Armcor Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 11, 1975

217 N.L.R.B. 358 (N.L.R.B. 1975)

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Armcor Industries , Inc. and Michael A. Rossi and
United Electrical , Radio and Machine Workers of
America (UE). Cases 6-CA-7532'and 6-CA-7539
April 11, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On December 9, 1974, Administrative Law Judge
Robert Cohn issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief. Charging Party United Electri-
cal, Radio and Machine Workers of America (UE) filed
cross-exceptions and a supporting brief, and the Gen-
eral Counsel filed exceptions to the Administrative
Law Judge's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Ad-
ministrative Law Judge's Decision in light of the excep-
tions and briefs and has decided to affirm the
rulings,' findings, and conclusions of the Administra-
tive Law Judge and to adopt his recommended Order
as modified herein.
Although the Administrative Law Judge found that
the Company violated Section 8(a)(3) by discharging
Michael Rossi on May 30, 1974, he concluded that the
discharge of Wayne Burns on that date and for the
same,assigned reasons was legitimately motivated and
hence not unlawful. In explaining the basis for this
conclusion, the Administrative Law Judge noted that
Bums, unlike Rossi, was not a prominent union activist
and there was no evidence that the Company suspected
or knew that Bums had participated in any union
activities.' Moreover, the Administrative Law Judge
characterized Bums' work record as "dismal" and
stated his conviction that Bums would have been dis-
charged at the end of his 30-day new-employee proba-
tionary period in April save for the forbearance of his
supervisor, Joe DeLaquil. The Administrative Law
Judge also rejected the General Counsel's contention
that the Company terminated Bums in order to give an
aura of legitimacy to its discharge of Rossi, the leading
union proponent and the real target of the Company's
animosity. In this regard, the Administrative Law
Judge apparently interpreted Board law as necessitat-
I The Respondent excepted to the refusal of the Administrative Law
Judge to grant its motion to correct the record with respect to the hiring date
of employee Robert Marcoline The Board finds merit in this exception and
hereby corrects the record to reflect employee Marcoline's actual date of
hue.
2 In fact the record shows that Bums attended the initial union meeting
2 days before his discharge and signed a union authorization card
ing a finding that two employees be "so linked together
in terms of a fraternal as well as a job relationship as
to be considered one."
We think the Administrative Law Judge's reasoning
with respect to the discharge of Bums is faulty and we
find Burns' termination on May 30 violative of Section
8(a)(3) of the Act. In the first place, we note that Bums'
job performance was not one of the reasons given by the
Company on May 30 for terminating him.3 Rather,
the Company maintained that it had to reduce its work
force by two employees because of a' lack of available
work, and that Burns and Rossi were selected for what
the Company termed an "indefinite lay-off' because
they were not sufficiently versatile, and because they
had the least seniority.' The record reveals, however,
that the Company began hiring within 10 days after the
discharges, and within 90 days had hired 21 new em-
ployees. Moreover, although Burns and Rossi were the
two employees primarily assigned to the assembly of
double windows, examination of the work records of
both employees reveals that, contrary to the contention
of the Company, they were assigned and performed a
variety of tasks in the plant.
Finally, we reject as too restrictive the Administra-
tive Law Judge's analysis of the Board's decision in
Seaway Broadcasting Company, Inc. d/b/a WMPP,
198 NLRB 496 (1972), and similar cases involving an
employer's termination of an employee as part of an
effort to camouflage the discriminatory discharge of a
known union activist. Although it is often the case that
the employees discharged are closely associated, it is
not a sine qua non that they be so fraternally linked "as
to be considered one." All that is required is a finding
that the discharge of the one was undertaken in the
attempt to validate or vindicate the discharge of the
other. See Phillips Manufacturing Company, 148
NLRB 1420 (1964); Superex Drugs, Inc., 143 NLRB
110 (1963).
On the record in the instant case we are satisfied that
the Company discharged Burns, who with Rossi was
primarily assigned to the assembly of double windows,
in order to strengthen its contention that it was moti-
vated solely by legitimate business reasons and not by
the desire to rid itself of a union proponent. Accord-
ingly, we find that the Company violated Section
3 Even had the Company done so, we have serious doubts that such an
explanation would withstand scrutiny. Although Burns had received several
warnings, the last of these was on April 16; thereafter, he and Foreman
DeLaquil reached an understanding that they would "start all over again"
with a clean slate, and Bums was retained at the end of his 30-day probation-
ary period. Between April 16 and May 30, no new warning slips were
entered in Bums' file
a The Company later acknowledged that several female employees had
less seniority but asserted that Burns and Rossi were the least senior "male"
employees, and that female employees were retained because of their al-
leged "greater versatility."
217 NLRB No. 59
ARMCOR INDUSTRIES, INC
8(a)(3) by discharging employee Wayne Burns on May
30, 1974.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6;) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By terminating the employment of Michael A.
Rossi and Wayne Burns on May 30, to discourage
membership in the Union , the Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
4. By coercively interrogating employees concerning
their union sympathies and activities ; by threatening
employees with economic reprisals, including closing of
the business if the employees supported the Union; by
creating the impression of surveillance of their union
activities ; by encouraging union activity among its em-
ployees on behalf of a rival labor organization; and by
promising employees benefits if they refrained from
engaging in union activities , the Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices violative of Section 8(a)(1) and
(3) of the Act, we shall order that it cease and desist
therefrom and take certain afffirmative action in order
to effectuate the policies of the Act.
