaCava at the time he denied her the step-and-repeat work. No further evidence was presented by either party relating to this aspect of the case. Discussion I find and conclude that Respondent violated the Act in the failure to provide LaCava an opportunity to train on the step-and-repeat machine, which training would have resulted in an increase in pay to her for the follow- ing reasons 31 1. As stated earlier, LaCava was the chief union pro- tagonist and Respondent was aware of it. 2. LaCava, an employee with great seniority, demon- strated, as reported by Bob Chase to LoPresti, that she was capable of handling the step-and-repeat position. 3. Rackmil, without any basis, did not reasonably sur- mise "that the step-and-repeat job was just too strenuous for LaCava," as argued by Respondent in its brief. On the contrary, Rackmil had a reasonable basis to surmise that she was capable of performing this job, on the basis of Chase's report to LoPresti. Rather than accept Chase's opinion, or (if he sincerely had doubts that LaCava was capable of performing the job), further ex- amine her to ascertain the correctness of his position, Rackmil chose to lecture her on her past two rule infrac- tions of October 17 and October 31, using these rule in- fractions as a pretext to deny her an opportunity for pro- motion. Respondent's argument that Rackmil's decision was based on several factors, including LaCava's slight stature, is unpersuasive. It is surprising in this day and age of "women's liberation" that Rackmil, as well as Einhorn, would dare to presume, based on her sex, that LaCava could not perform the heavy-duty work re- quired of a step-and-repeat operator. Today women are police officers (formerly policemen), firefighters (former- ly firemen), letter carriers (formerly mailmen), construc- tion workers, and cab drivers and occupy many other positions formerly held exclusively by males, jobs that women never dreamed of performing in past generations 31 1 have carefully read the case cited by Respondent 212 Auto Sales, 223 NLRB 1431 (1976), to support its position, and I concluded that this case has no bearing or relationship with the issues presented herein 591 I have no doubt that Respondent and its agents are well aware of the many laws against sexual discrimination. Accordingly, I reject its position that LaCava, simply by virtue of her sex, and for no other reason, would be unable to perform the work required of her as a step- and-repeat operator. 4. To further buttress my conclusion of discriminatory intent, I note that at a later date Rackmil informed LaCava to train on her own time as a stripper. The evi- dence revealed that other employees had been hired and trained on company time and that no evidence was ad- duced that any employee ever had been requested by Respondent to train on his or her own time in order to merit a promotion. Although there is no specific allega- tion with respect to LaCava's training as a stripper, the evidence surrounding this particular situation further supports my conclusion that LaCava was denied oppor- tunity to train as a step-and-repeat operator because of her union and protected concerted activities, in violation of Section 8(a)(3) and (1) of the Act. Accordingly, I find and conclude that the General Counsel has sustained the burden of proof with respect to this allegation. 10. Threat of plant shutdown During the course of the hearing , the General Counsel amended the complaint in Case 19 -CA-8280 by adding a new paragraph 9(b) to read as follows- On or about August 1970, the exact date being un- known, Respondent, by Michael Rackmil, its agent and supervisor, threatened its employees that if certain unions became the bargaining representative of its employees, the unions' demands would probably force the Respond- ent to close and would put Respondent out of business. To support this allegation , the General Counsel relied on the questions and answers of Respondent's attorney to Kotarski (Tr. 1373-1374) which reads as follows: Q Did Mr. Rackmil ever ask you to tell any of the employees that if Local 1 came into the shop the plant would be closed. A No Mr. Rackmil had said to me that he had investigated a few of the unions and that what their demands and everything were-we would probably be forced to close eventually . It would put us out of business The expenses were too high. Q. And did Mr. Rackmil ever tell you to relate that to any of the employees? A. No. Kotarski later explained on cross-examination that the statement was made by Rackmil to her in mid-August, a time prior to Respondent's knowledge of organization of the employees by the Charging Party. No further evidence was adduced at the hearing on this subject matter. Discussion Based on the evidence obtained during the hearing, I recommend that the allegation be dismissed for the fol- lowing reasons: 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1 I do not find that the vague statement made by Rackmil to Kotarski on one occasion, without being more specific, constituted a threat to close down the plant should the unit employees choose a specific union to represent them. 2. Assuming, arguendo, that a conclusion can be drawn that the statement of Rackmil to Kotarski consti- tutes a threat to close the plant , and thus a violation of Section 8(a)(l) of the Act, I would further find no viola- tion inasmuch as it has been demonstrated that Kotarski, a nonunit employee, although not found to be a supervi- sor or agent of Respondent , is obviously a friendly em- ployee allied with the interests of Respondent with no sympathy for any union. 3. Until the time of the hearing, it is clear that any statement Rackmil made to Kotarski relating to a possi- ble plant shutdown was never communicated to any of the unit employees or, in fact, to anyone else. I draw this conclusion inasmuch as the General Counsel was as sur- prised to hear the statement of Kotarski as anyone else, and it was following the testimony of Kotarski that the General Counsel sought, and indeed did, amend her complaint to include the allegation discussed herein. 