Gull, Inc.

National Labor Relations Board - Board Decisions

May 16, 1986

279 N.L.R.B. 931 (N.L.R.B. 1986)

GULL, INC
Gull, Inc . and Local 806, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and
Helpers of America. Case 29-CA-10597
16 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 20 February 1985 Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed cross-exceptions and
a brief in support of the cross-exceptions and in op-
position to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, i and
conclusions and to adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Gull, Inc.,
Smithtown, New York, its officers, agents , succes-
sors, and assigns , shall take the action set forth in
the Order as modified.
1. Add the following as paragraph 1(c) and relet-
ter the remaining paragraphs.
i The Respondent and the General Counsel have excepted to some of
the judge 's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
We agree with the judge that the Respondent violated Sec 8(aX3) and
(1) of the Act by discharging employees Koello, Rowell, Pfaff, Pierce,
Forgione, and Jacobs Despite the fact that it is not clear whether the
judge discredited Van Sickle's testimony regarding Koello's purported
admission of involvement in a slowdown , we agree with the judge that
the Respondent failed to rebut the General Counsel's prima facie case of
discrimination concerning all the above employees including Koello In
this regard , we note that in the course of his investigation subsequent to
Koello's alleged "admission," Van Sickle did not question Koello about
the slowdown, nor did he question the employees allegedly involved or
their supervisor Also, there is no evidence that Van Sickle referred to
the incident in Koello's personnel file, or in discharging Koello, and the
Respondent did not even establish that a slowdown actually occurred
We also agree with the judge that the Respondent's institution of an
open-door policy in response to the union campaign violated Sec 8(a)(1)
of the Act, but we find this to be an unlawful grant of benefits designed
to undermine employee support for the Union, rather than a solicitation
of grievances In this regard the policy was in effect an implied promise
that further grievances would be remedied without union representation
See Captain Nemo's, 258 NLRB 537, 551-552 (1981)
931
"(c) Granting or promising to grant benefits to
its employees in order to inhibit them from exercis-
ing their rights under Section 7 of the Act."
2. Add the following as paragraph 2(b) and relet-
ter the remaining paragraphs.
"(c) Preserve and, on request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records and all other records neces-
sary to analyze the amount of backpay due under
the terms of this Order."
3. Substitute the attached notice for that of the
adminstrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT inform our employees that we
will refuse to recognize or bargain with Local 806,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America or
any other labor organization, or otherwise attempt
to convince them of the futility of engaging in
union or other protected concerted activities.
WE WILL NOT solicit grievances from our em-
ployees in order to inhibit them from exercising
their rights under Section 7 of the Act.
WE WILL NOT grant or promise to grant benefits
to our employees in order to inhibit them from ex-
ercising their rights under Section 7 of the Act.
WE WILL NOT discharge, or threaten to dis-
charge, our employees due to their activities on
behalf of the Union or any other labor organiza-
tion.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make whole Peter Koello, Bruce
Rowell, Thomas Pfaff, Kenneth Pierce, Tina For-
gione, and Donna Jacobs, with interest, for any
loss of earnings they may have suffered as a result
of our discrimination against them , and we will
offer them full and immediate reinstatement to their
former jobs or, if those jobs no longer exist , to sub-
stantially equivalent positions without prejudice to
their seniority or other rights and privileges.
WE WILL remove from our files any reference to
the termination of Koello, Rowell, Pfaff, Pierce,
Forgione, and Jacobs and we will notify them, in
279 NLRB No. 127
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
writing, that this has been done and that evidence
of this unlawful action will not be used as a basis
for future personnel action against them.
GULL, INC.
Amy Berne Kaminshine, Esq., for the General Counsel.
Arthur R. Kaufman, Esq. and Dorothy Rosensweig, Esq.
(Jackson, Lewis Schnitzler & Krupman, Esgs), for the
Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This
case was tried before me in Brooklyn and Hauppauge,
New York, on January 9, 10, and 11 and April 2, 3, 4, 5,
and 6, 1984. The complaint and notice of hearing issued
on August 18, 1983,1 based on an unfair labor practice
charged filed on July 14 by Local 806 , International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (the Union). The complaint al-
leges that Gull, Inc.2 (Respondent) violated Section
8(a)(1) of the Act by creating the impression that the em-
ployees ' union activities were under Respondent's sur-
veillance, by informing its employees that the Union
would never represent Respondent's employees and that
Respondent would do everything to keep it out, and by
soliciting grievances from its employees in order to pre-
vent them from joining the Union and from giving it
their assistance and support. The complaint also alleges
that Respondent violated Section 8(a)(1) and (3) of the
Act by discharging and refusing to reinstate the follow-
ing employees due to their activities on behalf of the
Union: Ronald Vivona, Tina Forgione, Thomas Pfaff,
Peter Koello , Bruce Rowell, Donna Jacobs , and Kenneth
Pierce. Respondent denies the 8(a)(1) allegations and
denies as well that Robert Rytell, who allegedly created
the impression of surveillance , is an agent or supervisor.
Respondent admits that it discharged some of the alleged
discriminatees while others resigned and denies that any
of these discharges were unlawfully motivated.
On the entire record,3 including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the parties, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Delaware corporation with its principal
office in Smithtown, New York, is engaged in the manu-
facture, sale, and distribution of aircraft indicators and
other electronic instruments and parts of aircraft During
the year ending July 1983 Respondent purchased and
Unless indicated otherwise , all dates referred to herein are for 1983
z The complaint originally named Gull Airborne Instruments, Inc as
Respondent At the hearing, this was amended on the basis of an agree-
ment between the parties that since August 16 the correct name of Re-
spondent has been Gull, Inc
3 Respondent 's unopposed motion to correct transcripts , dated May 4,
1984, is granted
caused to be transported to its Smithtown facility elec-
tronic components and other goods and materials valued
in excess of $50 ,000, which goods were delivered to its
Smithtown facility directly from States other than New
York State . Respondent admits , and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act
III. THE FACTS
A. Respondent's Operation
As stated, supra, Respondent manufactures indicators
and other electronic instruments primarily for military
and commerical aircraft. It operates in three plants
(plants 2, 5, and 6) within a few miles of one another in
Smithtown, Suffolk County, New York. At the time in
question, Respondent employed approximately 500
people; of these between 120 to 150 were employed in
plant 5, which is the one principally involved herein.
The production test department (where almost all of the
union activity occurred) employed between 30 and 35
employees. The remaining departments in plant 5 were
lighting, staging, clean and case, wiring, bake and evacu-
ation, painting, final test, and quality control.
Respondent manufactures all its indicators pursuant to
customer contracts; from the date that the customer
order is received, shipment of the indicator to the cus-
tomer is 9 to 13 months away. Irvin Van Sickle, Re-
spondent's vice president of operations, testified in great
detail regarding the manufacturing process at its facility.
What follows is in less detail as it applies to plant 5. The
subassemblies needed for the indicators are built in plant
2; they are shipped to plant 5 where the final assembly of
the indicators is performed; that includes the final wiring
and/or lighting assembly required. The indicator is then
brought to the production test department where it is
calibrated; the complexity of the unit determines the
length of time required to calibrate the unit. This time
could range from 15 minutes to an hour. If the indicator
cannot be calibrated it must be troubleshot and repaired,
although this is an exception. The indicator next under-
goes lighting inspection and adjustment in the quality
control department. From there it goes to the clean and
case department, where it is vacuumed, cleaned, and
placed in its case. The indicator then returns to the pro-
duction test department to undergo a standardized manu-
facturing test procedure (MTP). If it passes this test, it is
returned for another lighting check. After passing this
test, the indicator is sealed , the backs are soldered or
taped, and the units are checked for air leaks. It then
goes to the bake and evacuation department where it is
baked (to eliminate any moisture) and sealed. Absent any
problems, the indicators that require reliability accept-
ance test (RAT) go to the production test department for
pre-RAT test. The production test department also per-
forms acceptance test procedures (ATP) on certain indi-
GULL, INC
cators at this time. The indicator then goes to quality
control and is placed in the RAT chamber for testing;
the length of time it remains in this chamber varies from
overnight to 1 week. Units that fail the RAT test are re-
turned to the production test department to be trouble-
shot , tested , and repaired and are again tested and left in
the RAT chamber After passing the RAT test, the indi-
cator is tested further either in the quality control or
production test department, depending on the kind of
unit. The unit then leaves these departments and is paint-
ed and cleaned. It then goes for its final inspection and
testing in the quality control department and is shipped
to the customer from plant 6
B Organization and Solicitation of Employees
Tina Forgione was employed by Respondent in the
production test department; her principal job was to test
the indicators to see that they were up to the specifica-
tions set by Respondent . In addition , on occasion she
was a "runner," which involved driving from plant 5 to
plant 2 (a short distance) to pick up parts. On the morn-
ing of June 14 (a Tuesday) she was told to pick up a part
at plant 2. As she got into her car, a man in a car drove
up to her car and asked if Respondent was hiring; For-
gione said that she did not know He asked if there was a
union at the facility and she said there was not He then
identified himself as John Felice, the Union's business
agent , and he asked if the employees would be interested
in a union; she said that they would. He gave her a
union authorization card to sign , which she signed and
returned to him He gave her a few authorization cards
and asked her if she could get her fellow employees to
sign them She said that she would try to do so, and they
arranged to meet the following day, during the morning
break. When Forgione returned to the plant she spoke
with Ron Vivona, Kenny Pierce, and Tom Pfaff (they
work in close proximity to one another). She told them
of her conversation with Felice and she asked them if
they were interested in being represented by the union.
They said that they were and she gave Vivona and
Pierce authorization cards; they did not sign them at that
time; they said that they wanted to meet Felice first
Beginning on June 14 or 15, the employees in the pro-
duction test department began discussing the Union
among themselves; Forgione testified that during that
week and the following week she spoke to about 15 em-
ployees in the department about the Union and distribut-
ed a few authorization cards to employees. Vivona and
Pfaff returned their signed authorization cards to her.
Bruce Rowell testified that Pierce and Vivona spoke to
him about the Union about June 16. On that day, Pierce
gave him a union authorization card, which he signed
and returned to Pierce. He had no subsequent discussions
with employees about the Union Vivona testified that he
first learned of the organizing drive when Forgione told
him that she met with Felice. On June 16 he signed a
union authorization card given him by Pierce. In addi-
tion, during that day and the following day he distribut-
ed authorization cards to about seven other employees in
the production test department, he had received these
cards from Pierce Not all the employees to whom he
gave cards signed them.
933
Pfaff testified that he first heard about the Union in
mid-June from Pierce, Vivona, and Forgione. Forgione
told him of her conversation with Felice and his instruc-
tions to get authorization cards signed and returned to
him Vivona gave him an authorization card which he
signed on June 16 at Vivona's workbench. In addition,
Vivona gave him additional authorization cards which
he distributed to five or six employees in his department.
After collecting these signed cards, he returned them to
Vivona. Pierce testified that on June 15 Forgione told
him of her meeting with Felice. On the following morn-
ing he went with Forgione and met Felice on a street
near Respondent's facility. Felice told him of the Union's
benefits and Pierce signed an authorization card. He re-
turned this card to Felice, who gave him a stack of cards
to distribute to the employees When he returned to
plant 5, he discussed the Union with Vivona and decided
that they would distribute the cards and attempt to inter-
est the employees in the Union Pierce then "went
around from bench to bench, giving cards out, telling the
people what they were about." He distributed about 15
cards, including one which he gave to Vivona, who
signed it. They kept the signed authorization cards in Vi-
vona's toolbox. By the end of the day, June 16, approxi-
mately 33 authorization cards were collected. After he
was suspended (for an excessive number of latenesses),
he told Vivona to keep the cards and see that they got to
Felice.
Koello testified that Pierce and Vivona spoke to him
about the Union while he was at his work station.
