W. Ralston & Co., Inc.

National Labor Relations Board - Board Decisions

Jun 1, 1961

131 N.L.R.B. 912 (N.L.R.B. 1961)

912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to examine on -a case-by-case basis the appropriateness of separate
maintenance department units, fully cognizant that homogeneity,
cohesiveness, and- other factors of separate identity are being affected
by automation and technological changes and other forms of indus-
trial advancement.
[The Board vacated the Decision, Order, and Direction of Election
in Cases Nos. 15-RC-2175 and 15-RC-2179, dated February 2, 1961.]
[Text of Direction of Elections omitted from publication.]
MEMBER FANNING, concurring specially :
I concur in the results reached by the majority for the reasons con-
tained in my dissent from the original Decision, Order, and Direction
of Election in this case.
MEMBER RODGERS, dissenting :
I heartily agree with the philosophy and procedure which the ma-
jority says it intends to follow in cases of this type. Since it has
failed to apply this dynamic formula to the facts of this case, I must
respectfully dissent.
W. Ralston & Co., Inc. and Technical Tape Corporation and
Local 98, Rubberized Novelty and Plastic Fabric Workers'
Union, International Ladies' Garment Workers Union, AFL-
CIO
W. Ralston & Co., Inc. and Toy and Novelty Workers of America,
Local 223. Cases Nos. 2-CA-6626 and 2-CA-7389. June 1, 1961
DECISION AND ORDER
On October 27,1960, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents,
filed exceptions to the Intermediate Report.'
The Board 2 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.' The
'The Respondents also requested oral argument . As the record and exceptions ade-
quately present the issues and the positions of the parties , the request for oral argument
is denied
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Chairman McCulloch and
Members Rodgers and Leedom].
3 At the hearing the Respondents moved to dismiss the complaint on the ground that
the Regional Director had dismissed an earlier charge. The Trial Examiner denied the
131 NLRB No. 115.
W. RALSTON & CO., INC. AND TECHNICAL TAPE CORP. 913
rulings are hereby affirmed. The Board has considered the Inter--
mediate Report, the exceptions, and the entire record in this proceed-
ing, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.
ORDER
Upon the entire record in these cases, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, W. Ralston &
Co., Inc. and Technical Tape Corporation, their officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating employees concerning union meetings and mem-
bership in or activities on behalf of Local 98, Rubberized Novelty
and Plastic Fabric Workers' Union, International Ladies' Garment
Workers Union, AFL-CIO, and the Toy and Novelty Workers of
America, Local 223, or any other labor organization, in a manner
constituting interference, restraint, or coercion in violation of Section
8(a) (1).
(b) Threatening to move their plants because of the organization
of their employees.
(c) Posting or maintaining a rule broadly prohibiting their em-
ployees from engaging in union solicitation or other union activities
on the Respondents' premises during nonworking hours.
(d) Promising and granting wage increases to induce employees
to refrain from joining or assisting Local 223, or any other labor
organization, or from continuing their organizational activities.
(e) Engaging in surveillance.
(f) Interfering with the leaflet distribution of Local 98 or any other
labor organization.
(g) Warning employees against talking about or engaging in union
activities.
(h) Threatening employees with discharge or other reprisals
if they become or remain members of Local 98, or any other labor
organization.
(i) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protec-
motion and the Respondents except to this ruling . The Respondents contend that the
Regional Director's prior action constitutes ses 9udicata we find no merit in this con-
tention The doctrine of res lvdicata is not applicable where, as here , the prior charge
was dismissed before the conduct of a hearing and without opportunity for adjudication
of the merits . Jersey City Welding d Machine Works , Inc., 92 NLRB 510.
599198-62-vol. 131-59
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized
in Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. -Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at their plants in Bronx and New Rochelle, New York,
'copies of the notice attached hereto marked "Appendix." 4 Copies of
said notice, to be furnished by the Regional Director for the Second
Region, shall, upon being duly signed by the Respondents' respective
representatives, be posted by the Respondents immediately upon re-
ceipt thereof and be maintained by them for 60 consecutive days
thereafter in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
the Respondents to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for the Second Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondents have taken to comply herewith.
