Gull, Inc.

GULL, INC Gull, Inc. and Local 806, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 29-CA-10597 16 May 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 20 February 1985 Administrative Law Judge Joel P. Biblowitz issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a brief in support of the cross-exceptions and in op- position to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and conclusions and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Gull, Inc., Smithtown, New York, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order as modified. 1. Add the following as paragraph 1(c) and relet- ter the remaining paragraphs. i The Respondent and the General Counsel have excepted to some of the judge's credibility findings 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 We agree with the judge that the Respondent violated Sec 8(aX3) and (1) of the Act by discharging employees Koello, Rowell, Pfaff, Pierce, Forgione, and Jacobs Despite the fact that it is not clear whether the judge discredited Van Sickle's testimony regarding Koello's purported admission of involvement in a slowdown , we agree with the judge that the Respondent failed to rebut the General Counsel's prima facie case of discrimination concerning all the above employees including Koello In this regard, we note that in the course of his investigation subsequent to Koello's alleged "admission," Van Sickle did not question Koello about the slowdown, nor did he question the employees allegedly involved or their supervisor Also, there is no evidence that Van Sickle referred to the incident in Koello's personnel file, or in discharging Koello, and the Respondent did not even establish that a slowdown actually occurred We also agree with the judge that the Respondent's institution of an open-door policy in response to the union campaign violated Sec 8(a)(1) of the Act, but we find this to be an unlawful grant of benefits designed to undermine employee support for the Union, rather than a solicitation of grievances In this regard the policy was in effect an implied promise that further grievances would be remedied without union representation See Captain Nemo's, 258 NLRB 537, 551-552 (1981) 931 "(c) Granting or promising to grant benefits to its employees in order to inhibit them from exercis- ing their rights under Section 7 of the Act." 2. Add the following as paragraph 2(b) and relet- ter the remaining paragraphs. "(c) Preserve and, on request, make available to the Board or its agents, for examination and copy- ing, all payroll records and all other records neces- sary to analyze the amount of backpay due under the terms of this Order." 3. Substitute the attached notice for that of the adminstrative law judge. APPENDIX 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 inform our employees that we will refuse to recognize or bargain with Local 806, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America or any other labor organization, or otherwise attempt to convince them of the futility of engaging in union or other protected concerted activities. WE WILL NOT solicit grievances from our em- ployees in order to inhibit them from exercising their rights under Section 7 of the Act. WE WILL NOT grant or promise to grant benefits to our employees in order to inhibit them from ex- ercising their rights under Section 7 of the Act. WE WILL NOT discharge, or threaten to dis- charge, our employees due to their activities on behalf of the Union or any other labor organiza- tion. 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 Peter Koello, Bruce Rowell, Thomas Pfaff, Kenneth Pierce, Tina For- gione, and Donna Jacobs, with interest, for any loss of earnings they may have suffered as a result of our discrimination against them, and we will offer them full and immediate reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions without prejudice to their seniority or other rights and privileges. WE WILL remove from our files any reference to the termination of Koello, Rowell, Pfaff, Pierce, Forgione, and Jacobs and we will notify them, in 279 NLRB No. 127 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD writing, that this has been done and that evidence of this unlawful action will not be used as a basis for future personnel action against them. GULL, INC. Amy Berne Kaminshine, Esq., for the General Counsel. Arthur R. Kaufman, Esq. and Dorothy Rosensweig, Esq. (Jackson, Lewis Schnitzler & Krupman, Esgs), for the Respondent. DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITZ, Administrative Law Judge. This case was tried before me in Brooklyn and Hauppauge, New York, on January 9, 10, and 11 and April 2, 3, 4, 5, and 6, 1984. The complaint and notice of hearing issued on August 18, 1983,1 based on an unfair labor practice charged filed on July 14 by Local 806, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union). The complaint al- leges that Gull, Inc.2 (Respondent) violated Section 8(a)(1) of the Act by creating the impression that the em- ployees' union activities were under Respondent's sur- veillance, by informing its employees that the Union would never represent Respondent's employees and that Respondent would do everything to keep it out, and by soliciting grievances from its employees in order to pre- vent them from joining the Union and from giving it their assistance and support. The complaint also alleges that Respondent violated Section 8(a)(1) and (3) of the Act by discharging and refusing to reinstate the follow- ing employees due to their activities on behalf of the Union: Ronald Vivona, Tina Forgione, Thomas Pfaff, Peter Koello, Bruce Rowell, Donna Jacobs, and Kenneth Pierce. Respondent denies the 8(a)(1) allegations and denies as well that Robert Rytell, who allegedly created the impression of surveillance, is an agent or supervisor. Respondent admits that it discharged some of the alleged discriminatees while others resigned and denies that any of these discharges were unlawfully motivated. On the entire record,3 including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a Delaware corporation with its principal office in Smithtown, New York, is engaged in the manu- facture, sale, and distribution of aircraft indicators and other electronic instruments and parts of aircraft During the year ending July 1983 Respondent purchased and Unless indicated otherwise, all dates referred to herein are for 1983 z The complaint originally named Gull Airborne Instruments, Inc as Respondent At the hearing, this was amended on the basis of an agree- ment between the parties that since August 16 the correct name of Re- spondent has been Gull, Inc 3 Respondent's unopposed motion to correct transcripts, dated May 4, 1984, is granted caused to be transported to its Smithtown facility elec- tronic components and other goods and materials valued in excess of $50,000, which goods were delivered to its Smithtown facility directly from States other than New York State. Respondent admits , and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION STATUS Respondent admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act III. THE FACTS A. Respondent's Operation As stated, supra, Respondent manufactures indicators and other electronic instruments primarily for military and commerical aircraft. It operates in three plants (plants 2, 5, and 6) within a few miles of one another in Smithtown, Suffolk County, New York. At the time in question, Respondent employed approximately 500 people; of these between 120 to 150 were employed in plant 5, which is the one principally involved herein. The production test department (where almost all of the union activity occurred) employed between 30 and 35 employees. The remaining departments in plant 5 were lighting, staging, clean and case, wiring, bake and evacu- ation, painting, final test, and quality control. Respondent manufactures all its indicators pursuant to customer contracts; from the date that the customer order is received, shipment of the indicator to the cus- tomer is 9 to 13 months away. Irvin Van Sickle, Re- spondent's vice president of operations, testified in great detail regarding the manufacturing process at its facility. What follows is in less detail as it applies to plant 5. The subassemblies needed for the indicators are built in plant 2; they are shipped to plant 5 where the final assembly of the indicators is performed; that includes the final wiring and/or lighting assembly required. The indicator is then brought to the production test department where it is calibrated; the complexity of the unit determines the length of time required to calibrate the unit. This time could range from 15 minutes to an hour. If the indicator cannot be calibrated it must be troubleshot and repaired, although this is an exception. The indicator next under- goes lighting inspection and adjustment in the quality control department. From there it goes to the clean and case department, where it is vacuumed, cleaned, and placed in its case. The indicator then returns to the pro- duction test department to undergo a standardized manu- facturing test procedure (MTP). If it passes this test, it is returned for another lighting check. After passing this test, the indicator is sealed, the backs are soldered or taped, and the units are checked for air leaks. It then goes to the bake and evacuation department where it is baked (to eliminate any moisture) and sealed. Absent any problems, the indicators that require reliability accept- ance test (RAT) go to the production test department for pre-RAT test. The production test department also per- forms acceptance test procedures (ATP) on certain indi- GULL, INC cators at this time. The indicator then goes to quality control and is placed in the RAT chamber for testing; the length of time it remains in this chamber varies from overnight to 1 week. Units that fail the RAT test are re- turned to the production test department to be trouble- shot, tested, and repaired and are again tested and left in the RAT chamber After passing the RAT test, the indi- cator is tested further either in the quality control or production test department, depending on the kind of unit. The unit then leaves these departments and is paint- ed and cleaned. It then goes for its final inspection and testing in the quality control department and is shipped to the customer from plant 6 B Organization and Solicitation of Employees Tina Forgione was employed by Respondent in the production test department; her principal job was to test the indicators to see that they were up to the specifica- tions set by Respondent. In addition , on occasion she was a "runner," which involved driving from plant 5 to plant 2 (a short distance) to pick up parts. On the morn- ing of June 14 (a Tuesday) she was told to pick up a part at plant 2. As she got into her car, a man in a car drove up to her car and asked if Respondent was hiring; For- gione said that she did not know He asked if there was a union at the facility and she said there was not He then identified himself as John Felice, the Union's business agent, and he asked if the employees would be interested in a union; she said that they would. He gave her a union authorization card to sign , which she signed and returned to him He gave her a few authorization cards and asked her if she could get her fellow employees to sign them She said that she would try to do so, and they arranged to meet the following day, during the morning break. When Forgione returned to the plant she spoke with Ron Vivona, Kenny Pierce, and Tom Pfaff (they work in close proximity to one another). She told them of her conversation with Felice and she asked them if they were interested in being represented by the union. They said that they were and she gave Vivona and Pierce authorization cards; they did not sign them at that time; they said that they wanted to meet Felice first Beginning on June 14 or 15, the employees in the pro- duction test department began discussing the Union among themselves; Forgione testified that during that week and the following week she spoke to about 15 em- ployees in the department about the Union and distribut- ed a few authorization cards to employees. Vivona and Pfaff returned their signed authorization cards to her. Bruce Rowell testified that Pierce and Vivona spoke to him about the Union about June 16. On that day, Pierce gave him a union authorization card, which he signed and returned to Pierce. He had no subsequent discussions with employees about the Union Vivona testified that he first learned of the organizing drive when Forgione told him that she met with Felice. On June 16 he signed a union authorization card given him by Pierce. In addi- tion, during that day and the following day he distribut- ed authorization cards to about seven other employees in the production test department, he had received these cards from Pierce Not all the employees to whom he gave cards signed them. 933 Pfaff testified that he first heard about the Union in mid-June from Pierce, Vivona, and Forgione. Forgione told him of her conversation with Felice and his instruc- tions to get authorization cards signed and returned to him Vivona gave him an authorization card which he signed on June 16 at Vivona's workbench. In addition, Vivona gave him additional authorization cards which he distributed to five or six employees in his department. After collecting these signed cards, he returned them to Vivona. Pierce testified that on June 15 Forgione told him of her meeting with Felice. On the following morn- ing he went with Forgione and met Felice on a street near Respondent's facility. Felice told him of the Union's benefits and Pierce signed an authorization card. He re- turned this card to Felice, who gave him a stack of cards to distribute to the employees When he returned to plant 5, he discussed the Union with Vivona and decided that they would distribute the cards and attempt to inter- est the employees in the Union Pierce then "went around from bench to bench, giving cards out, telling the people what they were about." He distributed about 15 cards, including one which he gave to Vivona, who signed it. They kept the signed authorization cards in Vi- vona's toolbox. By the end of the day, June 16, approxi- mately 33 authorization cards were collected. After he was suspended (for an excessive number of latenesses), he told Vivona