Blackstone Company, Inc.,

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 945 (N.L.R.B. 1981)

BLACKSTONE COMPANY, INC.
Blackstone Company, Inc. and Teamsters Local
Union No. 35, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Cases 22-CA-8880, 22-
CA-9639, and 22-RC-7657
September 30, 1981
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 27, 1981, Administrative Law Judge
Edwin H. Bennett issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions 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 at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Blackstone
Company, Inc., East Brunswick, New Jersey, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order.
IT IS FURTHER ORDERED that the election con-
ducted on November 21, 1978, among the Employ-
er's employees be, and it hereby is, set aside, and
that Case 22-RC-7657 be, and it hereby is, severed
and remanded to the Regional Director for Region
22 for the purpose of conducting a new election at
such time as he deems that circumstances permit
the free choice of a bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
MEMBER JENKINS, dissenting in part:
I would not apply Wright Line, a Division of
Wright Line, Inc., 251 NLRB 1083 (1980), here.
The Administrative Law Judge found Respond-
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir 1951). We have
carefully examined he record and find no basis for reversing his findings.
258 NLRB No. 124
ent's asserted lawful reasons for discharging Nagy
and Moffat to be supported only by "transparently
unreliable evidence," a "flimsy and transparent
house of cards," and "unreliable, vague, and sus-
pect, and almost nonexistent" evidence. In short,
the asserted lawful reasons did not exist.
In such case, there is only one genuine reason
for the discharge, the unlawful one, and the Wright
Line analysis, designed to distinguish between two
genuine reasons of which one is unlawful, is use-
less. The result is necessarily the same with or
without Wright Line, and it is stultifying pretense
to assert we "apply" Wright Line in such cases-a
pretense which can only damage our posture
before the courts of appeals. I had thought we had
departed this barren ground in Limestone Apparel
Corp., 255 NLRB 722 (1981), but apparently my
colleagues still linger there.
DECISION
STATEMENT OF THE CASE
EDWIN H. BENNETT, Administrative Law Judge: This
proceeding was heard on January 30 and 31 and Febru-
ary I and 4, 1980, in Newark, New Jersey. The com-
plaint cases arise from charges filed by Teamsters Local
Union No. 35, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica (herein called the Charging Party or the Union), on
December 6, 1978, and February 28, 1979, in Cases 22-
CA-8880 and 22-CA-9639, respectively. Those cases re-
sulted in the issuance of an order consolidating cases and
first amended complaint and notice of hearing dated
April 19, 1979, alleging, inter alia, that Blackstone Com-
pany, Inc. (at times called Respondent, the Company, or
the Employer), violated Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended, by its dis-
charge of employees Robert Nagy and Kevin Moffat.
Additionally, it is alleged that Respondent promised its
employees benefits, interrogated them, threatened them,
and created the impression of surveillance, all in viola-
tion of Section 8(a)(1) of the Act.
The representation matter, Case 22-RC-7657, was
consolidated for hearing with the complaint cases by an
order dated April 27, 1979. That matter has its origin in
a petition filed by the Union on September 28, 1978,
seeking an election in a unit of production and mainte-
nance employees employed by the Employer at its East
Brunswick, New Jersey, location. An election was con-
ducted on November 21, 1978, pursuant to a Stipulation
for Certification Upon Consent Election which had been
entered into by the parties on October 17, 1978. In that
election 18 employees voted for, union representation,
and 18 against, and there were 2 challenged ballots. Ob-
jections were timely filed by the Union on November 29,
1978. An administrative ruling on the challenged ballots
by the Regional Director resulted in the issuance on May
3, 1979, of a revised tally which disclosed that 18 votes
had been cast for, and 19 against, union representation.
As the remaining challenged vote could not be determi-
945
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
native, it was not resolved. However, the objections are
at issue in this consolidated proceeding. Although there
are four separate objections stated, the Union did not
participate in the hearing, and thus only so much of its
objections as were litigated in connection with the unfair
labor practices properly are before me for resolution. Re-
spondent denies that it committed any unfair labor prac-
tices or that it engaged in any objectionable conduct.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel and Re-
spondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent's only facility is the factory and plant in-
volved in this controversy which it operates in East
Brunswick, New Jersey, and where it is engaged in the
manufacture, sale, and distribution of wood windows,
doors, and related products for use in the construction
industry. Respondent annually sells and ships such prod-
ucts valued in excess of $50,000 directly in interstate
commerce. Respondent admits that it is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE UNFAIR I.ABOR PRACTICES
A. The 8(a)(1) Violations
I. Conduct by Stanley Swerdlick
There were approximately 40 employees working for
Respondent as production workers, warehousemen, and
drivers when the Union began its efforts to organize in
or about May 1978. Until about September 1978, these
efforts primarily consisted of union officials meeting with
a few employees away from Respondent's premises. Ac-
cording to Nagy, who was a spearhead in the campaign,
the union activity intensified in September. Nevertheless,
David Vance, a driver and one of the employees who at-
tended the early meetings, testified that while at work on
or about July 1, 1978, Stanley Swerdlick, Respondent's
vice president, told him he had heard that Vance was
carrying union cards in his pockets. No one else was
present and Vance could recall nothing else about the
conversation which was denied by Swerdlick. Vance
also testified that later in July he attended a union meet-
ing with three or four other employees which had been
held in a van away from the plant and again was con-
fronted by Swerdlick, who referred to that meeting and
repeated some of Vance's prounion comments, as well as
remarks he made about an employee, Frank Bowman,
who had been discharged. None of the employees who
were in the van testified at the hearing and no one else
was present when Swerdlick allegedly spoke to Vance.
Vance also testified that Swerdlick's remarks were made
during a conversation in which Vance was reprimanded
for poor work. Swerdlick acknowledged a conversation
with Vance with respect to work performance at or
about this time but otherwise denied that he made any
references to union activities.
Although I do not credit Swerdlick's testimony in
other matters as discussed below, I am unable to give full
credence to Vance's unsupported testimony concerning
the two incidents in July 1978 which the General Coun-
sel alleges as violations. Vance was extremely vague
with respect to the specifics of the critical conversations
and his recollection of events at the hearing not only was
hazy but was inconsistent with his pretrial affidavit. His
testimony alone, there being no independent evidentiary
basis to rely upon, is not sufficiently convincing. Accord-
ingly, I shall recommend dismissal of the complaint with
respect to the alleged foregoing conduct of Swerdlick.
The union campaign accelerated in early September
1978 with a meeting conducted by a union organizer at a
McDonald's restaurant on the morning of September 8.
A number of drivers were in attendance, including Nagy,
Vance, Joseph Dafcik, William Friewald, Kevin Moffat,
and Richard Rizzo. The gathering took place while the
drivers were on a breakfast break and, in addition to dis-
cussing the benefits of a union, authorization cards were
signed by some of the employees who returned them to
the organizer. After that meeting the organizing drive in-
tensified with Nagy and Dafcik in the forefront as part
of an in-plant organizing committee. They credibly testi-
fied they distributed cards and literature directly to other
employees in the parking lot outside the plant and gave
cards to warehouse employees for further distribution by
them. It was conceded by William Bostick, the shipping
manager and an admitted supervisor who began work for
Respondent in early August 1978, that he began to hear
of the organizing drive in September while working on
the loading docks with employees. In addition to the ac-
tivity around the plant, Nagy also made visits to the
homes of the employees. On September 28, 1978, the
Union filed its petition in the representation case, and
active campaigning by Nagy, Dafcik, and the other em-
ployees continued up to the election held on November
21, 1978.
The consolidated complaint alleges that, shortly after
the meeting at McDonald's in early September 1978, Re-
spondent embarked upon an extensive campaign of its
own, using various unlawful means, to counter the orga-
nizing efforts of its employees. To this end Moffat testi-
fied he was summoned into Swerdlick's office as he ar-
rived for work a few days after the McDonald's meeting
and was told that he (Swerdlick) knew of the meeting at
McDonald's and had the names of all those who attend-
ed and who signed cards. He then warned Moffat that he
did not want the employees to harm the Company.' This
conversation was denied by Swerdlick.
Rizzo, who testified as a witness for both the General
Counsel and Respondent in support of various parts of
their respective cases, recalled that he, too, had a con-
versation with Swerdlick in the latter's office a few days
after the breakfast meeting at McDonald's. According to
Rizzo, Swerdlick asked him who was in attendance at
the meeting and if cards had been signed for the Union.
' Swerdlick personalized the warning with the use (of obscene lan-
guage.
946
BLACKSTONE COMPANY. INC
Rizzo replied that he was reluctant to name anyone for
fear of jeopardizing his friendship with them. Swerdlick
then reeled off the names of those who had been in at-
tendance, including Vance, Nagy, Friewald, and Dafcik,
with Rizzo acknowledging the accuracy of Swerdlick's
recitation. Swerdlick then went through the identical
routine in questioning Rizzo as to who had signed union
cards; i.e., Rizzo declined to specify names but merely
responded affirmatively as Swerdlick recited the afore-
mentioned employees. Swerdlick, who testified that he
learned of the union organizing campaign from his part-
ner, William Schwartz, sometime in the early or the
middle part of September 1978, and that Schwartz'
knowledge was based on a letter he had received re-
questing recognition, swore that although he asked Rizzo
the names of those who attended a breakfast meeting at
McDonald's his only concern was to identify those em-
ployees who were taking unauthorized breaks during the
course of the day. Swerdlick further swore that Rizzo
volunteered the information that there was a union agent
in attendance at the meeting who collected some sort of
cards. Swerdlick denied that he questioned Rizzo with
respect to who supported the Union or who had signed
cards, and he further denied that he knew which em-
ployees favored unionization.
I find completely credible the testimony of Moffat and
Rizzo concerning their encounters with Swerdlick as set
forth in the preceding two paragraphs.2 Their testimony
about these meetings, which were separately conducted,
indicates a pattern of activity by Swerdlick designed to
ascertain or confirm the identity of the union supporters.