Vivona gave him an authorization card which he signed
on June 16 Jacobs testified that on the morning of June
16 Pierce asked her if she wanted a card; she asked what
card and he said a union card; she did not answer him.
About an hour later, Vivona handed her an authorization
card and told her that the card was to get the Union rec-
ognized and she could sign it if she wished. About one-
half hour later Pfaff asked her if she had anything for
Vivona, Jacobs took out the card , signed it , and returned
it to Pfaff. These conversations took place in her work
area.
Vivona testified that when Pierce was suspended, he,
asked Vivona to give the signed authorization cards to
Felice. He met Felice on June 17 about 10 a.m, on the
street about 100 yards from Respondent's facility; both
were in their own cars. Vivona got out of his car and
gave Felice about 32 authorization cards. While they
were speaking (a short time) he observed "Joe," an expe-
diter employed by Respondent, drive by, slow down,
and look at him. He also observed Lou Copertino, senior
director of quality assurance, slow down as he drove by
and looked directly at him. Vivona then returned to
work Dominick Giannino, a quality control supervisor
employed by Respondent, testified that he has a brother
Joseph who is employed by Respondent as a computer
operator. Dominick was on vacation for the entire week
ending June 17. His brother never informed him that he
had seen Vivona talking to a union representative on
June 17, and, in fact, in preparation for trial, and in re-
sponse to inquiries from counsel for Respondent, Domin-
ick asked his brother about the alleged incident and he
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said that he did not see Vivona Copertino testified that
he did not see Vivona on the street outside Respondent's
facility on June 17.
C. Robert Rytell-Impression of Surveillance
Vivona testified that on June 16, in the morning or
mid-afternoon, leadman Robert Rytell (who did not testi-
fy) approached him at his workbench, put his hand
around him and said : "Ron, watch yourself, they know
about the union , about the union cards , and the union ac-
tivities." Vivona, said , "Thank you for telling me " In
1981, another local of the Teamsters Union attempted to
organize Respondent 's (or some of Respondent's) em-
ployees. Vivona , Glenn Johnson , and Rytell were among
the leaders of this organizing attempt . Vivona testified
that at the conclusion of this unsuccessful campaign, he
was called into the Van Sickle's office and Van Sickle
said : "I told you the people at Gull do not want a union.
You've got my personal word that you will not be fired
over this incident with the teamsters . Around Gull, you
only go to the well once." Van Sickle testified that he
never told Vivona that at Gull you only go to the well
once , that during 1981, there was an organizational drive
at Respondent lead by Rytell and Johnson, and that he
was not aware that Vivona was involved. However,
Vivona did ask Van Sickle at that time what would
happen to Rytell and Johnson, and Van Sickle told him
that as long as they performed their job properly they
would always have a job with Respondent.
Rytell has been a lead person (group leader A) in the
production test department since about 1982. The super-
visor of the department is Sigridur (Sigga) Anetrella.
Ernie Joseph , who had previously been the supervisor in
the department prior to Anetrella 's arrival , is a technical
assistant who assists her; Anetrella, Joseph , and Rytell
report to work at 8 a .m. and usually work until about 6
p.m. Anetrella and Joseph usually work Saturdays,
Rytell does not. Bill Sosias is the evening supervisor
who arrives at work between 12 and 2 p.m. In addition,
the other job classifications in the department are techni-
cians, A, B, and C; testers A, B, and C; repair people;
wirers; and mechanical assemblers. When the indicator
arrives in the department it goes to a tester for testing: if
there is a malfunction, it goes to a technician for trouble-
shooting. The more complicated the indicator the higher
the level of employee it is assigned to (A is the most ad-
vance). Senior technicians are the most qualified in the
department . They can work on any unit and they train
technicians and testers. Anetrella testified that all these
employees report directly to her not to Rytell . She also
testified that the principal job of lead persons , such as
Rytell , is to empty out the boxes containing the work
and give it to the employees . (Rytell makes sure that the
technician has work in front of him .) On occasion, he
also works on the units. When priorities and work as-
signments have to be changed, Anetrella makes that deci-
sion , not Rytell. If Rytell sees that a technician or tester
is doing something improperly he will explain to the em-
ployee the proper way to do the job ; another technician
might also do this . If an employee is acting improperly
(talking to fellow employees for too long or walking off
the floor), he tells Anetrella about it and she speaks to
the employee. Rytell has no authority to discharge or
recommend the discharge of an employee Rytell also
does not have the authority to hire or recommend the
hiring of employees and has not interviewed employees
while she has been there (2-1/2 years). Sosias, Joseph,
and Joe Catalano, senior supervisor in production, con-
duct interviews for her . She has instructed the personnel
department to call her, Joseph , Sosias , or Catalano to ar-
range interviews with employees ; she never told them to
call Rytell if they could not locate the others. Rytell
does not have the authority to grant employees permis-
sion to leave work early ; however , she is aware that on
two or three occasions employees have left work early
and told Rytell to inform her of it. Rytell and the other
employees in the department are paid time and a half or
double time for overtime work; Anetrella, Joseph, Cata-
lano, and Sosias are on salary and are paid no extra. All
overtime is approved first by Pat Vassallo, manufactur-
ing manager of plant 5 , and then by Van Sickle. If there
is enough overtime for everybody , she will ask all the
employees if they wish to work overtime. If there is lim-
ited overtime , she will tell Sosias , Joseph , or Rytell
whom to ask to work overtime. Rytell does not have the
authority to select employees for overtime work . Rytell
and the others in the department punch a timeclock; An-
etrella, Joseph , Sosias, and Catalano write their hours on
a sheet provided for them . Rytell is the second highest
paid hourly employee in the department ; a senior techni-
cian is paid more then he . Rytell ' s vacation and sick
leave benefits are the same as the other hourly paid em-
ployees, and different from that of Anetrella, Sosias,
Joseph, and Catalano. Anetrella is present in the depart-
ment 60 percent of the time at the beginning of the
month ; in the middle to the end of the month she is
present from 80 to 100 percent of the time . When she is
absent , Sosias or Joseph is in charge of the department
and she has informed the departmental employees of this.
There are periodic supervisory and managerial meetings
at the facility which she attends ; Rytell does not attend
these meetings.
A number of employees also testified regarding Ry-
tell's job functions: Vivona testified that Rytell was in
charge of the department when Anetrella was away from
the department, which was about 50 percent of the time.
Rytell assigned work and gave them priorities in their
work . In addition , he interviewed applicants for hire on
three or four occasions and gave Van Sickle his opinion
of the applicants. He also told employees that they were
spending too much time away from their work. Rytell
has told Vivona to get off the telephone and has told A
technician James Harris "constantly " to return to work.
He asked employees if they wished to work overtime,
based on a list approved by Vassallo. Vivona knew that
Rytell attended supervisory meetings because he has seen
him in Anetrella's office. He heard Anetrella call Rytell
saying, "Bob, come with me we have a supervisor's
meeting ." Vassallo was present in Anetrella's office with
Rytell and Anetrella, but Vivona does not know what
was discussed at the meeting Pfaff testified that Ane-
trella, Sosias, Joseph, and Rytell are the people who
assign him work in the department; Rytell 's job is to dis-
GULL, INC
tribute the work; "We have three different boxes, in-box,
trouble shooting box, and the out-box. He makes sure we
have work in the in-box." He also assists the employees
with problems they encounter On occasion Rytell has
told Pfaff to stop talking to a fellow employee and return
to work, although, "that's usually the supervisor' s area "
Jacobs testified that when she had no work, she asked
Rytell for work and he gave it to her. On one occasion
she asked Rytell's permission to leave work early, and he
told her that she could leave without checking with any-
body else On two occasions she asked Anetrella's per-
mission to leave work early. She has observed Rytell
telling employees in the department to stop talking or
fooling around and to return to work. She sometimes sits
by the phone in Anetrella's office and has received calls
from Jean Singleman, a secretary in the personnel de-
partment asking for Anetrella to interview an applicant;
if Anetrella was not present (about 50 percent of the
time) she asked for Joseph, and if he were not available,
she asked for Rytell Rytell has interviewed applicants
but she does not know whether he ever hired anyone.
Anetrella told her that when she is absent, Joseph or
Rytell are in charge Singleman testified that she has
called the production test department to arrange for
interviews of applicants, but does not always know to
whom she is speaking. In this regard, she calls either An-
etrella , Joseph, or Sosias for interviewing. As to whether
she ever asked for Rytell to interview an employee, she
testified- "Not that I recall."
D. June 17-Coney Island Day
Vivona was discharged by Respondent on June 18
based on events that occurred on the afternoon of June
17. The General Counsel alleges that the timing and cir-
cumstances of this discharge establish that it was caused
by Vivona's activities on behalf of the Union. Respond-
ent, while admitting that it was aware of the union solici-
tations occurring in the production test department,
argues that it discharged Vivona solely because of his
improper and dangerous actions committed on June 17
Coney Island Day is a yearly event at Respondent's fa-
cility. Respondent supplies a picnic-like lunch for its em-
ployees on each shift. The employees receive an extra
half hour for lunch and afterward they return to work.
On the day in question, Vivona and Pfaff and some other
employees left work at noon and took leave for the re-
mainder of the day. Rather than attending Coney Island
Day at the plant, they had a picnic of their own at a dif-
ferent location. The difficulties that ensued herein, culmi-
nating in Vivona's discharge, commenced when Vivona
and Pfaff returned to Respondent's facility (in Vivona's
car); a few of the events in question are not in dispute;
most are, even among Respondent's witnesses.
On the day in question, Vivona, Pfaff, and some other
employees arranged to meet at a nearby location for a
barbecue. He and Pfaff drove to the barbecue in Vi-
vona's new car and stayed for about 3 hours. During this
period other employees came and went. About 3 p.m., he
and Pfaff packed up his car and drove back to the facili-
ty. They testified that the reason for returning to Re-
spondent 's facility was to return a cooler that they had
which belonged to a fellow employee, "Ray." On the
935
way back to the facility they stopped for a pizza and
soda At this point credibility issues arise . Vivona testi-
fied that they arrived at the facility about 4 p.m. and he
parked his car in his assigned parking space.' A short
time later, he observed Gary Shapiro, an employee of
the vending company that provides food for the plant,
loading food (including watermelons) into his station
wagon. The station wagon was backed up to the building
about 4 feet from it and to the left of the entrance to the
building, as you face the building. The door at this en-
trance opened out and lead to where the timeclock was
located; this is the entrance that the employees usually
use when they enter or leave the plant. Vivona was at-
tempting to talk to Shapiro, but he could not hear him
because of the distance. He therefore drove his car to the
right of, and next to Shapiro's car; he parked the car
right in front of the plant door, about 2 or 3 feet from
it,5 facing the door, as compared to Shapiro's car which
was backed toward the door. He began talking to Sha-
piro and, "I had to move my car several times because
people were coming in and out." Shortly thereafter,
Pfaff told him that somebody was stuck in the doorway
He looked at the doorway and saw that someone was
stuck and could not get out. He yelled for Vivona to
move the car, and Vivona immediately started the car.
He mistakenly put the car in forward and it lurched for-
ward slightly; he then put it in reverse and backed up so
that the person could extricate himself. Vivona asked
him if he was all right and he said that he was, Vivona
apologized and he answered that he should forget about
it. About 5 minutes later, Rocco (Sonny) Banle, group
leader on the night shift, approached Vivona and apolo-
gized that the employee involved, Richard Rehkopf
(whom he supervised), banged Vivona's car when he
opened the door; Vivona said "no problem." Bartle said
that it was an accident, but as the employees would be
leaving the plant soon he asked Vivona to "move your
car back so the people can get in and out." Vivona then
moved his car back to his reserved parking space. About
4:30 p in., Anetrella and Van Sickle came to his car and
Van Sickle asked him what had occurred and Vivona
told him. He asked Vivona what he was doing there and
he said that he was waiting for Ray Van Sickle told him
that he wanted to speak to him Monday in his office and
asked him to leave Respondent's property, which he im-
mediately did. Vivona testified that neither he nor Pfaff
had been drinking beer or liquor that day.