11. Augmenting the work force to dilute the Charging Party's support among Respondent's employees The facts and conclusion with respect to this allega- tion are covered fully under the section entitled, "The Challenged Ballots." V. THE CHALLENGED BALLOTS A. Angel Cordero The Board agent challenged the ballot of Cordero be- cause his name was not on the list of eligible voters fur- nished by the Employer 32 The Employer contends that Cordero voluntarily terminated his employment at the Employer's facility during the latter part of October 1980 and , therefore, is not eligible to vote as he was not employed at the time of the election . The Petitioner con- tends that inasmuch as Cordero was constructively dis- charged because of his union and protected concerted activities, he should be permitted to vote, and having done so, his challenged ballot should be overruled. Having determined under the section entitled, "The Alleged Unfair Labor Practices" that Cordero voluntari- ly left his employment, rather than being constructively discharged, and having recommended that the allegation with respect to Cordero 's discharge be dismissed, con- sistency requires that I further find that Cordero was not an employee on the date of the election , and, therefore, I recommend that the challenge to his ballot be sustained. B. Michael Fayne The Petitioner, in challenging the ballot of Fayne, contends that he is a driver and messenger and, thus, is 32 For the purpose of the representation section , Respondent shall be referred to as the Employer or Star Color Local I shall be referred to as the Petitioner , and Local 363, Teamsters, shall be referred to as the Inter- venor excluded from the appropriate unit of the lithographic production employees, as set forth in the Decision and Direction of Election of the Regional Director, dated March 5 , 1981. The Employer contends that Fayne is a full-time unit employee who, on occasion, performs driv- ing and messenger service , and, therefore, should be in- cluded in the unit and whose challenged ballot should bo overruled. LaCava testified that Fayne was hired in January or February 1981 as a driver-messenger . He reported to work at approximately noon. From noon to 4 p.m., at which time LaCava finished her day's work, she asserted that she never saw Fayne do any production work in the facility prior to the election . She asserted that subsequent to the election, Fayne was discharged in either April or May 1981. Moss testified that Fayne had no set hours. He assisted the supervisors and performed other types of work, mainly that of driver Prior to the election, he performed no unit work. Becker testified that Fayne performed unskilled tasks, such as sweeping and going on errands . However, he did concede that for approximately 3 weeks before the elec- tion he observed Collman working with Fayne on the black-and-white camera. Fayne testified that he began his employment some- time in November 198033 at an hourly wage rate of $3.50 or $140 per 40-hour week . He had worked former- ly for the Employer from 1971 to 1977 or 1978. During his initial employment at the Employer's facility, he started in the contact room and "worked my way up to learning the [black-and-white] camera," and performing complete jobs from start to finish by himself. In Novem- ber 1980 he telephoned Rackmil asking for work and was hired by Rackmil to operate the black-and-white camera His hours of employment were from 12 noon to 8 p.m. From noon until approximately 3:30 p .m., during which time the regular daytime cameraman, Mike Weidner, operated the black-and-white camera, he pre- pared work to be performed by him after 4 p.m He also did platemaking work at times of his job on November 14, 1980, until the election , he admitted driving approxi- mately 1-1/2 or 2 hours a day, between approximately I p.m. and 3 p .m. He later testified that he began his driv- ing approximately in March 1981 after one of the full- time drivers had been terminated Fayne further testified that between his two terms of employment with the Employer , he worked in Califor- nia, performing lithographic work On cross-examination by the Petitioner, Fayne acknowledged that he worked approximately 15 to 20 hours a week, driving in a span of 3 or 4 days a week He further admitted making a "minimum wage raise" in January 1981. He further ac- knowledged that at the time he was hired by the Em- ployer , Rackmil stated to him that "union's coming," without remembering much more. Fayne further testified that all the time he worked for the Employer he only re- ceived slightly above the minimum wage, although he 33 The Employer's records revealed that he was hired on November 11, 1980 EINHORN ENTERPRISES contends that he was able to work the black-and-white camera without any assistance. The Employer's position was further aided by testimo- ny of Harber and Darienzo, both of whom testified that they observed Fayne performing unit work in the evening Discussion Although on the surface the issue of Fayne's employ- ment appears to present a credibility problem, after an analysis of the evidence, I am convinced that none exists. Witnesses for the Petitioner all conceded that they ob- served Fayne, at one time or another, working around the black-and-white camera after his return from his de- liveries in late afternoon, either by himself or by assisting Coltman following the departure for the evening of the regular black-and-white cameraman, Weidner. LaCava, of course, left at 4 p.m and had no knowledge of what occurred thereafter. Although Moss, Becker, and Goetz all testified that they had visited the plant in the evening and failed to see Fayne working, I do not consider that sufficient evidence to prove that Fayne was not working in the evening hours Fayne himself was not a very credible witness. To many of the questions posed to him by various counsel, he answered, "I don't remember" or "I can't remember, it's been a long time " However, Fayne was quite clear in his testimony that he had performed some work on the black-and-white camera prior to his departure from the Employer's facility in 1977 or 1978, that he had been employed in California for 2 years doing lithographic work, and that on his return to the Employer in 1980, although he admittedly did work as much as 1-1/2 or 2 hours several days a week as a truckdriver performing errands for the Employer, he testified that during the late afternoon and evening hours, he did work on the black-and-white camera with Coltman, for Coltman, or by himself. Thus, I conclude that, although Fayne per- formed some messenger and driving work for the Em- ployer during his employ commencing in November 