4 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning union meet-
ings or membership in or activities on behalf of Local 98, Rubber-
ized Novelty and Plastic Fabric Workers' Union, International
Ladies' Garment Workers Union, AFL-CIO, and Toy and Nov-
elty Workers of America, Local 223, or any other labor organiza-
tion, in a manner constituting interference, restraint, or coercion
in violation of Section 8 (a) (1). -
WE WILL NOT threaten to move our plants because of the or-
ganization of our employees.
WE WILL NOT maintain a rule broadly prohibiting our em-
ployees from engaging in solicitation or other union activities on
company premises during nonworking hours.
WE WILL NOT promise and grant wage increases to induce our
employees to refrain from joining or aissisting Local 223, or any
W. RALSTON & CO., INC. AND TECHNICAL TAPE CORP. 915
other labor organization, or from continuing their organizational
activities.
WE WILL NOT engage in surveillance.
WE WILL NOT interfere with the leaflet distribution of Local
98 or any other labor organization.
WE WILL NOT warn our employees against talking about or
engaging in union activities.
WE WILL NOT threaten our employees with discharge or other
reprisals if they become or remain members of Local 98, or any
other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist the above-named or
any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
All our employees are free to become, remain, or to refrain from
becoming or remaining members of Local 98, Rubberized Novelty
and Plastic Fabric Workers Union, ILGWU, AFL-CIO, and Toy
and Novelty Workers of America, Local 223, or any other labor
organization.
W. RALSTON & CO., INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
TECHNICAL TAPE CORPORATION,
Employer.
Dated-----------'---- By------------------------------------=
(Representative) (Title) -
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT •
STATEMENT OF THE CASE
This proceeding , brought under Section 10(b) of the National Labor Relations
Act, as amended ( 61 Stat . 136; 73 Stat . 519), was heard in New York, New York, on
August 17 and 18, 1960, pursuant to due notice and with all parties represented.
The consolidated complaint , issued on July 13, 1960, by the General Counsel of the
National Labor Relations Board , and based on charges duly filed and served , alleged,
as to Case No 2-CA-6626 , that Respondents had from April 20 to 'May 15, 1959,
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged ,in various acts of interference, restraint, and coercion in violation of Section
8(a)(1) of the Act and, as to Case No. 2-CA-7389, that Respondents had from
February 1 through May 31, 1960, engaged in further acts of interference, restraint,
and coercion. The complaint also alleged that the former case was the subject of
a settlement agreement approved by the Regional Director on January 14, 1960, but
that on or about July 8, 1960, the Regional Director issued an order withdrawing
approval of and vacating and revoking so much of the settlement agreement as per-
tained to independent violations of Section 8 (a)( I).
Respondents answered, denying the unfair labor practices as alleged. Respondents
also pleaded an affirmative defense of res judicata because of the General Counsel's
administrative disposition of another case, i.e., Case No. 2-CA-7314, which was
allegedly based on the same subject matter as Case No. 2-CA-7389, supra. Respond-
ents' motion for dismissal on the same ground, made at the outset of the hearing,
was denied.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. RESPONDENTS ' BUSINESS ; THE LABOR ORGANIZATIONS INVOLVED
I find on facts alleged in the complaint and admitted in the answer that Respond-
ents, Ralston and Technical, New York corporations engaged in the manufacture and
sale of polyethylene film and related products, are engaged in commerce within
the meaning of the Act (i.e., by reason of annual extrastate sales and shipments
exceeding $1,000,000 in value) and that Locals 98 and 223 are labor organizations
within the meaning of Section 2(5) of the Act. _
The complaint alleged and Respondents denied that Respondents constitute a single
integrated enterprise. The facts as developed by Respondents' admissions by answer
and stipulation and by other evidence are as follows: Ralston's board of directors
consists of Paul Cohen, Jerome F. Cohen, Helen Mazur, John Cerrone, and Howard
Nelson. Technical's board consists of the same persons except for Nelson. Ralston's
officers are Paul Cohen, president and treasurer, and Jerome F. Cohen, vice president
and secretary. Technical's officers consist of Paul Cohen, president; Jerome F.
Cohen, John Cerrone, Charles Katz, Paul Shalita, and Thomas Traverne, vice presi-
dents, Charles Katz, secretary and Louis Heyman, treasurer and controller. Paul
Cohen, the chief executive of both companies, also sets the labor policy of both.