Pfaff 's testimony is substantially similar ; they remained
in Vivona's reserved parking place for about 15 minutes
until they saw Shapiro come out of the building loading
watermelons into his car; when Vivona had difficulty
talking to Shapiro, he moved his car from his reserved
parking space to a place next to Shapiro's car in front of
and about a foot from the door. While Vivona was talk-
ing to Shapiro, he had to move the car on a few occa-
sions when people wanted to go in and out the door.
About 15 minutes after moving to that location, Pfaff ob-
* Vivona had a reserved parking space because he is handicapped This
space is about 50 feet from the entrance to the plant
5 As to why he parked that close to the door, he testified "i wasn't
really paying attention "
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
served that somebody opened the door attempting to get
out and was stuck; he told Vivona that he should back
the car up because somebody was stuck in the doorway.
The car lurched forward slightly and he then put the car
in reverse and Rehkopf got out of the doorway. Vivona
got out of the door and apologized to Rehkopf and
asked him if he was all right. Rehkopt mumbled some-
thing that Pfaff did not hear and walked back into the
plant. A short time later, Barile came over to Vivona's
car, told him that Rehkopf was all right, and asked him
to move his car to his reserved parking space as he was
blocking the door and the employees would soon be
leaving the building, which he did. Van Sickle and Ane-
trella then came to the car and Van Sickle asked Vivona
what happened; Vivona told him (as stated, supra) and
Van Sickle told him to leave and he would discuss it
with him on Monday. (Anetrella was also on the driver's
side of the car, but said nothing.) Vivona drove him to
his car and they left. On the following Monday, Pfaff
was called into Vassallo's office where he was ques-
tioned by Vassallo and Van Sickle about what had oc-
curred and he described what had occurred. They asked
him to sign a written statement At first he refused to
sign it because it was not totally correct and because he
was admitting to something that he was not in control
of. When he was threatened with discharge if he did not
sign it , he signed the statement. Like Vivona, Pfaff testi-
fied that on the day in question neither he nor Vivona
drank any beer or liquor 6
Van Sickle testified that the first he learned of the inci-
dent in question was about 3:30 p.m. that day, when he
received a call in his office from Vassallo's secretary
who informed him that an incident had occurred in the
cafeteria area , but she did not know what to do as both
Vassallo and Anetrella were at meetings . He told her to
get Vassallo and Anetrella out of their meetings and in-
vestigate the situation. Shortly thereafter, Anetrella came
to Van Sickle's office and told him and Vassallo that a
custodian was trying to get out the door and a car
driven by Vivona pinned him between the door and
door frame. Van Sickle then told Anetrella to return to
her work area and Vassallo to return to his meeting; he
then asked Emil Kocha, then Respondent's manager of
employee relations, to investigate the situation and take
statements from those involved. About 4:20 p.m., Vassal-
to's secretary came to Van Sickle's office and told him
that employee George Giordano had expressed concern
about Vivona's presence in the parking lot. Van Sickle
told her to tell Anetrella to meet him in the cafeteria and
they would speak to Vivona. They went to Vivona's car
(which was then parked in his reserved space); Van
Sickle asked him, "Why did you bother coming back
here after the earlier incident." Vivona told him that he
returned to drop Pfaff off and to return the cooler. Van
Sickle noticed that Vivona had a bottle of beer between
his legs (although he could not see the label), his eyes
were bloodshot, and his words were slurred. Van Sickle
6 Pfaff testified that at the time he was in training to be fit for the
summer, and his trainer told him not to dunk beer Because of that, he
told Vivona not to drink beer because if he saw him drinking it, he
would be tempted to do the same
asked Vivona to leave the property prior to 4:30 p.m.,
when the employees leave. Vivona asked how Rehkopf
was and Van Sickle told him that they sent him to the
hospital for x-rays. He also told Vivona that they would
be evaluating the incident over the weekend and would
inform him on Monday of their decision. Van Sickle
then asked Vivona what had occurred; he said that Reh-
kopf had slammed the door against his car and scratched
a bumper and he drove the car into the door. He then
cursed Rehkopf and called Barile a complete idiot and
said that he was sorry he did it, but he would do it again
if somebody slammed a door into his car. Van Sickle
told him that he was in bad shape and should go home,
and he said, "Yes, I've had too much to drink, I've been
drinking all afternoon." Before leaving the parking lot,
Vivona started and stopped his car slamming on the
brakes: "put on a demonstration " Van Sickle returned to
the cafeteria and directed that Rehkopf be taken to the
hospital for a checkup. Neither Barile nor Rehkopf com-
plained to him about the incident, and Rehkopf never re-
quested to be taken to the hospital; in fact he said that he
was all right.
Anetrella testified that between 3.30 and 4 p.m on the
day in question she was called out of a meeting and was
asked to investigate an incident by the rear door to the
plant . By the time she got there the incident was over,
and she spoke to Barile and Rehkopf who told her that
Rehkopf was pinned against the door by Vivona's car
after Rehkopf had opened the door and hit Vivona's car.
She reported this to Van Sickle, who told her to stay on
the situation rather than returning to the meeting. About
4:15 p.m. she received a call from Van Sickle to meet
him by the rear door. She and Van Sickle then went to
Vivona's car which, at the time, was parked in his regu-
lar parking space; both she and Van Sickle were standing
by the driver's side of the car. It was only she and Van
Sickle, not Barile , and Van Sickle did all the talking.
Van Sickle asked Vivona what he was doing there, and
Vivona said that he was dropping off Pfaff; Vivona
apologized for what had occurred, and said, "If that
motherfucker touches my car again , I'll kill him." He
said that it was an expensive car that he had just pur-
chased. Van Sickle then asked Vivona to leave the prem-
ises, "which he did, we thought .. . ." On direct exami-
nation, she testified that Vivona's appearance was flushed
and he had slurred speech, there was a can of beer be-
tween his legs, and there was a smell of beer throughout
the car, "I do not drink, so I'm very sensitive to beer
smell."
Rehkopf was employed by Respondent at the time as a
night maintenance porter; he worked from 4:30 p.m to 3
a.m. He testified that he arrived for work on the day in
question about 2 30 p.m; while waiting to begin work,
about 3:30 or 3:45 p.m. he went to see Shapiro to get the
key to an inoperative vending machine. He attempted to
get out of the door, but could only open it about 1 foot,
enough to stick his head and arm out. He leaned out and
looked at Vivona and motioned for him to move back;
Vivona motioned back with a motion that Rehkopf took
to mean , "Don't bother me." Barile then came by and
pushed the door open a little more , hitting the car; Reh-
GULL, INC. 937
kopf then attempted to squeeze out, and as he was about
to do so, the car moved forward and pinned him be-
tween the door and the wall. In great pain , he yelled for
Vivona to move the car; Barile was yelling at the same
time . He testified that it seemed like 2 or 3 minutes that
he was in this position and "I could see the person in the
car, and he had a smile on his face." When the car
moved back, Rehkopf stepped out of the doorway and
asked Vivona, "What are you crazy or something?"
Vivona said, "Do you want to come outside and we'll
fight?" Rehkopf stepped back inside the building and
Barile went outside and spoke to Vivona; when he came
inside, he told Rehkopf that Vivona said that if he had
known that it was Barile that pushed the door into the
car he would not have done what he did About 5 min-
utes later both Kocha and Castoro approached him and
questioned him about the incident. He answered as set
forth, supra. Later, he observed Vivona driving his van
around the parking lot, during this time, he saw Vivona
drinking from what appeared to be a beer bottle. Later
that day, Van Sickle approached him and told him that
he had spoken to Vivona and he appeared to be under
the influence of alcohol; he asked Rehkopf to go to the
hospital for x-rays to be sure that there were no injuries,
"I wasn 't going to go at first, but he suggested I did so I
went " Tests showed only bruises. The following morn-
ing, about 11 a.m., Castoro asked him to write a state-
ment of the prior day's events, and he wanted it right
away. Rehkopf complied and gave it to Castoro.
Barile testified that at the time in question he told Reh-
kopf (who was standing in the doorway) to take the gar-
bage out; Rehkopf said that he could not because he was
not able to open the door. Not knowing why, Barile
pushed the door open and it hit the bumper of Vivona's
car. Vivona's car then moved forward pinning Rehkopf
in the doorway. While Rehkopf's arms were motioning
for Vivona to back up his car, Barile yelled, "Ron, back
off, Richie' s pinned ." Barile was inside the door at the
time, but saw that it was Vivona through the small
window on the door. After a while Vivona backed his
car up, and Rehkopf got out of the doorway, but Barite
could not estimate the amount of time that expired
before Vivona backed up. Rehkopf went outside and
yelled at Vivona and asked if he was crazy. Barile then
went outside and told Vivona that it was he, who had
pushed the door into his car; Vivona said that if he had
known that it was he he would not have done what he
did. Barile then returned to work. Approximately an
hour later, he and Anetrella (and nobody else) went to
Vivona's car which was then parked in his reserved
space. They both stood by the driver's window while
Anetrella spoke to Vivona; she asked him if he was feel-
ing high or good, and he said that he was drinking beer.
At that point, Barile walked away although Anetrella
continued talking to Vivona While he was there, Barile
observed a can between Vivona' s legs; because of what
Vivona said, he assumed that it was a can of beer.
Shapiro testified that on the day in question, about
3:30 p.m., he and his two brothers were taking food from
inside the plant to his car, which was backed up to the
plant, to the left of the door He began using this door in
bunging the food to his car, as it was the shortest route
from the place where the food was located. At a certain
point (when he had almost completed loading his car-
he only had four or five more trips) his brothers told him
that Vivona's car was blocking the door; without at-
tempting to open the door or speaking to Vivona, Sha-
piro switched to an alternate route to get the food from
the plant to his car; this was more than twice the dis-
tance of his original route. Shapiro testified: "During this
period Vivona . . . might have been saying things to me
.. . it's possible." On the way back to the plant on one
of these trips, he heard a noise and saw Vivona's car
against the door and Rehkopf stuck in the doorway;
Rehkopf was screaming. Shapiro continued walking
through the other entrance of the plant that he had been
using due to the location of Vivona's car and saw noth-
ing else of the incident.
Kocha testified that about 6 p in. Van Sickle and Cas-
toro informed him of the incident They asked him if he
was going to be at the plant that evening and he said
that he was remaining for the Coney Island Day activi-
ties for the night shift at 8 p.m. They told him to be sure
he got a statement of the incident and to be sure that
Rehkopf was taken to a medical center to be sure that he
was not injured; they said that Rehkopf had initially re-
fused treatment and they were concerned. Later that
day, Kocha and Vassallo discussed the incident with
Barile and Rehkopf and they obtained a statement from
them. Afterward, Kocha told Vassallo that he was con-
cerned that an employee was using his vehicle as a dan-
gerous weapon, and he felt that they should meet the
next morning to determine what action, if any, to take.
When Kocha got home that evening he called Castoro
about 10 p.m. and told him of his concern and recom-
mended that he call all the managers involved for a
meeting the following morning. Van Sickle was called
about 12:30 a.m.
There are no credibility issues about the Saturday
morning meeting or its aftermath; the meeting convened
about 8 or 9 a.m. Present were Vice Presidents Van
Sickle, George Gilliland, and Larry Perry and Managers
Vassallo, Kocha, Castoro, and John Verado. Kocha told
the participants what occurred the prior afternoon as
Rehkopf and Barile had informed him. Vassallo said that
employees had expressed concern for their safety due to
Vivona's presence in the parking lot. Van Sickle said
that Vivona had a can of beer on his lap and a cooler in
his car; when he asked him to leave the parking lot, he
did it by starting and stopping his car on numerous occa-
sions A consensus was then taken that Vivona should be
discharged for his actions the prior day and Kocha was
told to inform him of their action and send him a mail-
gram to the effect. Anetrella was never consulted about
this decision, although she was working in the plant that
day.