1980, he worked at least 4 hours daily or at least 50 per- cent of his time performing services normally performed by unit employees. Notwithstanding that Fayne per- formed nonunit work some of the time, I find that Fayne shared a community of interest with the other employees in the lithographic production unit.34 Accordingly, I recommend that the challenge to the ballot of Fayne, on the basis that he was not a unit em- ployee, be overruled. C Rosalie Anderson and Sidney Fisch The Petitioner challenged the ballots of Anderson and Fisch because they are employed on an irregular part- time basis Additionally, the Petitioner contends that An- derson, a close relative of LoPresti, enjoys a special status with the Employer because of that relationship. The Employer contends that both Anderson and Fisch are employed on a regular part-time basis performing 34 Wilson Engraving Co, 252 NLRB 333 , 344 (1980), Berea Publishing Co, 140 NLRB 516 (1963) 593 unit work and, thus, their ballots should be counted and the challenges overruled. LaCava testified that Anderson worked as a part-time employee 2 days a week approximately 5 to 6 hours a day, performing opaque work 35 She also stated that An- derson answered the telephones when Kotarski was not in the facility With respect to Fisch, LaCava stated that he also was a part-time employee, hired in October or November 1980, working until April 1981 on a sporadic basis, and not employed at all for approximately 2 months between December 1980 and February 1981 She does concede that while working he also did opaque work Prior to Fisch's employment, the opaque work was performed by LaCava and Adrian Fields After Fisch was hired, nei- ther LaCava nor Fields performed that function Moss testified that he saw both Anderson and Fisch performing unit work before the election. Anderson testified that she was hired in November 1980 and basically performed stepping work 80 percent of the time, 2 days a week, Thursdays and Fridays, from 10 a.m. to 4:30 p.m. She conceded that she was the sister-in-law of LoPresti, but heard of the job through a friend, and received no special privileges while at work. Fisch testified that he was employed from October 1980 to April 1981, 2 days a week, from 8 a.m. to 1 p.m. He is a former employee of the Employer, and was a business acquaintance of them. The testimony of Anderson and Fisch concerning their working hours was supported by the Employer's payroll records The records further revealed that they worked continually each week up to the election, except that Fisch was absent for the month of February 1981, having received a leave of absence for personal reasons Discussion Based on the uncontradicted testimony of Fisch and Anderson, I find and conclude that both these two em- ployees were employed as regular part-time employees performing unit work from October 1980 through the election date, March 31, 1981. Although the Petitioner claims that Anderson received special privileges, having received rides home in a com- pany car, the record revealed that other employees also, on occasion, obtain rides in company vehicles without any discrimination. Thus, I conclude that Anderson did not receive any special privileges as a result of her rela- tionship with LoPresti.36 D. Fred Harber, Richard Darienzo, Herbert Reimer, and Carlos Agudelo The ballots of Harber, Darienzo, Reimer, and Agudelo were challenged by the Petitioner on the basis that none of them were regularly employed by the Employer. The Employer contends that the four individuals were em- as Opaquing is blackening out negatives of work that is not wanted, admittedly unit work 36 Riverside Community Hospital, 250 NLRB 1355, 1356 (1980), Cf Weyerhaeuser Co, 211 NLRB 1012 (1974), Pargas of Crescent City, 194 NLRB 616 (1971) 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployed as strippers on a regular part-time basis, and, therefore, the challenges to their ballots should be over- ruled. All four challengees testified at the hearing. Harber stated that he has been a plant manager in New York City for The Platemaker, a division of the Roz Group, Limited, A company engaged in the busi- ness of lithographic platemaking. His salary is approxi- mately $30,000 a year. His hours at The Platemaker are approximately 7 or 8 a.m. until 5 p.m. The Employer performed some color separation for The Platemaker, while The Platemaker manufactured film and performed stripping work for the Employer, valued at approximate- ly $1000 a month. Harber further testified that he had been a former em- ployee of the Employer, having worked for them in 1975 for several months and again from May until September 1977 as a stripper. Sometime in October 1980, he was in- formed by a supervisor of the Employer37 that it needed help, especially in the stripping area. Harber volunteered to help, asserting that he could use some extra money. He then went to work for the Employer in October 1980, earning $8 an hour, working roughly 3 nights a week form approximately 6 to 9 p.m. and all day Satur- day.38 He further testified that while working at night, he worked with LoPresti, Darienzo, Agudelo, Fayne, and several other people. Harber left the employ of the Employer in April 1981 Darienzo testified that he is employed at Darien Press, a company owned solely by his father. Darien Press has had a business relationship with Star Color for approxi- mately 10 years, subcontracting stripping work to it. Darienzo further testified that he was informed by his father that Star Color was short of strippers, and that his father suggested that he work part time for it. He then began employ at Star Color as a stripper in October 1980, where he works 5 nights a week from approxi- mately 5 to 7:30 p.m., averaging 12 to 17 hours weekly. He also testified that he observed LoPresti, Harber, Reiver, Fisch, and Agudelo working nights. He is still employed as a part-time worker for Star Color. Reiver testified that he is a majority stockholder of Ozone Press, a company performing lithographic work.39 He utilizes Star Color as the only company to perform stripping and other work which requires equip- ment not owned or utilized by Ozone Press He testified that observing that Star Color was slow in completing work sent by Ozone Press, he volunteered to work part time as a stripper at $8 per hour in order to speed up his own work. He began employment