I find incredible Swerdlick's assertion that Rizzo, who
was reluctant to identify the employees in attendance,
would have volunteered the fact that there was a union
agent present, and even this testimony grudgingly was
conceded by him on cross-examination. Moreover, it is
implausible that he questioned Rizzo soley to learn
which employees were taking unauthorized breaks out of
concern that employees were not working a full day and
then did absolutely nothing about correcting the "abuse"
with the employees involved. Given Swerdlick's totally
unconvincing testimony with regard to the Rizzo con-
versation, in view of Rizzo's and Moffat's testimonial re-
liability (unequivocal recounting of events without em-
bellishment or conclusions) and the similarity of their ex-
periences with Swerdlick, I discredit the latter's flat de-
nials that he questioned them about the Union. 3 Accord-
ingly, it is my conclusion that in mid-September 1978
Swerdlick questioned Moffat and Rizzo concerning the
organizing activity of Respondent's employees. These in-
terrogations by top management designed to learn the
identity of union supporters, conducted in a formal and
hostile atmosphere, clearly are coercive and in violation
of Section 8(a)(l). General Automation Manufacturing. In-
corporated, 167 NLRB 502 (1967). Further, by naming
those who attended the meeting with accuracy, while
' Rizzo clearly was an impartial witness who gave testimony support-
ive of Respondent's case as well.
: That two employees who did not impress me as having a particularly
friendly or close relationship were subject to similar questioning by
Swerdlick lends a high degree of reliability and trustworthiness o their
testimony.
concealing the source of his information, Swerdlick
clearly conveyed the impression that Respondent had the
meeting under surveillance, thus further violating Section
8(a)(l) of the Act. N.L.R.B. v. S. & H. Grossinger. Inc.,
372 F.2d 26, 28 (2d Cir. 1967).
Moffat also testified that shortly after he left Swerd-
lick's office he was standing near a truck about to enter
it when Swerdlick came over to him and said that if a
union was brought in there could be a loss of business
and the new employees would be the first ones laid off.
At that time, Moffat was the second least senior driver
or helper. This, too, was denied by Swerdlick, who
denied having had a conversation at all with Moffat con-
cerning the Union. Having concluded that Swerdlick un-
lawfully interrogated Moffat in his office, these later re-
marks attributed to him by Moffat can be seen as but a
continuation of the same conversation. Accordingly, I
give no greater credence to Swerdlick's denial of these
disputed remarks than I accorded to his denial of the ear-
lier remarks. Based on Moffat's credited testimony, it is
my conclusion that Respondent, through Swerdlick, im-
plied that the advent of the Union would result in the
loss of employment generally, and for Moffat in particu-
lar, and that such statement was made without any legiti-
mate foundation or business justification. As such, it con-
stituted a plain threat of reprisal in violation of Section
8(a)(l) of the Act.
Dafcik testified, that a short time after the distribution
of cards began in early September, Swerdlick told him
he knew about the union organizing campaign but that it
would be of little benefit for the employees and warned
that as Respondent would be unable to meet union de-
mands it would be forced out of business. This was
denied by Swerdlick. The very next morning, according
to Dafcik, he and Nagy were approached by Swerdlick,
who remarked that he heard they were still passing out
cards. Dafcik had a few unsigned cards in his possession
which he then handed to Swerdlick stating that he did
not want to be involved with the Union further. Nagy
was less certain of the date and believed it occurred in
October, but otherwise he fully corroborated Dafcik.
Nagy also testified credibly that on the preceding day he
and Dafcik did distribute union materials in Respondent's
parking lot. Swerdlick's version of the incident is that
one morning as Dafcik was preparing to take out his
truck, and without any prompting, Dafcik offered him
some union cards while stating that he was not interested
in the Union, and that he (Swerdlick) responded that he
was not interested in receiving the cards or in discussing
the matter and that he simply walked away. Swerdlick's
testimony in this regard bears a striking resemblance to
his discredited explanation of the incident with Rizzo in
that he places on the employee the onus of volunteering
information about the union campaign, and I do not
credit it. Nor do I credit his denial of the incident with
Dafcik the preceding day. On the other hand, I am per-
suaded that Dafcik's attempt to distance himself from the
union campaign by offering the cards in his possession to
Swerdlick was an action wholly consistent with what an
employee might do out of fear or apprehension arising
from threats of reprisal. Accordingly, based on both the
947
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inherent probability of the events as testified to by
Dafcik and Nagy as well as the favorable impression
they made as witnesses, I credit their testimony and find
that Respondent, by Swerdlick, in early to mid-Septem-
ber 1978 violated Section 8(a)(1) by again threatening
economic reprisals (loss of jobs, plant closing) because of
the union activity, interrogating employees about their
union activity, and conveying the impression of surveil-
lance.
Dafcik testified to another conversation with Swerd-
lick concerning the Union which occurred one morning
shortly after the petition was filed on September 28,
1978. As assignments were being distributed for the day
by Swerdlick, Dafcik expressed his belief that he was a
harder and more efficient worker than some of the other
drivers but was receiving less pay. Dafcik testified that
Swerdlick responded to the effect that he would be able
to take care of him after the union matter was finished.
Respondent sought to impeach this testimony by refer-
ring to Dafcik's pretrial affadavit where it states that
Swerdlick said, "[H]e would have to wait until after the
union either got in or not"; that Dafcik replied, "[T]hat's
why I was for the union, that the pay and conditions
weren't good"; and that Swerdlick responded, "[L]et's
get this business of the union over with, then he would
then be able to take care of me." Swerdlick did not tes-
tify with respect to any such incident and was not ques-
tioned regarding any future commitments or promises to
Dafcik in particular. However, he did testify that he
never promised any employee any improvement or bene-
fit in order to have the employee refrain from union ac-
tivity. Even if Swerdlick had denied precisely the testi-
mony of Dafcik, I would credit the latter. As noted
above, Dafcik was an impressive witness who had good
recall of various incidents despite vigorous cross-exami-
nation by Respondent, and who testified consistent with
his pretrial affadavit.4 Dafcik generally impressed me as
a trustworthy witness, while Swerdlick, as discussed
above, was not straightforward and candid in matters re-
lating to the Union. Accordingly, I give full credence to
Dafcik's testimony regarding this incident, and therefore
will consider whether a violation of the Act was com-
mitted.
Swerdlick's remarks contained no express promise of a
specific benefit contingent upon a union loss. Construing
the remarks in a light most favorable to Respondent,
Swerdlick merely deferred consideration of the request
for a wage increase pending the outcome of the election.
Yet, even though the granting of an increase was not
made contingent upon the result of the election, in my
opinion the deferral itself nevertheless was calculated to
impress upon Dafcik that the advent of the Union was
the sole reason for failing to consider what might other-
wise have been a valid request. By such conduct a
stigma was placed on the Union for Respondent's refusal
even to consider Dafcik's request to rectify what he be-
lieved to be a wage inequity. Respondent's refusal to
consider the raise because of the union activities of its
employees constitutes a violation of Section 8(a)(1) of the
' Respondent's introduction of the affidavit section quoted, rather than
impeaching Dafcik, is supportive of the testimony, and is probative of the
event as testified to by Dafcik.
Act whether it is viewed as a present denial of economic
benefit or a promise of potential economic gain. Ameri-
can Commercial Bank, 226 NLRB 1130, 1132 (1976).
Furthermore, to withhold the possibility of a wage in-
crease. or the consideration thereof, which otherwise
would have been granted but for the union organizing
campaign, and to so advise employees as was done here,
violates Section 8(a)(1) of the Act even if Respondent er-
roneously believed that its actions were compelled by
the pending election petition. Dorn's Transportation Com-
pany, Inc., 168 NLRB 457 (1967).
Dafcik further testified that on the very next day (in
early October 1978) Swerdlick followed Nagy and him-
self into the men's toilet. Immediately, Dafcik offered to
hand Swerdlick some blank union authorization cards
but Swerdlick refused them saying that they should be
destroyed. Dafcik threw the cards into the garbage and,
as they left the room, Swerdlick told them that if the
Union came into Blackstone and it "goes down every-
body goes down." In his pretrial affidavit Dafcik stated
that, as he sought to hand union cards to Swerdlick, the
latter refused them saying it was against the law for him
to accept them. Dafcik on his own then ripped them up
and threw them in the garbage. Nagy, in his testimony,
placed this incident as occurring in late October or early
November; however, he substantially corroborated
Dafcik with respect to Swerdlick's quoted remarks.
Nagy's testimony also differed somewhat from that of
Dafcik with respect to the matter of the cards. Nagy re-
called that Swerdlick took the cards from Dafcik but he
did not see what, if anything, was done with them. Nagy
was certain of an incident in the employees' toilet be-
cause there was a separate toilet for management which
Swerdlick normally used.
Swerdlick, who, as noted, generally denied any
wrongdoing, did not specifically deny the foregoing inci-
dent. He testified that he had entered the employees'
men's room on only one occasion for the limited purpose
of seeing if obscenities directed at him had been scrawled
on the wall. I am persuaded that there was an incident in
the men's room involving Swerdlick, Dafcik, and Nagy
at which the subject of unionization was discussed, but
that many of the details are far from certain. I credit
Dafcik and Nagy that union cards were proffered to
Swerdlick but I cannot credit Nagy that Swerdlick re-
ceived them in view of Dafcik's testimony and his pre-
trial affidavit, and thus there is an insufficient basis to at-
tribute to Respondent Dafcik's offer and subsequent de-
struction of the cards. One can only infer that Dafcik did
so in the belief that it would curry favor with Respond-
ent. However, Nagy and Dafcik were quite certain, and
I credit their testimony to this effect, that Swerdlick did
state that the Company would "go down" in the event
of unionization. The clear import of such statement is
that unionization would result in either a closing of the
business or certainly in the loss of employment. Swerd-
lick's general denial that he threatened employees cannot
be accepted in view of his lack of candor concerning his
actions in seeking to dissuade employees from unioniza-
tion. Accordingly, I find that Swerdlick violated Section
8(a)(l) by threatening employees with loss of jobs in the
948
BLACKSTONE COMPANY. INC.
event they chose the Union, and that this incident oc-
curred in early October 1978 after the petition was filed. '
The evidence also supports the allegation that Swerd-
lick violated Section 8(a)(1) in late October 1978. Ac-
cording to employee William Friewald, when he re-
turned his truck to the plant one evening Swerdlick told
him that his friends Nagy and Dafcik were involved in
union activity and that he (Friewald) should stay away
from them and not listen to their union talk. Friewald re-
sponded that he was not for the Union, and Swerdlick
replied, "[G]ood." In fact, Friewald was a friend of
Dafcik and Nagy, and had attended the union meeting at
McDonald's where he signed a card, a fact known to
Swerdlick. Friewald testified he replied as he did in
order to avoid trouble. Swerdlick was not specifically
questioned with respect to this conversation although, as
noted previously, he denied that he had ever threatened
or questioned any employee about the Union, a denial
which I have rejected in other respects and which I
reject here as well. Swerdlick's comments here in issue
are consistent with his other conduct found unlawful.
and in crediting the General Counsel's witnesses I con-
sider it significant that they did not attribute to other
members of management conduct of a like nature. If they
were bent on fabricating a pattern of unlawful activity
there is no reason they would no not have done so.