to keep the cards and see that they got to Felice. Koello testified that Pierce and Vivona spoke to him about the Union while he was at his work station. Vivona gave him an authorization card which he signed on June 16 Jacobs testified that on the morning of June 16 Pierce asked her if she wanted a card; she asked what card and he said a union card; she did not answer him. About an hour later, Vivona handed her an authorization card and told her that the card was to get the Union rec- ognized and she could sign it if she wished. About one- half hour later Pfaff asked her if she had anything for Vivona, Jacobs took out the card , signed it, and returned it to Pfaff. These conversations took place in her work area. Vivona testified that when Pierce was suspended, he, asked Vivona to give the signed authorization cards to Felice. He met Felice on June 17 about 10 a.m, on the street about 100 yards from Respondent's facility; both were in their own cars. Vivona got out of his car and gave Felice about 32 authorization cards. While they were speaking (a short time) he observed "Joe," an expe- diter employed by Respondent, drive by, slow down, and look at him. He also observed Lou Copertino, senior director of quality assurance, slow down as he drove by and looked directly at him. Vivona then returned to work Dominick Giannino, a quality control supervisor employed by Respondent, testified that he has a brother Joseph who is employed by Respondent as a computer operator. Dominick was on vacation for the entire week ending June 17. His brother never informed him that he had seen Vivona talking to a union representative on June 17, and, in fact, in preparation for trial, and in re- sponse to inquiries from counsel for Respondent, Domin- ick asked his brother about the alleged incident and he 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said that he did not see Vivona Copertino testified that he did not see Vivona on the street outside Respondent's facility on June 17. C. Robert Rytell-Impression of Surveillance Vivona testified that on June 16, in the morning or mid-afternoon, leadman Robert Rytell (who did not testi- fy) approached him at his workbench, put his hand around him and said : "Ron, watch yourself, they know about the union, about the union cards, and the union ac- tivities." Vivona, said, "Thank you for telling me " In 1981, another local of the Teamsters Union attempted to organize Respondent's (or some of Respondent's) em- ployees. Vivona, Glenn Johnson, and Rytell were among the leaders of this organizing attempt . Vivona testified that at the conclusion of this unsuccessful campaign, he was called into the Van Sickle's office and Van Sickle said : "I told you the people at Gull do not want a union. You've got my personal word that you will not be fired over this incident with the teamsters . Around Gull, you only go to the well once." Van Sickle testified that he never told Vivona that at Gull you only go to the well once, that during 1981, there was an organizational drive at Respondent lead by Rytell and Johnson, and that he was not aware that Vivona was involved. However, Vivona did ask Van Sickle at that time what would happen to Rytell and Johnson, and Van Sickle told him that as long as they performed their job properly they would always have a job with Respondent. Rytell has been a lead person (group leader A) in the production test department since about 1982. The super- visor of the department is Sigridur (Sigga) Anetrella. Ernie Joseph, who had previously been the supervisor in the department prior to Anetrella 's arrival , is a technical assistant who assists her; Anetrella, Joseph , and Rytell report to work at 8 a.m. and usually work until about 6 p.m. Anetrella and Joseph usually work Saturdays, Rytell does not. Bill Sosias is the evening supervisor who arrives at work between 12 and 2 p.m. In addition, the other job classifications in the department are techni- cians, A, B, and C; testers A, B, and C; repair people; wirers; and mechanical assemblers. When the indicator arrives in the department it goes to a tester for testing: if there is a malfunction, it goes to a technician for trouble- shooting. The more complicated the indicator the higher the level of employee it is assigned to (A is the most ad- vance). Senior technicians are the most qualified in the department. They can work on any unit and they train technicians and testers. Anetrella testified that all these employees report directly to her not to Rytell . She also testified that the principal job of lead persons , such as Rytell, is to empty out the boxes containing the work and give it to the employees . (Rytell makes sure that the technician has work in front of him.) On occasion, he also works on the units. When priorities and work as- signments have to be changed, Anetrella makes that deci- sion, not Rytell. If Rytell sees that a technician or tester is doing something improperly he will explain to the em- ployee the proper way to do the job ; another technician might also do this . If an employee is acting improperly (talking to fellow employees for too long or walking off the floor), he tells Anetrella about it and she speaks to the employee. Rytell has no authority to discharge or recommend the discharge of an employee Rytell also does not have the authority to hire or recommend the hiring of employees and has not interviewed employees while she has been there (2-1/2 years). Sosias, Joseph, and Joe Catalano, senior supervisor in production, con- duct interviews for her. She has instructed the personnel department to call her, Joseph , Sosias, or Catalano to ar- range interviews with employees ; she never told them to call Rytell if they could not locate the others. Rytell does not have the authority to grant employees permis- sion to leave work early; however, she is aware that on two or three occasions employees have left work early and told Rytell to inform her of it. Rytell and the other employees in the department are paid time and a half or double time for overtime work; Anetrella, Joseph, Cata- lano, and Sosias are on salary and are paid no extra. All overtime is approved first by Pat Vassallo, manufactur- ing manager of plant 5 , and then by Van Sickle. If there is enough overtime for everybody , she will ask all the employees if they wish to work overtime. If there is lim- ited overtime, she will tell Sosias, Joseph, or Rytell whom to ask to work overtime. Rytell does not have the authority to select employees for overtime work. Rytell and the others in the department punch a timeclock; An- etrella, Joseph, Sosias, and Catalano write their hours on a sheet provided for them . Rytell is the second highest paid hourly employee in the department; a senior techni- cian is paid more then he . Rytell's vacation and sick leave benefits are the same as the other hourly paid em- ployees, and different from that of Anetrella, Sosias, Joseph, and Catalano. Anetrella is present in the depart- ment 60 percent of the time at the beginning of the month; in the middle to the end of the month she is present from 80 to 100 percent of the time . When she is absent, Sosias or Joseph is in charge of the department and she has informed the departmental employees of this. There are periodic supervisory and managerial meetings at the facility which she attends ; Rytell does not attend these meetings. A number of employees also testified regarding Ry- tell's job functions: Vivona testified that Rytell was in charge of the department when Anetrella was away from the department, which was about 50 percent of the time. Rytell assigned work and gave them priorities in their work. In addition, he interviewed applicants for hire on three or four occasions and gave Van Sickle his opinion of the applicants. He also told employees that they were spending too much time away from their work. Rytell has told Vivona to get off the telephone and has told A technician James Harris "constantly " to return to work. He asked employees if they wished to work overtime, based on a list approved by Vassallo. Vivona knew that Rytell attended supervisory meetings because he has seen him in Anetrella's office. He heard Anetrella call Rytell saying, "Bob, come with me we have a supervisor's meeting." Vassallo was present in Anetrella's office with Rytell and Anetrella, but Vivona does not know what was discussed at the meeting Pfaff testified that Ane- trella, Sosias, Joseph, and Rytell are the people who assign him work in the department; Rytell 's job is to dis- GULL, INC tribute the work; "We have three different boxes, in-box, trouble shooting box, and the out-box. He makes sure we have work in the in-box." He also assists the employees with problems they encounter On occasion Rytell has told Pfaff to stop talking to a fellow employee and return to work, although, "that's usually the supervisor's area " Jacobs testified that when she had no work, she asked Rytell for work and he gave it to her. On one occasion she asked Rytell's permission to leave work early, and he told her that she could leave without checking with any- body else On two occasions she asked Anetrella's per- mission to leave work early. She has observed Rytell telling employees in the department to stop talking or fooling around and to return to work. She sometimes sits by the phone in Anetrella's office and has received calls from Jean Singleman, a secretary in the personnel de- partment asking for Anetrella to interview an applicant; if Anetrella was not present (about 50 percent of the time) she asked for Joseph, and if he were not available, she asked for Rytell Rytell has interviewed applicants but she does not know whether he ever hired anyone. Anetrella told her that when she is absent, Joseph or Rytell are in charge Singleman testified that she has called the production test department to arrange for interviews of applicants, but does not always know to whom she is speaking. In this regard, she calls either An- etrella, Joseph, or Sosias for interviewing. As to whether she ever asked for Rytell to interview an employee, she testified- "Not that I recall." D. June 17-Coney Island Day Vivona was discharged by Respondent on June 18 based on events that occurred on the afternoon of June 17. The General Counsel alleges that the timing and cir- cumstances of this discharge establish that it was caused by Vivona's activities on behalf of the Union. Respond- ent, while admitting that it was aware of the union solici- tations occurring in the production test department, argues that it discharged Vivona solely because of his improper and dangerous actions committed on June 17 Coney Island Day is a yearly event at Respondent's fa- cility. Respondent supplies a picnic-like lunch for its em- ployees on each shift. The employees receive an extra half hour for lunch and afterward they return to work. On the day in question, Vivona and Pfaff and some other employees left work at noon and took leave for the re- mainder of the day. Rather than attending Coney Island Day at the plant, they had a picnic of their own at a dif- ferent location. The difficulties that ensued herein, culmi- nating in Vivona's discharge, commenced when Vivona and Pfaff returned to Respondent's facility (in Vivona's car); a few of the events in question are not in dispute; most are, even among Respondent's witnesses. On the day in question, Vivona, Pfaff, and some other employees arranged to meet at a nearby location for a barbecue. He and Pfaff drove to the barbecue in Vi- vona's new car and stayed for about 3 hours. During this period other employees came and went. About 3 p.m., he and Pfaff packed up his car and drove back to the facili- ty. They testified that the reason for returning to Re- spondent's facility was to return a cooler that they had which belonged to a fellow employee, "Ray." On the 935 way back to the facility they stopped for a pizza and soda At this point credibility issues arise. Vivona testi- fied that they arrived at the facility about 4 p.m. and he parked his car in his assigned parking space.' A short time later, he observed Gary Shapiro, an employee of the vending company that provides food for the plant, loading food (including watermelons) into his station wagon. The station wagon was backed up to the building about 4 feet from it and to the left of the entrance to the building, as you face the building. The door at this en- trance opened out and lead to where the timeclock was located; this is the entrance that the employees usually use when they enter or leave the plant. Vivona was at- tempting to talk to Shapiro, but he could not hear him because of the distance. He therefore drove his car to the right of, and next to Shapiro's car; he parked the car right in front of the plant door, about 2 or 3 feet from it,5 facing the door, as compared to Shapiro's car which was backed toward the door. He began talking to Sha- piro and, "I had to move my car several times because people were coming in and out." Shortly thereafter, Pfaff told him that somebody was stuck in the doorway He looked at the doorway and saw that someone was stuck and could not get out. He yelled for Vivona to move the car, and Vivona immediately started the car. He mistakenly put the car in forward and it lurched for- ward slightly; he then put it in reverse and backed up so that the person could extricate himself. Vivona asked him if he was all right and he said that he was, Vivona apologized and he answered that he should forget about it. About 5 minutes later, Rocco (Sonny) Banle, group leader on the night shift, approached Vivona and apolo- gized that the employee involved, Richard Rehkopf (whom he supervised), banged Vivona's car when he opened the door; Vivona said "no problem." Bartle said that it was an accident, but as the employees would be leaving the plant soon he asked Vivona to "move your car back so the people can get in and out." Vivona then moved his car back to his reserved parking space. About 4:30 p in., Anetrella and Van Sickle came to his car and Van Sickle asked him what had occurred and Vivona told him. He asked Vivona what he was doing there and he said that he was waiting for Ray Van Sickle told him that he wanted to speak to him Monday in his office and asked him to leave Respondent's property, which he im- mediately did. Vivona testified that neither he nor Pfaff had been drinking beer or liquor