the week of Novem- ber 6, 1980, working 5 nights a week for $8 an hour. He terminated his employment at Star Color voluntarily in April for personal reasons Agudelo testified that since 1975 he has been em- ployed as an assistant production manager for Print Lloyd, Inc, a lithographic shop, where he supervises ap- proximately 30 employees. His salary is approximately $25,000 per year. As Print Lloyd does not have a step- and-repeat machine, it has utilized the services of Star 39 Either Rackmil, Baer, or Collman Se Harber stated that he generally worked Tuesday through Thursday evenings 38 The only other stockholder is Reimer's mother Color to perform the work for the past 25 years Agu- delo, in his capacity as assistant production manager, rec- ommends what work of Print Lloyd is to be sent to Star Color. Agudelo further testified that as he was in need of extra money, he asked around for work. After asking LoPresti, he was hired as a stripper by Star Color, and began working for them at $5 per hour since November 1980, 3 evenings a week,40 from approximately 5:30 to 7:30 or 8:30 p.m. He further testified that also working with him evenings were LoPresti, Darienzo, Reimer, Fayne, Collman, and several others. He does not know any of the daytime employees He further testified that, although Print Lloyd has the equipment necessary to do stripping, the work was performed by him at Star Color. Agudelo is still working 3 evenings a week for Star Color at $5 an hour. Rackmil testified that in the summer of 1980 he ran ad- vertisements in the New York Times seeking strippers from approximately June to September. having no suc- cerss in obtaining any employees via this method of re- cruitment, he discontinued advertising in September. The Employer's personnel records indicate the follow- ing: Harber was hired October 18, Darienzo on October 21, Reiver on October 30, and Agudelo on November 3. To rebut the evidence of the Employer, the Petitioner presented several employees of the Employer, all of whom are alleged 8(a)(3) discriminatees as covered in the unfair labor practice section. LaCava testified that she was acquainted with all four contested employees. During the daytime she had ob- served all of them entering the Employer's plant and doing business with Star Color. None of them were dressed for work, all wore business suits, and all stayed in the plant only a few minutes. She never observed any of the four challengees perform any work. It should be noted, however, that LaCava left the Employer's prem- ises at 4 p.m. daily Moss recognized all four challengees having visited the plant prior to the election on various occasions. However, none of them performed any work at the plant during the daytime. He admitted that he had no idea what any of them did in the evening after he went home. Moss further testified that he visited the plant at night on approximately three occasions during the period October 1980 to election day. He recalled seeing only LoPresti and two other employees working at night, none of whom was any of the four in question. Becker also visited the plant at night accompanied by Moss and Bob Chase on one occasion. He testified that he did not see any of the four contested employees working at night, except for Darienzo. Neither Becker nor Moss did specify which particular nights they visited the Employer's plant. Goetz testified that, although he did not see Reimer perform any work for Star Color during the daytime, on one occasion in November 1980 he did see him do strip- ping work approximately 5.30 or 6 p.m. Goetz also testi- fied that he knew which strippers prepared a flat for pla- 40 His 3 evenings a week are Monday through Wednesday EINHORN ENTERPRISES 595 temaking because of the style of stripping and the hand- writing on the flat, confirming what LaCava had stated, i.e., that she can tell which employee does stepping by the style of stripping and the handwriting of the stripper. Discussion At first blush, it appears that a credibility conflict exists between the witnesses for the Petitioner and the witnesses for the Employer . However, after a careful study of the entire record, I do not find a credibility factor exists I credit that Becker and Moss did make visits to the plant in the evening at some unspecified nights and did not see any of the alleged part-time night employees working at the plant. However, it should be noted that Becker and Moss spent several minutes only at the plant and were not able to specify which nights they came. As Harber and Agudelo testified that they only worked sev- eral nights a week , it is very possible that the nights Becker and Moss visited the shop were nights they were not working . The others could have been on break, in the restroom, or elsewhere out of sight . Furthermore, I have no reason to discredit the four individuals who as- serted that they did perform their nightime work for the Employer The timecards of these employees indicate that the four employees did work at the plant as stated by them I do not accord any weight to testimony that timecards were punched in and out by Kotarski, as there was testimony to indicate that at times employees did forget to punch their timecards and Kotarski did punch the timecards for them on occasion In addition, I do not find merit in the Petitioner's arguments that these four employees were high-priced salaried employees who would not "stoop down" to earn money as part-time em- ployees at another plant . For the various reasons asserted by the four part-time employees in question , I find that they, in fact, did perform the work that they claimed they did during the times they asserted they did for the Employer. As for the testimony of LaCava and Goetz that they could recognize which work was performed by which stripper, as they had never seen the four employees working at the plant, it follows that they could not iden- tify whatever work these four employees may have per- formed as strippers . Accordingly, I find no value in their testimony with respect to this point. However, the question remains whether or not these four regular part-time employees had a community of in- terest with the other employees found in the appropriate unit. After analyzing the various decisions cited by the Em- ployer in its brief to support its contentions, I have con- cluded that these individuals did work in sufficient time