Swerdlick alone bears the brunt of the accusations and it
is interesting that he is described by Respondent as "tem-
permental." (Resp. br., p. 17). In crediting Friewald on
this incident I have considered Respondent's various at-
tacks on the credibility of the General Counsel's wit-
nesses. 6
2. Conduct by William Schwartz
The General Counsel also alleges that Respondent
made unlawful promises of benefits to persuade employ-
ees to abandon their support for the Union. This allega-
tion concerns itself with two separate events: (1) a notice
Dafcik impressed me as more reliable than Nagy with respect to the
date of an occurrence. The discrepancies in their testimony in this regard
is no reason, however, to discredit their testimony regarding the events
themselves. If anything, the hesitancy or lack of precise recall as to dates,
in my opinion, serves to strengthen the overall reliability and genuineness
of their testimony. It evinces on their part an admirable degree of cir-
cumspection and prudence and lends an unrehearsed air to their testimo-
ny. These minor disagreements between them are most natural consider-
ing the time lapse and nature of the events.
6 For instance. Respondent's counsel contended that Friewald was un-
worthy of belief in any respect because he is a warlock in the Church of
Satan. Counsel was permitted to question Friewald rather extensively
concerning his beliefs and practices within that church because of the as-
sertion by counsel that Friewald engaged in such unorthodox and bizarre
practices that his perception of reality is questionable. Although
Friewald's sincerely held religious beliefs and practices may be consid-
ered by many to be out of the mainstream of organized Western religion.
his testimony regarding the events in question was quite plausible and
consistent with that of other witnesses. In all respects Friewald appeared
to have complete command and control of his senses, he testified in a
lucid straightforward manner, and he was perfectly aware of his sur-
roundings. Finally he had been employed by Respondent for some period
of time. intrusted with the care of Respondent's property and materials.
and performed his job satisfactorily, notwithstanding his membership in
the said church of which Respondent had full knowledge. I reject coun-
el's contention that Friewald is unworthy of belief based soley on his
membership in the said church and his religious practices therein as com-
pletely unwarranted and without an, support in logic or law.
to employees that was posted in the plant;' and (2) two
speeches made by William Schwartz, Respondent's presi-
dent, shortly before the election which was conducted
on November 21, 1978. The notice, which on its face is
undated, is typed on Respondent's stationery and reads
as follows:
WHAT'S NEW AT RI.ACKSTONE
ADDITIONAI. HOI.IDAYS
WE ARE ADDING THE: FOI.I.OWING PAIl) HOI.I)AYS
TO OUR SCHEDUI.E FOR Al . EMPI OYEE S
YOM KIPPUR
WASHINGTON'S BIRHDAY
GOOD) FRII)AY
1.OOK FOR A PROFIT SHARING PENSION ANNUITY
BEFORE YE AR-END
we are working on this plan based on profits for
any employee not enrolled in some other form of
pension plan-look for details shortly.
The General Counsel asserts the notice was posted
during the union organizing campaign and therefore was
intended to discourage that activity. Respondent, on the
other hand, contends that it was posted prior to any
union activity of which it was aware and was not related
to such activity. Therefore, it is apparent that crucial to
the General Counsel's case is proof concerning the time
of its posting.
David Vance testified that his first awareness of the
notice was shortly after the September 1978 meeting at
McDonald's. Nagy's testimony on this matter was very
uncertain. He could not recall if he ever saw the particu-
lar notice or some other document like it. Nor was he
certain as to when he first saw any such document al-
though he believed that it was sometime after the peti-
tion was filed on September 28, 1978. Friewald testified
that he saw the notice perhaps 3 or 4 weeks before the
election, which would place it in early November. How-
ever, on cross-examination he testified that he had no
specific recall with respect to the time when it was
posted. Dafcik testified that he first saw the notice a few
weeks after he signed his union card, which would place
the timing in late September 1978. The only other wit-
ness questioned by either side with respect to the posting
of the notice was Schwartz himself, who testified that he
had it placed on the employee bulletin board in July
1978, prior to any union activity of which he was aware.
Thus, all the General Counsel's witnesses, while uncer-
tain of the date, place the period of posting as sometime
between early September and mid-November, which is
within the period covered by the union campaign. Al-
though the document itself was undated, Schwartz, who
did not explain this omission, was certain it was posted in
July because he linked the reference to the profit-sharing
plan to the fact that it had been under consideration
since June 1978 as evidenced by a letter dated June 30
from one John Collins, an insurance salesman. That letter
The complaint does not refer to the notice as such but this issue was
fully litigated iand briefed h Ilic parties
949
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refers to a meeting the previous day regarding the "pos-
sibility of installing a pension and/or profit sharing
plan," and states that Collins would "put together some
ideas" to accomplish that purpose. In addition, Respond-
ent argues that the order of holidays would indicate that
the very first holiday to be taken as a new one would be
Yom Kippur, which was celebrated on October 11, 1978,
thus indicating the notice could not have been posted
after that date. 8
While it is true that Schwartz had some communica-
tion with Collins regarding the possibility of instituting a
pension and/or profit-sharing plan, it does not necessar-
ily follow that the notice was posted on the heels of the
aforesaid June 30 letter. According to Schwartz, a
profit-sharing plan was not instituted until December
1978, and that plan is distinct from a pension plan. As
noted, the letter refers to the fact that there might be
either a pension or profit-sharing plan and that Collins
would submit further ideas. These circumstances hardly
support Schwartz' testimony and indeed warrant an in-
ference that by July 1, 1978, at least, the Company and
Collins had only just begun arrangements. When these
arrangements were completed is a mystery as Respond-
ent offered no evidence at all on that critical issue. Not
only is Schwartz' testimony silent, but records, which
certainly were available to Respondent and which would
have been far more persuasive than the June 30, 1978,
letter, were not introduced. I infer from such failure that
if the appropriate records evidencing the finalization of a
profit-sharing plan had been introduced they would have
been unfavorable to Respondent's case. See Whitin Ma-
chine Works, 100 NLRB 279, 285 (1952). Further, I deem
it unlikely that Respondent would have posted a notice
announcing that details of a profit-sharing plan would be
issued "shortly" a full 6 months before the plan became
effective, and where there is no showing that such details
ever issued. Finally, the unexplained fact that this notice
did not bear a date on its face, unlike another employee
notice posted on January 24, 1980, which is discussed
below, tends to suggest that the confusion generated on
this issue was not accidental. For all the foregoing rea-
sons I find the notice was posted in September 1978,
after Respondent knew of the union activity, as testified
to by Dafcik and Vance and not in July as testified to by
Schwartz. 9
Having found that the General Counsel has supported
his case with respect to the timing of that announcement,
the question remains whether its contents amounted to a
promise of benefits having the tendency to interfere with
employees' organizational rights. Improvements in such
basic terms and conditions of employment as holidays
and profit sharing in the midst of an organizing campaign
have long been acknowledged as violations of Section
8(a)(1) of the Act absent some legitimate explanation
therefor. N.L.R.B. v. Pyne Molding Corporation, 226 F.2d
818, 820-821 (2d Cir. 1955). Inasmuch as Respondent
" Dafcik and Vance of course placed the posting in September 1978. so
the force of Respondent's argument is unclear. I note, too, that, although
the General Counsel's witnesses are not uniform in their testimony.
Schwartz' testimony is not corroborated by any witness.
9 However, there is insufficient basis for holding that it was posted
after the filing of the petition.
argues that the grant of new holidays was announced in
July, a defense I have rejected, it does not, nor could it,
argue that such benefits were in preparation prior to the
advent of the Union and would have been granted not-
withstanding that activity. There being no other defense
offered with respect to this benefit, it follows that the
grant of such benefit in September 1978 had the imper-
missible tendency to interfere with the organizational ac-
tivity of the employees and thus violated Section 8(a)(1).
The announcement regarding the institution of the
profit-sharing plan, however, poses different consider-
ations, for it is Respondent's contention that, even if this
benefit was announced subsequent to the union activity,
it had been in the planning stages long before then, and
consequently was privileged. This argument also is ad-
vanced with respect to certain statements admittedly
made by Schwartz at two employee meetings conducted
prior to the election. The first meeting was held about 2
weeks before the election and the second meeting was 2
days before the same for the conceded purpose of per-
suading employees that they already enjoyed good bene-
fits. Schwartz testified that he had been thoroughly
coached by counsel to inform employees of existing
benefits and that he "could not offer anything other than
that." Thus, he told employees that they had a Blue
Cross and Blue Shield policy, life insurance, and that
work had been started on a profit-sharing plan in the
summer and "was being worked on at the time." He ex-
plained the difference between profit sharing and pen-
sions and the accounting procedure involved in making
the plan effective. He testified further that a profit-shar-
ing plan was put into effect before the end of 1978 and
that a pension plan has never been granted. Neither the
plan nor any of the documents leading to its approval
was offered in evidence. Since this announcement clearly
was timed to coincide with the election, Respondent's
defense that it merely was part of a listing of existing, or
preplanned, benefits requires resolution even if the notice
was posted in July. To support this defense Respondent
points to the following:
According to Schwartz, pursuant to advice from Col-
lins, a survey was conducted of employees to obtain such
census-type information as age, designation of benefici-
ary, social security coverage, etc. To accomplish this, a
form dated June 20, 1978, was filled out by employees at
or about that time. However, apart from that employee
form, and the June 30, 1978, letter from Collins,
Schwartz' testimony concerning the efforts undertaken
to institute a profit-sharing plan was extremely vague
and uncertain. Schwartz did not specify a single date for
any specific event in the ongoing process of planning and
devising a profit sharing plan for employees (the absence
of pertinent records is noted above). Nor did Schwartz
refute the testimony of various employees that, other
than the census information obtained in June and the
brief mention in the notice, they never were informed in
any respect whatsoever that a profit-sharing plan would
be instituted until the meetings prior to the election.