We have found that on or about May 28, and at all
times thereafter, a majority of the Respondent's em-
ployees in an appropriate unit signed authorization
cards designating the Union as their representative for
purposes of collective bargaining . Thereafter, the Re-
spondent , by its agents and supervisors , engaged in acts
and conduct of an extensive and egregious nature, in-
cluding discriminatory discharges , all of which was
designed to interrupt , thwart , and destroy the em-
ployees' support of the Union , and make the holding of
a fair election impossible . We therefore find that the
circumstances of this case require a bargaining order as
the only appropriate remedy for the Respondent's mis-
conduct.
Having found that the Respondent discriminated
against Michael A . Rossi and Wayne Burns in the man-
ner set forth above, we shall order that the Respondent
offer them immediate reinstatement to their former
jobs or, if those jobs no longer exist , to substantially
equivalent positions , without prejudice to their seni-
359
ority or other rights and privileges , and make them
whole for any loss of earnings they may have suffered
by reason of the discrimination against them. Backpay
shall be computed in accordance with the formula pre-
scribed by the Board in F W Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
The serious and pervasive nature of the unfair labor
practices committed , including discriminatory termi-
nations, indicate hostility to the purposes of the Act.
We shall therefore order that the Respondent cease and
desist from in any manner infringing upon the rights
guaranteed its employees by Section 7 of the Act. Ent-
wistle Manufacturing Company, 23 NLRB 1058 (1940),
enfd. as modified 120 F.2d 532 (C.A. 4, 1941).
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act , as amended , the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge as modified below, and
hereby orders that Respondent , Armcor Industries,
Inc., Murrysville, Pennsylvania, its officers , agents,
successors , and assigns , shall take the action set forth
in the said recommended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer to Michael A. Rossi and Wayne Bums
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist , to substantially equiva-
lent positions, without prejudice to their seniority or
other rights and privileges , and make them whole for
any loss of pay they suffered by reason of their dis-
criminatory terminations , in the manner set forth in the
section entitled `The Remedy."'
2. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs accordingly:
"(c) Preserve and, upon request , make available to
the Board or its agents, for examination and copying,
all payroll records, social security , payment records,
timecards, personnel records and reports , and all other
records necessary to analyze the amount of backpay
due under the terms of this Order."
3. Substitute the attached notice for that of the Ad-
ministrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had opportunity to
give evidence , the National Labor Relations Board has
found that we violated the National Labor Relations
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, and -has ordered us to post this notice and abide
by the following:
WE WILL NOT unlawfully interrogate employees
with respect to their union activities and desires.
WE WILL NOT threaten- employees with reprisals if
they engage in union activities.
WE WILL NOT promise benefits to employees if
they refrain from engaging in union activities.
WE WILL NOT give the impression to our em-
ployees that we are surveilling or spying upon
their union activities.
WE WILL NOT discourage membership in United
Electrical, Radio and Machine Workers of
America (UE), or any other labor organization, by
discriminating against our employees in regard to
hire or tenure of employment or any other term or
condition of employment.
WE WILL NOT give assistance to or support a rival
labor organization of the above-named Union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of
their rights under Section 7 of the Act.
WE WILL offer to Michael'A. Rossi and Wayne
Bums immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and privi-
leges, and WE WILL make them whole for any loss
of pay they suffered by reason of their discrimina-
tory terminations.
WE WILL, upon request, bargain collectively
with the above-named Union respecting rates of
pay, wages, hours, or other terms and conditions
of employment as the exclusive representative of
our employees in the following bargaining unit:
All production and maintenance employees of
the Respondent, employed at its Murrysville,
Pennsylvania, plant; excluding all other em-
ployees, office clerical employees and guards,
professional employees and supervisors as de-
fined in the Act.
ARMCOR INDUSTRIES, INC
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: This con-
solidated proceeding, held pursuant to Section 10(b) of the
National Labor Relations Act, as amended (herein the Act),
was heard at Pittsburgh, Pennsylvania, on September 11 and
12, 1974,' pursuant to due notice. The amended con-
solidated complaint, issued August 20, by the General Coun-
' All dates hereinafter refer to the calendar year 1974, unless otherwise
indicated.
sel of the National Labor Relations Board, through the Re-
gional Director for Region 6, alleges, in substance, that
Armcor Industries, Inc. (herein the Respondent or Com-
pany) violated Section 8(a)(1) and (3) of the Act through acts
and conduct of its agents and supervisors more fully detailed
hereinafter.'
By its duly filed answer, the Respondent admitted the
jurisdictional allegations of the complaint, and also admitted
that certain named personnel were supervisors within the
meaning of Section 2(11) of the Act; however, it denied that
certain other personnel were supervisors, and generally de-
nied the commission of any unfair labor practices.
Subsequent to the trial of the case, counsel for the General
Counsel and counsel for the Respondent filed helpful, post-
hearing briefs, which have been duly considered.'