Respondents occupy the same general offices at 240 North Avenue, New Rochelle,
served by a single switchboard (which serves also Ralston's Bronx plant), and all
of the bookkeeping for both corporations is done at those offices, though under the
control of different persons. Technical, which acts both as the selling agent and as a
buying agent for Ralston, operates a plant of its own in New Rochelle, a mile from
the office building. Ralston operates a plant at 265 West Fordham Road -(the Bronx
plant, involved in this proceeding), in which Technical presently owns no interest.
However, before the Bronx plant became Ralston's, it served as a packaging opera-
tion for Technical; and for some 2 or 3 weeks in March 1960 Ralston performed
there for Technical certain packaging operations, using its own employees, some of
whom were later referred to and hired by Technical.' In, addition, officials of the
two companies transfer back and forth; e.g., Mario Perri and Jack W. Schwartz have
at various times in the past worked for both corporations.
I conclude and find that, from the standpoint of labor relations at least, Respond-
ents constitute a single integrated enterprise. Cf. Technical Tape Corporation, 111
NLRB 845.
II. THE UNFAIR LABOR PRACTICES
A. The settlement agreement; applicable principles and issues
These two cases concern alleged unfair labor practices which occurred, respec-
tively, in April and May 1959, and in February through April 1960. The earlier
charges in Case No. 2-CA-6626, filed by Local 98, were settled by the parties by a
settlement agreement which was approved by the Regional Director on January 14,
1960, and which provided in part that Respondent Ralston would not "Engage in
' The dividing lines between Ralston's and Technical 's operations were so blurred that
Ralston's plant manager , Melvin Thornton , insisted ( mistakenly ) that Technical itself
did that work with its own employees , which also coincided with the understanding of
some of the employee witnesses . There was also evidence that during one payroll period
all Ralston employees were mistakenly paid by Technical checks and that Technical
employees received Ralston checks.
W. RALSTON & CO., INC. AND TECHNICAL TAPE CORP. 917
surveillance , interrogate its employees concerning their union activities , interfere
with the leaflet distribution of Local 98, warn employees against talking about or
engaging in union activities, or threaten its employees with discharge or other reprisals
if they become or remain members of Local 98," or "In any other manner interfere
with , restrain, or coerce its employees in the exercise of their right to self organiza-
tion, . . . to join or assist Local 98, or any other labor organization. ." New
charges were filed on May 18, 1960, by Local 223 in Case No. 2-CA-7389; and
thereafter on or about July 8, 1960, the Regional Director issued an order with-
drawing approval of and vacating and revoking the settlement agreement insofar as
it pertained to independent violations of Section 8(a) (1).
Though Respondents' answer denied the commission of the earlier unfair labor
practices which formed the subject matter of the settlement agreement, they stipulated
at the hearing that those denials should be deemed withdrawn in the event unfair
labor practices should be found pursuant to the complaint allegations concerning
the new case, No. 2-CA-7389, and in that event the order to be entered might
appropriately extend to and incorporate Case No. 2-CA-6626. The general princi-
ples governing the situation (of which Respondents voiced full acceptance in joining
in the stipulation) are as follows:
It is well settled that continuing violations of the Act will breach a settlement agree-
ment involving unfair labor practices and will justify the Regional Director in vacat-
ing the agreement and in proceeding with a complaint which covers unlawful con-
duct both before and after the agreement. However, findings of unfair labor prac-
tices can properly be made on the earlier conduct only where there is evidence of
substantial unlawful conduct following the settlement agreement, for evidence of
isolated and minor incidents will not justify the Board in going behind the agree-
ment. Moreover, in determining whether independent unfail labor practices have
occurred after a settlement, the Board will not appraise 'a Respondent's subsequent
conduct in the light of its conduct prior to the settlement. Baltimore Luggage Com-
pany, 126 NLRB 1204, and cases there cited.
Pursuant to those principles we consider first the evidence concerning the postsettle-
ment conduct, the issues on which are almost entirely factual and which turn on the
credibility of witnesses.
B. Postsettlement conduct; Case No. 2-CA-7389
The complaint as amended at the hearing charged Respondents with maintaining
an invalid no-solicitation rule from-March 1 to 28, 1960, with interrogation and
threats, and with promising and giving wage increases, all relating to the union mem-
bership and activities of employees in Local 223. Most of the unlawful conduct was
attributed by the General Counsel's witnesses to Melvin Thornton, plant manager,
and to Mario Perri, general manager of Ralston's polyethylene division. Other
single acts were attributed to Supervisors Angelo D'Alessandro and Cesar Pianello.