Even if Schwartz is credited that employees were in-
formed at the time of the survey that the information
was being obtained as a step in instituting a profit-sharing
950
BLACKSTONE COMPANY. INC.
plan, Respondent's own evidence makes it clear that in
June 1978, it had no idea what form of benefit, if any,
would be granted. Schwartz himself described the census
information as "one of the first things I have to do" and
stated that at the very most he informed the employees
that "we were in the process of putting together this
profit-sharing or pension plan whichever was more ad-
visable and that I needed this census information for the
company." The only notifications to employees thereaf-
ter is what appears in the notice, be it in July or Septem-
ber 1978, and what was stated at the preelection meet-
ings in November.
Yet, Respondent contends that the decision to institute
the profit-sharing benefit was made prior to any knowl-
edge of union activity; i.e., September 1978. If that was
the case, however, Respondent had almost a 3-month
period in which it could have informed employees of its
decision, including the particulars of the plan, pursuant
to the promise made in the September notice. to Not only
did it not do so, it has not so much as suggested a busi-
ness reason for delaying the announcement of the plan
until the pre-election meeting, or why it could not have
further delayed such announcement until after the elec-
tion. In view of the foregoing, I conclude that Respond-
ent has failed to prove by convincing, credible evidence
that the profit-sharing benefit as instituted in December
1978 was decided upon prior to its knowledge of the
union organizing campaign in September 1978, or that
the benefit came into existence prior to the announce-
ment in November. t t
Respondent also argues that no matter when the final
decision was made it legally was entitled to announce it
at the preelection meeting because clearly a benefit of
the same type had been under consideration since June
1978 or earlier. In support of this contention, Respondent
relies principally on Domino of California. Inc., 205
NLRB 1083 (1973), and Mr. Fine, Inc., 212 NLRB 399
(1974).12 The first case is factually distinguishable from
the matter at hand inasmuch as the announcement of in-
surance coverage there merely revealed the existence of
a benefit already enjoyed by employees even though
they had not been made aware of it. Here, of course, at
the time of the announcement the employees enjoyed no
such coverage. The second case also is factually inappo-
site. Although the employer announced a profit-sharing
plan during the union campaign, no violation was found
because the plan had been conceived, refined, prepared,
adopted, and submitted to the Internal Revenue Service
(IRS) for approval prior to the organizational activities.
It further was found that the announcement to employ-
ees was made shortly after approval was granted by IRS
and was linked to that event. Thus, the timing of the an-
nouncement was held to be innocent, particularly inas-
much as it was not coupled with any suggestion that sim-
"' If the notice was posted in July as Respondent contends. it kept its
silence to employees for 6 months, a rather odd procedure which Re-
spondent did not seek to explain
" At the preelection meeting, it will be recalled, Schswartz stated that
the plan was "being worked on
" Although Respondent asserts that the profit-sharing benefit eventual-
ly granted had been under consideration since June. such assertion is so
clearly erroneous that I have considered this argument a reaching the
actual circumstances of this case.
ilar benefits could not be provided through a union. As
found above, the record is absolutely silent as to the se-
quence of events dealing with the preparation. submis-
sion, and adoption of the profit-sharing plan in its final
form, and, as found below, the unmistakable message
conveyed at the meetings was that the employees did not
require a union to enjoy improved benefits.
The grant or promise of new benefits during an elec-
tion campaign has long been forbidden. "The danger in-
herent in well-timed increases in benefits is the sugges-
tion of a fist inside the velvet glove. Employees are not
likely to miss the inference that the source of benefits
now conferred is also the source from which future
benefits must flow and which may dry up if it is not
obliged." N.L.R.B. v. Exchange Parts Company, 375 U.S.
405, 409 (1964). Not all grants or announcements thereof
during an election campaign per se are unlawful, howev-
er. Rather the test is whether the employer has proceed-
ed as he normally would have done if the union had not
been on the scene. The Gates Rubber Company, 182
NLRB 95 (1970). If under all the circumstances it can be
reasonably concluded that the employer's conduct, be it
the actual grant of benefits or an announcement of new
benefits, is not pursuant to normal practices and prode-
dures but rather is related to the union activity of its em-
ployees, then it can be said that such conduct is calculat-
ed to interfere with the rights of employees to engage in
such organizational activity. I am convinced that the an-
nouncement of the profit-sharing plan in the September
1978 notice and the November 1978 meetings was not an
announcement that would have been made absent the
union activity at the time. Not only has Respondent not
linked the announcement to any factor inherent in the
plan itself, but Schwartz' speech in November was an
open effort to persuade the employees to vote against the
Union in the upcoming election. The linkage of the an-
nouncement of the profit-sharing plan to the election,
and not to any outside occurrence beyond the Employ-
er's control, is inescapable. I find, therefore, that, by its
promise of a profit-sharing plan in the September notice
and by the announcement of such a plan during the
course of the speech in which it was seeking to induce
its employees to reject the Union, Respondent violated
Section 8(a)(1) regardless of when it internally began to
give thought to such a plan or when it undertook the
preliminary measures demonstrated on this record.
American Freightways Co., Inc., 124 NLRB 146 (1959).'a
Respondent's lack of innocence in preelection cam-
paigning is further evidenced by a notice it posted to em-
ployees on January 24, 1980, during the pendency of
these proceedings, at which time the possibility of a
second election existed. In that announcement Respond-
ent stated:
: Even if Respondent had posted the notice in July. the evidence
would still support my finding a violation in November. It is clear that.
from the date of posting until the announcement at the preeleclton meet-
ing. employees, were not informed in any respect of the progress of Re-
spondent's itent Io implement such a plan. As discussed abose. the el-
dence fail, to disclose that Respondent engaged in an% ulch activities
beyond the initial steps tIlken ill June
951
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In our continuing effort to improve working con-
ditions, plant safety, and employee-company rela-
tionships, we are pleased to announce the formation
of an "Employees' Communication Committee."
This committee will be made up of three mem-
bers of the general work force who will meet with
company management to explore the above men-
tioned categories.
In order to get started, three employees will be
appointed for the first meeting. They will then set
up the mechanics for future meetings and how to
select members so that everyone gets a chance to
participate.
It is important that everyone get[s] involved-we
want to maintain our leadership in the industry not
only in production but in progressive management.
The announcement was over the name of William A.
Schwartz, president. The General Counsel expressly dis-
claimed a violation by the posting of this announcement
and stated that it was introduced only for the purpose of
showing Respondent's animus towards the Union. Re-
spondent objected to its introduction in evidence on the
grounds that it was remote to any of the issues in the
proceedings. In view of the General Counsel's express
disclaimer, I do not consider the matter to have been
fully litigated and thus a finding of a violation may not
be based on it. Nevertheless, it does disclose an attitude
by Respondent incompatible with the Act. This notice is
an invitation to employees to form their own in-house
union and is a patent and glaring attempt to solicit griev-
ances and offer benefits through discussions with such a
group which only could have the foreseeable effect of
inducing employees to repudiate the Union. Such con-
duct normally is viewed as a violation of Section 8(a)(l)
of the Act. N.L.R.B. v. Standard Oil Products Co., Inc.,
224 F.2d 465, 466 (Ist Cir. 1955), cert. denied 350 U.S.
902. The fact that this announcement was made just
prior to the very hearing on this matter involving as one
of its questions the propriety of the first election and re-
quiring a determination as to whether a second election
should be conducted because of Respondent's miscon-
duct hardly makes such new conduct remote. It long has
been established that an employer is barred from engag-
ing in conduct designed to improperly influence his em-
ployees' choice in a representation election whether it is
during the period of the initial election or during the
period when the objections are pending since the holding
of a second election is a possibility. General Teamsters
and Allied Workers Local Union No. 992, aff/w IBTC-
WHA [Pennsylvania Glass Sand Corporation] v. N.L.R.B.,
427 F.2d 582, 586 (D.C. Cir. 1970).
The General Counsel also alleges that at the preelec-
tion meetings Schwartz promised additional benefits and
threatened reprisals. In support of these allegations, testi-
mony was adduced from Vance, Nagy,'4 Friewald, and
Dafcik. The only item upon which these witnesses are in
agreement is that Schwartz asked the employees for time
and to give the Company a chance. '5 Beyond that, their
" Nagy alone attended both meetings.
' The Company had relocated to its present location in March 1978
and apparently underwent an expansion,
testimony is vague and uncertain, uncorroborated, or in
conflict. Thus, Vance and Nagy are the only ones who
had a vague recall of a promise of better wages; Vance,
Nagy, and Friewald recalled a promise of additional
holidays but Dafcik remembered that the reference was
to holidays already added (those instituted in the Sep-
tember notice); ' 6 all but Nagy recalled a clear future
promise of a profit-sharing benefit;"7 Nagy and Vance
testified to a promise of a pension plan although the lat-
ter's pretrial affidavit mentioned only stock benefits; only
Vance and Friewald testified to a promise of a dental
plan and the latter's pretrial affidavit mentioned only a
promise of profit sharing; and Friewald alone recalled a
statement, essentially retracted on cross-examination, to
the effect that unionization could result in a decline of
business as happened at another firm. While these wit-
nesses may have believed their testimony was accurate, I
hold that their recollections with regard to these meet-
ings are not sufficiently reliable so as to predicate find-
ings based thereon that the General Counsel has support-
ed with sufficient, probative, evidence the allegations
that Respondent, at these meetings, promised improve-
ments in benefits in the areas of better wages, a pension
plan, a dental plan, and stocks and threatened economic
reprisals. His comments regarding the profit-sharing plan
have been dealt with above. Concerning new holidays,
as I have found above that these were granted after the
union campaign for the purpose of thwarting that en-
deavor, the reiteration of that promise in the context de-
scribed is as unlawful as the initial announcement.