Upon the entire record in the case, including my observa-
tion of the demeanor of the witnesses,' I make the follow-
ing:
FINDINGS AND CONCLUSIONS'
I THE ALLEGED UNFAIR LA13OR PRACTICES
A. Background and Setting of the Issues
The Respondent, a Pennsylvania corporation, with its
principal offices located in Murrysville, Pennsylvania, is en-
gaged in the nonretail sale and distribution of windows: It
appears that it receives the various component parts at its
Murrysville plant and there fabricates and assembles the win-
2 The several charges giving rise to the complaint were filed by Michael
A Rossi on May 31 (amended July 30) and by United Electrical, Radio and
Machine Workers of America (UE) on June 4 (amended July 30)
3 Concomitantly with the filing of its brief, Respondent filed a "Motion
to Open and Amend Record " The essence of such motion is that, subse-
quent the close of the hearing, counsel for Respondent discovered a "clerical
error" on a list of employees (prepared by Respondent prior to the hearing
pursuant to a subpoena from the General Counsel) which was introduced
in the record as G.C Exh. 2. The significance of the list relates to the date
of hire of employees, i.e , a seniority list Through its motion, Respondent
would seek to show that the date of hire of one employee (Robert Marco-
line) should read earlier than stated on the exhibit since he had worked for
the Company previously, and was on an "educational leave of absence" for
4 months prior to the date of hire as shown on the exhibit
Counsel for General Counsel filed an opposition to Respondent's motion
on the ground that the evidence which Respondent proffered was neither
newly discovered nor not available at the time of the hearing, and cited
Board precedent in support of his position. In view of such opposition, and
since the evidentiary matter sought to be introduced into the record by the
Respondent was within the knowledge of Respondent prior to and during
the hearing, it cannot be said that, in that sense, such matter was "either
newly discovered or previously unavailable " Accordingly I shall deny the
motion of Respondent See Bricklayers, etc. Union (Shelby Marble and Tile
Company), 191 NLRB 231 (1971); General Mercantile & hardware Com-
pany, 191 NLRB 20, fn. 1 (1971); Williams Brothers, 126 NLRB 388, fn
1, and cases cited (1960), see also Rules and Regulations of the National
Labor Relations Board , Series 8, as amended, Sec. 102.48 (d)(1)
4 Cf Bishop and Malco, Inc, d/b/a Walker's, 159 NLRB 1159, 1161
(1966)
5 There is no issue as to the Board's jurisdiction or the status of the
Charging 'Union as a labor organization. The complaint alleges sufficient
facts respecting direct inflow and direct outflow of goods into and out of the
Commonwealth of Pennsylvania, which are admitted by the answer, upon
which I may, and do hereby, find that the Respondent is engaged in com-
merce within the meaning of Sec. 2(6) and (7) of the Act, and that United
Electrical, Radio and Machine Workers of American (UE), herein the
Union or UE , is a labor organization within the meaning of Sec 2 (5) of the
Act.
ARMCOR INDUSTRIES, INC.
dows; it subsequently ships them to customers who are
primarily contractors in the building industry. In May, the
Respondent employed approximately 23 production and
maintenance employees at its plant, which work force in-
cluded both persons of male and female gender. At all times
pr[or thereto, none of the employees had ever been repre-
sented for the purposes of collective bargaining by a labor
organization-6
Following a discussion of the need for union representation
among some of the employees, employee Michael Rossi, on
or about May 23, contacted Ron Baldasseroni, a representa-
tive of the Union, and requested information respecting what
should be done in the circumstances. Baldasseroni told Rossi
to set up a meeting among the interested employees, and
Rossi complied. On Tuesday evening, May 28, a meeting was
held at a local athletic club at which Baldasseroni attended
along with 15 employees of the Company. At the meeting,
Baldasser`oni was introduced to the employees by Rossi, and
the former explained to the employees the asserted advan-
tages of belonging to the Union. Following that, he passed out
union authorization cards for the employees' signature, ex-
plaining that if the Union had a majority of the employees,
it would request recognition from the employer; if the em-
ployer refused, the Union would file for an election. Accord-
ing to the testimony of Rossi, the employees indicated their
support of the Union by raising their hands and by signing
authorization cards.'
Rossi also secured from Baldasserom a few blank authon-
zaltion cards for the purpose of soliciting employees who were
unable or unwilling to attend the meeting. Accordingly, on
May 29, Rossi solicited, and secured signed authorization
cards from four additional employees (making a total of 19).
Rossi also testified that on May 29 he approached Gary
DeLaquil, the son of the president of the Company, but the
latter later handed the card back unsigned telling Rossi that
he (DeLaquil) "was mad because he was not informed of the
meeting."
B. Alleged Interference, Restraint, and Coercion
1. By Jack Fabean
On the morning of the following day, May 30, Rossi had
a conversation with Jack Fabean, vice president of manufac-
turing for the Respondent, outside of the men's restroom.
According to Rossi's testimony, Fabean put his arm around
Rossi's shoulder and asked whether "he got all the cards
back." Rossi responded that he received quite a
few-"enough." But Fabean persisted-"how many?" Rossi
refused to tell him. Whereupon Fabean observed that all the
employees had to do was to come into the office and discuss
the matter with management, and they would have been
given what they wanted.' I find that the questions and state-
6 The plant had only been in operation since sometime in 1973
1 The signed authorization cards were received in evidence at the hearing,
the legend on the card states:
I hereby request and accept membership in the above named Union
(UE), and authorize it to represent me, and in my behalf to negotiate
and conclude all agreements as to hours of labor, wages, and all other
conditions of employment.
361
ments of Fabean on this occasion constitute not only coercive
interrogation of an employee concerning union activities but
also create an impression among employees that their union
activities were being kept under surveillance , and the implied
promise of benefits to employees in return for foregoing the
Union, all' in violation of Section 8(a)(1) of the Act.