Sometime during the week prior to February 22, 18 of Ralston's employees in the
Bronx plant signed a letter addressed to President Paul Cohen requesting a meeting
to discuss 5 specified subjects, i.e., a 40-hour workweek, overtime pay for Saturdays
and Sundays, periodic raises, sick leave, and 2 machines per man. The letter was
handed to Thornton on February 19. Thornton called Cohen the same day and later
informed some of the signatories that Perri (who was in Chicago) would meet with
them after he got back to town. Perri finally came to the plant on March 2 and
called in groups of employees under circumstances later to be referred to. Though
the letter to Cohen indicated that the concerted activity was taking place among the
employees themselves, union activity involving Local 223 began either on the night
of the 19th or in the following week.
George Morgan, Frances Murray, and Aubrey Jenkins testified to interrogations by
Thornton during the week of February 22, after they had signed authorization
cards for Local 223. Morgan testified that Thornton asked if he had attended a
meeting Friday night and that he endeavored to turn aside the inquiry by stating,
"Oh, you mean the meeting with Paul Cohen." Thornton replied, "Not that meet-
ing. I mean the union meeting." Thornton also asked if Morgan would vote for
the Union. Murray testified that Thornton asked her and other employees if they
knew anything about the Union and if they heard anything about a union meeting on
Friday. Jenkins testified that Thornton questioned him about whether anyone had
approached him about anything. When Jenkins, who assumed that Thornton was
referring to the Union, pretended not to know what Thornton meant, Thornton
replied, "Don't lie to me, Lefty."
Although Thornton denied that the foregoing incidents and interrogations oc-
curred and denied any knowledge of union activity prior to March 2, the cumulative
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weight of the opposing testimony, credibly given, requires the rejection of Thornton's
denials.
Robert C. Warren, who signed an authorization card the latter part of February,
testified to a conversation with Supervisor D'Alessandro a week or two thereafter
and after employee Morgan had been laid off, during which D'Alessandro referred
to the employees' attempts to bring in the Union and stated that the Union "will be
the cause of us all leaving." D'Alessandro cited as an example the plant closing by
Ralston at Mt. Vernon when the Union came in there and cited Morgan's layoff as
an example of what happened as a result of the employees' actions in the Bronx
plant. Warren also testified that Supervisor Pianello answered his inquiry as to
Morgan's discharge by stating that the order to fire Morgan came from higher eche-
lons and that it was due to the fact that Morgan's name appeared too many times,
with the petition, with the signing of union cards, and with the turning in of union
cards.
D'Alessandro and Pianello denied the statements which Warren attributed to them;
they testified that though some of the employees inquired about Morgan's discharge,
they did not recall that Warren individually did so, and that they explained only that
Morgan was fired because he refused to work on Saturday.
The General Counsel offered no corroboration of Warren, despite 'the fact that
the alleged statements were made to or in the presence of other employees. Indeed,
D'Alessandro's statements were made during what Warren described as "a sort of a
bull session" among the employees. Significantly also, though the alleged state-
ments would have gone far toward establishing that Respondents discriminatorily
discharged Morgan, the complaint did not raise that issue. The failure to corroborate
Warren impels me to credit the testimony of D'Alessandro and Pianello.
We turn now to the evidence concerning Perri's conduct. Perri, who had learned
from Cohen of the employee letter, returned to New York on February 29 and
arranged with Jack Schwartz, works manager, to meet with the employees at the
Bronx plant on the afternoon of March 2. In the meantime, on the morning of that
day Perri received at New Rochelle a telephone call from someone who identified
himself as Salvatore Russo of the Toy and Novelty Workers Union, and who stated
that he represented the employees and wanted to sit down and negotiate a contract.
Schwartz had received a prior call from Russo to similar effect and had referred
Russo to Perri. Perri told Russo to take his representation claims "to the proper
authorities."