and hours to be classified as regular part -time employees However, none of the cases cited by the Employer deal with customers and suppliers of an Employer who worked part time during a crucial election period at a time when the Employer needed their help These four individuals may have enjoyed benefits, pay, hours of work, and working conditions similar to that of the em- ployees in the unit found appropriate , as the Employer contends. However, as the Petitioner urges in its brief, these four individuals do not have a community of inter- est with the employees in the appropriate unit. In addi- tion, I find that there is a conflict of interest between the two groups of employees. The four individuals in ques- tion are either owners or are employed in some capacity as managers of business that do business with Star Color. Assuming, arguendo, that the four individuals were in- cluded in the appropriate unit and the Petitioner, or any other labor organization, was certified as the representa- tive of the unit in question , should the labor organiza- tion, in its efforts to obtain a collective-bargaining agree- ment, or for any other reason, call for the employees to engage in a strike, I cannot visualize any circumstances under which any of these four employees would heed the call of its bargaining representative . All four testified credibly that they do use Star Color to perform work for their own companies , either owned by them or in which they are employed as managers . I cannot foresee any sit- uation where any of these four "employees" of Star Color would not complete whatever work Star Color had for them to do which was needed by their particular company. This is analogous to a situation where an em- ployer whose business is struck would subcontract work out to another employer who, when picketed by the striking union of the primary employer, would claim to be a secondary employer and thereafter file a charge under the secondary-boycott provisions of the Act. The Petitioner has correctly analogized the instant sit- uation with that as found in Retail Clerks Local 444, 153 NLRB 252, 254-255 (1965), in which the Board excluded individuals employed by facilities under contract with, or being organized by, the labor union/employer. Further- more, in a decision issued as recently as September 30, 1982,41 the Board discusses fully a conflict-of-interest sit- uation involving a union seeking to represent employees of an employer. Although at first glance it appears that St. John's Hospital and the instant case can be distin- guished by the facts, I conclude that the conflict-of-inter- ests theory can equally apply to employees seeking a union to represent them as to a union seeking to repre- sent employees. Accordingly, I have concluded that the four employees listed herein do not enjoy a community of interest with the unit of employees sought by the Peti- tioner, and I thus recommend that the challenges to the ballots cast by these four individuals be sustained. E. Augmenting the Work Force to Dilute the Charging Party's Support Among Respondent's Employees At the hearing, the General Counsel amended the complaint by adding a new paragraph to read as follows: "On or about the middle of October 1980, Respondent hired additional employees in order to dilute the Charg- ing Party's support among Respondent's employees," contending that this was a violation of Section 8(a)(1) of the Act. Respondent, on the other hand , denies that it had com- mitted any unfair labor practices , asserting that it had *' St John 's Hospital, 264 NLRB 990 (1982) 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business justifications for hiring the part -time employees in October and November 1980. The record establishes that at the time the petition herein was filed in August 1980, there were three full- time strippers and one part-time stripper employed at the Employer's facility. By the end of October 1980, all the full-time strippers had been terminated and none was em- ployed prior to the election in March 1981. Instead, Re- spondent hired the seven employees whose ballots were challenged by Petitioner in the election. During the hearing, Joint Exhibits 2(a) to 2(d) were recieved into evidence. The General Counsel submitted with his brief Appendix A, which best illustrates the facts of employment of strippers by date and hours worked and classification which I have attached as my Appendix A. Discussion The Board has held that when an employer hires a substantial number of employees in order to "pack the unit" and thereby dilutes a union 's strength in a Board- conducted election, it is in violation of Section 8(a)(1) of the Act.42 In referring the challenges for hearing, the Regional Director stated, "I find there is an issue as to whether the Employer may have changed its method of operation so as to augment its employee complement and thereby expanded the unit to dilute the Petitioner 's strength in a forthcoming election," citing, inter alia, Suburban Ford. To support the General Counsel's position, Petitioner states in its brief, "Individuals hired by an employer to fill bargaining unit positions are ineligible to vote if their employment is part of a scheme to `pack' the bargaining units with extra employees and dilute a petitioning union's majority position," citing Central Delivery Service, 225 NLRB 75 (1976), and Value City Furniture, 222 NLRB 455 (1975). For the reasons listed below, I find that the General Counsel has sustained her burden of proof that Respond- ent "packed" the unit for the purposes of diluting the Charging Party's support among Respondent's employ- ees: 1. Although Rackmil claimed that its ads in The Times were of no aid in his seeking help in the summer of 1980, I reject this assertion as I find it to be self-serving with- out any hard evidence that no employees could have been hired through the want ads. 2. Respondent discontinued advertising for help in September, shortly after the filing of the petition. 3. Only part-time employees were hired between Octo- ber and the election date, although the record establishes that throughout 1980 prior to October there were any- where from one to three full-time employees on Re- spondent's payroll, excepting for 1 week in April and 1 week in September. 4. The record reveals that Cordero had informed Rackmil that he knew of someone seeking help as a strip- per. Yet, no effort was made to contact this individual. 