Kocha testified that at the conclusion of the discussion
about Vivona one of those present (he does not remem-
ber which one) said that they were aware (or had been
told) that union cards were being distributed; he had to
leave to prepare the telegram to Vivona, so he did not
hear anything else on this subject although that was the
first he had heard of the Union organizing Respondent's
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. Van Sickle testified that after the decision to
fire Vivona was made by the group, and Kocha was di-
rected to inform Vivona of it, Vassallo said that the prior
evening Koello told him that union cards were being
signed by the employees, that between 35 and 40 had
been signed , and that Vivona and Pierce "were pushing
the card signing to employees " (This will be discussed
more fully, infra.) Perry said that in that circumstance
they should have legal counsel and Castoro called
Arthur Kaufman, counsel for Respondent, who lives
nearby; he was familiar to Respondent and he joined the
meeting within 5 or 10 minutes.
On the next day about 11 a.m. Kocha called Vivona
and told him that he was terminated by Respondent for
misconduct and violation of Respondent's work rules.
Vivona asked for more specifics and Kocha said he
would be receiving a telegram to that effect.' He told
Vivona that he would like him to return the property in
his possession that belongs to Respondent, and he said
that he would do so on Monday afternoon. When he ar-
rived, Anetrella brought him his toolbox and they jointly
inspected it for what belonged to him and what belonged
to Respondent. Kocha gave him some forms to sign and
he left.
The General Counsel alleges that the speed with
which Respondent acted and the means employed (the
time and day of the meeting and the number of Respond-
ent's officials who were present) further illustrate that
Respondent was using the events of June 17 as a pretext
to discharge Vivona, where the real reason was his ac-
tivities on behalf of the Union. Kocha testified that, in
the past , a number of managers have been present at a
meeting to determine whether to discharge an employee,
but he could not remember a prior meeting with all the
individuals who were present on June 18, although Sat-
urday meetings were not an unusual occurrence. As re-
gards the speed of the termination, Kocha testified that
the use of a vehicle in a dangerous manner presented a
possibility of harm, and this fear outweighed the fact that
Vivona had been a very good employee for a number of
years. Van Sickle testified that the events of June 17
were very serious: "It involved an employee's safety and
his health and it was an incident that did not need to be
left unattended." In addition, employees were concerned
with Vivona's presence based on the prior day's events.
He also testified that in the summer or fall of 1982 there
was a meeting of himself, Gilliland, Perry, D'Agrosa,
and Castoro involving four employees who were using
and selling illegal drugs on Respondent 's premises.
D'Agrosa testified that he first learned that the Union
was organizing Respondent 's employees when Respond-
ent received the Union's June 23 telegram. He was on a
business trip at the time , but someone called him to
inform him of the telegram. He returned the following
day. Van Sickle testified that the first he knew of the
Union's organizational attempt was at the June 18 meet-
ing as stated , supra . Van Sickle held a meeting with his
managers on the subject about June 20. He did not
inform D 'Agrosa about it because he was out of town at
the time , although it is possible that someone else did.
I The telegram he received was substantially similar.
Anetrella testified that the first she learned of the Union
was when employees in her department were called into
the meetings discussed, infra.
E. Speeches to Employees
There are two aspects to this allegation. First, the
complaint alleges that, in late June and early July, Re-
spondent President Peter D'Agrosa and Agents Sal Ca-
tania, Paul Mandelik, Sal Desimone, George Dechent,
John Dillon, and Sal Corrao told employees that the
Union would never represent them and that Respondent
would do everything it could to keep the Union out. Ad-
ditionally, the complaint alleges that during the same
period, Respondent, by D'Agrosa, solicited grievances
from its employees in order to prevent them from joining
and supporting the Union. The first allegation will be
discussed first.
The Union sent a telegram demanding recognition to
Respondent on Thursday, June 23; presumably it arrived
at Respondent's premises (or Respondent was made
aware of its contents) later that afternoon or that
evening. Although Respondent's witnesses (who con-
ducted these meetings) were generally unsure of whether
the telegram arrived on June 23 or 24, they testified that
the first of the series of scheduled meetings occurred
shortly prior to the receipt of the telegram. On receipt of
the telegram, some of the information which they were
furnished to impart to the employees was changed to
correlate to the information contained in the telegram
and the meetings continued for the next few workdays.
Forgione and Rowell testified, generally, that they at-
tended separate meetings in the plant 5 conference room
in mid to late June; they did not know the two gentle-
men who spoke at the meetings, but one identified him-
self as being in Respondent's contract division. He did
most of the talking and referred, at times, to notes on a
large pad. They told the employees that unions are not
good for the employees or Respondent, there were a lot
of negative things about a union, and they were only out
for the employees' money. Pfaff testified that he attended
such a meeting about the end of June or early July; two
men whom he recognized as being from Respondent's
front office (although he did not know their names) lead
the meeting. They used notes printed on large paper sit-
ting on an easel and used a wooden pointer to refer to
the notes. They spoke of Respondent's opposition to the
Union and asked for questions. Pfaff testified that at the
bottom of one of the pages on display were the words,
"The management of Gull Airborne will never let a
union into Gull." The word "never" was underlined. In
addition, the moderator spoke those words. Received
into evidence were "flip charts" that Respondent used at
these meetings. The General Counsel stipulated that
those were the charts she was shown, but could not stip-
ulate that they were the only charts used at these meet-
ings . None of these charts states what Pfaff testified he
saw; the closest one is an enlarged copy of Respondent's
answering letter to the Union, stating , inter alia, "[W]e
refuse to recognize your union as the representative of
any Gull employees unless and until you are so certified
by the National Labor Relations Board."
GULL, INC
Jacobs testified that in mid to late June she attended a
meeting in the conference room with about 10 other em-
ployees; the names of those present were read and the
meeting did not begin until everybody on the list was
present She could not remember the name of the person
from management who spoke . He had a large pad on an
easel with a pointer , he pointed to a subject on the pad
and spoke about it . He told the employees that the Union
had demanded recognition , but Respondent did not feel
that the Union represented the employees and they were
going to make the Union prove it . He told them of the
disadvantages of the Union, and how they could cancel
their union authonzation cards He also said that "they
did not want this Union and they were going to do ev-
erything to keep them out." Catania (Respondent 's direc-
tor of project engineering ) testified that he and Mandelik
acted as a team in the speeches to groups of employees;
for this purpose they used a text which they read from,
in addition to a large flip chart that they pointed to.
Jacobs attended one of the meetings that he gave, and
neither he nor Mandehk said that Respondent would do
everything to keep the Union out. Mandelik (Respond-
ent's quality assurance manager) likewise testified that
Jacobs attended one of their meetings and neither he nor
Catania said that Respondent would do everything to
keep the Union out
The teams were Dechent -Desimone , Dillon-Carrao,
and Catania-Mandelik . As stated , supra , they testified
that the first meeting occurred shortly before the arrival
of the Union's telegram demanding recognition ; at this
meeting they said that they were aware the employees
were signing union cards . On notification of the tele-
gram , the flip chart and the text were changed to reflect
the Union 's name and the contents of the telegram; the
remainder stayed the same . One speaker read from the
prepared text while the other manned the flip chart.
Each team conducted between 8 and 12 meetings; ap-
proximately 15 employees attended each meeting. At the
conclusion of some of these meetings the employees
were asked if they had any questions; the questions were
often about inadequate or obsolete equipment or the lack
of a dental plan. Their answers to these questions were
usually noncommittal . However , Dechent testified that
when he was asked why Respondent did not have a
dental plan he answered that it was expensive , but Re-
spondent was investigating such a plan . Desimone, De-
chent , and Carrao testified that neither they nor their
partners ever said (at these meetings) that they would do
everything to keep the Union out.
D'Agrosa also conducted some meetings with employ-
ees, some of these were prearranged meetings of a
"coffee klatch" vanety with small groups of employees,
and others were speeches to large groups of employees
about the end of June to convey Respondent's opposition
to the Union. The General Counsel alleges that the con-
tents of these latter speeches , together with the questions
solicited and answers given , represent an unlawful solici-
tation of gnevances.
Pierce testified that in January and February D'Agrosa
conducted small meetings with employees in the produc-
tion test department ; afterward , D'Agrosa conducted
these meetings with employees in other departments.
939
Vivona testified that he was aware that D'Agrosa con-
ducted such meetings "to talk about gripes ." D'Agrosa
testified that since about early 1983 he has maintained
small weekly meetings , scheduled in advance, with
random groups of six employees and managers Single-
mann testified that , inter alia , she schedules D'Agrosa's
weekly coffee meetings . The meetings began about early
in 1983 and are on a weekly basis. She chooses the par-
ticipants from a computer runoff of employees . She se-
lects employees from different departments and attempts
to select different employees each week ; employees are
usually notified of the meetings a week in advance. The
meetings were generally conducted on Thursdays. Sin-
glemann 's book listing the participants in these meetings
begins in May, although she testified that D 'Agrosa had
coffee meetings with employees prior to that time.
Forgione attended one of these meetings on July 7
Singlemann testified that the regular meeting of June 30
was canceled and rescheduled for July 7; as one of the
participants was unable to attend on the rescheduled
date , she needed an employee from plant 5, and Single-
mann chose Forgione's name at random from the com-
puter runoff to replace her. Forgione testified that at this
meeting D'Agrosa said that the meeting was part of an
open-door policy to meet the employees and he invited
them to ask questions . After a few questions were asked
D'Agrosa said Respondent had lost $750 ,000 due to a de-
liberate work slowdown and he pointed at Forgione and
said , "because of your department " She was shocked
and asked him what he was talking about , and he said
that there was a deliberate work slowdown . Forgione
defended that there was no slowdown in her department,
rather there was a lack of support of employees in con-
necting departments . D'Agrosa said that he had proof of
the deliberate slowdown and that he would have a meet-
ing the following day with the department. Charles Sil-
verstein, a nonsupervisory buyer employed by Respond-
ent, also attended the July 7 meeting with D'Agrosa. He
testified that D 'Agrosa invited questions from those
present and questions were asked about promotions, job
placements , and like subjects At a certain point in the
meeting , D'Agrosa said that there was a slowdown oc-
curring in the test department and it would cost them
$750,000 and impact everyone. D'Agrosa did not direct
this comment to any particular individual in the room.
D'Agrosa testified that he does not recall whether he
discussed the slowdown at the July 7 meeting; however,
he did not point at her or accuse her of it at the meeting;
in fact he did not know who she was at the time.
About June 24, D'Agrosa made numerous speeches to
employees regarding the Union 's organizational attempt.
Only three such speeches or meetings will be discussed
herein ; a meeting in the cafeteria about June 24 attended
by the employees in plant 5 ; a meeting the next day or a
few days later in the cafetena with the technicians and
testers , and a meeting on July 8 with employees in the
production test department.
Between 50 and 100 employees (including the produc-
tion test department) attended the June 24 meeting in the
cafeteria , it lasted for about 30 minutes. Forgione testi-
fied that at this meeting D'Agrosa said that the Company
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had received a telegram from the Union the prior day at
5 p.m. and he was very upset (or hurt) about it and they
would do anything to keep the Union out; she does not
believe that he used the work "legally " He said that he
was surprised because they had an open-door policy
"where we would talk to management or have meetings
and we would tell them our problems . . . that anyone
was welcome to come to his office." She had first
learned of the policy about a month earlier and there
may have previously been one group of employees who
had spoken with D'Agrosa, but it was difficult to get to
speak to him. Rowell testified that D'Agrosa said that
the union campaign was the result of a few disgruntled
employees, but that he felt that the Union would not get
in because a majority of Respondent's employees did not
want it. D'Agrosa also said that he would never let a
union into Gull and he would do everything in his
power to prevent it. Rowell does not remember D'A-
grosa using the word "legal" in this regard. D'Agrosa
said that the problem may have been caused by a lack of
communication at the Company, that he is in charge, and
that he did not realize that there were so many unhappy
employees. Pfaff testified that although he did not hear
everything that D'Agrosa said he heard him say that he
had information that people wanted to get into the
Union, but Respondent did not need a union and any
problems they had could be solved within the Company.