that day. Pfaff 's testimony is substantially similar; they remained in Vivona's reserved parking place for about 15 minutes until they saw Shapiro come out of the building loading watermelons into his car; when Vivona had difficulty talking to Shapiro, he moved his car from his reserved parking space to a place next to Shapiro's car in front of and about a foot from the door. While Vivona was talk- ing to Shapiro, he had to move the car on a few occa- sions when people wanted to go in and out the door. About 15 minutes after moving to that location, Pfaff ob- * Vivona had a reserved parking space because he is handicapped This space is about 50 feet from the entrance to the plant 5 As to why he parked that close to the door, he testified "i wasn't really paying attention " 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD served that somebody opened the door attempting to get out and was stuck; he told Vivona that he should back the car up because somebody was stuck in the doorway. The car lurched forward slightly and he then put the car in reverse and Rehkopf got out of the doorway. Vivona got out of the door and apologized to Rehkopf and asked him if he was all right. Rehkopt mumbled some- thing that Pfaff did not hear and walked back into the plant. A short time later, Barile came over to Vivona's car, told him that Rehkopf was all right, and asked him to move his car to his reserved parking space as he was blocking the door and the employees would soon be leaving the building, which he did. Van Sickle and Ane- trella then came to the car and Van Sickle asked Vivona what happened; Vivona told him (as stated, supra) and Van Sickle told him to leave and he would discuss it with him on Monday. (Anetrella was also on the driver's side of the car, but said nothing.) Vivona drove him to his car and they left. On the following Monday, Pfaff was called into Vassallo's office where he was ques- tioned by Vassallo and Van Sickle about what had oc- curred and he described what had occurred. They asked him to sign a written statement At first he refused to sign it because it was not totally correct and because he was admitting to something that he was not in control of. When he was threatened with discharge if he did not sign it, he signed the statement. Like Vivona, Pfaff testi- fied that on the day in question neither he nor Vivona drank any beer or liquor 6 Van Sickle testified that the first he learned of the inci- dent in question was about 3:30 p.m. that day, when he received a call in his office from Vassallo's secretary who informed him that an incident had occurred in the cafeteria area, but she did not know what to do as both Vassallo and Anetrella were at meetings. He told her to get Vassallo and Anetrella out of their meetings and in- vestigate the situation. Shortly thereafter, Anetrella came to Van Sickle's office and told him and Vassallo that a custodian was trying to get out the door and a car driven by Vivona pinned him between the door and door frame. Van Sickle then told Anetrella to return to her work area and Vassallo to return to his meeting; he then asked Emil Kocha, then Respondent's manager of employee relations, to investigate the situation and take statements from those involved. About 4:20 p.m., Vassal- to's secretary came to Van Sickle's office and told him that employee George Giordano had expressed concern about Vivona's presence in the parking lot. Van Sickle told her to tell Anetrella to meet him in the cafeteria and they would speak to Vivona. They went to Vivona's car (which was then parked in his reserved space); Van Sickle asked him, "Why did you bother coming back here after the earlier incident." Vivona told him that he returned to drop Pfaff off and to return the cooler. Van Sickle noticed that Vivona had a bottle of beer between his legs (although he could not see the label), his eyes were bloodshot, and his words were slurred. Van Sickle 6 Pfaff testified that at the time he was in training to be fit for the summer, and his trainer told him not to dunk beer Because of that, he told Vivona not to drink beer because if he saw him drinking it, he would be tempted to do the same asked Vivona to leave the property prior to 4:30 p.m., when the employees leave. Vivona asked how Rehkopf was and Van Sickle told him that they sent him to the hospital for x-rays. He also told Vivona that they would be evaluating the incident over the weekend and would inform him on Monday of their decision. Van Sickle then asked Vivona what had occurred; he said that Reh- kopf had slammed the door against his car and scratched a bumper and he drove the car into the door. He then cursed Rehkopf and called Barile a complete idiot and said that he was sorry he did it, but he would do it again if somebody slammed a door into his car. Van Sickle told him that he was in bad shape and should go home, and he said, "Yes, I've had too much to drink, I've been drinking all afternoon." Before leaving the parking lot, Vivona started and stopped his car slamming on the brakes: "put on a demonstration " Van Sickle returned to the cafeteria and directed that Rehkopf be taken to the hospital for a checkup. Neither Barile nor Rehkopf com- plained to him about the incident, and Rehkopf never re- quested to be taken to the hospital; in fact he said that he was all right. Anetrella testified that between 3.30 and 4 p.m on the day in question she was called out of a meeting and was asked to investigate an incident by the rear door to the plant . By the time she got there the incident was over, and she spoke to Barile and Rehkopf who told her that Rehkopf was pinned against the door by Vivona's car after Rehkopf had opened the door and hit Vivona's car. She reported this to Van Sickle, who told her to stay on the situation rather than returning to the meeting. About 4:15 p.m. she received a call from Van Sickle to meet him by the rear door. She and Van Sickle then went to Vivona's car which, at the time, was parked in his regu- lar parking space; both she and Van Sickle were standing by the driver's side of the car. It was only she and Van Sickle, not Barile, and Van Sickle did all the talking. Van Sickle asked Vivona what he was doing there, and Vivona said that he was dropping off Pfaff; Vivona apologized for what had occurred, and said, "If that motherfucker touches my car again , I'll kill him." He said that it was an expensive car that he had just pur- chased. Van Sickle then asked Vivona to leave the prem- ises, "which he did, we thought .. . ." On direct exami- nation, she testified that Vivona's appearance was flushed and he had slurred speech, there was a can of beer be- tween his legs, and there was a smell of beer throughout the car, "I do not drink, so I'm very sensitive to beer smell." Rehkopf was employed by Respondent at the time as a night maintenance porter; he worked from 4:30 p.m to 3 a.m. He testified that he arrived for work on the day in question about 2 30 p.m; while waiting to begin work, about 3:30 or 3:45 p.m. he went to see Shapiro to get the key to an inoperative vending machine. He attempted to get out of the door, but could only open it about 1 foot, enough to stick his head and arm out. He leaned out and looked at Vivona and motioned for him to move back; Vivona motioned back with a motion that Rehkopf took to mean, "Don't bother me." Barile then came by and pushed the door open a little more, hitting the car; Reh- GULL, INC. 937 kopf then attempted to squeeze out, and as he was about to do so, the car moved forward and pinned him be- tween the door and the wall. In great pain, he yelled for Vivona to move the car; Barile was yelling at the same time. He testified that it seemed like 2 or 3 minutes that he was in this position and "I could see the person in the car, and he had a smile on his face." When the car moved back, Rehkopf stepped out of the doorway and asked Vivona, "What are you crazy or something?" Vivona said, "Do you want to come outside and we'll fight?" Rehkopf stepped back inside the building and Barile went outside and spoke to Vivona; when he came inside, he told Rehkopf that Vivona said that if he had known that it was Barile that pushed the door into the car he would not have done what he did About 5 min- utes later both Kocha and Castoro approached him and questioned him about the incident. He answered as set forth, supra. Later, he observed Vivona driving his van around the parking lot, during this time, he saw Vivona drinking from what appeared to be a beer bottle. Later that day, Van Sickle approached him and told him that he had spoken to Vivona and he appeared to be under the influence of alcohol; he asked Rehkopf to go to the hospital for x-rays to be sure that there were no injuries, "I wasn't going to go at first, but he suggested I did so I went " Tests showed only bruises. The following morn- ing, about 11 a.m., Castoro asked him to write a state- ment of the prior day's events, and he wanted it right away. Rehkopf complied and gave it to Castoro. Barile testified that at the time in question he told Reh- kopf (who was standing in the doorway) to take the gar- bage out; Rehkopf said that he could not because he was not able to open the door. Not knowing why, Barile pushed the door open and it hit the bumper of Vivona's car. Vivona's car then moved forward pinning Rehkopf in the doorway. While Rehkopf's arms were motioning for Vivona to back up his car, Barile yelled, "Ron, back off, Richie's pinned." Barile was inside the door at the time, but saw that it was Vivona through the small window on the door. After a while Vivona backed his car up, and Rehkopf got out of the doorway, but Barite could not estimate the amount of time that expired before Vivona backed up. Rehkopf went outside and yelled at Vivona and asked if he was crazy. Barile then went outside and told Vivona that it was he, who had pushed the door into his car; Vivona said that if he had known that it was he he would not have done what he did. Barile then returned to work. Approximately an hour later, he and Anetrella (and nobody else) went to Vivona's car which was then parked in his reserved space. They both stood by the driver's window while Anetrella spoke to Vivona; she asked him if he was feel- ing high or good, and he said that he was drinking beer. At that point, Barile walked away although Anetrella continued talking to Vivona While he was there, Barile observed a can between Vivona's legs; because of what Vivona said, he assumed that it was a can of beer. Shapiro testified that on the day in question, about 3:30 p.m., he and his two brothers were taking food from inside the plant to his car, which was backed up to the plant, to the left of the door He began using this door in bunging the food to his car, as it was the shortest route from the place where the food was located. At a certain point (when he had almost completed loading his car- he only had four or five more trips) his brothers told him that Vivona's car was blocking the door; without at- tempting to open the door or speaking to Vivona, Sha- piro switched to an alternate route to get the food from the plant to his car; this was more than twice the dis- tance of his original route. Shapiro testified: "During this period Vivona . . . might have been saying things to me .. . it's possible." On the way back to the plant on one of these trips, he heard a noise and saw Vivona's car against the door and Rehkopf stuck in the doorway; Rehkopf was screaming. Shapiro continued walking through the other entrance of the plant that he had been using due to the location of Vivona's car and saw noth- ing else of the incident. Kocha testified that about 6 p in. Van Sickle and Cas- toro informed him of the incident They asked him if he was going to be at the plant that evening and he said that he was remaining for the Coney Island Day activi- ties for the night shift at 8 p.m. They told him to be sure he got a statement of the incident and to be sure that Rehkopf was taken to a medical center to be sure that he was not injured; they said that Rehkopf had initially re- fused treatment and they were concerned. Later that day, Kocha and Vassallo discussed the incident with Barile and Rehkopf and they obtained a statement from them. Afterward, Kocha told Vassallo that he was con- cerned that an employee was using his vehicle as a dan- gerous weapon, and he felt that they should meet the next morning to determine what action, if any, to take. When Kocha got home that evening he called Castoro about 10 p.m. and told him of his concern and recom- mended that he call all the managers involved for a meeting the following morning. Van Sickle was called about 12:30 a.m. There are no credibility issues about the Saturday morning meeting or its aftermath; the meeting convened about 8 or 9 a.m. Present were Vice Presidents Van Sickle, George Gilliland, and Larry Perry and Managers Vassallo, Kocha, Castoro, and John Verado. Kocha told the participants what occurred the prior afternoon as Rehkopf and Barile had informed him. Vassallo said that employees had expressed concern for their safety due to Vivona's presence in the parking lot. Van Sickle said that Vivona had a can of beer on his lap and a cooler in his car; when he asked him to leave the parking lot, he did it by starting and stopping his car on numerous occa- sions A consensus was then taken that Vivona should be discharged for his actions the prior day and Kocha was told to inform him of their action and send him a mail- gram to the effect. Anetrella was never consulted about this decision, although she was working in the plant that day. Kocha testified that at the conclusion of the discussion about Vivona one of those present (he does not remem- ber which one) said that they were aware (or had been told) that union cards were being distributed; he had to leave to prepare the telegram to Vivona, so he did not hear anything else on this subject although that was the first he had heard of the Union organizing Respondent's 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees. Van Sickle testified that after the decision to fire Vivona was made by the group, and Kocha was di- rected to inform Vivona of it, Vassallo said that the prior evening Koello told him that union cards were being signed by the employees, that between 35 and 40 had been signed , and that Vivona and Pierce "were pushing the card signing