On the morning of May 28, an employee (whose name does
not appear on the record) inquired of employee Richard Po-
well whether the latter was going to the home of Mike Rossi
that night . Powell replied that he did not know anything was
happening that night; whereupon the employee stated that if
Powell did not know, to forget it. However , this exchange
obviously aroused Powell 's curiosity , and at breaktime he
asked Rossi what was going on . Rossi then told him about the
union meeting that was planned for that evening. ,
Later in the afternoon that day, Fabean inquired of Powell
if the latter had anything important to do that night . Powell
replied that he had a date with his girlfriend . Fabean inquired
where the meeting was that night , Powell did not
respond.' I find that the foregoing inquiry by Fabean re-
garding a subject matter which both participants knew to be
a union meeting , constituted coercive interrogation in viola-
tion of Section 8(a)(1) of the Act.
In the late afternoon on May 28, Jack Fabean interrogated
another employee, Dennis Wilson, at the latter's work sta-
tion, as to the whereabouts of the union meeting that evening.
Wilson feigned lack of knowledge of such meeting. Fabean
then stated that any employees that wanted a union were
crazy , and that if they had any problems they should go to
the manager and work them out.
I find the foregoing interrogation, based upon the credited
testimony of Wilson, to be coercive and therefore violative of
Section 8(a)(1) of the Act.
On the morning of May 30, employees Rossi , Wilson, Po-
well, and a few others were sitting in the lunchroom discuss-
ing the Union when Fabean came in. He remarked that he
could hear everything they were saying because "the walls are
paper thin ." I find the foregoing statement, based upon the
credited testimony of the named employees , to constitute an
impression of surveillance violative of Section 8(a)(1) of the
Act.
8 Fabean's recollection of the conversation is somewhat at variance with
that of Rossi. According to Fabean, he told Rossi that "your secret is no
longer a secret, it is out in the open-you can do your thing " I am inclined
to credit Rossi who impressed me as a candid and truthful witness Aside
from demeanor considerations, Fabean was, not impressive because, al-
though he acknowledged knowledge of the union movement in the plant
through a prior conversation with employee Kovacs, Fabean was obviously
reluctant to testify as to his knowledge of the extent of such union activities
and was unable to explain why he made the asserted statement to Rossi if
he was unaware of Rossi's preeminence in the union campaign.
9 The foregoing findings are based upon the credited testimony of Powell.
Fabean denied any conversation with Powell or any other employee at the
plant between the hours of 9 a.m and 4 p.m on May 28, 29, and 30 This
because he was out of the plant inspecting the Company's products being
installed in a housing project However, he admitted being in the plant
during the early working hours and in late afternoon. I note that the exact
time of the foregoing conversation was not elicited in the record, and, in any
event, I credit Powell who was impressive as a witness and who, the record
shows, was employed by Respondent at the time of the hearing. See Georgia
Rug Mill, 131 NLRB 1304, 1035, fn. 2 (1961), enfd. as modified 308 F.2d
89 (C.A. 5, 1962); Astrosystems, Inc., 203 NLRB 49 (1973); Federal Enve-
lope Company, 147 NLRB 1030, 1 1 036 (1964).
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In early June-about a week following the union meeting
on May 28-Jack Fabean approached employee Patricia
Chicka at her work station and stated that he did not know
why "`you kids want a union," and then walked away. Fabean
did not deny this conversation, and counsel for the General
Counsel in his brief, urges that such a statement goes "beyond
the permissible limits of the speech protected by Section 8(c)
[of the Act]. I disagree. The utterance of Fabean on this
occasion was not interrogation and the matter stated cer-
tainly did not rise to the status of a threat or intimidation, in
my view. Accordingly, I shall recommend that the complaint
be dismissed insofar as it alleges a violation of Section 8(a)(1)
as to this incident.
2. By Pat DeLaquil
Mr. Pat DeLaquil is president of the Company and the
record shows that he takes an active participation in its day-
to-day operations. About noontime on May 31, union organ-
izer Baldasseroni, in company with several of the employees
of the Company, approached DeLaquil in the plant and re-
ques ted recognition of the Union as the employees' collective-
barg aining representative. DeLaquil refused and later told a
group of employees that he did not want Baldasseroni on the
Company's property again.
It had been the Company's practice since April to have a
"Pizza Night" one evening a month. On this occasion the
Company would provide food and drink for the employees
after work, and there the employees would be given the op-
portlunity to express their complaints or grievances to the
management . A "Pizza Night" was scheduled and held at the
Company premises on May 31. At that time, DeLaquil made
a short speech in which he advised the employees that he was
aware of their attempt to organize a union and that he did not
particularly oppose such activities except that he did not like
the UE and "would fight it all the way."10 He recited the
history of UE, stating that in its early days it had been af-
filiated with the Communist Party and that it was no longer
affiliated with the AFL-CIO. DeLaquil observed that be-
cause the Company's business was intimately associated with
the building and construction industry, he would prefer that
the employees' union be affiliated with the AFL-CIO."