He then told them of the bad points of the Union, and
that it was run by gangsters. Pierce testified that D'A-
grosa read from the Union's telegram and said that it
could not have occurred at a worse time because Re-
spondent was preparing for a public offering of its stock;
he asked the employees to help him through the difficult
time by defeating the Union. Koello testified that D'A-
grosa said that they had received a demand for recogni-
tion from the Union; that the Company did not need a
union . Some employees expressed grievances, particular-
ly about the inadequacy of the test equipment. D'Agrosa
said that if they wished to do so, he would meet individ-
ually with the employees to discuss it further. As Koello
was standing in the rear, he did not hear everything that
was said.
D'Agrosa testified that he had separate meetings with
the employees in the three plants between late June and
early July. He opened these meetings by saying that con-
trary to his usual policy he was going to read from a
text. After reading from the text he made one additional
comment that the Union' s organizational drive came at a
very inopportune time as it affected Respondent's
planned public offering of its securities. There were no
questions at the end of the speech and no discussion of
an "open door policy." In addition , he never said that
they would not let a union into Gull, or that he would
do everything in his power to prevent the Union from
coming in . The prepared text does not say this. The pre-
pared text (which could have been read aloud in less
than 10 minutes) recites the Union's telegram and states
that a few employees were attempting to impose their
will on the majority, but that, "You can rest assured that
we will not allow these few people to force you or this
company into something you don't want." The entire
meeting lasted between 10 and 15 minutes. Van Sickle
was present at this meeting and his testimony supports
that of D'Agrosa.
The next meeting also occurred in the cafeteria about
June 27. The technicians and testers from all the plants
attended. Forgione testified that at this meeting D'A-
grosa repeated much of what he said at the prior meet-
ing, including that there was "no way" he would let the
Union into the Company. Pfaff testified that D'Agrosa
told them about the Union's telegram and the problem
was the lack of communication between management
and the employees:
He felt that instituting an open door policy would
solve this problem and that if any employees had
any problem that they were welcome to come to
his office at anytime to talk about their problems.
He put a limit on this open door policy by saying
that he would not discuss reviews, monetary consid-
eration or any type of benefits in these meetings.
D'Agrosa ended the meeting by saying that there was
no need for a union and he would do anything in his
power to keep it out of Gull. Pierce testified that D'A-
grosa said that the employees have a right to vote, and
the Union did not represent a large enough number of
Respondent's employees to get in, and he would do ev-
erything that he would to prevent them from getting in.
He also said that the problem was caused by a lack of
communication between the managers and employees
and he was sending the managers to classes to improve
the communication Questions were then invited and
asked. A question was asked about the lack of a dental
plan; he answered that it was too expensive and he
would rather see the employees take the extra few dol-
lars home with them in their paycheck. An employee
complained about the lack of testing equipment; he an-
swered that this problem was being discussed and they
were attempting to increase the budget for more equip-
ment.
D'Agrosa testified that at this meeting he told those
present that the Union was attempting to carve out a
unit to its liking , and Respondent would fight this at-
tempt. He also informed them that since the prior meet-
ing he had learned that Respondent could proceed with-
out delay with its public stock offering; the Union's or-
ganizational attempt would not affect it. In addition,
there were questions from the employees: one was re-
garding a dental plan for employees (he told them that
such plans were very expensive and he would rather
give it to the employees "in the form of pay" ) and an-
other was about the test equipment maintained by Re-
spondent and how to improve upon it.8 He never told
the employees that he would not tolerate a union at Gull
or that he would do everything he could to keep the
Union out; he did say that he would do everything that
was legally proper. Van Sickle's testimony of the con-
The question from the General Counsel
Q The question was a complaint that there was a lack of equip-
ment'?
A No, I don't believe anyone could complain that there was a
lack of equipment but whether there was enough equipment
GULL, INC
tents of this meeting substantially agrees with that of
D'Agrosa.
On July 8 D'Agrosa met with the testers and techni-
cians of the production test department; all except
Jacobs, who was absent that day, were present. He told
them that he had good news and bad news for them: the
good news was that they had not heard any further
word from the Union and it therefore appeared that they
had given up on organizing Respondent's employees.
The bad news was that Respondent had lost $750,000,
and all but $50,000 of that loss could be traced to their
department. He said that the loss was due to a deliberate
and illegal work slowdown by the production test de-
partment and those responsible would be dealt with.
F Alleged Slowdown and Terminations
Respondent alleges that the employees in the produc-
tion test department engaged in a work slowdown during
June, causing it to suffer a major loss during that month.
As a result of this intentional slowdown, Respondent
chose six employees for discharge The six individuals
denied that there was any intentional work slowdown in
their department, and the General Counsel alleges that
they were discharged because of (and in retaliation for)
the union activity in their department.
All the employees involved testified that they were
not aware of any intentional slowdown in their depart-
ment, nor did they participate in such a slowdown. They
also generally testified that because May 31 is the end of
Respondent's fiscal year the managers are anxious to ship
the products out, resulting in fewer parts and inventory
in June. This, together with the fact that some essential
support employees were absent during June, was the
cause of any reduction in production during that time.
Forgione testified that June 1983 was her second June
period of employment with Respondent: "things usually
slow down in June." In June she had difficulty obtaining
parts for production; many of the parts the department
needed had not yet been received by Respondent.
Rowell testified that June is generally a slow month, but
that in June 1983, in particular, he had difficulty obtain-
ing parts for the system he was working on; 80 percent
of the parts he needed were not available and were on
order. Vivona testified that prior to his discharge, he
spent hours waiting for parts for the units he was work-
ing on. Pierce testified that during June he had difficulty
obtaining parts; he waited from a day to a week for the
parts, sometimes taking them from other units Koello
testified that work was relatively slow in June, especially
for new orders. As was normal, they were short of parts
that were "robbed" from the kits of units that were to be
assembled in June, so that units could be completed in
May, prior to the end of the fiscal year. During June, he
spent a lot of time repairing units that were returned
with structural defects. Jacobs testified that work was
slow, as usual, in June and she spent most of her time
during that month assisting Anetrella with filing docu-
ments. Anetrella testified that Jacobs normally did filing
for her for a couple of hours a month; in June 1983 she
did about a day's work filing.
D'Agrosa testified that he was absent from the facility
for almost a week near the end of June. When he re-
941
turned on June 24, Van Sickle informed him there was a
"shortfall" of in excess of a half million dollars in pro-
duction that month that would have to be investigated.
He told D'Agrosa what Respondent's sales for June
should have been, and what they were, so far, for June.
He also told him of the number of employees working
that month. D'Agrosa told him to investigate the situa-
tion and document what the shortfall was, and who was
responsible. On July 7 Van Sickle informed him that the
large shortfall occurred in plant 5. This was based on
monthly records for all the departments compared with
prior months' records and other documents such as
amount of sales for each of the departments, the number
of hours worked (regular and overtime), the amount of
work in process, and the amount of material in inventory
available at the time. He also said that based on this in-
formation he was convinced that the shortfall was the
result of a slowdown. He told Van Sickle that they had
to show that this would not be tolerated and that Van
Sickle "was to select non-performing people and/or
those that he could identify as having contributed to that
slowdown and terminate them." The following day Van
Sickle told him that he had selected the employees to be
terminated. D'Agrosa did not question him about those
selected. He told Van Sickle to terminate them and have
the necessary documents prepared D'Agrosa never
spoke to Anetrella or any other supervisor or lead
person in the department about the slowdown, nor did
he discuss it individually with any of the employees in-
volved D'Agrosa testified that as their fiscal year ends
May 31 there is generally an attempt to get as much
product as possible produced and shipped by that time,
and therefore June is generally a slower month than
May. However, there should be no shortage of parts in
June because they schedule more parts for this period
knowing that they will be used during May.
Van Sickle was Respondent's principle witness regard-
ing this allegation. He testified that the first he learned of
the slowdown was on June 20. On that day, Vassallo
told him that Koello wanted to speak to him about the
Union. Koello came to Van Sickle's office and told him
that he and his family had been threatened by Pierce.9
He had not put his address on his union card for fear for
his family's safety and he wished to resign his employ-
ment for 2 weeks "to retract that card." i o Van Sickle
told Koello that if he wished to withdraw his union au-
thorization card he should meet with Castoro who
would explain the procedure to him His testimony con-
tinued:
In that discussion also he informed me that he was
involved in the slowing down of output, that Sigga
had been all over his butt for two weeks because he
hadn't produced one minute in two weeks and there
was unrest and a slowdown on the production
floor.
0 Pierce testified that he never threatened Koello
10 It was never explained how a resignation would act as a withdrawal
of the authorization card
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Later that afternoon, Koello returned to Castoro's
office and met with Van Sickle and Castoro where he re-
peated what he said earlier. He also said that he would
not resign, but would wait to see what occurred next. i i
Van Sickle never asked Koello who else was involved in
the slowdown, nor did he tell the employees involved
that he was aware of it, and they had better cease that
activity
The following questions and answers are from the
cross-examination of Koello:
Q. Do you recall going to Mr Van Sickle's office
to discuss the Union, on the Monday following
Coney Island Day?
A. No. I don't recall.
Q Does that mean that you don't recall or it
didn't happen?
A. I believe it didn't happen
Q. It didn't happen?
A. Yes.
Q. Do you recall telling Mr. Van Sickle that you
made a mistake about signing the Union card?
A I really don't recall anything of the sort.
Q. Do you recall telling Mr. Van Sickle that
there was a slowdown going on?
A. I don't recall any of this, I'm sorry.
Q Do you recall telling Mr. Van Sickle that you
did not put your address on the Union card?
A. I'm sorry, I can't say that either.
Q. Did you put your address on the Union card?
A. I believe I did.
Q. I showed you what has been marked as Gen-
eral Counsel's Exhibit 8, in evidence Is your ad-
dress on that card?
A. As a matter of fact, no.
Q. Do you recall telling Mr Van Sickle now,
that you didn't put your address on the card?
A. No, I don't recall.
Q. Do you recall telling Mr. Van Sickle that the
reason you didn't put your address on the card was
because you felt threatened for you and your
family?
Miss KAMINSHINE Objection.
JUDGE BiBLOWITZ: Overruled.
A. No, I do not
Q. Do you recall telling Mr. Van Sickle that you
wanted to get your card back?
A No, I don't recall.
Q Do you recall asking Mr. Van Sickle if you
can voluntarily quit for two weeks?
A. I don't recall saying that either.
Q. Do you recall telling Mr Van Sickle that if
you did that you can come back and that you
wouldn't have to worry about the Union any
longer?
A. I'm sorry, I did not say that.
Q. You did not say that?
A No.
1 i Koello's personnel file contains no documents regarding this meet-
ing, although it does contain a document signed by Van Sickle on June
23 regarding Koello parking in an improper location on the premises on
June 2
Van Sickle testified that prior to these conversations
with Koello, he had discussions earlier that month with
Anetrella regarding the fact that indicators were not
being produced as quickly as they usually were. The first
week or 10 days of a month are usually slow, but pro-
duction usually picks up by the 10th of the month. "In
the month of June it did not pick up significantly after
the 10th of the month " Although he did not personally
monitor the situation (prior to June 20), Anetrella and
Vassallo did. When D'Agrosa returned to the facility on
June 24, Van Sickle told him that Koello said that a
slowdown was taking place and that he expected a "sig-
nificant miss of hardware sales dollars" in the range of a
half million dollars D'Agrosa told him to stay on it, to
do everything he could to increase production, and to
report to him when he knew more. Van Sickle told him
that it would be difficult to predict what the shortfall
would be until the month had ended.