to employees " (This will be discussed more fully, infra.) Perry said that in that circumstance they should have legal counsel and Castoro called Arthur Kaufman, counsel for Respondent, who lives nearby; he was familiar to Respondent and he joined the meeting within 5 or 10 minutes. On the next day about 11 a.m. Kocha called Vivona and told him that he was terminated by Respondent for misconduct and violation of Respondent's work rules. Vivona asked for more specifics and Kocha said he would be receiving a telegram to that effect.' He told Vivona that he would like him to return the property in his possession that belongs to Respondent, and he said that he would do so on Monday afternoon. When he ar- rived, Anetrella brought him his toolbox and they jointly inspected it for what belonged to him and what belonged to Respondent. Kocha gave him some forms to sign and he left. The General Counsel alleges that the speed with which Respondent acted and the means employed (the time and day of the meeting and the number of Respond- ent's officials who were present) further illustrate that Respondent was using the events of June 17 as a pretext to discharge Vivona, where the real reason was his ac- tivities on behalf of the Union. Kocha testified that, in the past, a number of managers have been present at a meeting to determine whether to discharge an employee, but he could not remember a prior meeting with all the individuals who were present on June 18, although Sat- urday meetings were not an unusual occurrence. As re- gards the speed of the termination, Kocha testified that the use of a vehicle in a dangerous manner presented a possibility of harm, and this fear outweighed the fact that Vivona had been a very good employee for a number of years. Van Sickle testified that the events of June 17 were very serious: "It involved an employee's safety and his health and it was an incident that did not need to be left unattended." In addition, employees were concerned with Vivona's presence based on the prior day's events. He also testified that in the summer or fall of 1982 there was a meeting of himself, Gilliland, Perry, D'Agrosa, and Castoro involving four employees who were using and selling illegal drugs on Respondent 's premises. D'Agrosa testified that he first learned that the Union was organizing Respondent 's employees when Respond- ent received the Union's June 23 telegram. He was on a business trip at the time, but someone called him to inform him of the telegram. He returned the following day. Van Sickle testified that the first he knew of the Union's organizational attempt was at the June 18 meet- ing as stated, supra. Van Sickle held a meeting with his managers on the subject about June 20. He did not inform D'Agrosa about it because he was out of town at the time, although it is possible that someone else did. I The telegram he received was substantially similar. Anetrella testified that the first she learned of the Union was when employees in her department were called into the meetings discussed, infra. E. Speeches to Employees There are two aspects to this allegation. First, the complaint alleges that, in late June and early July, Re- spondent President Peter D'Agrosa and Agents Sal Ca- tania, Paul Mandelik, Sal Desimone, George Dechent, John Dillon, and Sal Corrao told employees that the Union would never represent them and that Respondent would do everything it could to keep the Union out. Ad- ditionally, the complaint alleges that during the same period, Respondent, by D'Agrosa, solicited grievances from its employees in order to prevent them from joining and supporting the Union. The first allegation will be discussed first. The Union sent a telegram demanding recognition to Respondent on Thursday, June 23; presumably it arrived at Respondent's premises (or Respondent was made aware of its contents) later that afternoon or that evening. Although Respondent's witnesses (who con- ducted these meetings) were generally unsure of whether the telegram arrived on June 23 or 24, they testified that the first of the series of scheduled meetings occurred shortly prior to the receipt of the telegram. On receipt of the telegram, some of the information which they were furnished to impart to the employees was changed to correlate to the information contained in the telegram and the meetings continued for the next few workdays. Forgione and Rowell testified, generally, that they at- tended separate meetings in the plant 5 conference room in mid to late June; they did not know the two gentle- men who spoke at the meetings, but one identified him- self as being in Respondent's contract division. He did most of the talking and referred, at times, to notes on a large pad. They told the employees that unions are not good for the employees or Respondent, there were a lot of negative things about a union, and they were only out for the employees' money. Pfaff testified that he attended such a meeting about the end of June or early July; two men whom he recognized as being from Respondent's front office (although he did not know their names) lead the meeting. They used notes printed on large paper sit- ting on an easel and used a wooden pointer to refer to the notes. They spoke of Respondent's opposition to the Union and asked for questions. Pfaff testified that at the bottom of one of the pages on display were the words, "The management of Gull Airborne will never let a union into Gull." The word "never" was underlined. In addition, the moderator spoke those words. Received into evidence were "flip charts" that Respondent used at these meetings. The General Counsel stipulated that those were the charts she was shown, but could not stip- ulate that they were the only charts used at these meet- ings. None of these charts states what Pfaff testified he saw; the closest one is an enlarged copy of Respondent's answering letter to the Union, stating, inter alia, "[W]e refuse to recognize your union as the representative of any Gull employees unless and until you are so certified by the National Labor Relations Board." GULL, INC Jacobs testified that in mid to late June she attended a meeting in the conference room with about 10 other em- ployees; the names of those present were read and the meeting did not begin until everybody on the list was present She could not remember the name of the person from management who spoke. He had a large pad on an easel with a pointer, he pointed to a subject on the pad and spoke about it . He told the employees that the Union had demanded recognition, but Respondent did not feel that the Union represented the employees and they were going to make the Union prove it . He told them of the disadvantages of the Union, and how they could cancel their union authonzation cards He also said that "they did not want this Union and they were going to do ev- erything to keep them out." Catania (Respondent's direc- tor of project engineering) testified that he and Mandelik acted as a team in the speeches to groups of employees; for this purpose they used a text which they read from, in addition to a large flip chart that they pointed to. Jacobs attended one of the meetings that he gave, and neither he nor Mandehk said that Respondent would do everything to keep the Union out. Mandelik (Respond- ent's quality assurance manager) likewise testified that Jacobs attended one of their meetings and neither he nor Catania said that Respondent would do everything to keep the Union out The teams were Dechent-Desimone, Dillon-Carrao, and Catania-Mandelik . As stated, supra, they testified that the first meeting occurred shortly before the arrival of the Union's telegram demanding recognition ; at this meeting they said that they were aware the employees were signing union cards . On notification of the tele- gram, the flip chart and the text were changed to reflect the Union's name and the contents of the telegram; the remainder stayed the same. One speaker read from the prepared text while the other manned the flip chart. Each team conducted between 8 and 12 meetings; ap- proximately 15 employees attended each meeting. At the conclusion of some of these meetings the employees were asked if they had any questions; the questions were often about inadequate or obsolete equipment or the lack of a dental plan. Their answers to these questions were usually noncommittal . However, Dechent testified that when he was asked why Respondent did not have a dental plan he answered that it was expensive , but Re- spondent was investigating such a plan . Desimone, De- chent, and Carrao testified that neither they nor their partners ever said (at these meetings) that they would do everything to keep the Union out. D'Agrosa also conducted some meetings with employ- ees, some of these were prearranged meetings of a "coffee klatch" vanety with small groups of employees, and others were speeches to large groups of employees about the end of June to convey Respondent's opposition to the Union. The General Counsel alleges that the con- tents of these latter speeches , together with the questions solicited and answers given, represent an unlawful solici- tation of gnevances. Pierce testified that in January and February D'Agrosa conducted small meetings with employees in the produc- tion test department; afterward, D'Agrosa conducted these meetings with employees in other departments. 939 Vivona testified that he was aware that D'Agrosa con- ducted such meetings "to talk about gripes." D'Agrosa testified that since about early 1983 he has maintained small weekly meetings, scheduled in advance, with random groups of six employees and managers Single- mann testified that, inter alia, she schedules D'Agrosa's weekly coffee meetings . The meetings began about early in 1983 and are on a weekly basis. She chooses the par- ticipants from a computer runoff of employees. She se- lects employees from different departments and attempts to select different employees each week; employees are usually notified of the meetings a week in advance. The meetings were generally conducted on Thursdays. Sin- glemann's book listing the participants in these meetings begins in May, although she testified that D'Agrosa had coffee meetings with employees prior to that time. Forgione attended one of these meetings on July 7 Singlemann testified that the regular meeting of June 30 was canceled and rescheduled for July 7; as one of the participants was unable to attend on the rescheduled date, she needed an employee from plant 5, and Single- mann chose Forgione's name at random from the com- puter runoff to replace her. Forgione testified that at this meeting D'Agrosa said that the meeting was part of an open-door policy to meet the employees and he invited them to ask questions. After a few questions were asked D'Agrosa said Respondent had lost $750 ,000 due to a de- liberate work slowdown and he pointed at Forgione and said, "because of your department " She was shocked and asked him what he was talking about , and he said that there was a deliberate work slowdown. Forgione defended that there was no slowdown in her department, rather there was a lack of support of employees in con- necting departments . D'Agrosa said that he had proof of the deliberate slowdown and that he would have a meet- ing the following day with the department. Charles Sil- verstein, a nonsupervisory buyer employed by Respond- ent, also attended the July 7 meeting with D'Agrosa. He testified that D'Agrosa invited questions from those present and questions were asked about promotions, job placements, and like subjects At a certain point in the meeting , D'Agrosa said that there was a slowdown oc- curring in the test department and it would cost them $750,000 and impact everyone. D'Agrosa did not direct this comment to any particular individual in the room. D'Agrosa testified that he does not recall whether he discussed the slowdown at the July 7 meeting; however, he did not point at her or accuse her of it at the meeting; in fact he did not know who she was at the time. About June 24, D'Agrosa made numerous speeches to employees regarding the Union's organizational attempt. Only three such speeches or meetings will be discussed herein; a meeting in the cafeteria about June 24 attended by the employees in plant 5 ; a meeting the next day or a few days later in the cafetena with the technicians and testers, and a meeting on July 8 with employees in the production test department. Between 50 and 100 employees (including the produc- tion test department) attended the June 24 meeting in the cafeteria, it lasted for about 30 minutes. Forgione testi- fied that at this meeting D'Agrosa said that the Company 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had received a telegram from the Union the prior day at 5 p.m. and he was very upset (or hurt) about it and they would do anything to keep the Union out; she does not believe that he used the work "legally " He said that he was surprised because they had an open-door policy "where we would talk to management or have meetings and we would tell them our problems . . . that anyone was welcome to come to his office." She had first learned of the policy about a month earlier and there may have previously been one group of employees who had spoken with D'Agrosa, but it was difficult to get to speak to him. Rowell testified that D'Agrosa said that the union campaign was the result of a few disgruntled employees, but that he felt that the Union would not get in because a majority of Respondent's employees did not want it. D'Agrosa also said that he would never let a union into Gull and he would do everything in his power to prevent it. Rowell does not remember D'A- grosa using the word "legal" in this regard. D'Agrosa said that the problem may have been caused by a lack of communication at the Company, that he is in charge, and that he did not realize that there were so many unhappy employees. Pfaff testified that although he did not hear everything that D'Agrosa said he heard him say that he had information that people wanted to get into the Union, but Respondent did not need a union and any problems they had could be solved within the Company. He then told them of the bad points of the Union, and that it was run by gangsters. Pierce testified that D'A- grosa read from the Union's telegram and said that it could not have occurred at a worse time because