5. Although LaCava requested to be trained as a strip- per, Respondent refused to train her on company time. 6. Although Respondent alleged that his shortage of strippers occurred in the summer, hiring began in late October. 7. All the part-time employees hired were either cus- tomers, relatives, friends, or former employees of Re- spondent. Although there is no hard evidence to estab- lish that any of these individuals were hired on the basis that they would not vote for the Union, Fayne indicated that in his interview the Union was mentioned. Even had Respondent not questioned these employees, it was ap- parent from the type of individuals hired, they would not be prounion employees. 8. I credit LaCava's testimony that after the employ- ment of Anderson and Fisch, both she and Fields re- ceived less work as opaquers. No evidence was submit- ted by Respondent to demonstrate that the volume of opaquing work increased sufficiently for it to hire Fisch and Anderson. 9. No business justification was offered by Respondent to justify the change of operations from employing full- time employees to the hiring of only part-time employ- ees. 10. I cannot find any justification for Respondent's po- sition in having the four supervisors, Rackmil, Coltman, Baer, and LoPresti, presenting themselves at the polls to vote after the Regional Director had decided in his De- cision and Direction of Election that these four were owners and supervisors within the meaning of Section 2(11) of the Act. It was not until the hearing commenced that Respondent conceded that the four individuals were supervisors within the meaning of the Act, having denied that allegation in its answer to the complaint herein. The only explanation I can conceive of for this action by Re- spondent is to hinder and frustrate at every opportunity the findings with respect to Rackmil and others of Re- spondent's witnesses because of this action by Respond- ent. Respondent argues that there is no merit in the Gener- al Counsel's contentions inasmuch as four of the seven employees hired in September and November 1980 are still on the payroll. I find no merit in this argument. The Board found unlawful packing, notwithstanding that one of the "packed" voters remained on the payroll and two others were replaced.43 In addition to "packing the unit" with the six individ- uals hired as part-time strippers and opaquers, the record established that Michael Fayne also was hired in the crit- ical period of October-November 1980. Although I have concluded that part of Fayne's workday consisted of per- forming some type of unit work, as detailed supra, I am convinced that Fayne was hired by Respondent to add another probable vote against Local I in the forthcoming election. I base my conclusion on the following 1. No evidence was adduced that Respndent had ob- tained an increase of business to warrant the hiring of an- other black-and-white cameraman. 2. The evidence is unconvincing that at any time Fayne operated the black-and-white camera by himself. The regular cameraman, Michael Weidner was the full- 42 Suburban Ford, 248 NLRB 364 (1980) 43 Suburban Ford, supra at 368, in 17 EINHORN ENTERPRISES 597 time cameraman working the day shift. Fayne himself admitted that he did not perform any work on the camera until after Weidner left for the day, but that he spent his afternoons "preparing to operate the camera." No explanation was forthcoming regarding what prep- arations were needed to operate a camera for the better part of 2 hours of an afternoon. 3. The record is clear that it was Collman who was teaching Fayne, although he claims he had been per- forming lithographic work for 2 years previously in Cali- fornia, and had begun to perform unit work while previ- ously engaged by Respondent as an employee, was un- skilled in the operation of the black-and-white camera at the time he was hired by Respondetn in the fall of 1980. 4. I am unconvinced that Fayne was the initiator in obtaining employment with Respondent by requesting if there was work for him. No evidence had been produced at the hearing that Respondent had been seeking a black- and-white cameraman, or that there was a need for one. No evidence was forthcoming to indicate why the regu- lar black-and-white cameraman could not work an extra hour or two overtime at any particular night should the necessity for a black-and-white cameraman exist. Prior to the union activity of the employees, Respondent did grant overtime work to employees when necessary. 5. Collman was an experienced lithographer in the black-and-white camera field. Although it appears that Fayne did work several hours in the evening, along with the other part-time employees, the evidence further es- tablishes that Collman was present at those times and, therefore, he alone could have operated the black-and- white camera without any assistance from Fayne. In summary, I find and conclude that the entire system of operations at Respondent's plant drastically changed subsequent to the initiation of the representation petition of Petitioner. The Employer sought every means at its disposal to deprive its unit employees of representation by Petitioner. The hiring of the six part-time employees in October and November 1980, as well as the hiring of Fayne, a former employee, was effectuated by Star Color to "pack the unit" in order to ensure that the Peti- tioner would not be successful in its organizational ef- forts at Respondent's premises. Thus, I find and cond- lude, assuming, arguendo, that all or any of the seven employees challenged by the Petitioner be found to be employees with a community of interest with the full- time unit employees and were performing lithographic work warranting their inclusion in the appropriate unit, that each and all of them were hired specifically and principally by Respondent in order to thwart the efforts of Local 1 Accordingly, I recommend that the chal- lenged ballots of all seven employees by the Petitioner be sustained. In addition, I recommend that a violation of Section 8(a)(1) of the Act be found. VI. OBJECTIONS TO THE CONDUCT OF THE ELECTION The Regional Director, in his supplemental decision, order consolidating cases, and notice of hearing, dated June 30, 1981, referred 12 of the objections filed by the Petitioner to the Administrative law judge, while