Van Sickle next met with D'Agrosa on the afternoon
of July 7. At that time Van Sickle made a presentation,
"one-line bullet type presentation, I went in and I literal-
ly read it," to D'Agrosa of the slowdown. He told D'A-
grosa that he was sure there was a slowdown, which re-
sulted in a shortfall of production, which would corre-
spondingly affect their cash situation: payroll, accounts
payable, and they would probably have to borrow to
cover the loss. He said that whereas in previous months
the indicator performance had ranged from 87 to 100
percent plus, in June it was 55 percent and the total loss
of production for the department was $69,300. He said
that there was no valid business reason for this loss:
there was enough inventory; there were no significant
differences between part shortages that month or any
other month; the total number of employees and hours
worked in the department was normal, and employee at-
tendance for the month was normal; product mix (the
type of product and whether it was general aviation, air-
line, or military) did not change from prior months;
reject rates and rework (units that are brought for repair
to have a part replaced or corrected) were normal He
also told D'Agrosa that although they had lost produc-
tion time due to his meetings with groups of employees,
the other production groups had basically met their goals
for the month. D'Agrosa told him to select "some
number" of employees who were either involved in the
slowdown or had poor employment records and they
would be discharged to set an example that Respondent
would not tolerate such activity
Van Sickle then selected the following six employ-
ees' 2 for the following reasons
A Koello Van Sickle testified that he chose Koello be-
cause he admitted being involved in the slowdown; as
stated, supra, Koello denies (although reluctantly) these
conversations Before making this decision, Van Sickle
did not review Koello's personnel file nor did he discuss
Koello with any supervisor
12 Anetrella was not consulted on the decision to discharge these em-
ployees In June, however, Vassallo asked her what the problem was in
her department and she told him that she was bewildered because the
employees who usually produced the most were not producing at all, she
specifically named Pfaff and Koello
GULL, INC 943
B. Jacobs and Forgione: Van Sickle testified that he
chose Jacobs and Forgione because they had the worst
attendance record of the eight or nine testers and be-
cause of the "continuous problems" they had with each
other.13 Prior to choosing them, he spoke to a clerk in
the personnel department and reviewed their attendance
records and their personnel files. There is nothing in
their personnel files regarding not getting along with
each other, nor is there anything in Forgione's file that
she was ever counseled before being discharged. Jacobs
was counseled on one occasion, July 1982, for attend-
ance problems. Respondent has a policy providing for a
three-step procedure for employees with attendance
problems: first is counseling and a 30-day probation;
second is a 3-day suspension; and third is a possible dis-
charge.14 On Jacobs' last review, in July 1982, she re-
ceived the highest rating for quality of work, ability to
get along with others, discipline, and adaptability. For-
gione's review, in July 1982, for the prior 3 months gave
her the highest rating for speed and quality of work, and
a rating of "successful most of the time" for ability to get
along with others.
C. Rowell: Van Sickle testified that Rowell was chosen
due to his "bitterness" directed at Respondent, which
was the result of his car having been stolen from Re-
spondent's parking lot. This occurred in the spring of
1983; from that time until July 8, Van Sickle discussed
this problem with Rowell on one occasion He testified
that Rowell also discussed this with Kocha "a number of
times" ; Vassallo "a couple of times", Anetrella, Castoro,
and D'Agrosa, and he was "a very bitter employee "
Rowell's personnel file makes no mention of this situa-
tion . Aside from this "attitude towards the company"
caused by the stolen car, Rowell was a good employee.
Rowell testified that he never spoke to D'Agrosa about
his car having been stolen from Respondent's parking
lot; he spoke to Castoro about it in February because he
is the personnel manager and he has the forms that must
be filled out in situations such as that.
D. Pierce. Van Sickle testified that Pierce was selected
because he had dust had a 3-day suspension and was on
his last warning . In making the determination, he did not
review Pierce's record to determine whether he had
been absent since returning from the suspension in June.
Pierce's evaluation for the period ending May 16, 1983,
gives him the best rating in five categories and the next-
to-best rating in the other four categories
E. Pfaff Van Sickle testified that he chose Pfaff be-
cause he had previously been issued a warning and be-
cause he wished to resign , and therefore had no interest
in Respondent. Pfaff told him that he was thinking of re-
signing , and based on that conversation (which was not
13 On direct examination, Van Sickle testified that he had discussed
this problem with Anetrella and Vassallo "several times over the 4 years
I've been at the company" On cross-examination, when it was pointed
out to him that Forgione was hired in January 1982, he testified "I didn't
say I heard about it over the four years, I said I heard about it off and
on ,,
14 Martin Luchen, a senior technician in the production test depart-
ment, was absent from work 17 days and late 42 days during an approxi-
mate 14-month period ending August, at that time he was counseled,
with a warning that the next time it occurred he would receive a 3-day
suspension
mentioned in Pfaff's file), he decided to discharge Pfaff
without discussing it with any supervisors or looking at
his file. He testified that as Pfaff had threatened to
resign , he was simply "staying until he could find an-
other job," and that is the reason he chose him. Pfaff
was never questioned about this while testifying.
Anetrella testified that the last quarters of Respond-
ent's fiscal year (March, April, and May) are always the
busiest; of the remaining months, there is little difference
in monthly output. In June 1983, "the first ten days we
had little work" but "It started coming in and we were
in full swing by the 10th." As to whether she experi-
enced any production problems that month, she testified:
It was very baffling . . . things moved different
than any other time. That was my fourth month in
the test department. Everything had worked very,
very well for me up to that time, and then all of a
sudden I wasn't getting the quantity out that I
needed, that I planned for, everything slowed
down. I was getting certain indicators normally,
and I wasn't getting others at all.
Anetrella testified that during June, lateness, absentee-
ism, and total numbers of hours worked by the employ-
ees in the department were normal for the month as
were the number of orders for indicators for the month.
The department receives its parts from the staging area.
In May and June three employees were employed in this
area working a total of almost 140 hours a week. On
cross-examination, she testified that one of these employ-
ees went on leave on June 15 and did not work the re-
mainder of that month, and another resigned, effective,
June 17 which was the last day he was employed. Of
two other employees who Anetrella testified also worked
in the staging area during June, on cross-examination she
testified that one was hired on June 27 and the other sub-
stituted in the department when someone was absent.
During June 1983 there was not an abnormally high
number of units on "hold" in the staging areas awaiting
parts, and, to her knowledge, the number of units await-
ing parts that were on back order was not unusually
high.
She testified that during June, there was "much more
walking around, much more bathroom details and tardi-
ness." 1 s She was "baffled" by her problems with Koello;
he was a very capable technician who was finding more
problems than normal on the indicators that he was
working on. On one evening in June (she could not be
more specific) she asked him why he was so slow getting
the units out, he said that he was having a lot of prob-
lems with the units. That was the only occasion she dis-
cussed the problem with him. She also spoke to Pfaff,
"he was not producing at all" and she spoke to him daily
about it. In June, she observed that for about a week and
a half Rowell was constantly walking back and forth to
the bathroom Sometime in June she asked him what his
problem was and he said that he had stomach problems.
During this period, Pierce and Vivona were "trouble-
is She testified that tardiness is generally higher in June than in non-
summer months, and in June 1983 it was only slightly higher than usual
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shooting" (attempting to correct some problems) a par-
ticular unit, it went back and forth from one to the other
for about a week when they informed her that the unit
had a cracked PC board. She took the unit to another
technician who repaired the unit and had it out in a one-
half hour. These were the only employees whom she
spoke to during this period about their production.
In addition to the above, Anetrella testified that during
"just about all of June" she was constantly on the floor
asking the employees to stop walking around talking to
each other and to sit down and work. She told this to
half the employees in the department, although she did
not name any and did not write any of them up for it.
The first definite knowledge Anetrella had of an orga-
nized work slowdown was a meeting she attended on
July 8 with D'Agrosa, Van Sickle, and Castoro. At this
meeting D'Agrosa said that they had determined that the
employees in her department were engaged in a deliber-
ate work slowdown. Kocha testified that the first he
learned of the slowdown was on July 8 when Castoro
told him that he was to discharge Pierce because his
"group" had been identified as participating in the slow-
down and he was being discharged as an example. He
was also told to discharge Forgione.
In addition to the above testimony, Respondent intro-
duced numerous documents into evidence in support of
its position. These documents, principally prepared in an-
ticipation of trial, allegedly establish that everything in
the production test department was normal in June,
except for the slowdown engaged in by the employees.
A discussion of some of these documents follows:
Mandelik maintained records of the number of SEMS
shipped by Respondent each month as well as those re-
turned to Respondent for repair or modification. From
October 1982 through March 1984 the number of SEMs
shipped monthly ranged from 1 to 15 (in May 1983) with
a monthly average of 4.3; two were shipped in June
Giannino maintains a record of the number of items (in-
cluding, but not limited to indicators) produced in plant
5 and the number of those items that were rejected after
inspection. From July through August 1983 the number
of items tested ranged from 784 to 1890 (1067 in June
1983) and the rejection rate ranged from 16 percent to 28
percent (with 24 percent in June 1983).
Van Sickle testified that an inventory was taken on the
production floor of plant 5 in July; it established that the
inventory was 50 percent higher than usual at the begin-
ning of a month and he informed D'Agrosa of this in his
later presentation . Van Sickle also identified an exhibit
entitled: "Manufacturing Targets Versus Sales," which
was prepared in anticipation of the trial . This shows that
in June 1983 indicator production was only about 60 per-
cent of the target set at the beginning of the month; from
June 1982 (when it was about 70 percent of the targeted
amount) through October 1983, this percentage varied
from about 55 percent (in July 1983) to almost 100 per-
cent. In June 1983, Respondent's actual production in
other production areas was almost 100 percent according
to this summary.
On the afternoon of July 8 Koello was called into
Harry Robert's office, Anetrella and Joseph were
present. Koello testified that Roberts (Respondent's em-
ployment manager) said that he was sorry he had to do
it, but he was only following orders. He told Koello that
he was being terminated because he was identified as an
organizer of the slowdown at the Company; however, he
was given the option of resigning Koello denied being
involved in a slowdown and asked Roberts for proof that
he was involved in such a slowdown. Roberts refused to
divulge such information. Koello agreed to resign and
asked for copies of the resignation and his personnel file;
these requests were also refused. Roberts testified that on
that day Castoro told him to speak to Koello and Rowell
and offer them the right to resign or be terminated for
their participation in the slowdown. When he met with
Koello on that day, he gave him that choice and stated
the reason. He did not say that he was sorry that he had
to do it, nor did he say that he was only following
orders. Koello said that he was sorry that his employ-
ment with Respondent was ending and asked for his per-
sonnel file, which Roberts refused.
Shortly before Koello was called, Rowell was called
into Robert's office; nobody else was present. He testi-
fied that Roberts said that their records showed that he
was an organizer of the slowdown and that he therefore
had a choice of resigning or being fired. Roberts recom-
mended resigning if he wished to obtain a good refer-
ence from Respondent for future employment, and he
did so. Anetrella escorted him from the premises saying,
"I tried to fight for you, I'm sorry that this happened, I
can't believe that the company is doing this." Roberts
testified that he told Rowell that he had the choice of
resigning or being terminated and he told him the reason.
Rowell signed the resignation. Anetrella testified that she
walked Rowell off the premises that day; she told him
that she was sorry and upset over the whole situation,
Rowell said that he knew that she did nothing to do
with it. She told him that she had tried to fight for him
by telling management that his output that month was
fair; his only problem was his too frequent trips to the
bathroom. She did not say that she could not believe Re-
spondent was doing it.
On that afternoon Forgione was called into Kocha's
office; Anetrella was also present. She was told that she
had the choice of resigning or being terminated because
Respondent had proof that she was involved in an inten-
tional slowdown. She denied it, but resigned. She testi-
fied that Anetrella walked her out and told her that she
was sorry that it had happened. Anetrella testified that as
she left the premises with her, Forgione said that she
knew who the "snitch" was and that they would take
care of him.