Re- spondent was preparing for a public offering of its stock; he asked the employees to help him through the difficult time by defeating the Union. Koello testified that D'A- grosa said that they had received a demand for recogni- tion from the Union; that the Company did not need a union. Some employees expressed grievances, particular- ly about the inadequacy of the test equipment. D'Agrosa said that if they wished to do so, he would meet individ- ually with the employees to discuss it further. As Koello was standing in the rear, he did not hear everything that was said. D'Agrosa testified that he had separate meetings with the employees in the three plants between late June and early July. He opened these meetings by saying that con- trary to his usual policy he was going to read from a text. After reading from the text he made one additional comment that the Union' s organizational drive came at a very inopportune time as it affected Respondent's planned public offering of its securities. There were no questions at the end of the speech and no discussion of an "open door policy." In addition, he never said that they would not let a union into Gull, or that he would do everything in his power to prevent the Union from coming in. The prepared text does not say this. The pre- pared text (which could have been read aloud in less than 10 minutes) recites the Union's telegram and states that a few employees were attempting to impose their will on the majority, but that, "You can rest assured that we will not allow these few people to force you or this company into something you don't want." The entire meeting lasted between 10 and 15 minutes. Van Sickle was present at this meeting and his testimony supports that of D'Agrosa. The next meeting also occurred in the cafeteria about June 27. The technicians and testers from all the plants attended. Forgione testified that at this meeting D'A- grosa repeated much of what he said at the prior meet- ing, including that there was "no way" he would let the Union into the Company. Pfaff testified that D'Agrosa told them about the Union's telegram and the problem was the lack of communication between management and the employees: He felt that instituting an open door policy would solve this problem and that if any employees had any problem that they were welcome to come to his office at anytime to talk about their problems. He put a limit on this open door policy by saying that he would not discuss reviews, monetary consid- eration or any type of benefits in these meetings. D'Agrosa ended the meeting by saying that there was no need for a union and he would do anything in his power to keep it out of Gull. Pierce testified that D'A- grosa said that the employees have a right to vote, and the Union did not represent a large enough number of Respondent's employees to get in, and he would do ev- erything that he would to prevent them from getting in. He also said that the problem was caused by a lack of communication between the managers and employees and he was sending the managers to classes to improve the communication Questions were then invited and asked. A question was asked about the lack of a dental plan; he answered that it was too expensive and he would rather see the employees take the extra few dol- lars home with them in their paycheck. An employee complained about the lack of testing equipment; he an- swered that this problem was being discussed and they were attempting to increase the budget for more equip- ment. D'Agrosa testified that at this meeting he told those present that the Union was attempting to carve out a unit to its liking, and Respondent would fight this at- tempt. He also informed them that since the prior meet- ing he had learned that Respondent could proceed with- out delay with its public stock offering; the Union's or- ganizational attempt would not affect it. In addition, there were questions from the employees: one was re- garding a dental plan for employees (he told them that such plans were very expensive and he would rather give it to the employees "in the form of pay" ) and an- other was about the test equipment maintained by Re- spondent and how to improve upon it.8 He never told the employees that he would not tolerate a union at Gull or that he would do everything he could to keep the Union out; he did say that he would do everything that was legally proper. Van Sickle's testimony of the con- The question from the General Counsel Q The question was a complaint that there was a lack of equip- ment'? A No, I don't believe anyone could complain that there was a lack of equipment but whether there was enough equipment GULL, INC tents of this meeting substantially agrees with that of D'Agrosa. On July 8 D'Agrosa met with the testers and techni- cians of the production test department; all except Jacobs, who was absent that day, were present. He told them that he had good news and bad news for them: the good news was that they had not heard any further word from the Union and it therefore appeared that they had given up on organizing Respondent's employees. The bad news was that Respondent had lost $750,000, and all but $50,000 of that loss could be traced to their department. He said that the loss was due to a deliberate and illegal work slowdown by the production test de- partment and those responsible would be dealt with. F Alleged Slowdown and Terminations Respondent alleges that the employees in the produc- tion test department engaged in a work slowdown during June, causing it to suffer a major loss during that month. As a result of this intentional slowdown, Respondent chose six employees for discharge The six individuals denied that there was any intentional work slowdown in their department, and the General Counsel alleges that they were discharged because of (and in retaliation for) the union activity in their department. All the employees involved testified that they were not aware of any intentional slowdown in their depart- ment, nor did they participate in such a slowdown. They also generally testified that because May 31 is the end of Respondent's fiscal year the managers are anxious to ship the products out, resulting in fewer parts and inventory in June. This, together with the fact that some essential support employees were absent during June, was the cause of any reduction in production during that time. Forgione testified that June 1983 was her second June period of employment with Respondent: "things usually slow down in June." In June she had difficulty obtaining parts for production; many of the parts the department needed had not yet been received by Respondent. Rowell testified that June is generally a slow month, but that in June 1983, in particular, he had difficulty obtain- ing parts for the system he was working on; 80 percent of the parts he needed were not available and were on order. Vivona testified that prior to his discharge, he spent hours waiting for parts for the units he was work- ing on. Pierce testified that during June he had difficulty obtaining parts; he waited from a day to a week for the parts, sometimes taking them from other units Koello testified that work was relatively slow in June, especially for new orders. As was normal, they were short of parts that were "robbed" from the kits of units that were to be assembled in June, so that units could be completed in May, prior to the end of the fiscal year. During June, he spent a lot of time repairing units that were returned with structural defects. Jacobs testified that work was slow, as usual, in June and she spent most of her time during that month assisting Anetrella with filing docu- ments. Anetrella testified that Jacobs normally did filing for her for a couple of hours a month; in June 1983 she did about a day's work filing. D'Agrosa testified that he was absent from the facility for almost a week near the end of June. When he re- 941 turned on June 24, Van Sickle informed him there was a "shortfall" of in excess of a half million dollars in pro- duction that month that would have to be investigated. He told D'Agrosa what Respondent's sales for June should have been, and what they were, so far, for June. He also told him of the number of employees working that month. D'Agrosa told him to investigate the situa- tion and document what the shortfall was, and who was responsible. On July 7 Van Sickle informed him that the large shortfall occurred in plant 5. This was based on monthly records for all the departments compared with prior months' records and other documents such as amount of sales for each of the departments, the number of hours worked (regular and overtime), the amount of work in process, and the amount of material in inventory available at the time. He also said that based on this in- formation he was convinced that the shortfall was the result of a slowdown. He told Van Sickle that they had to show that this would not be tolerated and that Van Sickle "was to select non-performing people and/or those that he could identify as having contributed to that slowdown and terminate them." The following day Van Sickle told him that he had selected the employees to be terminated. D'Agrosa did not question him about those selected. He told Van Sickle to terminate them and have the necessary documents prepared D'Agrosa never spoke to Anetrella or any other supervisor or lead person in the department about the slowdown, nor did he discuss it individually with any of the employees in- volved D'Agrosa testified that as their fiscal year ends May 31 there is generally an attempt to get as much product as possible produced and shipped by that time, and therefore June is generally a slower month than May. However, there should be no shortage of parts in June because they schedule more parts for this period knowing that they will be used during May. Van Sickle was Respondent's principle witness regard- ing this allegation. He testified that the first he learned of the slowdown was on June 20. On that day, Vassallo told him that Koello wanted to speak to him about the Union. Koello came to Van Sickle's office and told him that he and his family had been threatened by Pierce.9 He had not put his address on his union card for fear for his family's safety and he wished to resign his employ- ment for 2 weeks "to retract that card." i o Van Sickle told Koello that if he wished to withdraw his union au- thorization card he should meet with Castoro who would explain the procedure to him His testimony con- tinued: In that discussion also he informed me that he was involved in the slowing down of output, that Sigga had been all over his butt for two weeks because he hadn't produced one minute in two weeks and there was unrest and a slowdown on the production floor. 0 Pierce testified that he never threatened Koello 10 It was never explained how a resignation would act as a withdrawal of the authorization card 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Later that afternoon, Koello returned to Castoro's office and met with Van Sickle and Castoro where he re- peated what he said earlier. He also said that he would not resign, but would wait to see what occurred next. i i Van Sickle never asked Koello who else was involved in the slowdown, nor did he tell the employees involved that he was aware of it, and they had better cease that activity The following questions and answers are from the cross-examination of Koello: Q. Do you recall going to Mr Van Sickle's office to discuss the Union, on the Monday following Coney Island Day? A. No. I don't recall. Q Does that mean that you don't recall or it didn't happen? A. I believe it didn't happen Q. It didn't happen? A. Yes. Q. Do you recall telling Mr. Van Sickle that you made a mistake about signing the Union card? A I really don't recall anything of the sort. Q. Do you recall telling Mr. Van Sickle that there was a slowdown going on? A. I don't recall any of this, I'm sorry. Q Do you recall telling Mr. Van Sickle that you did not put your address on the Union card? A. I'm sorry, I can't say that either. Q. Did you put your address on the Union card? A. I believe I did. Q. I showed you what has been marked as Gen- eral Counsel's Exhibit 8, in evidence Is your ad- dress on that card? A. As a matter of fact, no. Q. Do you recall telling Mr Van Sickle now, that you didn't put your address on the card? A. No, I don't recall. Q. Do you recall telling Mr. Van Sickle that the reason you didn't put your address on the card was because you felt threatened for you and your family? Miss KAMINSHINE Objection. JUDGE BiBLOWITZ: Overruled. A. No, I do not Q. Do you recall telling Mr. Van Sickle that you wanted to get your card back? A No, I don't recall. Q Do you recall asking Mr. Van Sickle if you can voluntarily quit for two weeks? A. I don't recall saying that either. Q. Do you recall telling Mr Van Sickle that if you did that you can come back and that you wouldn't have to worry about the Union any longer? A. I'm sorry, I did not say that. Q. You did not say that? A No. 1 i Koello's personnel file contains no documents regarding this meet- ing, although it does contain a document signed by Van Sickle on June 23 regarding Koello parking in an improper location on the premises on June 2 Van Sickle testified that prior to these conversations with Koello, he had discussions earlier that month with Anetrella regarding the fact that indicators were not being produced as quickly as they usually were. The first week or 10 days of a month are usually slow, but pro- duction usually picks up by the 10th of the month. "In the month of June it did not pick up significantly after the 10th of the month " Although he did not personally monitor the situation (prior to June 20), Anetrella and Vassallo did. When D'Agrosa returned to the facility on June 24, Van Sickle told him that Koello said that a slowdown was taking place and that he expected a "sig- nificant miss of hardware sales dollars" in the range of a half million dollars D'Agrosa told him to stay on it, to do everything he could to increase production, and to report to him when he knew more. Van Sickle told him that it would be difficult to predict what the shortfall would be until the month had ended. Van Sickle next met with D'Agrosa on the afternoon of July 7. At that time Van Sickle made a presentation, "one-line bullet type presentation, I went in and I literal- ly read it," to