dis- missing one (Objection 11), and approving the withdraw- al of Objections 12, 14, and 15. With the exception of Objection 13, the objections to the election overlap the allegations of the complaint as they set forth various allegations of violations of Section 8(aX3) and (1) of the Act which have been thoroughly discussed supra under the heading of "The Alleged Unfair Labor Practices." Thus, the following objection- able conduct was found to be violative of the Act: Ob- jections 1, 2, 4, 5, and the second part of 9, which reads, "On or about September 2, 1980, the Employer laid off Fred Baker [sic] and Steven Moss because of their activi- ties on behalf of and support for the Petitioner." I have found no violations of the Act which are coextensive with Objections 3, 6, 7, 8, 10, and the first part of 9, which reads as follows, "On or about October 1, 1980, the Employer, by Ronald Collman, interrogated its em- ployees concerning the employees' membership in, ac- tivities on behalf of, and support for Petitioner." In addi- tion, in view of the fact that I have found violations of the Act relating to the "packing the unit" and various acts of mistreatment against LaCava, I would further sustain Objeciton 16. With respect to Objection 13, the only evidence sub- mitted by the Petitioner was through testimony of Moss, who contends that Kleinman, a representative of the In- tervenor, stated to him that if the Petitioner won the election, the Employer would close the shop Kleinman did not appear to deny this allegation. Rackmil testified that he did not authorize Kleinman to make any such statement to any employees.44 Discussion The Regional Director referred this matter to the ad- ministrative law judge on the basis that even if not acting as an agent fo the Employer , such statement by Klein- man, when taken in conjunction with similar statements allegedly made by the Employer, may have created an atmosphere of fear and reprisal that would warrant set- ting aside the election, citing Marlowe Mfg. Co., 213 NLRB 278 (1974); Automotive Controls Corp., 165 NLRB 450, 462 (1967). As I have found under the section enti- tled, "The Alleged Unfair Labor Practices," that no such threats were made by any of the supervisors of Respond- ent, having concluded that Kotarski was not an agent of the Employer who allegedly made said threats to the employees'45 I will recommend that Objection 13 be overruled. 44 Although Kleinman did not appear to testify at the hearing, the Re- gional Director's supplemental decision, at 18, noted that Kleinman denied entering the plant on the day in question or holding any conversa- tions with employees concerning the election , and specifically denied tell- ing any employees that the Employer would close the shop should the Petitioner win the election Thus, I will conclude that had Kleinman ap- peared to testify, he would have testified consistently with the informa- tion submitted to the Regional Director during the course of the investi- gation of the objections 45 The evidence, if credited, would have established that Kotarski made threatening remarks of plant shutdown should the Petitioner be successful 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent is an Employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 1 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by augmenting its work force for the purposes of diluting Local l's support among its employees. 4. Respondent violated Section 8(aX3) and (1) of the Act by (a) Subjecting its employees to more onerous condi- tions of work by engaging in stricter supervision and by withdrawing certain privileges previously enjoyed by them. (b) Instituting a policy of issuing routine disciplinary warnings. (c) Denying to Mary Lou LaCava opportunity to train on the "step-and-repeat" machine, which training would have resulted in an increase in pay. (d) Suspending Mary Lou LaCava for 2 days on No- vember 3, 1980. (e) Laying off Fred Becker and Steven Moss on Sep- tember 2, 1980. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not engaged in any other unfair labor practices alleged in the complaint. 7. Respondent's unlawful conduct interfered with the representation election held on March 31, 1981. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. As I have found that Respondent unlawfully laid off Fred Becker and Steven Moss and suspended Mary Lou LaCava, I shall recommend that Respondent be ordered to make them whole for any loss of earnings they may have suffered as a result of the discrimination against them by payment to them of the amount they normally would have earned from the date of their respective lay- offs and suspensions until the date of their respective re- instatements, less net earnings to which shall be added interest to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1959), and Florida Steel Corp., 231 NLRB 651 (1977).46 I shall further recommend that Mary Lou LaCava be afforded an opportunity to train on the step-and-repeat machine and, if successful in completing a training pro- gram to qualify her as a step-and-repeat operator, be pro- moted to that position when the position becomes avail- able. With respect to the representation matter, as I have recommended, that all of the challenges be sustained, I shall recommend that Case 29-RC-5121 be severed from the unfair labor practice cases and returned to the Re- 4e See also Isis Plumbing Co, 138 NLRB 716 (1962) gional Director for Region 29 who, in turn, shall issue a revised tally of ballots which shows that a majority of the ballots cast were cast for the Petitioner, Local 1, and thereafter shall issue a certification of representation to Local 1. I further shall recommend that should the Board not adopt my recommendations with respect to the chal- lenged ballots, the representation case be remanded to the Regional Director for Region 29 for the purpose of opening and counting whatever ballots the Board finds to be validly cast and revised tally of ballots issue. In the event that Local 1 receives a majority of the valid bal- lots cast, a certification of representation should issue. In the event that Local 1 fails to receive the majority of he valid ballots cast, the election held on March 31, 1980, should be set aside and a new election be conducted at such time that the Regional Director deems that circum- stances permit a free choice of bargaining representation. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed47 ORDER The Respondent, Star Color Plate Service, Division of Einhorn Enterprises, Inc., Jamaica, New York, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Augmenting its work force in order to dilute sup- port among its employees for Local 1, Amalgamated Li- thographers of America, International Typographical Union, AFL-CIO, or any other labor organization. (b) Subjecting its emloyees to more onerous conditions of work by engaging in stricter supervision and with- drawing of certain privileges previously enjoyed by them because they have engaged in protected concerted or union activities. (c) Instituting a policy of issuing routine disciplinary warnings to its employees who engage in protected con- certed or union activities. (d) Denying its employees an opportunity to train on its machinery or equipment , which training may result in an increase in pay because they have engaged in protect- ed concerted or union activities. (e) Laying off, suspending, or otherwise discriminating against its employees in regard to hire or tenure of em- ployment or any other terms or conditions of employ- ment because they are members of, or engaged in activi- ties on behalf of, Local 1, Amalgamated Lithographers of America, International Typographical Union, AFL- CIO, or any other labor organization. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. 47 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. EINHORN ENTERPRISES 599 (a) Make whole, with interest, Fred Becker, Steven rector shall issue a certification of representation to the Moss, and Mary Lou LaCava for any loss of pay or Union. other benefits they may have suffered as a result of dis- IT IS FURTHER RECOMMENDED that the complaint be crimination against them in the manner set forth in the dismissed insofar as it alleges violations not found herein. remedy section of this decision. to APPENDIX At (b) Offer to Mary Lou LaCava the opportunity train on the "step-and-repeat" machine and, if found to be qualified to operate the machine , she is to be trans- ferred to that position, if she so requests, at such time that the position becomes available , with an increase in pay as benefits that position (c) Remove from its files and records any reference to the layoffs of Fred Becker and Steven Moss on Septem- ber 2, 1980, and to the suspension of Mary Lou LaCava on November 3, 1980. (d) In like manner, remove from its files and records () any reference to the disciplinary written warnings issued to Angel Cordero, Fred Becker, Steven Moss, Harvey Goetz, and Mary Lou LaCava between October 13, 1980, and July 17, 1981 Y (e) Notify all the above-named employees named in subparagraphs (c) and (d) that the removal has been done and that evidence of these unlawful actions will not be used as a basis for future discipline against any of Y them (f) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (g) Post at its plant in Jamaica, New York, copies of the attached notice marked "Appendix."48 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's au- g Y thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- Y P sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (h) Notify the Regional Director in writing within 20 () Y g days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the challenges to the ballots of Angel Cordero, Fred Harber, Richard Darienzo, Herbert Reimer, Carlos Agudelo, Rosalie An- derson, Sidney Fisch, and Michael Fayne cast in the election conducted in Case 29-RC-5121 on March 31, 1981, be sustained, and that the Regional Director for Region 29 shall issue and serve on the parties a revised tally of ballots indicating that Local 1, Amalgamated Li- thographers of America, International Typograhical Union, AFL-CIO, has received the majority of the valid votes cast in the election, and, further, the Regional Di- 49 If 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 Nation- al 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 " Pay Day No. of Strippers Full- Time2 Total Hrs. Avg. Hrs. 2/28/80 3 3 134.75 44.91 3/06/80 5 1 1465 29.3 3/ 0/80 4 3 148.25 37.06 2 3/20/80 2 2 142.25 35.56 3/27/80 2 2 80.75 40.38 4/03/80 2 2 83 25 41.62 4/10/80 3 0 72.5 24.17 4/80 4/ 4/ 17/80 3 2 109 25 36 41 / 224/80 4/ 3 3 . 123 411 5/01/80 4 2 139 5 34.87 5/15/80 3 2 111 5 37 17 5/22/80 3 1 77 25 25 25 5/29/80 3 3 131 75 43 91 6/05/80 3 3 1485 49.5 6/19/80 3 3 121 40 6/26/80 3 2 1175 39.1 7/03/80 2 1 69 25 34.61 7/10/80 4 3 153 34 87 7/17/80 2 1 69 75 34 87 7/24/80 7/31/80 1 1 45 5 45 5 8/07/80 1 1 50.75 50.75 8/14/80 2 1 72 25 36.12 8/21/80 2 1 75 37 5 8/28/80 2 2 86 5 43 9/04/80 2 2 86 25 43.12 9/11/80 3 0 83 25 27.25 4/18/80 3 2 87.25 29 25 9/25/80 3 1 80 25 26 75 10/02/80 3 2 109.25 36.41 10/09/80 3 1 101 5 33.8 10/ 10/ 10/ 15/80 0/ 23/80 23/80 3 5 2 0 13 18475 37 7 16.97 10/30/80 5 1 103 5 20.7 11/06/80 7 0 49.75 7.1 11/13/80 7 0 91 25 13 03 11/20/80 7 0 72 5 10 5 11/27/80 7 0 72 75 1039 12/04/80 7 0 108.75 15.53 12/11/80 7 0 92 13 12/18/80 7 0 795 11.36 12/25/90 7 0 76 .5 1 1/01/81 1 1/01/81 6 0 69 5 1 11.58 1/08/81 4 0 4175 10.43 1/15/81 6 0 47 7.83 1/22/80 7 0 825 11.78 /05/81 7 0 76 5 10.92 2 2/05/81 6 0 75 03 12.5 2/12/81 6 0 62 10.33 2/19/81 6 0 65 25 10 87 2/26/81 6 0 84 14 3/05/81 6 0 66.25 10 87 3/12/81 6 0 63 105 3/19/81 7 0 67.75 9.67 3/26/81 7 0 84.25 12 03 4/02/81 7 0 82 5 9.7 4/09/81 7 0 82 111.711 4/16/81 7 0 68 9.71 4/23/81 5 0 58 25 11.65 4/30/81 6 0 70.5 1175 5/07/81 6 0 745 12.41 5/14/81 5 0 57 25 11.55 5/21/81 6 0 74 25 12 37 5/28/81 6 0 70 75 11 79 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A'-Continued APPENDIX A'-Continued Pay Day No. of Full- Total Avg. Pay Day Strippers Time2 Hrs. Hrs. No. of Full- Total Avg. Strippers Time2 Hrs. Hrs. 6/04/81 5 0 57 75 11.55 6/11/81 6 0 68.25 11.37 6/18/81 5 0 69.75 13.95 6/25/81 6 1 78.5 13.08 7/02/81 6 0 79.5 13.25 7/09/81 6 1 97.5 16.25 7/16/81 6 0 65 10.83 7/23/81 4 0 29.75 7.43 7/30/81 6 0 93 15.5 8/06/81 6 1 99.5 16.58 8/13/81 6 1 98 16.33 8/20/81 5 1 77.75 15 55 8/27/81 4 1 65.75 16 43 9/03/81 4 1 64 75 16 18 ' Based on the information contained in Jt. Exhs . 2A and 2C Data taken concerning employees Best, Malvino, Cordero, Ra- mirez, Gallup, S Diaz, Siegel , Aguirre, Wolder, Roselli, Harbor, Darienzo, Fisch, Anderson, Reimer, Agudelo, Forde, Smedberg, Rosenbluth, and Hinhson 2 Those working 35 hours per week or more