I do credit however that Schwartz made remarks the
sum and substance of which were that if the Company
were allowed to grow as a business it would remain
competitive in wages and working conditions.' 8 Al-
though both Dafcik and Nagy testified that Schwartz
said benefits would be granted whether the Union won
the election or not, the tenor of his remarks, e.g., need-
ing time to grow, a listing of the benefits already en-
joyed, etc., was that the Company could and would im-
prove benefits without a union. I certainly do not view
Schwartz' speech as urging a vote for the Union and 1
would be surprised if Schwartz thought that it was. But
these credited remarks of Schwartz, while perhaps sug-
gesting a promise of benefits to forgo union activity, are
expressions of opinion protected by Section 8(c) of the
Act. Gerry's Cash Markets, Inc., d/b/a Gerry's I.G.A., 238
NLRB 1141, 1153 (1978); Tommy's Spanish Foods, Inc.,
187 NLRB 235, 236 (1970).
B. The Discharge of Robert Nagy
Robert Nagy worked as a driver for Respondent from
September 1977 until his discharge on March 2, 1979, at
which time he was the second most senior driver. He
was active in the union campaign from its inception and
Ei This comports with the testimony oif Mark Manik, Respondent's wit-
ness
*; Schwartz and employee Max Cohen., also called by Respondent. tes-
tified that profit sharing was referred to as a benefit that the Company
then was working on.
'" Aside from the testimony of the General Counsel's fur itnesses.
Manik and Cohenr also testified that Schilsarlz. swhile not promising any-
thing. did sN the Companly aould remainll competitive in these areas
952
BLACKSTONE COMPANY. INC.
in time became a leading figure if not the prime mover in
the organizational campaign. He met on numerous occa-
sions with union organizers at his home and and at res-
taurants, he solicited cards from employees around the
plant premises, he served on an employee organizing
committee, and he, together with Dafcik, spearheaded
the union activities. As found above, Nagy and Dafcik
were accused by Swerdlick of having passed out union
cards in the parking lot. In addition, Nagy credibly testi-
fied that shortly before that incident Swerdlick had
asked him, one morning as he was preparing his truck, if
he was feeling well. When Nagy replied affirmatively,
Swerdlick commented to the effect there was a "[U]nion
fever" which had not been cured. Nagy protested that
he was not involved, to which Swerdlick replied that ev-
eryone was involved. This interrogation constitutes an
additional 8(a)(1) violation. Also as found above, Nagy
and Dafcik were confronted by Swerdlick on another
occasion in the men's room about their union activity.
Therefore, it is perfectly clear on this record not only
that Nagy was actively involved in the union organizing
campaign but that Respondent was well aware of that
activity, at least from September 1978, and was dis-
pleased by it.
On February 27, 1979, Nagy was told by Respondent
(either by Schwartz or William Bostick, shipping man-
ager and an admitted supervisor of the drivers) that he
was being suspended for theft pending an investigation. 9
On Friday, March 2, 1979, Nagy was fired by Schwartz.
The complaint states it was on March 3 and Nagy placed
it on that date. However, Nagy was not certain of dates
generally or of this date in particular and therefore I find
that Schwartz, who was certain of the date and who pre-
sumably had checked company records, is correct. In
any event, it is undisputed that Schwartz told Nagy he
was being fired for stealing materials from Respondent.
At the hearing, Schwartz testified that the only reason
for the discharge was Nagy's theft of Respondent's win-
dows and his theft of a droplight from a jobsite where
Nagy had made deliveries on February 26. However, at
the hearing counsel for Respondent asserted that there
were numerous reasons for the discharge although they
had not previously been made known.2 0 These reasons
included: (1) helping other employees steal materials; (2)
submitting false gas receipts for reimbursement by the
Company; (3) offering gas station attendants marijuana
cigarettes in return for false gas receipts; (4) threatening
to pound Bostick's head in the snow; (5) planning to
have Bostick's legs broken by someone else; and (6)
smoking marijuana while driving the company truck. In
his brief, counsel for Respondent abandons these six alle-
gations and, consistent with Schwartz' testimony, states
that Nagy was discharged for theft. Alternatively, Re-
" Nagy believed he was so informed by Sch. sartz Schwartz and Bos-
tick testified that although Schwartz authorized the uspension. Bostlck
actually communicated this to Nagy. I do not consider this to be a criti-
cal area of dispute and find it unnecessary to resolve this conflict
2" Counsel for Respondent raised these defenses during the course of
Nagy's cross-examination when he asked questions about a series of al-
leged misdeeds Counsel for Respondent assured the Administratlixe Law
Judge that each and every item alluded Io constituted one of the reasons
for Nagy's discharge and that proof swould be presented on all of them
spondent argues that at the very least it had a reasonable
basis for believing that Nagy was a thief.2
Before considering Respondent's defense, the initial in-
quiry under the Board's Wright Line test"" is whether the
General Counsel has made a prima facie showing to sup-
port an inference that Nagy's protected conduct was a
motivating factor in his discharge. In my opinion there is
substantial evidence on this record to support such a
finding. Nagy was a vocal and active union supporter
who distributed union cards and literature to employees
at the plant, union meetings were conducted in his home,
and it was he, together with Dafcik, who led the em-
ployee organizing drive for the longest period of time.
His union activity was known to Respondent at least
since early September 1978 as evidenced by Swerdlick's
coercive remarks made directly to Nagy and Dafcik
seeking to dissuade them from their union activity. In ad-
dition, Respondent has demonstrated, by various acts and
conduct in violation of Section 8(a)(1), that it was hostile
to the union activity of its employees and more particu-
larly blamed Nagy in part for that activity. Respondent
argues that, because the discharge came some 4 months
after the filing of the petition and more than 3 months
after the election, its remoteness in time from the union
activity therefore militates against the finding of a viola-
tion. This argument fails to recognize that another elec-
tion was likely inasmuch as objections were pending
which could be resolved only after a hearing.23 Thus,
timing is a significant element in concluding that union
activity was a factor in the discharge. If there be any
doubt, it is resolved by Schwartz, who testified that
Nagy's union activity was a matter of concern to Re-
spondent in considering whether he should be dis-
charged, and for that reason the advice of Respondent's
counsel was sought. As Schwartz put it, he was "very
sensitive to the position we were now in after the certifi-
cation election."
In view of Schwartz' testimony that the only reasons
for the discharge were Nagy's theft of a droplight be-
longing to a contractor and theft of windows belonging
to Respondent, and in view of the post-hearing brief
2 It appears that the various other misdeeds catalogued above now are
relied upon by Respondent to demonstrate that. inasmuch as it had a le-
gitimate basis many times for discharging Nagy in the past and did not
do so. it follows that when it finally discharged him for "theft" it as
motisated solely by that last misdeed and not by his union actisit) This
argument will he discussed below It is noted. however that during Bos-
tick', direct examination counsel for Respondent specifically disclaimed
item four as a reason for the discharge and stated that it was introduced
for credibility purposes only. Similarly, while adducing testimony from
Rizzo on direct examination regarding item two. counsel for Respondent
disclaimed that as a reason for discharge the. asserting that such etimo-
ny also was introduced for credibility purposes. Nagy denied all six alle-
gations.
Wrighr Line, a Divivton of Wright Line. Inc.. 251 NLRB 1083 (1980)
1On January 17. 1979. the Acting Regional Director for Region 22
issued a Report on Challenged HalIlots ad )hjections in which. inter ulia,
he rcommended that a hearing be conducted on the objections and that
it be consolidaled with the hearing to be held on the unfair labor practice
complint issued in Case 22-CA-88(X) beciuse both matters had suhbtanl-
tlal issues in common. Therefore, unless Respondent was willing to settle
1he ulilfair labor practices and to consent to a second election, it knew
that hearing wsould he conducted anld that it econd electiott n ight he
ordered. IIn aty event. the election proceeding ailas a ster lie issue at
Ihe Itrie f the dcharge
953
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adopting these reasons, I shall turn to the allegations of
theft in order to decide whether Respondent has estab-
lished its primary defense; namely, that Nagy was a thief,
or alternatively that it had reason to believe so. The trig-
gering events upon which Respondent bases its defense
began on February 26, 1979, when, according to Bostick,
he received a telephone call from a contractor at a job-
site where Respondent had made a delivery that day
complaining that a droplight (a light bulb at the end of a
long electric cord) had been stolen by one of Respond-
ent's drivers.24 Bostick ascertained that the delivery had
been made by Nagy, who was accompanied by a helper,
Casimar Volosyn. Later that afternoon Bostick spoke on
the telephone to Volosyn, who said that he could not
talk because Nagy was close at hand. The next morning
when Volosyn arrived at work Bostick renewed the dis-
cussion. He asked Volosyn what he knew about a miss-
ing droplight, and when Volosyn allegedly told him that
Nagy had stolen it he immediately reported the incident
to Schwartz. Bostick and Schwartz testified that it was
decided Nagy should be suspended pending an investiga-
tion of the theft of the droplight, which, as noted above,
was done.
Schwartz testified that he immediately telephoned Re-
spondent's counsel for advise on how to proceed because
of his concern regarding the election matter. On coun-
sel's advice that he obtain a sworn statement, Volosyn
was interviewed by Schwartz and a statement was typed
by Schwartz' secretary and sworn to by Volosyn. In the
statement, Volosyn swore that at a jobsite in East Bruns-
wick, New Jersey, he "witnessed the theft of an electri-
cal drop light with approximately 20-25 feet of extension
line. The drop light was taken by Robert Nagy the
driver for Blackstone Company, Inc., from the premises
of 322 Jefferson Avenue, North Plainfield, New Jersey
on the north side of State Highway 22." He further
stated that they were there to deliver a door unit for Del
Cap Builders, Inc.25 At the hearing Volosyn testified that
he was interviewed by Schwartz but could not recall
who actually prepared his statement. He further testified
that he did not actually see Nagy take a droplight, as as-
serted in his affidavit, and what actually happened is as
follows: After the delivery had been made Nagy, with
Volosyn at his side, drove the truck off the jobsite and
stopped about 1,000 feet down the road. Nagy stepped
out of the truck, reached in back of the driver's seat
from where he produced a droplight, and said, "I want
to show you this." Volosyn asked where he had gotten
it, to which Nagy replied he had taken it from the job-
site. Volosyn could not explain why his sworn statement
to Schwartz states that he witnessed the theft and why it
did not describe the actual occurrence as testified to at
the hearing. However, Volosyn testified that the version
at the hearing was the version given to Schwartz, a com-
munications failure not explained by Schwartz either.