D'Agrosa of the slowdown. He told D'A- grosa that he was sure there was a slowdown, which re- sulted in a shortfall of production, which would corre- spondingly affect their cash situation: payroll, accounts payable, and they would probably have to borrow to cover the loss. He said that whereas in previous months the indicator performance had ranged from 87 to 100 percent plus, in June it was 55 percent and the total loss of production for the department was $69,300. He said that there was no valid business reason for this loss: there was enough inventory; there were no significant differences between part shortages that month or any other month; the total number of employees and hours worked in the department was normal, and employee at- tendance for the month was normal; product mix (the type of product and whether it was general aviation, air- line, or military) did not change from prior months; reject rates and rework (units that are brought for repair to have a part replaced or corrected) were normal He also told D'Agrosa that although they had lost produc- tion time due to his meetings with groups of employees, the other production groups had basically met their goals for the month. D'Agrosa told him to select "some number" of employees who were either involved in the slowdown or had poor employment records and they would be discharged to set an example that Respondent would not tolerate such activity Van Sickle then selected the following six employ- ees' 2 for the following reasons A Koello Van Sickle testified that he chose Koello be- cause he admitted being involved in the slowdown; as stated, supra, Koello denies (although reluctantly) these conversations Before making this decision, Van Sickle did not review Koello's personnel file nor did he discuss Koello with any supervisor 12 Anetrella was not consulted on the decision to discharge these em- ployees In June, however, Vassallo asked her what the problem was in her department and she told him that she was bewildered because the employees who usually produced the most were not producing at all, she specifically named Pfaff and Koello GULL, INC 943 B. Jacobs and Forgione: Van Sickle testified that he chose Jacobs and Forgione because they had the worst attendance record of the eight or nine testers and be- cause of the "continuous problems" they had with each other.13 Prior to choosing them, he spoke to a clerk in the personnel department and reviewed their attendance records and their personnel files. There is nothing in their personnel files regarding not getting along with each other, nor is there anything in Forgione's file that she was ever counseled before being discharged. Jacobs was counseled on one occasion, July 1982, for attend- ance problems. Respondent has a policy providing for a three-step procedure for employees with attendance problems: first is counseling and a 30-day probation; second is a 3-day suspension; and third is a possible dis- charge.14 On Jacobs' last review, in July 1982, she re- ceived the highest rating for quality of work, ability to get along with others, discipline, and adaptability. For- gione's review, in July 1982, for the prior 3 months gave her the highest rating for speed and quality of work, and a rating of "successful most of the time" for ability to get along with others. C. Rowell: Van Sickle testified that Rowell was chosen due to his "bitterness" directed at Respondent, which was the result of his car having been stolen from Re- spondent's parking lot. This occurred in the spring of 1983; from that time until July 8, Van Sickle discussed this problem with Rowell on one occasion He testified that Rowell also discussed this with Kocha "a number of times"; Vassallo "a couple of times", Anetrella, Castoro, and D'Agrosa, and he was "a very bitter employee " Rowell's personnel file makes no mention of this situa- tion. Aside from this "attitude towards the company" caused by the stolen car, Rowell was a good employee. Rowell testified that he never spoke to D'Agrosa about his car having been stolen from Respondent's parking lot; he spoke to Castoro about it in February because he is the personnel manager and he has the forms that must be filled out in situations such as that. D. Pierce. Van Sickle testified that Pierce was selected because he had dust had a 3-day suspension and was on his last warning . In making the determination, he did not review Pierce's record to determine whether he had been absent since returning from the suspension in June. Pierce's evaluation for the period ending May 16, 1983, gives him the best rating in five categories and the next- to-best rating in the other four categories E. Pfaff Van Sickle testified that he chose Pfaff be- cause he had previously been issued a warning and be- cause he wished to resign, and therefore had no interest in Respondent. Pfaff told him that he was thinking of re- signing, and based on that conversation (which was not 13 On direct examination, Van Sickle testified that he had discussed this problem with Anetrella and Vassallo "several times over the 4 years I've been at the company" On cross-examination, when it was pointed out to him that Forgione was hired in January 1982, he testified "I didn't say I heard about it over the four years, I said I heard about it off and on ,, 14 Martin Luchen, a senior technician in the production test depart- ment, was absent from work 17 days and late 42 days during an approxi- mate 14-month period ending August, at that time he was counseled, with a warning that the next time it occurred he would receive a 3-day suspension mentioned in Pfaff's file), he decided to discharge Pfaff without discussing it with any supervisors or looking at his file. He testified that as Pfaff had threatened to resign, he was simply "staying until he could find an- other job," and that is the reason he chose him. Pfaff was never questioned about this while testifying. Anetrella testified that the last quarters of Respond- ent's fiscal year (March, April, and May) are always the busiest; of the remaining months, there is little difference in monthly output. In June 1983, "the first ten days we had little work" but "It started coming in and we were in full swing by the 10th." As to whether she experi- enced any production problems that month, she testified: It was very baffling . . . things moved different than any other time. That was my fourth month in the test department. Everything had worked very, very well for me up to that time, and then all of a sudden I wasn't getting the quantity out that I needed, that I planned for, everything slowed down. I was getting certain indicators normally, and I wasn't getting others at all. Anetrella testified that during June, lateness, absentee- ism, and total numbers of hours worked by the employ- ees in the department were normal for the month as were the number of orders for indicators for the month. The department receives its parts from the staging area. In May and June three employees were employed in this area working a total of almost 140 hours a week. On cross-examination, she testified that one of these employ- ees went on leave on June 15 and did not work the re- mainder of that month, and another resigned, effective, June 17 which was the last day he was employed. Of two other employees who Anetrella testified also worked in the staging area during June, on cross-examination she testified that one was hired on June 27 and the other sub- stituted in the department when someone was absent. During June 1983 there was not an abnormally high number of units on "hold" in the staging areas awaiting parts, and, to her knowledge, the number of units await- ing parts that were on back order was not unusually high. She testified that during June, there was "much more walking around, much more bathroom details and tardi- ness." 1 s She was "baffled" by her problems with Koello; he was a very capable technician who was finding more problems than normal on the indicators that he was working on. On one evening in June (she could not be more specific) she asked him why he was so slow getting the units out, he said that he was having a lot of prob- lems with the units. That was the only occasion she dis- cussed the problem with him. She also spoke to Pfaff, "he was not producing at all" and she spoke to him daily about it. In June, she observed that for about a week and a half Rowell was constantly walking back and forth to the bathroom Sometime in June she asked him what his problem was and he said that he had stomach problems. During this period, Pierce and Vivona were "trouble- is She testified that tardiness is generally higher in June than in non- summer months, and in June 1983 it was only slightly higher than usual 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shooting" (attempting to correct some problems) a par- ticular unit, it went back and forth from one to the other for about a week when they informed her that the unit had a cracked PC board. She took the unit to another technician who repaired the unit and had it out in a one- half hour. These were the only employees whom she spoke to during this period about their production. In addition to the above, Anetrella testified that during "just about all of June" she was constantly on the floor asking the employees to stop walking around talking to each other and to sit down and work. She told this to half the employees in the department, although she did not name any and did not write any of them up for it. The first definite knowledge Anetrella had of an orga- nized work slowdown was a meeting she attended on July 8 with D'Agrosa, Van Sickle, and Castoro. At this meeting D'Agrosa said that they had determined that the employees in her department were engaged in a deliber- ate work slowdown. Kocha testified that the first he learned of the slowdown was on July 8 when Castoro told him that he was to discharge Pierce because his "group" had been identified as participating in the slow- down and he was being discharged as an example. He was also told to discharge Forgione. In addition to the above testimony, Respondent intro- duced numerous documents into evidence in support of its position. These documents, principally prepared in an- ticipation of trial, allegedly establish that everything in the production test department was normal in June, except for the slowdown engaged in by the employees. A discussion of some of these documents follows: Mandelik maintained records of the number of SEMS shipped by Respondent each month as well as those re- turned to Respondent for repair or modification. From October 1982 through March 1984 the number of SEMs shipped monthly ranged from 1 to 15 (in May 1983) with a monthly average of 4.3; two were shipped in June Giannino maintains a record of the number of items (in- cluding, but not limited to indicators) produced in plant 5 and the number of those items that were rejected after inspection. From July through August 1983 the number of items tested ranged from 784 to 1890 (1067 in June 1983) and the rejection rate ranged from 16 percent to 28 percent (with 24 percent in June 1983). Van Sickle testified that an inventory was taken on the production floor of plant 5 in July; it established that the inventory was 50 percent higher than usual at the begin- ning of a month and he informed D'Agrosa of this in his later presentation. Van Sickle also identified an exhibit entitled: "Manufacturing Targets Versus Sales," which was prepared in anticipation of the trial . This shows that in June 1983 indicator production was only about 60 per- cent of the target set at the beginning of the month; from June 1982 (when it was about 70 percent of the targeted amount) through October 1983, this percentage varied from about 55 percent (in July 1983) to almost 100 per- cent. In June 1983, Respondent's actual production in other production areas was almost 100 percent according to this summary. On the afternoon of July 8 Koello was called into Harry Robert's office, Anetrella and Joseph were present. Koello testified that Roberts (Respondent's em- ployment manager) said that he was sorry he had to do it, but he was only following orders. He told Koello that he was being terminated because he was identified as an organizer of the slowdown at the Company; however, he was given the option of resigning Koello denied being involved in a slowdown and asked Roberts for proof that he was involved in such a slowdown. Roberts refused to divulge such information. Koello agreed to resign and asked for copies of the resignation and his personnel file; these requests were also refused. Roberts testified that on that day Castoro told him to speak to Koello and Rowell and offer them the right to resign or be terminated for their participation in the slowdown. When he met with Koello on that day, he gave him that choice and stated the reason. He did not say that he was sorry that he had to do it, nor did he say that he was only following orders. Koello said that he was sorry that his employ- ment with Respondent was ending and asked for his per- sonnel file, which Roberts refused. Shortly before Koello was called, Rowell was called into Robert's office; nobody else was present. He testi- fied that Roberts said that their records showed that he was an organizer of the slowdown and that he therefore had a choice of resigning or being fired. Roberts recom- mended resigning if he wished to obtain a good refer- ence from Respondent for future employment, and he did so. Anetrella escorted him from the premises saying, "I tried to fight for you, I'm sorry that this happened, I can't believe that the company is doing this." Roberts testified that he told Rowell that he had the choice of resigning or being terminated and he told him the reason. Rowell signed the resignation. Anetrella testified that she walked Rowell off the premises that day; she told him that she was sorry and upset over the whole situation, Rowell said that he knew that she did nothing to do with it. She told him that she had tried to fight for him by telling management that his output that month was fair; his only problem was his too frequent trips to the bathroom. She did not say that she could not believe Re- spondent was doing it. On that afternoon Forgione was called into Kocha's office; Anetrella was also present. She was told that she had the choice of resigning or being