During his speech, DeLaquil referred to a profit-sharing
plan which he had been thinking about and preparing. He
then stated that it could not be put into effect if the UE was
brought in.12
I find the foregoing statements of DeLaquil to constitute
threats of retribution and loss of benefits to the employees if
they selected the Union as their collective-bargaining repre-
sentative. I also find the statement regarding the profit-shar-
ing plan to constitute an implied promise of benefit should the
employees reject the Union, all in violation of Section 8(a)(1)
of the Act.13
10 Credited testimony of Elaine Hohman.
11 Along these same lines, Mike Arbetter, an admitted supervisor, spoke
to the employees concerning the strikes and other labor problems which the
UE had caused at another company in the vicinity, and that the employees
could expect similar consequences if they brought the UE into the com-
pany's plant.
12 Credited testimony of Elaine Hohman De]Laquil admitted that he
stated that "if the Union came in, this type of thing [the profit-sharing
plan] would not be possible "
On May 31, in the afternoon, at the work station of Elaine
Seiler, a conversation took place between President Pat
DeLaquil and Ms. Seiler in which DeLaquil inquired why she
wanted a union. She responded "for job security and higher
pay." DeLaquil replied that there was "no way
[employees] could get higher pay-the doors would have to
close first," and he was disappointed "that [employees] didn't
go to him first." DeLaquil also mentioned "something about
Elaine Hohman, that if they were to fire anybody because of
the Union it would be her." He also advised that the em-
ployees of the Company had "everything the Season-All
[employees] had in their contract plus two additional paid
holidays."" I find the interrogation, taking place as it did
without justifiable purpose and lack of assurances against
recrimination, to be coercive within the meaning of Section
8(a)(1) of the Act.15 I further find his statement concerning
possible closure of the plant to be a threat and not a mere
prediction of possible economic consequences-that if the
employees pursued the exercise of their organizational rights
they would be without jobs. At best, such a statement con-
notes the futility to the employees of continued exercise of
their Section 7 rights, and therefore is violative of Section
8(a)(l) of the Act.
Employee Mitch Persin also testified that he had a conver-
sation with President DeLaquil on the afternoon of May 31,
near his work station. DeLaquil inquired why he wanted the
Union. Persin responded that it was not so much the money
as it was job security and "better management on the floor."
DeLaquil advised that the employees should have seen him
first in order to get "things straightened out."16 Again, for
the reasons expressed in the case of Elaine Seiler, above, I find
the interrogation of DeLaquil on this occasion to be coercive
and therefore violative of Section 8(a)(1) of the Act.
3. By Al Biro
Employee Debbie Hohman (Carver) testified that on the
morning of May 28, Al Biro, Respondent's chief engineer,
came to her work station and asked where the meeting was
and stated something to the effect that he thought she was on
the "Company's side." Carver testified that she did not re-
spond. Biro could not recall any conversation with Carver on
May 28 but acknowledged that on the afternoon of May 31
he was advised that there was a union meeting to take place
after work that day which was scheduled, apparently, about
the same time of the Company's Pizza Party.- He asked sev-
eral employees whether they were going to the union meeting
or the Company's party and voiced the opinion that it was
their obligation to come to the Company's party first and
have the union meeting afterwards, since the former had been
scheduled first:
13 See GraberManufacturing Company, 158 NLRB 244 (1966), enfd. 382
F.2d 990 (C.A 7, 1967)
14 The foregoing findings are based on the credited testimony of Seiler,
who was impressive as a witness. DeLaquil testified that he could not "re-
call" any conversation with Seiler on the afternoon of May 31.
"Season-All" refers to a company with which DeLaquil was previously
associated , and which is engaged in substantially the same business as Re-
spondent.
15 See N.L.R.B v. Cameo, Inc., 340 F 2d 803 (C.A 5, 1965)
16 The above findings are based upon the credited testimony of Persin.
DeLaquil did not recall any conversation with that employee on May 31
ARMCOR INDUSTRIES, INC.
I am inclined to credit Biro's version of this conversation
since there is no evidence that on the morning of May 28
Carver had engaged in any union activities which would have
prompted Biro to make the statement attributed to him. I
shall therefore recommend that this allegation of the com-
plaint be dismissed.
The complaint alleges that the Respondent violated Sec-
tion 8(a)(1) of the Act by "encouraging union activity among
its employees on behalf of a rival labor organization,"
through President Pat DeLaquil. The evidence shows that
prior to his employment with Respondent, DeLaquil was vice
president of the Season-All Company (above referred to)
which had a collective-bargaining contract with the Interna-
tional Union of Electrical Workers, AFL-CIO (IUE). DeLa-
quil acknowledged that during that period he became friendly
with Charles Copeland, a representative of the IUE, who
presumably serviced the contract at Season-All. The evidence
further shows that, when weather permits, employees of the
Respondent who wish to do so eat their lunches outside the
plant. On May 30, some of the employees including Michael
Rossi, Mitch Persin, Dennis Wilson, Rick Powell, and
Wayne Burns were eating lunch when a man approached and
identified himself as Charles Copeland. The latter went up to
Rossi and said "you must be Mike," and further observed
that he (Copeland) "was from the IUE and that somebody in
the office called [him] and told [him] that you were in need
of a union her Rossi responded affirmatively-that the
employees were in need of a union but that they already had
one that they believed they wanted, and named the UE. Cope-
land then explained that in 1947 the two unions used to be
one, but that the IUE split from the UE because the latter was
"communist affiliated."
During the conversation Rossi called Gary DeLaquil, a son
of Pat DeLaquil and an employee in the plant, over to the
group and asked him what he thought about the situation.