Perri met that afternoon with the employees in groups of three or four, and
Thornton and Schwartz were also present at least part of the time .2 Perri made
no reference to Russo or to Russo's claim to represent the employees, nor did he
refer to the employees' letter to Cohen. Morgan testified that Perri discussed with
his group a new work schedule and the question of overtime pay for Saturday and
Sunday in connection with "gripes" of employees, and told them that they should
have brought their gripes to him instead of going to an "outside element." Morgan
inquired if Perri meant the Union and stated that if so, he (Morgan) had signed a
union card. However, Perri evaded Morgan's question, repeatedly using the phrase
"outside element," and stated in part that he felt he was being stabbed in the back
by the employees going to an outside element instead of bringing their grievances
directly to him and that, "every dog will have his day."
Warren testified that Perri asked his group what their grievances were and told
them he saw no reason why they should stab him in the back by bringing in an
"outside force." On Perri's inquiry of Warren as to his personal grievances, Warren
mentioned a raise which had been promised him for 9 months. Perri promised to
see what he could do, saying that Warren should give him a week, and then lowered
the time successively to 5 days and finally to Friday. Warren, who had received $2
of the promised $10 raise the preceding week, got the remaining $8 on payday, 2
days later.3
Pablo Pizzarro testified that he and Perri were good friends and that Perri had
befriended him in the past; that shortly after he signed a union card early in March,
2 Schwartz testified that he "was in and out of all of those meetings," and Thornton
testified that he was "busy doing other things, too "
3In his affidavit to the Board, Warren stated that he received his $2 increase on
February 20 and the last increase of $8 on February 27 Warren, who freely admitted
his inability to remember dates, testified that those were approximate dates. As the date
of Perri's meeting with the employees was fixed by all the evidence as March 2, it is con-
cluded and found that Warren actually received his $8 raise the following payday.
Though Ralston's payroll records would have been conclusive on the point and though that
fact was called to Respondent 's attention at the hearing, the records were not produced
W. RALSTON & CO., INC. AND TECHNICAL TAPE CORP. 919
Perri called him in for a private conference and locked the office door. Perri in-
quired whether Pizzarro had signed a card for the Union and how many had signed
union cards. Pizzarro replied that he had signed and that some 80 or 90 employees
had signed. Perri stated in effect that they were "crazy people" and that he would
move the plant to Chicago or California. Perri also inquired if Pizzarro's son and
brother had signed union cards, but Pizzarro refused to state. Pizzarro also testified
to a telephone conversation with Perri a day or so later. Perri inquired how long
Pizzarro had worked for the Company, what his earnings were, how long his son
had worked there, and how old he was. Perri also asked if Pizzarro liked his job,
and Pizzarro complained that he had never gotten a raise, although others had.
Perri, Thornton, and Schwartz testified for Respondent concerning the March 2
meetings. Though the testimony of the two latter was in general consonant with
Perri's version as summarized below, it cannot be accorded normal corroborative
weight because they were present intermittently (see footnote 2, supra) and because
statements which they denied hearing could well have been made during their
absences, as Schwartz conceded.
Perri testified that he opened the meetings by asking the employees what their
problems were and that they brought up various subjects such as the 7-day week
problem, overtime for Saturday and Sunday, and individual merit increases which
Cy Taubman, the former superintendent, had promised but which had not been
given. Perri promised to investigate the latter and to make the increases if the
employees were entitled to them. Morgan also brought up other issues and volun-
teered the fact that he had signed a union card, and at least one other employee
volunteered a similar statement. Perri told them that was their business. He
denied that there was any other discussion of the Union and denied stating that
every dog would have his day. He admitted that he told the employees they should
have brought their grievances to him personally, but testified his statement related
to the fact that the employees had gone over his head by sending their grievance
letter to Cohen. Perri also admitted that he accused the employees (as well as
Pizzarro personally) of having knifed him in the back, but explained similarly
that that related also to their complaint to Cohen.
Perri also denied Warren's testimony concerning their alleged discussion of the
Union. He admitted that they discussed the matter of Warren's wage increase
and testified that he directed Schwartz to look into it and to give Warren the in-
crease if Taubman had promised it, and -that Warren received the increase after the
matter was checked into. (See footnote, 3, supra.)
Perri testified that he spoke with Pizzarro twice, once in a group meeting and
once in his office alone, though he denied locking the door on the latter occasion.
He denied discussing the Union with Pizzarro but claimed-as he did with Morgan
and Warren-that Pizzarro volunteered the fact that he had signed a union card.