terminated because Respondent had proof that she was involved in an inten- tional slowdown. She denied it, but resigned. She testi- fied that Anetrella walked her out and told her that she was sorry that it had happened. Anetrella testified that as she left the premises with her, Forgione said that she knew who the "snitch" was and that they would take care of him. Pfaff testified that late that afternoon Anetrella told him that Castoro wanted to see him in his office; Pfaff did not know who Castoro was, so Anetrella pointed out his office for him. Castoro told him that he was told that Pfaff was the leader in the work slowdown Pfaff said, "[Y]ou call me a leader and Sigga calls me a follower" and said that the first he knew of a slowdown was when D'Agrosa mentioned it at the meeting earlier that day. He also said that he was working at his normal pace, but there was less work to do, so his output might have been lower then usual . Castoro said that he had a choice of GULL, INC. 945 resigning or being terminated; if he resigned he would get good references for future employment. Pfaff refused to sign the resignation Anetrella escorted him out of the plant and told him that she would give him a good refer- ence if he needed one Anetrella testified that she never told Pfaff that he could use her as a reference when she walked him out of the plant on July 8; however, as they were leaving the plant he told her that he knew who the "snitch" was and he and his friends would take care of him. On that afternoon, Anetrella told Pierce that Kocha wanted to speak to him Kocha told Pierce that he had been identified as one of the ringleaders of the work slowdown, and he had the choice of resigning or being terminated, if he resigned they would give him a good reference Pierce testified- "I really didn't know what was going on, I just signed the resignation." Jacobs was absent from work on July 8. About 5 minutes after she arrived for work on July 11, Anetrella brought her into Castoro's office where he told her that she identified as one of the ring leaders of the work slowdown and he gave her the choice of resigning or being terminated. She asked him what he was talking about and he said that Respondent had suffered a $750,000 loss because the test department had engaged in a slowdown. She denied responsibility but signed the resignation She testified that as Anetrella walked her out of the building, she gave Jacobs her telephone number and told her to call her that evening. She called her that evening and Ane- trella told her that everything that had occurred was "a big shock" to her; she did not know anything about what had happened She thought that what Respondent had done would "backfire in their face" and "now, the Union will definitely try to get in " She also told Jacobs that if she needed a reference she should let her know. Ane- trella testified that Jacobs had her telephone number prior to that day, and called her that evening. She told Anetrella that she had nothing to do with "anything" and if Forgione were involved, she would not be in- volved because they were not friendly. Anetrella told her that she was sad about what had occurred, and "didn't know anything about anything until that day when I was told at 3.30." Anetrella did not offer to give her a reference nor did she say anything about the Union. IV. DISCUSSION It has long been clear that in order for an individual to qualify as a supervisor as defined in Section 2(11) of the Act, he or she need only possess one of the powers enu- merated there. Ohio Power Co. v. NLRB, 176 F.2d 385 (6th Cir 1949). However, as the court stated in NLRB v. Security Guard Service, 384 F.2d 143 (6th Cir. 1967). "[T]he statute expressly insists that a supervisor (1) have authority (2) to use independent judgment (3) in per- forming such supervisory functions (4) in the interest of management." The first issue herein is whether Rytell is a supervisor within the meaning of the Act and, if so, did his undenied statement to Vivona constitute an impres- sion of surveillance in violation of Section 8(a)(1) of the Act. No evidence was adduced which would establish that Rytell had the authority to hire, fire, or discipline employees, or to effectively recommend such action. As- suming that he did interview some employees on a few occasions, there is no evidence that he ever took any action in that regard which would qualify him as a su- pervisor; rather, based on all the evidence presented, it appears more likely that he conducted the interview be- cause Anetrella, Joseph, and Sosias were absent at the time. Although there was testimony that he assigned work to employees, it appears that these assignments were not of the kind that required the exercise of inde- pendent judgment. Additionally, the evidence that he sometimes told employees to get off the telephone or to stop conversing with other employees and return to work does not support a finding of supervisory status. Rather, the evidence establishes that although his pay is near the highest in the department, his benefits and other working conditions are the same as the other nonsupervi- sory employees I therefore find that Rytell is not a su- pervisor within the meaning of the Act 16 The General Counsel next alleges that Respondent, by its agents D'Agrosa, Catania, Mandelik, Desimone, De- chent, Dillon, and Carrao, violated Section 8(a)(1) of the Act by telling its employees that the Union would never represent them and that they would do everything to keep the Union out. These statements are alleged to have been made in two types of meetings: D'Agrosa's three series of meetings with the employees, and the "manage- ment team meetings" where the representatives read from a speech and used a chart. Taking the latter first, it is clear that these meetings began on June 23. The con- tents of the speech and chart were changed on that day or the next day to correlate with the contents of the Union's telegram, and they continued for 3 or 4 more workdays . It is also agreed that one management repre- sentative maintained a large pad or chart while the other read from a prepared text to the employees Pfaff testi- fied that one of these charts said- "The management of Gull Airborne will never let a union into Gull," with the word "never" underlined, and the speaker stated these words. One of the charts received into evidence con- tained Respondent's answer to the Union's telegram, which states: "[W]e refuse to recognize your union as the representative of any Gull employees unless and until you are so certified by the National Labor Relations Board." Jacobs testified that at a meeting she attended in June the speaker (whom she could not identity) said that they did not want the Union and would do everything to keep it out. Catania and Mandelik testified that they were one of Respondent's teams and Jacobs attended one 16 Even if I had found Rytell to be a supervisor , I would still dismiss the allegation that this warning to Vivona constituted the creation of an impression of surveillance in violation of Sec 8(a)(1) of the Act Rytell and Vivona were two of the leaders in the earlier attempt at unionization and there is nothing to indicate that Rytell's advice to Vivona was any- thing other than a friendly suggestion Although it is clear that interfer- ence, restraint , and coercion under Sec 8(a)(1) does not depend on motive or whether the supervisor involved is on friendly or unfriendly terms with the employee (American Freightways Co, 124 NLRB 146 (1959), Florida Steel Corp, 224 NLRB 45 (1976) ) I find that considering all the facts herein, Rytells, statements did not reasonably tend to inter- fere with Vivona's free exercise of his rights under the Act, rather, it probably only caused him to act more cautiously Hicks Ponder Co, 168 NLRB 806 (1967) 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of their meetings and they never said that Respondent would do everything to keep the Union out. Desimone, Dechent, and Carrao also testified that they never made such a statement at their meetings nor did their partners. I found Desimone, Carrao, Mandelik (to a slightly lesser degree) Dechent, and Catania to be very credible wit- nesses, who made admissions when it was appropriate. In addition, when they testified that they could not recall something, it appeared to be in good faith, rather than an evasion of an answer. I therefore find that no such state- ments were made or shown at any of these management team meetings D'Agrosa spoke at three different meetings Forgione testified that at the June 24 meeting D'Agrosa said that he would do anything to keep the Union out. Rowell also testified that D'Agrosa said that he would never let a union into Gull and would do everything in his power to prevent it. D'Agrosa testified that he did not make such a statement at the June 24 meeting or any other meeting . D'Agrosa said that he read his speech from a text, and the text of his speech states: "You can rest as- sured that we will not allow these few people to force you or this company into something you don't want " The next meeting involving these employees occurred about June 27, Forgione testified that at this meeting D'Agrosa repeated much of what he said at the prior meeting , and said that there was no way he would let the Union into Gull. Pfaff testified that D'Agrosa said that there was no need for a union and he would do ev- erything he could to keep it out of Gull Pierce also tes- tified that at this meeting D'Agrosa said that the Union did not represent enough employees and he would do everything he could to prevent the Union from getting into Gull. D'Agrosa testified that at this meeting he said that the Union was attempting to carve out a unit to its liking and Respondent would fight this attempt He never said that he would do everything he could to keep the Union out of Gull; he did say that he would do ev- erything that was legally proper The conflict in this testimony requires a credibility de- termination. Of all the witnesses at the instant hearing, I found D'Agrosa to be the least credible On cross-exami- nation, he was hostile, overly cautious (e.g., see fn. 8), and uncooperative (he refused to answer one question because he had previously testified on the subject on direct examination). I therefore credit the employees' tes- timony and find that about June 24 and 27 D'Agrosa said that he would never let a union into Gull and would do everything he could to prevent it. This tended to incul- cate in the employees a sense of futility about exercising their Section 7 rights and choosing the Union, in viola- tion of Section 8(a)(1) of the Act Fred Lewis Carpets, 260 NLRB 843 (1982). The remaining allegation concerning this is that D'A- grosa, in his second speech about June 27, solicited grievances from the employees in order to prevent them from supporting or joining the Union. Pfaff testified that at this meeting D'Agrosa said that their problem was caused by a lack of communication between management and the employees and if any employee had a problem they were welcome to come to his office at anytime to discuss the problem. He said, however, that he would not discuss reviews, money, or other benefits. Pierce tes- tified that D'Agrosa said that he was sending his manag- ers to classes to improve their communication with the employees. In answer to a question regarding the lack of a dental plan, D'Agrosa said that it was too expensive and he would rather see the employees receive it in the form of extra pay (D'Agrosa's testimony regard this is in basic agreement with this). An employee complained about the lack of test equipment and D'Agrosa said that the problem was being discussed and they were attempt- ing to increase the budget for more equipment. (D'Agro- sa's testimony regarding this is that he answered that Re- spondent was always improving the type and quantity of available test equipment.) In Uarco, Inc., 216 NLRB 1 (1974), the Board stated: [T]he solicitation of grievances at preelection meet- ings carries with it an inference that an employer is implicitly promising to correct those inequities it discovers as a result of its inquiries. Thus, the Board has found unlawful interference with employee rights by an employer's solicitation of grievances during an organizational campaign although the em- ployer merely stated it would look into or review the problem but did not commit itself to specific corrective action; the Board reasoned that employ- ees would tend to anticipate improved conditions of employment which might make union representa- tion unnecessary. However, it is not the solicitation of grievances itself that is coercive and violative of Section 8(a)(1), but the promise to correct griev- ances or a concurrent interrogation or polling about union sympathies that is unlawful; the solicitation of grievances merely raises an inference that the em- ployer is making such a promise, which inference is rebuttable by the employer. In Uarco, supra, the Board found no violation because the employer rebutted the inference by repeatedly in- forming the employees that it could make no promises regarding the grievances raised. 17 Additionally, the Board found the record devoid if any showing of union animus or concurrent unfair labor practices on the part of the employer. In Merle Lindsey Chevrolet, 231 NLRB 478 (1977), the employer, a few days after the union began its organiza- tion drive, informed his employees that he "wanted to find out what kind of problems they were having and that he would talk to them concerning such problems." The Board, quoting the above-mentioned language from Uarco, supra, found a violation of Section 8(a)(1), stating: "In the instant case, there is no evidence that Respond- ent made any statement or took any action to establish that it was not promising to remedy grievances and we therefore find that Respondent did not meet its burden of rebutting the inference." 