Gary DeLaquil replied that he thought that the Union repre-
sented by Mr. Copeland was "better."
The following evening, at the Pizza Night festivity, Pat
DeLaquil acknowledged to the employees that he knew
Copeland from being associated with him at Season-All, and
that he had seen Copeland on several occasions prior to May
30 wherein Copeland wanted to know whether the Company
was ready to be organized; however, DeLaquil denied that he
had directed Copeland to come to the company premises the
previous day.
Viewing the record as a whole, I am convinced, and there-
fore find, that the evidence sustains the contentions of the
General Counsel on this allegation. Thus the opposition of
DeLaquil to the UE is established, as well as his preference
for a union affiliated with the AFL-CIO. He was friendly
with Copeland for many years and when he learned of the
support for UE among the Company's employees, it is rea-
sonable to infer that he would call upon Copeland. That
Copeland had previous knowledge of the union activities
among the employees-and, moreover, the name of the leader
thereof-is evidenced by the uncontradicted testimony of
Rossi. All of the foregoing, taken with the timing of the
incident on the heels of the employees' organizational activi-
ties on behalf of the UE, convince me, as above stated, that
17 Testimony of Rossi. Copeland was not called as a witness at the trial.
363
the Respondent instigated the appearance of the IUE on the
scene, and therefore interfered with, restrained, and coerced
its employees in the selection of a collective-bargaining repre-
sentative, all in violation of Section 8(a)(1) of the Act."
II. THE ALLEGED DISCRIMINATORY TERMINATION OF MICHAEL
ROSSI AND WAYNE BURNS
Rossi and Burns were terminated by the Respondent at the
end of the work day on Thursday, May 30. The record shows
that, at that time, Rossi and Burns were summoned into the
office of Plant Manager Kyle. There they were first handed
their checks and then told by Kyle that they were being laid
off because of lack of work and because they were the least
senior male employees there. Kyle also mentioned that they
either were unable to-or would not perform other work in
the plant such as the operation of machines or the forklift
truck (they were performing the work of final assembly of the
windows during the period immediately preceding their ter-
mination). Neither of the men responded to Kyle, but took
their checks and left.19
Respondent's, defense is that the two men were terminated
both because of lack of work for them, and, additionally,
because of their lack of versatility (or incompetency in the
case of Burns) as employees. In support of the first conten-
tion, Respondent showed that for a period of several months
prior of the termination, the principal production in the plant
was devoted to the making of windows for a housing develop-
ment constructed by the Beaver County Housing Authority.
It was further shown that during the last several weeks prior
to the termination, as that job was being completed, some
employees were required to perform "make work" jobs for
some periods during the work day. Accordingly, on either
May 28 or 29, President Pat DeLaquil and Plant Manager
Kyle discussed the matter and decided that a layoff of several
employees was necessary, and Kyle determined that the lay-
off should occur in the assembling unit since, as pointed out
above, the Beaver job was coming to an end and the two men
(Rossi and Burns) were not sufficiently versatile to perform
other jobs. Kyle also testified that based upon his observation
from being on the plant floor, he was aware that Burns could
not operate the cutting saw and that the two men had a poor
attitude or reluctance to take on other jobs. Kyle also pointed
to some problems between Burns and his foreman Joe DeLa-
quil in which Kyle became involved because Burns had com-
plained to him about the treatment Burns was receiving from
Joe DeLaquil.20
On the other hand, there is only one file memorandum by
Joe DeLaquil as respects Michael Rossi. This is dated April
5, and alludes to Rossi's "bad work habits, lack of versatility,
18 An allegation of the complaint dealing with independent 8(a)(1) activ-
ity as respects Mike Arbetter, a company supervisor, on May 31, (Pizza
Night) was discussed supra I find such statements, although antithetical to
the aspirations of a majority of the employees, did not rise to the stature of
the threats in violation of Sec. 8(a)(1) of the Act.
19 Testimony of Rossi and Bums, which is, in essence, corroborated by
that of Kyle.
20 Thus the record shows that during the month of April Joe DeLaquil
repeatedly warned Burns about poor work habits which resulted in produc-
tion losses to the extent that on April 22 he directed a memorandum to Kyle
suggesting that some "disposition" be made of Burns. Kyle told DeLaquil
to use his own judgment, and, apparently, DeLaquil retained Bums at that
time only because he (Burns) had a new baby in his house.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
actual refusal to work on other jobs such as saws [and] repeat-
edly warned about leaving his work station which resulted in
low productivity." However, in his testimony at the trial, Joe
DeLaquil (who had great difficulty in responding directly to
questions) acknowledged that Rossi never refused to work on
the saws or any otherjobs-he merely did not like to perform
the other work. I also note that, unlike the memoranda pre-
pared by Joe DeLaquil with respect to Wayne Burns, the
memorandum for Rossi was not entitled a "verbal
warning.""