" All conversations between Bostick and Schwartz, on the one hand.
and the alleged contractor from whom the droplight allegedly was stolen
and other persons allegedly witnessing thefts. on the other hand, were re-
ceived in evidence soley for state-of-mind purposes and not to establish
any "theft" or other "fact" allegedly asserted by said contractor and
others.
2 Del Cap was Blackstone's customer. The droplight allegedly was
owned by some other contractor on that jobsite.
Volosyn further testified that later that same day Nagy
was in the process of stealing a pump from a jobsite
when Volosyn called to his attention the fact they were
being observed, at which point Nagy returned the pump.
Volosyn also testified that on a number of earlier occa-
sions Nagy had expressed to him an intent to steal other
materials but had refrained from doing so because Volo-
syn was opposed and told Nagy that Volosyn did not
want to know about such things and did not want to get
involved. There is no testimony that Volosyn informed
Bostick or Schwartz, on February 27, of these additional
attempted thefts. Nagy categorically denied that he stole
a droplight, that he showed a droplight to Volosyn, that
he spoke to him about a droplight, that he attempted to
steal a pump, or that on other occasions he had ex-
pressed a desire to steal.
On February 28, 1979, Schwartz obtained another
sworn statement from employee Jeffrey Prell asserting
that on January 24, 1979, while working as a helper for
Nagy, he witnessed Nagy steal 12 pieces of lumber, 2 by
4 feet, and transport them to his home where he unload-
ed them into the basement, at which time Nagy pointed
out a large supply of windows which he admitted he had
taken from Respondent at different times. Prell testified
that he reported the theft to a fellow worker, Jeffrey
Barkaszi, who in turn told Bostick, and that it was Bos-
tick who, on February 28, asked him to sign the state-
ment for Schwartz. Prell's explanation was not corrobo-
rated by Bostick, who testified that the reason he re-
quested a statement from Prell was that Volosyn had in-
formed him that both Prell and Barkaszi had information
to offer concerning Nagy's thefts, an assertion not sup-
ported by Volosyn. For that reason Bostick stated, he
asked Prell to see Schwartz on February 28, and asked
Barkaszi to meet with Schwartz on March 2. Barkaszi,
however, corroborated neither explanation. He testified
that somehow he heard Volosyn had given an affidavit
to the Company, which prompted him to volunteer his
own statement. He denied that Bostick requested the affi-
davit or that he had even spoken to Bostick about the
information contained in it. Barkaszi portrayed himself,
Prell, and Volosyn as a group opposed in some way by a
group consisting of Nagy, Dafcik, and Friewald.
In Barkaszi's affidavit given to Schwartz on March 2,
1979, he states that, in late January 1979, Nagy admitted
to him that "he had been removing materials and equip-
ment from job sites" and "removing windows from the
Blackstone plant for his own use." Further, while at
Nagy's house he was shown a supply of cinder blocks
and a wheelbarrow which Nagy had removed from job-
sites. In addition, Barkaszi states that Nagy informed him
he would begin removing door units from Blackstone for
his personal use. Finally, the Barkaszi affidavit states that
on February 14, 1979, he observed Nagy ask for a false
gas receipt in the value of $20 at a Hess gasoline station
in exchange for a marijuana cigarette. Nagy denied all of
Barkaszi's assertions of wrongdoing.
Backtracking a bit, upon the suspension of Nagy,
Schwartz pursued the investigation by notifying the East
Brunswick, New Jersey, police department of the allega-
tions against Nagy and giving that organization the Prell
954
BLACKSTONE COMPANY. INC.
and Volosyn affidavits. Detective John Soke of the East
Brunswick, New Jersey, police department, who referred
to his official file while testifying and whose testimony is
fully credited, stated that, upon a complaint made by
Schwartz, supported solely by the two employees' state-
ments, he conducted an investigation. 26 Without prior
notice, he and another detective visited Nagy at his
home on March 2, 1979, and advised him of the nature
of the complaint. Nagy readily consented to their request
to search his home notwithstanding that no warrant was
produced and that Nagy had not consulted an attorney.
The detectives searched the basement and did not find
any of the allegedly stolen items: i.e., a droplight, win-
dows, cinder blocks, or lumber. Soke did notice a few
odd pieces of lumber which had been cut from larger
pieces and asked Nagy how he had obtained them. Nagy
replied he had removed them from construction sites
with the permission of the job superintendent. Detective
Soke told Nagy he would like to continue the investiga-
tion at police headquarters and as a consequence Nagy
visited the station later that day where he was shown,
for the first time, the Volosyn and Prell affidavits. Nagy
denied any knowledge of the thefts attributed to him in
those statements and could not explain why the two indi-
viduals would have made such statements accusing him.
He did express the belief, however, that Respondent had
lodged a complaint because of his union activity. Nagy
consented to a lie detector test, but a few days later
when Soke phoned to arrange for the test Nagy de-
clined, stating he had been fired in the interim and thus
saw no reason to continue with the investigation. In all
material respects, Soke's testimony is confirmed by
Nagy.
Soke also testified that he telephoned Schwartz peri-
odically to advise of the progress of the investigation,
and that he made a final report to Schwartz that the in-
vestigation had failed to uncover any proof of theft and
that none of the allegedly stolen property was found in
Nagy's residence. He further advised Schwartz that he
could pursue the matter with a formal complaint but that
as far as the police authorities were concerned the case
was closed because there was no evidence to support a
finding of reasonable cause to believe Nagy engaged in
theft. He also informed Schwartz that, because certain of
the alleged thefts occurred outside the jurisdiction of the
East Brunswick, New Jersey, police department,
Schwartz could refer the matter to the police depart-
ments having jurisdiction.27 Schwartz was not certain of
the date he received Soke's final report, but nevertheless
on March 2, 1979, Schwartz fired Nagy, informing him
that the reason was his theft of windows from Respond-
ent. Schwartz also testified that Nagy offered to return
the windows in return for a promise not to prosecute, an
exchange offer denied by Nagy. I do not credit
Schwartz, particularly as it would have been highly un-
likely for Nagy, who had already undergone a police in-
vestigation during which no stolen items were recovered,
to have made such an offer.
!6 Schwartz testified he told Soke all he knew about the droplight If
by that SchHwartz meant to imply he reported the information allegedl
given by the contraclor. it is not credited
7 Schwartz did not pursue Soke's suggestion
It is my opinion that on this record Respondent has
failed to support its defense that Nagy was a thief or that
it was reasonable for Respondent to have such a belief.
The defense rests exclusively on the alleged admissions
made by Nagy to Voloysn. Prell, and Barkaszi, admis-
sions which Nagy denied. There is no independent evi-
dence supporting the various allegations. and indeed
there is no convincing evidence that anything at all was
stolen, let alone by Nagy. Thus, although the major
"theft," i.e., the only one mentioned in the exit inter-
view, involved Respondent's windows, Respondent made
no effort to demonstrate that such items actually were
removed without authorization either from its plant or
from customers. Surely, a "large supply" of missing win-
dows (Prell's language) would have been noticed by Re-
spondent if taken from the plant, or if stolen from job-
sites there would have been a need to resupply the cus-
tomer. With respect to the case of the droplight again
there is no evidence that such a light was stolen or that
such a light even existed apart from Nagy's alleged ad-
mission. Although it allegedly was stolen from an electri-
cal contractor, neither Bostick nor Schwartz could readi-
ly recall the name of the contractor, and, although
Schwartz claimed to have received a $13.94 bill from the
contractor for the light and to have paid it, no convinc-
ing records were introduced to establish these facts.
And, finally, the failure to call the contractor, or to ex-
plain such failure, to establish the fact of a stolen light
and the report thereof to Respondent, under all the cir-
cumstances, is a serious weakness in Respondent's case. 21
While it is doubtful that such evidence would have been
conclusive on the issue of Nagy's guilt, it clearly would
have been circumstantially significant.
This brings us then to the reliability of the admissions
and to the clear and direct conflict in credibility that
exists between Nagy on the one hand and Prell. Volo-
syn, and Barkaszi on the other. For many reasons, in-
cluding the improbability that Nagy would jeopardize
not only his livelihood but his very freedom by gratu-
itously admitting a series of thefts to three individuals
who were, if not antagonistic, certainly not friends of
his, I credit Nagy that he did not steal the items attribut-
ed to him, and did not make such admissions of theft to
Prell, Barkaszi, and Volosyn. This is particularly true in
Volosyn's case where by his own testimony he previous-
ly had warned Nagy not to involve him in illegal con-
duct. However, such finding does not put an end to Re-
spondent's defense because it also contends that even if
Nagy did not steal, it acted on a good-faith belief that he
did. While it is true that such a defense would, under
proper circumstances, rebut the General Counsel's prima
facie case, I conclude here that Respondent could not
have formed such a good-faith belief. Rather. its entire
course of conduct demonstrates a determination to rid
itself of a vocal union adherent by reliance on a flimsy
and transparent house of cards which does not withstand
close scrutiny.
The failure of Respondent to support its essential claim
that there were indeed missing items is but one of the
- Rcp,pondetll pecificll l decliied the (itlenerl (ounel', requetl
during he oitlrc of the hearing Io pr ..duce e11 cnrracor
955
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
missing links. An even more glaring gap in Respondent's
entire defense is its own actions at the time Nagy was
suspended. He was told quite clearly that he was sus-
pended pending an investigation of theft. At the time it
already had the Prell and Volosyn affidavits and Barkas-
zi's was not obtained until the day of discharge. The
only further investigation thus undertaken was to call in
the East Brunswick, New Jersey, police department, on
its surface a very prudent act. Yet that very investiga-
tion, upon which Respondent said it would await before
acting on the discharge, established no basis for believing
that Nagy had stolen and in fact exonerated him. Armed
with that knowledge, and while declining to pursue the
matter further with the police although invited to do so,
Respondent then discharged Nagy based on no more
damaging information than it had prior to conducting the
investigation. The obvious question then is why suspend
Nagy pending an investigation which is to be ignored?