'r See also Hayes-Albion Corp, 237 NLRB 20 (1978), in which the Board found no violation in the employer's soliciting of grievances and questions at meetings with employees, since the employer took a "no promises" position at these meetings GULL, INC As I credit the testimony of Pfaff and Pierce and Pierce over that of D'Agrosa, I find that at the June 27 meeting, D'Agrosa told the employees that if any em- ployees had any problem he was welcome to come to his office any time to discuss it; this was a major change from his prior policy of scheduled meetings with small groups of employees chosen by Respondent. In addition, I find that D'Agrosa told the employees of the extra few dollars in the employees' paychecks in lieu of a dental plan and the possibility of additional testing equipment, as well as sending his managers to classes to improve their communication with the employees. D'Agrosa's re- quests for questions from the audience, plus these replies represent unlawful solicitation of grievances to inhibit employees from exercising their Section 7 rights. Stride Rite Corp., 228 NLRB 224 (1977); L. M. Berry & Co., 266 NLRB 47 (1983). In Wright Line, 251 NLRB 1083, 1089 (1980), the Board set forth the rule it will henceforth apply in dual- motive discrimination cases such as the instant matter: First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is es- tablished, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. In examining the facts of the Vivona discharge in this light, it is first necessary to make some credibility deter- minations. I was most impressed by the testimony of Banle; it appeared to me that he was testifying frankly, as best as he remembered the facts. Although his recol- lection of certain facts may have been in error (e.g., his testimony that it was he and Anetrella who spoke to Vivona in his car), I find that this error was caused by the passage of 10 months since the event rather than the intentional falsification of the facts. I also found Rehkopf to be a credible witness who appeared to be testifying to the facts as best as he remembered them, although I would not credit his testimony that he was pinned in the doorway for 2 or 3 minutes. Rehkopf testified that it "seemed like" 2 or 3 minutes and it is natural in a situa- tion like that, in all probability, it was actually 10 to 20 seconds. On the other hand, I do not credit much of Shapiro's testimony, as it is too implausible. When Vivona parked his car in front of the door it blocked Shapiro's entrance; rather than asking Vivona to move his car a few feet, Shapiro chose an alternate route re- quiring him to walk twice as far carrying these heavy objects. In addition, when he saw what occurred next to his car he just kept walking. As this appears implausible, I do not credit Shapiro's testimony. Finally, I do not credit Vivona's testimony regarding the events of June 17; all the testimony (including that of Vivona and Pfaff) clearly establishes that Vivona was "looking for a fight." He testified that he was not paying attention when he parked his car so close to the door, yet he also testified that even before the Rehkopf inci- dent he had to move the car several times to let people in and out of the door That he did not permanently 947 back up his car away from the door earlier, knowing that he was blocking employees from using the door, is explained in either of two ways: that he was too intoxi- cated to notice it or that he was looking to precipitate an incident (or a combination of the two). Having made this finding, I credit Van Sickle's testimony that after he asked Vivona to leave the premises, Vivona put on a demonstration in the parking lot by starting and stopping his car quickly before leaving. This does not conclude the inquiry, however. Vivona was engaged in activities on behalf of the Union, and Re- spondent admits that as of late Friday evening and Satur- day morning it was aware of his activities (along with Pierce), while of course denying that he was discharged for that reason. The ultimate issue, therefore, is whether Respondent seized on Vivona's misconduct to discharge him, when the underlying reason was his union activities, or has Respondent satisfied its burden under Wright Line by demonstrating that it would have taken the same action even if Vivona had not been engaged in any union activity. The General Counsel points to the late hour that Respondent's agents were notified of the June 18 meeting, together with the large number of top manage- rial employees present at the meeting and the speed with which Respondent acted in terminating him, without fol- lowing the usual procedure of counseling him, giving him an exit interview, or previously discussing it with his supervisor, Anetrella, who was available at the plant that morning Although the issue is not without doubt, I dis- agree with the General Counsel and find that Respond- ent has satisfied its burden under Wright Line, that it would have terminated Vivona even absent his union ac- tivities. As Respondent states in its brief, on June 17 Van Sickle told Vivona that Respondent would be evaluating the situation over the weekend; in addition, Anetrella was with Van Sickle when he spoke to Vivona that afternoon, and he may therefore have found it unneces- sary to consult with her later about whether to discharge Vivona. In addition, a large percentage of Respondent's managerial employees generally work on Saturday so it does not seem totally extraordinary that Respondent would converge such a large number of executives to discuss the discharge of one employee. The General Counsel, in her brief, refers to the June 17 incident as "at best a minor accident involving two employees on com- pany property" and also asserts that Respondent's dis- criminatory motive is established by the fact that Reh- kopf never initiated complaints to management about the incident, or asked to be taken for examination. However, although nobody was injured by this incident, there was clearly a potential for injury and the possibility that such a situation might recur. I, therefore, disagree with the General Counsel's characterization of the incident as a minor one, and find that it was not unreasonable for Re- spondent to act quickly in that regard. I therefore find that Respondent did not violate Section 8(a)(1) and (3) of the Act when it discharged Vivona. There was a clear conflict between the testimony of the General Counsel's witnesses who denied that there was an intentional slowdown in the production test de- partment and that of Respondent's witnesses who testi- 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD feed that such an intentional slowdown did occur. In order to dismiss this allegation, I would have to discredit Forgione, Pfaff, Koello, Rowell, Jacobs, and Pierce. Other than Koello (whose testimony, as quoted above, was somewhat ambiguous) I found the others to be fairly credible witnesses; certainly credible enough so that I do not believe they all lied when they testified that they were not aware of an intentional slowdown in June In addition, the testimony of Respondent's witnesses and the numerous documents introduced by Respondent to support its case were not strong enough to overcome this testimony. In determining whether there was such a slowdown, I was particulary concerned with the testimony of Re- spondent's witnesses concerning when they learned of the slowdown and of their attempts to stop it. Van Sickle testified that on June 20 he was told of the slow- down by Koello, and yet he apparently did nothing to stop it at that time; he could have immediately called a meeting of the department to inform them of his knowl- edge with an accompanying warning that production had better increase, or he could have met with Anetrella and had her warn the employees; instead, he told D'Agrosa of the situation, and waited over 2 weeks before speaking to the employees. I also find improbable certain testimony of an other- wise fairly credible witness, Anetrella. Respondent al- leges that production of indicators was on about 60 per- cent of what it should have been in June, and yet Ane- trella (who appears to be a highly competent manager) never clearly saw the problem in her department until July 8. She testified that she was baffled that things were not operating as smoothly as usual. In addition, the only concrete reasons for the shortfall that she could testify to was that Rowell was constantly going to the bathroom, Pierce and Vivona were spending a week troubleshoot- ing a unit that should have only required one-half hour, Pfaff was not producing, and Koello was finding more problems than usual on the indicators he was working on. It is not unreasonable to assume that a supervisor who spent 80 to 100 percent of her time in the depart- ment during that period would notice that the depart- ment was producing at only a little more than half of its regular production. Also of interest, both substantively and regarding credibility, was her testimony regarding the employees in the staging department during June; on cross-examination she admitted that one left on June 15 and did not return that month, another resigned effective June 17, a third was hired on June 27, and another was not a regular employee in the department. Finally, I do not credit Van Sickle's testimony regard- ing his method of choosing employees for termination; if an intentional slowdown had actually occurred, it would be reasonable for Respondent to investigate the situation and discharge those involved. Instead, Respondent chose Jacobs and Forgione because they could not get along with one another, although there is nothing in their per- sonnel records to indicate this, and in their last review Jacobs received the highest rating and Forgione the second highest rating for the ability to get along with others. Rowell was allegedly chosen because of his bit- terness toward Respondent because his car had been stolen from Respondent's parking lot although there was nothing in Rowell's personnel file regarding this incident and he was admittedly a good employee. Rowell testified that he only discussed the subject with Castoro in Febru- ary because Castoro had the forms that had to be com- pleted. Pierce was allegedly chosen because he had just been suspended for 3 days for absences; yet Van Sickle did not check to see if Pierce had been absent since re- turning to work in mid-June, and Pierce's evaluation 2 months earlier gave him the highest rating in five catego- ries of work and the next to highest in the other four categories. Pfaff allegedly was chosen because he had once expressed an interest in resigning his employment with Respondent; this is not mentioned in Pfaff 's person- nel file nor did Van Sickle look at the file or speak to any of the other supervisors prior to choosing Pfaff. It is for all these reasons that I find that Respondent has not satisfied its burden under Wright Line, that it would have terminated Koello, Pierce, Rowell, Pfaff, Forgione, and Jacobs absent their union activities. These terminations therefore violated Section 8(a)(1) and (3) of the Act. 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. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent, by its president and agent Peter D'Agrosa, violated Section 8(a)(1) of the Act by telling its employees that it would never let a union into Re- spondent in order to convince them of the futility of en- gaging in the activities that are guaranteed them in Sec- tion 7 of the Act. 4. The Respondent, by its president Peter D'Agrosa, violated Section 8(a)(l) of the Act by soliciting griev- ances from its employees in order to inhibit the employ- ees' exercise of their Section 7 rights. 5. The Respondent violated Section 8(a)(1) and (3) of the Act by terminating the employment of Koello, Rowell, Pfaff, Pierce, and Forgione on July 8 and Jacobs on July 11, 1983, due to the their activities on behalf of the Union. 6. Respondent did not violate the Act as further al- leged in the complaint. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be re- quired 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 discriminatorily ter- minated i s Koello, Rowell, Pierce, Pfaff, Forgione, and Jacobs, I shall recommend that Respondent be ordered to offer them full and immediate reinstatement to their former positions or, if those positions no longer exist, to 18 Although Koello, Rowell, Pierce, Forgione, and Jacobs resigned, they did so under a threat that if they did not do so, they would be fired GULL, INC substantially equivalent positions without prejudice to their seniority or other rights and privileges . I shall also recommend that Respondent be ordered to make all these employees whole for any loss of earnings suffered as a result of the discrimination against them , by pay- ment of a sum equal to that which each would have earned, absent the discrimination , with backpay and in- terest computed in accordance with F W. Woolworth Co., 90 NLRB 289 (1950); Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962) In addition, I shall also recommend that any reference to their terminations be removed from the em- ployees' employment records. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed" ORDER The Respondent, Gull, Inc., Smithtown, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Telling its employees that it would never recognize or bargain with a union, or otherwise attempt to con- vince its employees of the futility of engaging in union or other protected concerted activities. (b) Soliciting grievances from its employees in order to inhibit them from exercising their rights under Section 7 of the Act (c) Discharging or otherwise discriminating against its employees due to their union or other protected concert- ed activities. 19 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 949 (d) 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 action necessary to effectuate the policies of the Act. (a) Make whole Peter Koello, Bruce Rowell, Kenneth Pierce, Thomas Pfaff, Tina Forgione, and Donna Jacobs for any loss of pay suffered as a result of the discrimina- tion against them as forth in the remedy section of the decision. (b) Remove from its files any references to the actions taken against them on July 8 and 11, 1983, and notify them, in writing, that this has been done and that the evi- dence of this unlawful activity will not be used as a basis for personnel actions against them (c) Post at its Smithtown, New York location copies of the attached notice marked "Appendix."20 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. At least one such notice shall be posted in each building in Smithtown. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act not spe- cifically found herein. 20 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 "