Analysis and Concluding Findings as to Rossi and Bums
As previously set forth, the record shows that Rossi was
the prime instigator of the union movement at the plant, and
that this fact became known to the officers of Respondent
prior to the termination. This is reasonably inferable from the
statements made to Rossi by Jack Fabean and by the fact that
Copeland was directed to Rossi as the employee to contact
respecting-the organization of a union.22 The record further
shows the great antipathy of the Respondent to the organiza-
tional efforts of the employees-particularly on behalf of the
UE. The terminations of these two employees, following im-
mediately on the heels of the foregoing events, constitutes, in
my judgment , a prima facie case of discrimination requiring
the Respondent to come forward with competent, credible
evidence tending to establish that the employer "was moti-
vated by legitimate objectives since proof of motivation, is
most accessible to him."23
I am convinced that Respondent met this standard as re-
spects Burns. In the first place, there is little or no evidence
that Respondent was aware that Burns had participated in
any union activities; indeed, his only'participation in this
regard was the signing of a union card at the Union meeting
on May 28. But even assuming such knowledge , Burns' work
record for the short time of his employment was dismal, and
I am convinced that he would have been terminated at the
end of April had not Joe DeLaquil had pity upon him because
of the new addition to his family. I shall therefore recommend
that the complaint as to Burns be dismissed.24
21 See Resp . Exhs 2-8.
22 Although Respondent argues that the evidence does not support a
finding that the supervisors responsible for the termination had prior knowl-
edge of Rossi 's union activities , the knowledge of Fabean is imputable to the
Respondent See Warren Chateau Hall Inc., 214 NLRB No. 55 (1974), The
Bama Company, 145 NLRB 1141, 1152 ( 1964) In any event , Fabean ad-
mitted discussing the Union with Pat DeLaquil after he (Fabean) learned of
the union campaign , but prior to Rossi 's termination
23 NL.R.B. v Great Dane Trailers, Inc., 388 U.S. 26, 33-34 (1967),
Standard Container Company, 171 NLRB 433 (1971), enfd 428 F 2d 793
(C A 5, 1970); Central Press of California, 210 NLRB 765 (1974).
24 Counsel for the General Counsel, doubtless recognizing the weakness
of Bums' case , argues that Respondent terminated him at the same time as
Rossi in order to lend an air of legitimacy to the situation That is, General
Counsel contends that Respondent recognized its vulnerability if it only
terminated the leader of the union movement , therefore , it also laid off an
employee not known to be so active so as to becloud the issue. In support
of such contention , he cites, the recent case of Seaway Broadcasting Com-
pany, Inc., d/b/a WMPP, 198' NLRB 496 (1972) However, that case is
distinguishable on its facts since the Board there found that the two em-
ployees were so linked together in terms of a fraternal as well as a job
relationship as to be considered one. No such evidence of linkage existed
in this case; accordingly , I find there is a lack of substantial evidence on the
On the other hand, the reasons proffered by the Respond-
ent in support of its defense of Rossi's termination25 do not
withstand scrutiny. Thus, unlike Burns, the record does not
support Respondent's contention that Rossi was an unsatis-
factory employee. There had been no derogatory comments
concerning his work performance for almost 2 months prior
to his termination , and even that memorandum was not
denominated as a "warning." Moreover, the record does not
disclose that Joe DaLaquil even discussed any such delin-
quencies with Rossi. While it may be true that Rossi did not
like to work on the saws or drive a truck, Joe DeLaquil
admitted that he never refused to perform such work. To the
contrary, his production record indicates that from time to
time he "loaded material , handled material, loaded and un-
loaded trucks, painted carts, etc."26
It is true, as the Respondent argues, that at the exit inter-
view neither Rossi nor Burns requested that they be placed
on other work. However, they were not given that prerogative
by Kyle; rather, they were presented with the layoff as a fait
accompli. Under such circumstances, the two men probably
considered it a futile gesture to demand or even request other
work.
In addition, I have considered, as bearing on the issue of
discrimination, the timing of the discharge, coming only two
days after Rossi had arranged the union meeting in which a
majority of the employees had signed union cards, and prior
to the end of a payroll period. Such timing, it has been held,
is strong evidence of discriminatory motive.27
Moreover, I have considered that Rossi was not in fact the
least senior male employee; the record (G.C. Exh. 2) reflects
that Robert Marcoline was hired subsequent to Rossi.
Finally, I have considered the testimony of James Johnson,
a former employee of Respondent, who related, in substance,
that several months prior to his termination, Jack Fabean
advised him that two of Johnson's friends had been ter-
minated because they were "troublemakers" i.e., talking
about getting a union in." Although this was denied by Fa-
bean and it is possible that Johnson may have harbored some
animosity against the Company because it discharged and
refused to rehire him, he did not impress me as one who
would'fabricate such a story out of the whole cloth. I there-
fore credit him.
record as a whole to warrant the conclusion that Bums' termination was
protected by the Act.
25 At the hearing, Respondent acknowledged that while it originally desig-
nated the termination of Rossi and Burns to be "layoffs," it did not, in fact,
intend to recall them. In short, Respondent considered the two men to be
permanently laid off or discharged President DeLaquil explained that the
work force of Respondent was quite young and temperamental and were
prone to become quite upset when one or more of their number was "dis-
charged"; accordingly, the appellation "layoffs" was utilized However, I do
not necessarily take this explanation at full face value since the record
discloses that, commencing in July, Respondent commenced hiring new,
full-time employees. It perhaps would be difficult to explain the hiring of
such employees were the May 30 terminations be considered as mere lay-
offs.
26 See Resp Exh. 9(b).
27 See N.L.R.B. v Montgomery Ward and Company, Inc., 242 F.2d 497,
502 (CA 2, 1957), cert denied 355 U S 829 Respondent introduced
evidence to show that other employees had been discharged on days other
than the end of the payroll period. However, that list (Resp. Exh. 11) did
not enumerate the reasons for the discharges Obviously, there are some
causes for discharge such as fighting, stealing, insubordination, and the like
which require immediate discipline This - is not the situation here
ARMCOR INDUSTRIES, INC.