Perri called in Pizzarro, he explained, to inquire why the letter had been sent
to Cohen, what had provoked it, and why Pizzarro had not discussed the matter
with him. He admitted that he referred to favors which he had done for Pizzarro
and his son, but denied having any telephone talk with Pizzarro.
The following evidence bears further on the motivation for the giving of the
wage increases: Though in a meeting at Cohen's home on the evening of February
29 Respondents' officials had discussed and decided upon the cutting back of
-operations at the Bronx plant because of losses which the Company was suffering,
and though substantial layoffs were made in March, Schwartz admitted that he gave
increases to some 15 or 20 employees following Perri's talks with the employees on
March 2 and that the subject of those increases did not enter into the discussion of
the Company's financial and economic problems.
Resolution of the conflicts concerning Perri's conduct turn on the fact that Morgan,
Warren, and Pizzaro testified to the same type or course of conduct on Perri's part,
that the Schwartz-Thornton testimony is of little weight as corroborative of Perri's
(see footnote 2, supra), and that the overall circumstances as well as certain facets
of Perri's own testimony tended to support or confirm that given against him. On
the latter point, Perri confirmed that he complained that the employees had not
brought their grievances to him and that he accused them of stabbing him in the
back. His claims that those statements related to the employees' action in going
behind his back to Cohen were wholly unpersuasive, particularly in the light of
evidence that Perri was in fact seldom present at the Bronx plant and that he made
no reference in the group meetings to the letter to Cohen and none to the matters
listed therein. Since Perri had knowledge of the union's representation claims and
of the union membership of at least some of the employees, his accusations seemed
plainly related to the fact that the employees had sought the aid of an "outside
-element" or "outside forces," as Morgan and Warren testified, and as further indicated
by his private interview with Pizzarro, which was significant in itself in view of the
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relationship between the two and of Perri 's raising wth Pizzarro the matter of
past favors.
The foregoing circumstances, coupled with the cumulative weight of the Morgan-
Warren-Pizzarro testimony , impel the rejection of Perri 's testimony in all respects
in which conflicts exists.
There remains a single item of conduct on which the evidence is not in sub-
stantial dispute. On March 1, Schwartz wrote out the following notice to employees:
"Solicitation of any kind either by or to our employees is not permitted on these
premises . Any (sic) caught involved with this sort of activity is subject to immediate
dismissal ." Thornton posted the notice at Schwartz ' direction on the morning of
March 2. On March 28, after the legality of the notice was called into question
during the Board 's investigation , Respondents posted a new notice which limited
the prohibition to working hours.
Schwartz testified that the original notice was posted as a result of a report which
he received on March 1 from Taubman, plant manager at Chicago and formerly
manager of the Bronx plant, that gambling was going on at the Bronx plant . Schwartz
admitted that he had never seen any signs of gambling himself, that no one in the
plant reported any, and that though the whole thing appeared ridiculous, he put the
notice up to stop the gambling if there was any going on. Though Schwartz
testified that the Company had a rule against solicitation during working hours,
he explained that he was careless in phrasing the original notice. He admitted that
he had never seen a no-solicitation rule posted previously and admitted further that
one exception-for a charity-was permitted. Morgan testified that there was no
rule against solicitation prior to the posting of the notice on March 2, and his testi-
mony is credited in view of Schwartz' implausible explanations. Indeed, Schwartz'
characterization of the gambling report as ridiculous seemed more than justified in
the light of evidence that Taubman and other Bronx plant employees had trans-
ferred to Chicago some 6 months before.
Concluding Findings
I conclude and find on the basis of the entire evidence that by the following acts
and conduct, Respondents interfered with, restrained, and coerced their employees
in the exercise of the rights guaranteed in Section 7 of the Act:
1. The posting of an invalid no-solicitation notice from March 2 to 28. Re-
spondents ' evidence showed no justification for a rule forbidding solicitation during
nonworking hours, and Schwartz' explanations were patently ridiculous.
2. The promising and granting of wage increases. That action, taken in the face
of Respondents' financial losses, their decision to curtail operations, the Union's
representation claims and the circumstances surrounding Perri's meetings with the
employees on March 2, was plainly calculated to induce the employees to refrain
from joining or assisting the Union and from continuing their organizational
activities.