The answer, inferable from the evidence, is that Re-
spondent merely was seeking to create an air of legitima-
cy to its predetermined decision. My conclusion is not
affected by the implication in Schwartz' testimony that
he may not have received Detective Soke's final report
until after March 2. If that be true then Schwartz stands
in a harsher light for having acted in the middle of an
investigation which he had initiated. Either way, the in-
vestigation was instituted by Schwartz without a genuine
desire to abide by the findings.
The defense of a reasonable belief that Nagy stole is
further invalidated upon examination of the circum-
stances surrounding the contents of and the way in
which the three affidavits were secured. Volosyn testi-
fied that he told Schwartz that his knowledge of Nagy's
theft came from the asserted admission by Nagy. Never-
theless, Schwartz prepared an affidavit for Volosyn as-
serting that the latter had actually witnessed Nagy steal.
One need not be Sam Spade to know the damaging
effect of an eyewitness account as opposed to the vaga-
ries inherent in a "confession." Again, I believe that this
was part of Respondent's effort to buttress an insufficient
defense. Additionally, it seems apparent from the con-
fused and conflicting versions given by Bostick, Prell,
Volosyn, and Barkaszi as to the circumstances under
which each was requested or volunteered to give the in-
formation that Respondent's pose as an innocent receiver
of incriminating information cannot be accepted at face
value. 29 In reaching these conclusions, I find in unneces-
sary to consider why the three employees acted as they
did or what response, if any, their actions generated in
Nagy, Dafcik, and Friewald, matters that were the sub-
jects of considerable conflicting testimony in their own
right. 30
In sum, Respondent seeks to justify its discharge of
Nagy by seizing upon transparently unreliable evidence
while simultaneously ignoring the most reliable evidence
presented to it; namely, the police department report.
"' I have cnrsidered the doubtful veracity of Respoldcilt's case cx-
pressed hcre in crediting Nagy oiver Volosyn. t'rell. id Iarkalswi regard-
ing the alleged admissions, as discussed abosc.
" It is of passing interest to note that Vlosyl wias nlade foreman ald
then supervisor with a substantial raise il pax shortls aicr ie gase is
affidavit Io Schlsalrl.
When this is coupled with its failure to afford Nagy the
same opportunity to clear himself by sworn affidavit as
was given to his accusers, and in consideration of the
shifting reasons for discharging Nagy as detailed above, I
cannot accept that Respondent would have discharged
Nagy in the absence of his protected activity.:" There-
fore, I conclude that the discharge of Nagy was in viola-
tion of Section 8(a)(3) and ( I ) of the Act.
C. The Discharge of Kevin Mofflar
Moffat was hired by Respondent on August 21, 1978,
as a driver at $4 an hour and I week later he received a
raise to $4.50 per hour. On September 21, 1978, Bostick
fired him telling him that he was being laid off for lack
of work. Moffat attended the union meeting at McDon-
ald's on September 8, 1978, where he signed a union
pledge card. As more fully described above, Respondent
learned of Moffat's union activity, and Swerdlick ac-
cused him of joining the Union, and threatened him that
unionization would mean a loss of business and the
newer employees would be fired first. Respondent also
concedes that the reason communicated to Moffat for the
discharge was not truthful and that the real reason for
Moffat's discharge was poor work performance. Al-
though Moffat was not significantly active in the union
organizing campaign he did sign a card and was one of
only a handful of employees whom Respondent knew for
sure had joined the Union, an act resulting in a direct
threat of discharge. These circumstances, when coupled
with Respondent's demonstrated hostility towards the
Union, including its commission of numerous 8(a)(1) vio-
lations, are more than sufficient to support a prima facie
holding that Moffat's discharge was in reprisal for his
union activity.
Respondent defends this 8(a)(3) allegation on the
grounds that Moffat was terminated because of poor
work performance. Initially, I consider Respondent's ex-
planation for Bostick's having given Moffat a false
reason for his discharge; i.e., lack of work. Bostick testi-
fied that this was done at the specific request of Moffat
in order to permit him to collect unemployment insur-
ance, a claim disputed by Moffat. I am unable to credit
Bostick's testimony in this regard. Not only did Moffat
impress me as a more credible witness on this point, but
I previously have found Bostick's testimony not reliable
in other critical areas. Further, I find this particular testi-
mony most unlikely in light of Bostick's concession that
it was not his practice to accede to an employee's re-
:" Shifting reasonrs are well rcuogized as importilnl factors iIl dter-
nuninig lmotivse iI 8(a)(3) case Rs lig. Inc.. 253 NL RB
7
7 (198t) In
ligblt of Rcplondllnl's fina;ll prsitioul oni the reason for Ihv dischairge it s
ulnnecessary to decide if' Nagy cmrnlitted ;Liay or ill of the six additioral
allCegations of ronlgdo(ilg itemized abih c Nor ;ire these allegations rcle-
x;lrt to Respoindel s argulilcell. i tenlulous lire at best. t}h;lt t1e failure to
dischLarge Nag) earlier proscs iii illicer r rotl icrric hielr. thail; argillllle is
built n quicksand because there ilbsllutcls' is llo s10r i that such iof
fe cses. singly or iII ar corrbirllnlltio l thcretof. aiutoMrilricalill %u ld hasc
resultel in dischlarge. hat tcihe' prohibl ldid not iiariabl5 reult ll is-
charge i suggcstcd hb the qllis elrlun ill R espoPllidcil
'
s presetilltoll of'
t1re case tili evidence Eas olfferred on two of te itcins for credilhi
purposes lnlly. lu Io nm llnti lllon Ih prohlel. i , . li rcllise ic lltrlls of a
IlUillttuu Ielf shifftinlg deCtices, illuslrliltCs ils scop arid il t cuorrctlIess if
the iflorsaid tBoLaird pstliou.
95
BLACKSTONE COMPANY, INC.
quest for layoff status when it was not true, particularly
as he was aware of the fact that such action, which
would permit an employee to collect additional unem-
ployment insurance, could have an adverse economic
impact on the Company's insurance rate. I am not per-
suaded that Bostick made an exception, something he
claimed he did from time to time as a whim, for Moffat.
Thus, as in Nagy's case, Respondent again has asserted
shifting reasons for the discharge of Moffat therefore
suggesting that the real reason lies elsewhere. Under the
circumstances detailed above, the inference is warranted
that the other reason was Moffat's union activity.
Nor do I find sufficient credible testimony to support
Respondent's claim that Moffat was discharged for poor
work performance. Bostick testified that his decision to
discharge Moffat primarily was based upon reports he
received from Prell, Barkaszi and another driver, Steven
Nemeth, each of whom observed Moffat and reported
that he was a poor driver and poor worker. Barkaszi,
who began work as a driver for Respondent in May
1978, testified that Moffat had difficulty working as
either a helper or a driver, particularly when driving in
reverse gear, and that he so informed Bostick, although
the record does not disclose when this occurred. Mof-
fat's undenied and credited testimony was that he had
worked alongside Barkaszi on many occasions and was
not made aware of any particular deficiency in his driv-
ing abilities by Barkaszi or Bostick. Moffat did acknowl-
edge experiencing some driving difficulties in the begin-
ing, but I credit his explanation that they were insignifi-
cant and of a kind that might befall any new driver.
Prell testified that Moffat worked as his helper in an
unsatisfactory manner on a few occasions. However,
Prell placed these problems at the very start of Moffat's
employment and he made his report to Swerdlick, not
Bostick. Swerdlick, on the other hand, testified that he
received reports from Barkaszi and Nemeth. Once again,
there is utter confusion as to how, and to whom, em-
ployees reported on one another. The most compelling
evidence supporting Respondent's case is that based on
Nemeth's testimony. Nemeth, a senior driver, testified
with some certainty and with credibility that he was
asked by Bostick in Moffat's third week of employment
to evaluate his driving ability. Nemeth rode with Moffat
and advised him that he was being observed. Nemeth
concluded that Moffat was a poor driver who used ex-
cessive speed considering the weight of the loaded truck.
Upon returning to the plant, Nemeth told Bostick that
Moffat would not make a satisfactory driver or loader.
Despite all of Moffat's alleged shortcomings as a worker,
the only incident recorded in Respondent's records re-
lates to an incident late in the afternoon of September 15,
1979. Moffat admitted he was taking a break and had
parked the truck in a shopping center when Schwartz
happened by. Schwartz testified that he observed the
driver, who he did not know by name at the time, drink-
ing soda and not working for about a half hour. It is un-
disputed that he spoke to the driver and told him only
that he was due back at the plant. Schwartz contacted
Bostick and a note was placed in Moffat's file to the
effect that he had taken excessive time on the delivery.
Schwartz conceded that at the time he spoke to Moffat
he did not reprimand him, he did not consider this a
major offense, he did not thereafter discuss this matter
with Moffat or with Bostick, and he played no role in
the decision to discharge Moffat. It is clear therefore that
this one incident some 2 weeks prior to the discharge
was not the reason for the discharge although Respond-
ent asserts that it was a factor in concluding that Moffat
could not perform the work. In my opinion, Respond-
ent's reliance on this incident serves only to demonstrate
the weakness of its defense. 2 Drivers, including Barkaszi
and Nemeth, testified that taking a break in the afternoon
was common practice; that most drivers considered work
after 4 p.m. to be overtime; and that. although Swerdlick
had mentioned his opposition to these breaks a number
of times, all of the drivers continued to take a late after-
noon break and doing so was not considered a major
rule violation. Indeed, the rule, if it could be called that,
was honored more in the breach than in the observance.
For example, Nemeth, who was the most senior driver
having 4 years of service, testified that there was no es-
tablished company policy with respect to the number of
breaks a driver was permitted to take and that normally
all drivers did take two breaks a day. Finally, to demon-
strate that Moffat's discharge was not an extraordinary
occurrence and was in keeping with legitimate business
practice, Respondent points to the large turnover it was
experiencing during this time of expansion and the fact
that Bostick fired approximately 10 drivers and 13 ware-
housemen for poor work performance during the period
from about August 1978 through the end of 1979.