Accordingly, for all of the foregoing reasons, I find and
conclude that the preponderance of the evidence supports the
contention that the termination of Rossi on May 30 was
motivated, at least in part,28 because of Respondent's oppo-
sition in his campaign to establish the Union, and to discour-
age such activity, in violation of Section 8(a)(3) of the
Act. 29
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By terminating the employment of Michael A. Rossi on
May 30, to discourage membership. in the Union, the Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
4. By coercively interrogating employees concerning their
union sympathies and activities; by threatening employees
with economic reprisals, including-closing of the business if
the employees supported the Union; by creating the impres-
sion of surveillance of their union activities; by encouraging
union activity among its employees on behalf of a rival labor
organization, and by promising employees benefits if they
refrained from engaging in union activities, the Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the Act,
I shall recommend that it cease and desist therefrom and take
certain affirmative action in order to effectuate the policies of
the Act.
I have found that on or about May 28, and at all times
thereafter, a majority of the Respondent's employees in an
appropriate unit signed authorization cards designating the
Union as their representative for purposes of collective bar-
gaining. Thereafter, the Respondent, by its agents and super-
visors, engaged in acts and conduct of an extensive and egre-
gious nature, including a discriminatory discharge, all of
which was designed to interrupt, thwart and destroy the em-
ployees' support of the Union, and make the holding of a fair
28 See N.L.R.B. v. Great Eastern Color Lithographic Corp., 309 F.2d 352,
355 (C.A. 2, 1962), cert denied 373 U.S. 950 (1963); N.L.R.B. v. Hanes
Hosiery Division, Hanes Corp., 413 F.2d 457, 458 (C A. 4, 1969).
29 Charles Perrella and Gerald Katz, Co Partners, d/b/a Charles Perrella
Ring Company, 213 NLRB No. 1 (1974). Although not cited as a reason
to the employees at the exit interview, Respondent, at the trial, proffered
some evidence that a reason for their termination was due to their relatively
poor production compared with other employees who performed the same
job However, as Respondent acknowledges in its brief, the production
records of the other employees were not offered into evidence at the hear-
ing Accordingly, no comparison may be made, and I have therefore given
this contention of Respondent (which appears to be principally an after-
thought) little or no weight in my consideration of the issue.
365
election impossible. I therefore find that the circumstances of
this case require a bargaining order as the only appropriate
remedy for the Respondent's misconduct.30
Having found that the Respondent discriminated against
Michael A. Rossi in the manner set forth above, I will recom-
mend that the Respondent be ordered to offer him immediate
reinstatement to his former or substantially equivalent posi-
tion, without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earnings he
may have suffered by reason of the discrimination against
him. Backpay shall be computed in accordance with the for-
mula prescribed by the Board in F W. Woolworth Company,
90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
The serious and pervasive nature of the unfair labor prac-
tices committed, including a discriminatory termination, in-
dicate a hostility to the purposes of the Act. I shall therefore
recommend that the Respondent be ordered to cease and
desist from in any manner infringing upon the rights guaran-
teed to its employees by Section 7 of the Act. Entwistle Manu-
facturing Company, 23 NLRB 1058 (1940), enfd. as modified
120 F.2d 532 (C.A. 4, 1941).
Upon the basis of the entire record, the findings of fact, and
the conclusions of law, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER31
Respondent, Armcor Industries, Inc., Murrysville, Penn-
sylvania, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee in regard to his hire or tenure of employment or any
term or condition of employment in order to discourage
membership in United Electrical, Radio and Machine Work-
ers of America (UE), or any other labor organization.
(b) Supporting or assisting the organizational activities of
any rival labor organization of the above-named union.
(c) Coercively interrogating its employees about` their
union activities.
(d) Threatening employees with reprisal, including closure
of the plant, if they become or remain members of the above-
named union, or continue to engage in activities in support
of the above-named union.
(e) Creating the impression of surveillance of the em-
ployees' union activities.
(f) Promising employees benefits to dissuade them from
engaging in union activities.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaran-
teed by the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
30 Steel-Fab, Inc., 212 NLRB 363 (1974); Charles Perrella Ring Company,
supra.
31 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order- herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions and Order, and all objections thereto shall be
deemed waived for all purposes
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Make whole Michael A. Rossi, in the manner set forth
in the section entitled "The Remedy," for any loss of earnings
suffered by reason of the discrimination against him.
(b) Upon request, recognize and bargain with United Elec-
trical, Radio and- Machine Worker of America (UE), as the
exclusive collective-bargaining representative of the em-
ployees in a unit of all production and maintenance em-
ployees employed at Respondent's Murrysville, Pennsyl-
vania, location, excluding all other employees, office clerical
employees, and guards, professional employees, and supervi-
sors as defined in the Act, respecting rates of pay, wages,
hours, or other terms and conditions of employment and, if
32 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
an understanding is reached, embody such understanding in
a signed agreement.
(c) Post at its premises in Murrysville, Pennsylvania, copies
of the attached notice marked "Appendix."32 Copies of said
notice, on forms provided by the Regional Director for'Re-
gion 6, after being duly signed by Respondent's authorized
representatives, shall be posted by it immediately after receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent has
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges unfair labor practices not
specifically found herein.