3. Perri's threat to Pizzaro to move the plant, following Pizzaro's disclosures of
the extent of union organization.
4. Perri's interrogation of Pizzaro and Thornton's interrogation of Morgan and
Murray concerning union membership, union meetings , and other union activities.
Such interrogation did not stand alone (Tallapoosa River Electric Cooperative, 124
NLRB 474, 475), but was enmeshed with Respondents' other conduct as herein
found. Indeed, Perri's interrogation of Pizzaro was followed immediately by the
threat to move the plant.-
C. Presettlement conduct ; Case No. 2-CA-6626
It having been found above that Respondents engaged in unfair labor practices
following the settlement agreement , it is proper to make findings in the present
case, pursuant to the stipulation and the general principles stated in section A, supra.
Respondents' answer to the complaint in Case No. 2-CA-6626 being now with-
drawn , the complaint allegations concerning that case are deemed to be admitted
to be true. NLRB Rules and Regulations, Series 8, Section 102.20. Pursuant to
said allegations it is accordingly concluded and found that:
1. During the period from on or about April 20 to on or about May 15, 1959,
Respondents Ralston and Technical , through their plant manager, Seymour Taubman,
their supervisor, Lawrence Freer, their agent, Bernard Tiebow, and other agents
whose names were unknown, kept under surveillance the concerted activities and
leaflet distribution of Local 98 and other concerted activities of its employees for
the purpose of self-organization or improvement of working conditions.
2. During the period from on or about April 20, 1959, to on or about May 15,
1959 , Respondents Ralston and Technical , through their supervisor , Melvin Thorn-
AVCO CORP., ELECTRONICS & ORDNANCE DIV., EVENDALE 921
ton, and other agents whose names were unknown , interfered with the leaflet distri-
bution of Local 98.
3. On or about April 29, 1959, Respondents Ralston and Technical , through their
plant manager , Seymour Taubman, warned their employees to refrain from becoming
or remaining members of Local 98 or giving any assistance or support to it.
4. On or about April 29, 1959, Respondents Ralston and Technical through their
supervisor , Lawrence Freer, threatened their employees with discharge and other
reprisals if they became or remained members of Local 98 or gave any assistance
or support to it.
5. On or about April 29, 1959, Respondents Ralston and Technical , through their
plant manager , Seymour Taubman, interrogated their employees concerning their
membership in, and activities on behalf of and sympathy in, Local 98.
6. On or about April 30, 1959, Respondents Ralston and Technical , through
their supervisor , Lawrence Freer, warned their employees against talking about
Local 98.
By said acts Respondents interfered with, restrained , and coerced , their em-
ployees in the exercise of rights guaranteed in Section 7 of the Act.
III. THE REMEDY
Having found that Respondents engaged in certain unfair labor practices, I shall
recommend that they cease and desist therefrom and that they take certain affirmative
action of the type conventionally ordered in such cases which I find necessary to
remedy and to remove the effects of the unfair labor practices and to effectuate the
policies of the Act. Respondents ' breach of the settlement agreement and the con-
tinuation of their unlawful conduct to defeat the employees in their right freely to
organize and to bargain collectively through representatives of their own choosing,
demonstrate the necessity for a broad cease-and-desist order , which I shall recom-
mend. Cf. Baltimore Luggage Co., supra.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Locals 98 and 223 are labor organizations within the meaning of Section 2(5)
of the Act.
2. By interfering with, restraining , and coercing their employees in the exercise
of rights guaranteed in Section 7 of the Act, Respondents engaged in unfair labor
practices proscribed by Section 8(a) (1).
3. The aforesaid unfair labor practices having occurred in connection with the
operation of Respondents ' business as set forth in section I, above, have a close,. inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States and substantially affect commerce within the meaning of Section 2(6) and (7)
of the Act.
[Recommendations omitted from publication.]
Avco Corporation , Electronics and Ordnance Division , Evendale,
Ohio ' and Electrical Factory Workers Union , Petitioner
Avco Corporation , Electronics and Ordnance Division , Evendale,
Ohio and District No. 50, United Mine Workers of America,
Petitioner . Cases Nos. 9-RC-4279 and 9-RC-4316. June 1, 1961
DECISION, ORDER, AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Joe F. Odle, Jr., hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
1 The name of the Employer appears as amended at the hearing.
131 NLRB No. 114.