Pfaff testified that late that afternoon Anetrella told
him that Castoro wanted to see him in his office; Pfaff
did not know who Castoro was, so Anetrella pointed out
his office for him. Castoro told him that he was told that
Pfaff was the leader in the work slowdown Pfaff said,
"[Y]ou call me a leader and Sigga calls me a follower"
and said that the first he knew of a slowdown was when
D'Agrosa mentioned it at the meeting earlier that day.
He also said that he was working at his normal pace, but
there was less work to do, so his output might have been
lower then usual . Castoro said that he had a choice of
GULL, INC. 945
resigning or being terminated; if he resigned he would
get good references for future employment. Pfaff refused
to sign the resignation Anetrella escorted him out of the
plant and told him that she would give him a good refer-
ence if he needed one Anetrella testified that she never
told Pfaff that he could use her as a reference when she
walked him out of the plant on July 8; however, as they
were leaving the plant he told her that he knew who the
"snitch" was and he and his friends would take care of
him.
On that afternoon, Anetrella told Pierce that Kocha
wanted to speak to him Kocha told Pierce that he had
been identified as one of the ringleaders of the work
slowdown, and he had the choice of resigning or being
terminated, if he resigned they would give him a good
reference Pierce testified- "I really didn't know what
was going on, I just signed the resignation." Jacobs was
absent from work on July 8. About 5 minutes after she
arrived for work on July 11, Anetrella brought her into
Castoro's office where he told her that she identified as
one of the ring leaders of the work slowdown and he
gave her the choice of resigning or being terminated.
She asked him what he was talking about and he said
that Respondent had suffered a $750,000 loss because the
test department had engaged in a slowdown. She denied
responsibility but signed the resignation She testified
that as Anetrella walked her out of the building, she
gave Jacobs her telephone number and told her to call
her that evening. She called her that evening and Ane-
trella told her that everything that had occurred was "a
big shock" to her; she did not know anything about what
had happened She thought that what Respondent had
done would "backfire in their face" and "now, the Union
will definitely try to get in " She also told Jacobs that if
she needed a reference she should let her know. Ane-
trella testified that Jacobs had her telephone number
prior to that day, and called her that evening. She told
Anetrella that she had nothing to do with "anything"
and if Forgione were involved, she would not be in-
volved because they were not friendly. Anetrella told
her that she was sad about what had occurred, and
"didn't know anything about anything until that day
when I was told at 3.30." Anetrella did not offer to give
her a reference nor did she say anything about the
Union.
IV. DISCUSSION
It has long been clear that in order for an individual to
qualify as a supervisor as defined in Section 2(11) of the
Act, he or she need only possess one of the powers enu-
merated there. Ohio Power Co. v. NLRB, 176 F.2d 385
(6th Cir 1949). However, as the court stated in NLRB v.
Security Guard Service, 384 F.2d 143 (6th Cir. 1967).
"[T]he statute expressly insists that a supervisor (1) have
authority (2) to use independent judgment (3) in per-
forming such supervisory functions (4) in the interest of
management." The first issue herein is whether Rytell is
a supervisor within the meaning of the Act and, if so, did
his undenied statement to Vivona constitute an impres-
sion of surveillance in violation of Section 8(a)(1) of the
Act. No evidence was adduced which would establish
that Rytell had the authority to hire, fire, or discipline
employees, or to effectively recommend such action. As-
suming that he did interview some employees on a few
occasions, there is no evidence that he ever took any
action in that regard which would qualify him as a su-
pervisor; rather, based on all the evidence presented, it
appears more likely that he conducted the interview be-
cause Anetrella, Joseph, and Sosias were absent at the
time. Although there was testimony that he assigned
work to employees, it appears that these assignments
were not of the kind that required the exercise of inde-
pendent judgment. Additionally, the evidence that he
sometimes told employees to get off the telephone or to
stop conversing with other employees and return to
work does not support a finding of supervisory status.
Rather, the evidence establishes that although his pay is
near the highest in the department, his benefits and other
working conditions are the same as the other nonsupervi-
sory employees I therefore find that Rytell is not a su-
pervisor within the meaning of the Act 16
The General Counsel next alleges that Respondent, by
its agents D'Agrosa, Catania, Mandelik, Desimone, De-
chent, Dillon, and Carrao, violated Section 8(a)(1) of the
Act by telling its employees that the Union would never
represent them and that they would do everything to
keep the Union out. These statements are alleged to have
been made in two types of meetings: D'Agrosa's three
series of meetings with the employees, and the "manage-
ment team meetings" where the representatives read
from a speech and used a chart. Taking the latter first, it
is clear that these meetings began on June 23. The con-
tents of the speech and chart were changed on that day
or the next day to correlate with the contents of the
Union's telegram, and they continued for 3 or 4 more
workdays . It is also agreed that one management repre-
sentative maintained a large pad or chart while the other
read from a prepared text to the employees Pfaff testi-
fied that one of these charts said- "The management of
Gull Airborne will never let a union into Gull," with the
word "never" underlined, and the speaker stated these
words. One of the charts received into evidence con-
tained Respondent's answer to the Union's telegram,
which states: "[W]e refuse to recognize your union as
the representative of any Gull employees unless and until
you are so certified by the National Labor Relations
Board." Jacobs testified that at a meeting she attended in
June the speaker (whom she could not identity) said that
they did not want the Union and would do everything to
keep it out. Catania and Mandelik testified that they
were one of Respondent's teams and Jacobs attended one
16 Even if I had found Rytell to be a supervisor , I would still dismiss
the allegation that this warning to Vivona constituted the creation of an
impression of surveillance in violation of Sec 8(a)(1) of the Act Rytell
and Vivona were two of the leaders in the earlier attempt at unionization
and there is nothing to indicate that Rytell 's advice to Vivona was any-
thing other than a friendly suggestion Although it is clear that interfer-
ence, restraint , and coercion under Sec 8(a)(1) does not depend on
motive or whether the supervisor involved is on friendly or unfriendly
terms with the employee (American Freightways Co, 124 NLRB 146
(1959), Florida Steel Corp, 224 NLRB 45 (1976) ) I find that considering
all the facts herein , Rytells, statements did not reasonably tend to inter-
fere with Vivona's free exercise of his rights under the Act, rather, it
probably only caused him to act more cautiously Hicks Ponder Co, 168
NLRB 806 (1967)
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of their meetings and they never said that Respondent
would do everything to keep the Union out. Desimone,
Dechent, and Carrao also testified that they never made
such a statement at their meetings nor did their partners.
I found Desimone, Carrao, Mandelik (to a slightly lesser
degree) Dechent, and Catania to be very credible wit-
nesses , who made admissions when it was appropriate. In
addition, when they testified that they could not recall
something, it appeared to be in good faith, rather than an
evasion of an answer . I therefore find that no such state-
ments were made or shown at any of these management
team meetings
D'Agrosa spoke at three different meetings Forgione
testified that at the June 24 meeting D'Agrosa said that
he would do anything to keep the Union out. Rowell
also testified that D'Agrosa said that he would never let
a union into Gull and would do everything in his power
to prevent it. D'Agrosa testified that he did not make
such a statement at the June 24 meeting or any other
meeting . D'Agrosa said that he read his speech from a
text, and the text of his speech states: "You can rest as-
sured that we will not allow these few people to force
you or this company into something you don't want "
The next meeting involving these employees occurred
about June 27, Forgione testified that at this meeting
D'Agrosa repeated much of what he said at the prior
meeting , and said that there was no way he would let
the Union into Gull. Pfaff testified that D'Agrosa said
that there was no need for a union and he would do ev-
erything he could to keep it out of Gull Pierce also tes-
tified that at this meeting D'Agrosa said that the Union
did not represent enough employees and he would do
everything he could to prevent the Union from getting
into Gull. D'Agrosa testified that at this meeting he said
that the Union was attempting to carve out a unit to its
liking and Respondent would fight this attempt He
never said that he would do everything he could to keep
the Union out of Gull; he did say that he would do ev-
erything that was legally proper
The conflict in this testimony requires a credibility de-
termination. Of all the witnesses at the instant hearing, I
found D'Agrosa to be the least credible On cross-exami-
nation, he was hostile, overly cautious (e.g., see fn. 8),
and uncooperative (he refused to answer one question
because he had previously testified on the subject on
direct examination). I therefore credit the employees' tes-
timony and find that about June 24 and 27 D'Agrosa said
that he would never let a union into Gull and would do
everything he could to prevent it. This tended to incul-
cate in the employees a sense of futility about exercising
their Section 7 rights and choosing the Union, in viola-
tion of Section 8(a)(1) of the Act Fred Lewis Carpets, 260
NLRB 843 (1982).
The remaining allegation concerning this is that D'A-
grosa , in his second speech about June 27, solicited
grievances from the employees in order to prevent them
from supporting or joining the Union. Pfaff testified that
at this meeting D'Agrosa said that their problem was
caused by a lack of communication between management
and the employees and if any employee had a problem
they were welcome to come to his office at anytime to
discuss the problem. He said , however, that he would
not discuss reviews, money, or other benefits. Pierce tes-
tified that D'Agrosa said that he was sending his manag-
ers to classes to improve their communication with the
employees. In answer to a question regarding the lack of
a dental plan, D'Agrosa said that it was too expensive
and he would rather see the employees receive it in the
form of extra pay (D'Agrosa's testimony regard this is in
basic agreement with this). An employee complained
about the lack of test equipment and D'Agrosa said that
the problem was being discussed and they were attempt-
ing to increase the budget for more equipment. (D'Agro-
sa's testimony regarding this is that he answered that Re-
spondent was always improving the type and quantity of
available test equipment.)
In Uarco, Inc., 216 NLRB 1 (1974), the Board stated:
[T]he solicitation of grievances at preelection meet-
ings carries with it an inference that an employer is
implicitly promising to correct those inequities it
discovers as a result of its inquiries. Thus, the Board
has found unlawful interference with employee
rights by an employer's solicitation of grievances
during an organizational campaign although the em-
ployer merely stated it would look into or review
the problem but did not commit itself to specific
corrective action; the Board reasoned that employ-
ees would tend to anticipate improved conditions of
employment which might make union representa-
tion unnecessary. However, it is not the solicitation
of grievances itself that is coercive and violative of
Section 8(a)(1), but the promise to correct griev-
ances or a concurrent interrogation or polling about
union sympathies that is unlawful; the solicitation of
grievances merely raises an inference that the em-
ployer is making such a promise, which inference is
rebuttable by the employer.
In Uarco, supra, the Board found no violation because
the employer rebutted the inference by repeatedly in-
forming the employees that it could make no promises
regarding the grievances raised. 17 Additionally, the
Board found the record devoid if any showing of union
animus or concurrent unfair labor practices on the part
of the employer.
In Merle Lindsey Chevrolet, 231 NLRB 478 (1977), the
employer, a few days after the union began its organiza-
tion drive, informed his employees that he "wanted to
find out what kind of problems they were having and
that he would talk to them concerning such problems."
The Board, quoting the above-mentioned language from
Uarco, supra, found a violation of Section 8(a)(1), stating:
"In the instant case , there is no evidence that Respond-
ent made any statement or took any action to establish
that it was not promising to remedy grievances and we
therefore find that Respondent did not meet its burden of
rebutting the inference."