Although Respondent has shown that it had a practice
of discharging employees for poor performance, I con-
clude that it has not sustained its burden of establishing
that Moffat fell within that group of poor workers so
that he would have been fired in the absence of his
having engaged in protected activity. Thus. while Ne-
meth's report was an unbiased and credibile one, its
value is diminished by the remaining support to Re-
spondent's case which is unreliable, vague, and suspect,
and almost nonexistent. Counterbalancing the effect of
the Nemeth report is the compelling evidence of Re-
spondent's hostility towards the Union and Moffat's in-
volvement in it and the shifting reasons given for the dis-
charge. It is my conclusion that Respondent utilized the
Nemeth evaluation to rid itself of a union activist in the
hope that, by discharging a relatively new employee, its
discriminatory motive would not become apparent. Ac-
cordingly, I conclude that the discharge of Moffat was in
violation of Section 8(a)(3) and (1) of the Act.
ll. 'TlH OJECTIONS TO THE El C l [ON
As already stated, the Union on November 29, 1978,
filed timely objections to the election alleging, inter alia,
that Respondent by Swerdlick unlawfully interrogated
employees, an allegation coextensive with certain allega-
tions in the consolidated complaint. It long has been
Board policy that the critical period for assessing objec-
:- Respondent clearly could not sustain the lack-of-work defense hich
was given to Moffat upon his termination. The Company was expanding
and lne drivers ere constantly being hired before and after Moffat's
lerminatl on
957
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tionable conduct falls between the date of the filing of
the petition and the holding of the election. In the instant
case that period runs from September 28 to November
21, 1978. It has already been found that Respondent
committed numerous violations of Section 8(a)(l) in that
period by the following conduct:
(1) Swerdlick's refusal in early October 1978 to consid-
er Dafcik's request for a wage increase until after the
union question was resolved.
(2) Swerdlick's threat to Nagy and Dafcik in the men's
room in early October 1978 to the effect that Respond-
ent would go out of business if the Union were success-
ful.
(3) Swerdlick's interrogation and warning to Friewald
in late October 1978 that he was to ignore the union
campaign and stay away from his friends who were
active in the Union.
In addition, I have concluded that Schwartz, at the
employee meetings in the 2 weeks prior to the election,
unlawfully announced the grant of a profit-sharing plan
and reinforced his prior unlawful announcement of addi-
tional holidays. It follows that by the foregoing unlawful
conduct Respondent also interfered with the election,
and it will be recommended therefore that it be set aside.
Playskool Manufacturing Company, 140 NLRB 1417
(1963).
Of the Union's four objections only the specific allega-
tions of unlawful interrogation were coextensive with
any allegations in the consolidated complaint. Two ob-
jections related to allegations of unlawful discharge of
two individuals with respect to whom no 8(a)(3) viola-
tions have been alleged in the matter before me. Conse-
quently, it is recommended that those two objections be
dismissed. The remaining objection alleged that Swerd-
lick negotiated a private agreement with employees con-
ditioned upon the Union's losing the election. This con-
duct was neither alleged in the consolidated complaint
nor litigated before me. Consequently, I recommend that
this objection be dismissed. With respect to the various
8(a)(1) violations enumerated above as forming the basis
for invalidating the election, I note that, although many
of these violations were not specifically asserted by the
Union in its objections, it is a longstanding policy of the
Board to set aside elections based on improper conduct
even though such conduct was not the subject of a spe-
cific objection. See American Safety Equipment Corpora-
tion, 234 NLRB 501 (1978).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and the Union is a labor organization within the meaning
of the Act.
2. Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act by:
(a) Interrogating its employees about their own union
activity and the union activity of their coworkers.
(b) Creating the impression of surveillance of its em-
ployees' union activities.
(c) Threatening its employees with plant closing, loss
of employment, and discharge if they engaged I, union
activities or supported the Union.
(d) Warning its employees to refrain from union activi-
ties and not to associate with union members or support-
ers.
(e) Refusing to consider requests for wage increases
because of its employees' union activities.
(f) Promising profit sharing and additional paid holi-
days to induce employees not to support the Union.
3. By discriminatorily discharging employees Robert
Nagy and Kevin Moffat because of their activities in sup-
port of the Union, Respondent has committed unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. Respondent did not engage in unfair labor practices
other than those found herein.
6. The Union's objections have been sustained by the
evidence and Respondent thereby has interfered with
and illegally affected the results of the Board election
held on November 21, 1978.
THEI RtEMi:t)Y
Having found that Respondent has engaged in certain
unfair labor practices, it shall be recommended that it
cease and desist therefrom or from engaging in any like
or related conduct, and that it take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discharged Robert Nagy
and Kevin Moffat in violation of Section 8(a)(3) and (1)
of the Act, I shall recommend that Respondent be or-
dered to offer them full and immediate reinstatement to
their former jobs or. if these jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority and other rights and privileges previously en-
joyed, and to make them whole for any loss of earnings
they may have suffered from the date of their respective
discharges to the date of Respondent's offers of reinstate-
ment. Said loss of earnings shall be computed in the
manner set forth by the Board in F. W. Woolworth Com-
panyv, 90 NLRB 289 (1950), together with interest there-
on as computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977). 3 3 Payroll and other
records in the possession of Respondent are to be made
available to the Board or its agents to assist in such com-
putation. Although the unfair labor practices herein are
most serious, the record does not reflect that Respondent
has a proclivity to violate the Act or has engaged in
such egregious or pervasive misconduct as to warrant a
broad remedial order. Accordingly, I shall recommend
the narrow injunctive language "in any like or related
manner." See Hickmort Foods, Inc., 242 NLRB 1357
(1979). Further, having found that the Union's objections
have been sustained by the evidence, I shall recommend
that the election held on November 21, 1978, be set aside
and a new election be ordered by the Regional Director
as soon as feasible.
:':' Sec. genierally. I Plumtnhig d Iliauing (o,., 138 NLRI 716 (1l162)
BLACKSTONE COMPANY. INC.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 34
The Respondent, Blackstone Company, Inc., East
Brunswick, New Jersey, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discharging, laying off, or otherwise discriminating
against employees in regard to their hire or tenure of em-
ployment or any term or condition of employment be-
cause of their activities on behalf of Teamsters Local
Union No. 35, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other union.
(b) Coercively interrogating employees concerning
their own union activity and the union activity of their
coworkers.
(c) Creating the impression that it has the union activi-
ties of employees under surveillance.
(d) Threatening its employees with loss of employ-
ment, discharge, or plant closing because they engage in
union activity or support the Union.
(e) Warning employees to refrain from union activities
and not to associate with union members or supporters.
(f) Refusing to consider requests for wage increases be-
cause employees engaged in union activities.
(g) Promising employees profit sharing and additional
paid holidays to induce them not to support the Union.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Robert Nagy and Kevin Moffat immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges previously enjoyed, and make them whole for
lost earnings in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to ascertain the backpay due under the
terms of this Order.
Post at its East Brunswick, New Jersey, plant copies
of the attached notice marked "Appendix."3 S Copies of
:" In the event no exceptions are filed as provided bh Sec. 102 4 of
the Rules and Regulations of the Nalional Labor Relations Board. the
findings. conclusions, and recommended Order herein shall, as provided
in Sec. 10248 (if the Rules and Regulations. hbe adopted byh the Board and
become its findings, conclusions, and Order, and all obhjections thereto
shall he deemed waised for all purposes
a, In the event that this Order is enforced b a Judgment of the United
Slates Court of Appeals. the words in the notice reading "POsled by
Order of the National Labor Relations Board" shall read "Poted P'ursu-
ant to a Judgment olf the United States Court of Appeals Enforcing an
Order of the National L.abor Relations Board "
said notice, on forms provided by the Regional Director
for Region 22, after being duly signed by Respondent's
authorized representative. shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter. in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 22. in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS URTHER RECOMMENI)I'I) that the consolidated
amended complaint be dismissed insofar as it alleges vio-
lations of the Act not specifically found herein.
IT IS FURTHIR RCOMMlNI)EI) that the Board sustain
the objections to the election conducted on November
21, 1978, in Case 22-RC-7657 and order that a new elec-
tion be conducted, and that said case be severed and re-
manded to the Regional Director for Region 22 for the
holding of such an election under the supervision of the
said Regional Director as soon as feasible under the cir-
cumstances present herein.
APPENDIX
NorlCi TO EMPI OYitIES
PosTl) BY ORI)IR o0 THE
NATIONAI LABOR Rt.I ATioNS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
Accordingly, we give you these assurances:
WF WILI NOT discharge. lay off, or otherwise
discriminate against our employees because they
join or support Teamsters Local Union No. 35, a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or
any other labor organization.
Wl. Wll I NOT coercively interrogate our em-
ployees about their union activities or beliefs.
W l. vII I N create the impression that we have
the union activities of our employees under surveil-
lance.
DECISIONS OF NATIONAL LAHOR RELATIONS ()OARD
WI: wi 1. NOT threaten our employees with loss
of employment, discharge, or plant closure because
of their union activities or beliefs.
WI Wl.l. NOT warn our employees to refrain
from union activities and not to associate with
union members or supporters.
Wi Wil.l N refuse to consider requests for
wage increases because employees engage ill union
activities.
WI Wil.i. NOT promise our employees profit shar-
ing and additional paid holidays to induce them not
to support a union.
WI wiI.I NOT in any like or related manner in-
terfere with, refrain, or coerce our employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
WI. wit.. offer Robert Nagy and Kevin Moffat
immediate and full reinstatement to their former po-
sitions or, if such positions no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges previ-
ously enjoyed, and w[i wil. make them whole for
any' loss of pay they may have suffered by reason of
our unlawful discrimination against them, with in-
terest.
The election held on November 21, 1978, by the Na-
tional Labor Relations Board has been set aside and its
results voided because of our unlawful conduct affecting
the outcome of that election, as found by the Board,
during the period preceding that election. In due time,
another election will be held, and you will be notified of
the date, time, and place.
Bl.ACKSONI COMPANY, INC.
Q60