'r See also Hayes-Albion Corp, 237 NLRB 20 (1978), in which the
Board found no violation in the employer 's soliciting of grievances and
questions at meetings with employees, since the employer took a "no
promises" position at these meetings
GULL, INC
As I credit the testimony of Pfaff and Pierce and
Pierce over that of D'Agrosa, I find that at the June 27
meeting , D'Agrosa told the employees that if any em-
ployees had any problem he was welcome to come to his
office any time to discuss it; this was a major change
from his prior policy of scheduled meetings with small
groups of employees chosen by Respondent. In addition,
I find that D'Agrosa told the employees of the extra few
dollars in the employees' paychecks in lieu of a dental
plan and the possibility of additional testing equipment,
as well as sending his managers to classes to improve
their communication with the employees. D'Agrosa's re-
quests for questions from the audience, plus these replies
represent unlawful solicitation of grievances to inhibit
employees from exercising their Section 7 rights. Stride
Rite Corp., 228 NLRB 224 (1977); L. M. Berry & Co., 266
NLRB 47 (1983).
In Wright Line, 251 NLRB 1083, 1089 (1980), the
Board set forth the rule it will henceforth apply in dual-
motive discrimination cases such as the instant matter:
First, we shall require that the General Counsel
make a prima facie showing sufficient to support the
inference that protected conduct was a "motivating
factor" in the employer's decision. Once this is es-
tablished, the burden will shift to the employer to
demonstrate that the same action would have taken
place even in the absence of the protected conduct.
In examining the facts of the Vivona discharge in this
light, it is first necessary to make some credibility deter-
minations . I was most impressed by the testimony of
Banle ; it appeared to me that he was testifying frankly,
as best as he remembered the facts. Although his recol-
lection of certain facts may have been in error (e.g., his
testimony that it was he and Anetrella who spoke to
Vivona in his car), I find that this error was caused by
the passage of 10 months since the event rather than the
intentional falsification of the facts. I also found Rehkopf
to be a credible witness who appeared to be testifying to
the facts as best as he remembered them, although I
would not credit his testimony that he was pinned in the
doorway for 2 or 3 minutes. Rehkopf testified that it
"seemed like" 2 or 3 minutes and it is natural in a situa-
tion like that, in all probability, it was actually 10 to 20
seconds. On the other hand, I do not credit much of
Shapiro's testimony, as it is too implausible. When
Vivona parked his car in front of the door it blocked
Shapiro's entrance; rather than asking Vivona to move
his car a few feet, Shapiro chose an alternate route re-
quiring him to walk twice as far carrying these heavy
objects. In addition, when he saw what occurred next to
his car he just kept walking. As this appears implausible,
I do not credit Shapiro's testimony.
Finally, I do not credit Vivona's testimony regarding
the events of June 17; all the testimony (including that of
Vivona and Pfaff) clearly establishes that Vivona was
"looking for a fight." He testified that he was not paying
attention when he parked his car so close to the door,
yet he also testified that even before the Rehkopf inci-
dent he had to move the car several times to let people
in and out of the door That he did not permanently
947
back up his car away from the door earlier, knowing
that he was blocking employees from using the door, is
explained in either of two ways: that he was too intoxi-
cated to notice it or that he was looking to precipitate an
incident (or a combination of the two). Having made this
finding, I credit Van Sickle's testimony that after he
asked Vivona to leave the premises, Vivona put on a
demonstration in the parking lot by starting and stopping
his car quickly before leaving.
This does not conclude the inquiry, however. Vivona
was engaged in activities on behalf of the Union, and Re-
spondent admits that as of late Friday evening and Satur-
day morning it was aware of his activities (along with
Pierce), while of course denying that he was discharged
for that reason. The ultimate issue , therefore, is whether
Respondent seized on Vivona's misconduct to discharge
him, when the underlying reason was his union activities,
or has Respondent satisfied its burden under Wright Line
by demonstrating that it would have taken the same
action even if Vivona had not been engaged in any union
activity. The General Counsel points to the late hour
that Respondent's agents were notified of the June 18
meeting , together with the large number of top manage-
rial employees present at the meeting and the speed with
which Respondent acted in terminating him, without fol-
lowing the usual procedure of counseling him, giving
him an exit interview, or previously discussing it with his
supervisor, Anetrella, who was available at the plant that
morning Although the issue is not without doubt, I dis-
agree with the General Counsel and find that Respond-
ent has satisfied its burden under Wright Line, that it
would have terminated Vivona even absent his union ac-
tivities. As Respondent states in its brief, on June 17 Van
Sickle told Vivona that Respondent would be evaluating
the situation over the weekend; in addition, Anetrella
was with Van Sickle when he spoke to Vivona that
afternoon, and he may therefore have found it unneces-
sary to consult with her later about whether to discharge
Vivona. In addition, a large percentage of Respondent's
managerial employees generally work on Saturday so it
does not seem totally extraordinary that Respondent
would converge such a large number of executives to
discuss the discharge of one employee. The General
Counsel, in her brief, refers to the June 17 incident as "at
best a minor accident involving two employees on com-
pany property" and also asserts that Respondent's dis-
criminatory motive is established by the fact that Reh-
kopf never initiated complaints to management about the
incident, or asked to be taken for examination. However,
although nobody was injured by this incident, there was
clearly a potential for injury and the possibility that such
a situation might recur. I, therefore, disagree with the
General Counsel's characterization of the incident as a
minor one, and find that it was not unreasonable for Re-
spondent to act quickly in that regard. I therefore find
that Respondent did not violate Section 8(a)(1) and (3) of
the Act when it discharged Vivona.
There was a clear conflict between the testimony of
the General Counsel's witnesses who denied that there
was an intentional slowdown in the production test de-
partment and that of Respondent's witnesses who testi-
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
feed that such an intentional slowdown did occur. In
order to dismiss this allegation, I would have to discredit
Forgione, Pfaff, Koello, Rowell, Jacobs, and Pierce.
Other than Koello (whose testimony, as quoted above,
was somewhat ambiguous) I found the others to be fairly
credible witnesses; certainly credible enough so that I do
not believe they all lied when they testified that they
were not aware of an intentional slowdown in June In
addition , the testimony of Respondent 's witnesses and
the numerous documents introduced by Respondent to
support its case were not strong enough to overcome
this testimony.
In determining whether there was such a slowdown, I
was particulary concerned with the testimony of Re-
spondent's witnesses concerning when they learned of
the slowdown and of their attempts to stop it. Van
Sickle testified that on June 20 he was told of the slow-
down by Koello, and yet he apparently did nothing to
stop it at that time; he could have immediately called a
meeting of the department to inform them of his knowl-
edge with an accompanying warning that production had
better increase, or he could have met with Anetrella and
had her warn the employees; instead, he told D'Agrosa
of the situation, and waited over 2 weeks before speaking
to the employees.
I also find improbable certain testimony of an other-
wise fairly credible witness, Anetrella. Respondent al-
leges that production of indicators was on about 60 per-
cent of what it should have been in June, and yet Ane-
trella (who appears to be a highly competent manager)
never clearly saw the problem in her department until
July 8. She testified that she was baffled that things were
not operating as smoothly as usual. In addition, the only
concrete reasons for the shortfall that she could testify to
was that Rowell was constantly going to the bathroom,
Pierce and Vivona were spending a week troubleshoot-
ing a unit that should have only required one-half hour,
Pfaff was not producing, and Koello was finding more
problems than usual on the indicators he was working
on. It is not unreasonable to assume that a supervisor
who spent 80 to 100 percent of her time in the depart-
ment during that period would notice that the depart-
ment was producing at only a little more than half of its
regular production. Also of interest, both substantively
and regarding credibility, was her testimony regarding
the employees in the staging department during June; on
cross-examination she admitted that one left on June 15
and did not return that month, another resigned effective
June 17, a third was hired on June 27, and another was
not a regular employee in the department.
Finally, I do not credit Van Sickle's testimony regard-
ing his method of choosing employees for termination; if
an intentional slowdown had actually occurred, it would
be reasonable for Respondent to investigate the situation
and discharge those involved. Instead, Respondent chose
Jacobs and Forgione because they could not get along
with one another , although there is nothing in their per-
sonnel records to indicate this, and in their last review
Jacobs received the highest rating and Forgione the
second highest rating for the ability to get along with
others. Rowell was allegedly chosen because of his bit-
terness toward Respondent because his car had been
stolen from Respondent's parking lot although there was
nothing in Rowell's personnel file regarding this incident
and he was admittedly a good employee. Rowell testified
that he only discussed the subject with Castoro in Febru-
ary because Castoro had the forms that had to be com-
pleted. Pierce was allegedly chosen because he had just
been suspended for 3 days for absences; yet Van Sickle
did not check to see if Pierce had been absent since re-
turning to work in mid-June, and Pierce's evaluation 2
months earlier gave him the highest rating in five catego-
ries of work and the next to highest in the other four
categories. Pfaff allegedly was chosen because he had
once expressed an interest in resigning his employment
with Respondent; this is not mentioned in Pfaff 's person-
nel file nor did Van Sickle look at the file or speak to
any of the other supervisors prior to choosing Pfaff.
It is for all these reasons that I find that Respondent
has not satisfied its burden under Wright Line, that it
would have terminated Koello, Pierce, Rowell, Pfaff,
Forgione, and Jacobs absent their union activities. These
terminations therefore violated Section 8(a)(1) and (3) of
the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent, by its president and agent Peter
D'Agrosa, violated Section 8(a)(1) of the Act by telling
its employees that it would never let a union into Re-
spondent in order to convince them of the futility of en-
gaging in the activities that are guaranteed them in Sec-
tion 7 of the Act.
4. The Respondent, by its president Peter D'Agrosa,
violated Section 8(a)(l) of the Act by soliciting griev-
ances from its employees in order to inhibit the employ-
ees' exercise of their Section 7 rights.
5. The Respondent violated Section 8(a)(1) and (3) of
the Act by terminating the employment of Koello,
Rowell, Pfaff, Pierce, and Forgione on July 8 and Jacobs
on July 11, 1983, due to the their activities on behalf of
the Union.
6. Respondent did not violate the Act as further al-
leged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be re-
quired to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act.
As I have found that Respondent discriminatorily ter-
minated i s Koello , Rowell , Pierce, Pfaff, Forgione, and
Jacobs , I shall recommend that Respondent be ordered
to offer them full and immediate reinstatement to their
former positions or, if those positions no longer exist, to
18 Although Koello, Rowell , Pierce, Forgione, and Jacobs resigned,
they did so under a threat that if they did not do so, they would be fired
GULL, INC
substantially equivalent positions without prejudice to
their seniority or other rights and privileges . I shall also
recommend that Respondent be ordered to make all
these employees whole for any loss of earnings suffered
as a result of the discrimination against them , by pay-
ment of a sum equal to that which each would have
earned , absent the discrimination , with backpay and in-
terest computed in accordance with F W. Woolworth
Co., 90 NLRB 289 (1950); Florida Steel Corp., 231 NLRB
651 (1977). See generally Isis Plumbing Co., 138 NLRB
716 (1962) In addition , I shall also recommend that any
reference to their terminations be removed from the em-
ployees' employment records.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed"
ORDER
The Respondent, Gull, Inc., Smithtown, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling its employees that it would never recognize
or bargain with a union, or otherwise attempt to con-
vince its employees of the futility of engaging in union
or other protected concerted activities.
(b) Soliciting grievances from its employees in order to
inhibit them from exercising their rights under Section 7
of the Act
(c) Discharging or otherwise discriminating against its
employees due to their union or other protected concert-
ed activities.
19 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
949
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following action necessary to effectuate
the policies of the Act.
(a) Make whole Peter Koello, Bruce Rowell, Kenneth
Pierce, Thomas Pfaff, Tina Forgione, and Donna Jacobs
for any loss of pay suffered as a result of the discrimina-
tion against them as forth in the remedy section of the
decision.
(b) Remove from its files any references to the actions
taken against them on July 8 and 11, 1983, and notify
them, in writing, that this has been done and that the evi-
dence of this unlawful activity will not be used as a basis
for personnel actions against them
(c) Post at its Smithtown, New York location copies
of the attached notice marked "Appendix."20 Copies of
the notice, on forms provided by the Regional Director
for Region 29, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. At least one such notice shall be posted in each
building in Smithtown. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found herein.
20 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "