Petition — A. Lasaponara & Sons, Inc. v. National Labor Relations Board

Supreme Court brief1977

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IN THE MICHAPL RODAK, JP, LER:

——— -—--- 7

Supreme Court of the United States

OctToBER TERM, 1976

No. —26 - 863

A. LasaponaRa & Sons, Inc., A WHOLLY OWNED

SuBsmpiaRY OF ERE Inpusrriés, INC., AND

ERE Invvstrik&s, Inc.

Petitioners

NatTIoNAL LABor RELATIONS Boarp,

Respondent

enema

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Guy FARMER

FARMER, SHIBLEY, McGuinn & FLoop

1120 Connecticut Avenue, N.W.

Washington, D.C. 20036

Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

TABLE OF CONTENTS

Page

SE EE Son ctnphecunseesnukpiepecteccedues 1

IE iv dy SK 0dw dehSed be césccccdesedesoneuaces 2

Qumerncws PURGRWEED 2.00. c ccc ccc cccccccccccccces 2

Statutory Provisions INVOLVED ..............ee000- 2

SEATEMENT OF THB CaGe .... ccc cccccccccccccsccecs 4

Reasons FOR GRANTING TNE WRIT .................. 8

1. The Decision Below Conflicts With the Deci-

sions of Other Courts of “ppeals as to the

Proper Interpretation of ‘‘ Protected Activity’’

Under the National Labor Relations Act, 29

ot a ne dan stedeenesnes 8

2. The Decision Below Raises Important Ques-

tions Left Unresolved by the Court’s Opinion in

NLRB v. Burns International Security Services,

Inc., 406 U.S. 272 (1972), Concerning the Obli-

gation of a Successor Employer to Recognize

and Bargain with an Incumbent Union ....... 13

ED -wddiets dees ghdsentonnandce eocneceteeson 17

BE Ab Abb ah oc nn08 490 0950 bedeeensccténccicasis la

SE UP knbn cacewecesicn.nhinadecectcuedtesscens 15a

SOE © 6 vdindovacubecentccdsccucenscéhoadeansd 22a

CasEs :

Allen-Bradley Local No. 111, United Electrical Radio

and Machine Workers of America v. Wisconsin

Employment Relations Board, 315 U.S. 740 (1941) 9

ii Table of Contents Continued

| Page

American Art Clay Co. v. NLRB, 328 F.2d 88 (C.A. 7,

SE Gdn on kbinekndek deen Ok EY ph eb kOe Cirk eee 13

Brooks v. NLRB, 348 U.S. 96 (1954) ............... 15

Dobbs Houses, Inc. v. NLRB, 325 F.2d 531 (C.A. 5,

SED. Bickg dads nds 0d adineberaateusaiweayicie 12, 13

Emporwm Capwell Co. v. Western Addition Commu-

nity Organization, 420 U.S. 50 (1975) .......... 9

Hotel and Restaurant Employees’ international Alii

ance, Local No. 122 v. Wisconsin Employment

Relations Board, 315 U.S. 437 (1941) ........... A)

International Union, UAW, A.F. of L., Local 232 v.

Wisconsin Employment Relations Board, 336 U.S.

ee ME a vxtanscdubcsacacsee bk eGisaaeiess 4g

Innden Lumber Dwision, Summer & Co. v. NLRB,

St Seah SE EE: Ss cK Gnednsbes cdauhetalees es 16

NLRB v. Bachrodt Chevrolet Co., 468 F.2d 963 (C.A.

PT eae oT Oee pepe PPT ney kee Pr 15

NLRB v. Burns International Security Services, Inc.,

Ge Wee Be CHMD cuca cds pcdivvecsecd 2, 13, 14, 15, 17

NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240

PE nc ndncchune chance cueksedaneteeemeerotes 9

NLRB v. Lasaponara ¢ Sons, 93 LRRM 2314 (C.A.

DE cttncenktacikeksdebioidanebaas 10, 12, 13,14

NLRB v. Leprimo Cheese Co., 424 F.2d 184 (C.A. 10,

1970), cert. demed, 400 U.S. 915 (1970) ........ 11, 12

NLRB v. Local Union No. 1229, International Brother-

hood of Electrical Workers, 346 U.S. 464 (1953) 9

NLRB v. M&M Bakeries, Inc., 271 F.2d 602 (C.A. 1,

DD itatwbwiereddencédse did bouiobedewecen nous 11,12

NLRB v. Marshall Car Wheel and Foundry Co., 218

of Be errr eee 12

NLRB v. Morris Fishman and Sons, Inc., 278 F.2d 792

DY 6 te id is elk eee ieee io ieee

NLRB v. Reynolds € Manley Lumber Co., 212 F.2d

I Oe i oe a hk 12

NLRB v. Rockeway News Supply Co., 345 U.S. 71

DE cubtésvinnddehabevabass baadekeudsecbaaes 9

ee iad ane ee Se

Table of Contents Continued iii

Page

NLRB v. Sands Manufacturing Co., 306 U.S. 332 (1938) 9

NLRB v. Spooner and D.4F. Super Market, 76 LC

1 10699 (C.A. 10, 1975) ......- cece eee eeeeeeeees 16

NLRB v. Tragview, Inc., 470 F.2d 669 (C.A. 9, 1972) 15

Shelly & Anderson Furniture Co. v. NLRB, 497 F.2d

NE dnaevonnedyeus sas 13

Southern 9.8. Co. v. NLRB, 316 U.S. 31 (1941) ..... 9

U.S. Steel Company v. NLRB, 196 F.2d 459 (C.A. 7,

er cr dail dina Cesena inenacnesens 12

Srarurss AND REGULATIONS:

National Labor Relations Act

eas 1,8

~ oa0. . TN aan og 2, 8, 9, 10, 12, 13

29 U.S.C. § 158(a)(1), (3), (5) .-.eeeeeeeeeees 3, 7,8

99 U.S.C. § 159(c) (1) (A), (B) ..--seeeeeeeees 2, 3, 15

Siena ee

IN THE

Supreme Court of the United States

OctoBerR TERM, 1976

No.

A. Lasaponaka & Sons, Inc., A WHOLLY OWNED

Sussmpraky oF ERE Inpvustrims, INC., anD

ERE Inopvustriss, Inc.

Petitioners

NaTIonaL LaBor RELATIONS BoaRD,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The Petitioners respectfully pray that a writ of

certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the Second

Circuit entered in this proceeding on October 14, 1976.

OPINION BELOW

The opinion of the Court of Appeals appears at ——

F.2d ——, 93 LRRM 2314 (C.A. 2, 1976). The opinion

of the National Labor Relations Board appears at 218

NLRB No. 168, 89 LRRM 1858 (1975). Copies of these

opinions are in the Appendix, attached hereto.

‘eee

JURISDICTION

The judgment of the Court of Appeals was entered

on October 14, 1976. This petition for certiorari was

filed within 90 days of that date. This Court’s jurisdic-

tion is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether a one day strike by employees aimed

at inflicting serious economic harm on ng Company

and at avoiding regularly scheduled work is protected

under the National Labor Relations Act, 29 U.S.C

§§ 151, et seq., where the countervailing interest of the

employees involved is insubstantial.

2. Whether a successor emplover j uired

the National Labor Relations Act 29 USC. $6 me

seq., and by this Court’s decision in NLRB v. Burns

International Security Services, Inc., 406 U.S. 272

(1972), to recognize and bargain collectively with the

knowledge of the successor emp] iti

ployer, (b) recognition of

the Union by the predecessor employer was por a

on the sale or merger of the Company, (ce) the Union

tion nor was certified as exclusive re i

presentative

= Board under Section 9(c) of the National can

ations Act, 29 U.S.C. §159(¢), and (d) the Union

never entered into a collective bargaining agreement

with the predecessor employer.

STATUTORY PROVISIONS INVOLVED

“United States Code, Title 29:

Sec. 157. Employees shall have

7. &E the right

self-organization, to form, join, or assist ive 7

ee ee ee an a eee rad

ee TP ce Nil ape ie oe

ganizations, to bargain collectively through repre-

sentatives of their own choosing, and to engage in

other concerted activities for the a of col-

lective ee or other m aid or protec-

tion, and also have the right to refrain from

any or all of 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).

Sec. 158. (a) It shall be an unfair labor practice

for an employer—

(3) by discrimination in regard to hire or tenure

of employment or any term or condition of employ-

ment to encourage or discourage membership in

any labor organization...

(5) to refuse to bargain collectively with the

representatives of his employees, subject to the

provisions of section 9(a).

Sec. 159(c)(1) Whenever a petition shall have

been filed, in accordance with such regulations as

may be prescribed by the Board—

(A) by an employee or group of employees or

any individual or labor ane acting in their

be alleging that a substantial number of em-

sa (i) wish to be represented for collective

gaining and that their employer declines to

recognize their representative as the representative

defined in section 9(a), or (ii) assert that the in-

dividual or labor organization, which has been cer-

tified or is being currently recognized by their em-

loyer as the bargaining representative, is no

onger a representative as defined in section 9(a) ;

(B) by an employer, alleging that one or more

individuals or labor organizations have presented

to him a claim to be recognized as the representa-

tive defined in section 9(a) ;

the Board shall investigate such paiion aud if it

a question of

any recommendations with - thereto. If the

Board finds upon the record of such hearing that

such a question of representation exists, it shall

direct an election by secret ballot and shall certify

STATEMENT OF THE CASE

A. Lasaponara & Sous, Inc. (‘‘Company”’) is en-

gaged in the production of Ricotta and other Italian

cheeses and cheese products which it distributes in

greater metropolitan New York to pastry shops, Italian

shops and grocery stores. The Company’ i

y’s plant is lo-

cated in Oriskany, New York.

On December 3, 1973, Company President, Joseph

Lasaponara, received a letter from an official of the

Mechanics Educational Society of America, AFL-CIO

(‘“‘Union’’) claiming that the Union represented the

Company’s production and maintenance employees and

requesting that the parties negotiate a collective bar-

gaining agreement. A majority of these employees had

signed cards authorizing the Union as their exclusive

represeutative for the purpose of collective bargaining.

Two days later, the Union filed a representation peti-

tion with the Board.

Subsequently, at meetings held on December 10 and

12, representatives of the Company, including Lasa-

ponara, informed Union officials that Lasaponara had

no objection to the Union but that the Company was

ee en

involved in merger discussions with another corpora-

tion which could be interrupted or even jeopardized if

a Union election was held. The Union responded that

an election could be avoided if the Company would

grant voluntary recognition and made other proposals,

but nothing was finalized.

On December 14, Lasaponara met with Union officials

to discuss a recognition date. The Union proposed

April 1, 1974, and told Lasaponara that they would

prepare a formal Recognition Agreement to take effect

on that date, contingent upon the sale or merger of the

Company, and would withdraw their petition for a

Board election. In addition, the parties agreed to a 20¢

per hour wage increase.

On December 20, Union officials presented Company

Production Manager, Fazzino, with the Recognition

Agreement for transmittal to Lasaponara. On the same

day, the Union requested that the NLRB withdraw its

election petition. This request was granted on Decem-

ber 26.

Although the Company increased wages by 20¢ per

hour on December 24, Lasaponara never signed the

Recognition Agreement. The Union made only two

inquiries concerning the unexecuted agreement; once

in January and again in February.

Meanwhile, Lasaponara was negotiating the sale of

the Company to ERE Industries, Inc. A purchase

agreement was reached which provided for the sale of

all outstanding stock to ERE on March 7, 1974. The

final closing occurred on April 23, 1974, at which time

Frank Oddi became President of the Company and

Joseph Lasaponara became sales manager. Neither Mr.

Oddi nor anyone else from ERE Industries was aware

of any recognition agreement made by Lasaponara with

the Union.

The Union was informed of the sale of the Com

on March 25. On March 27, Oddi addressed the Com.

pany’s employees. He informed them that he would

shortly be the new president of the Company and that

employment benefits provided ERE employees would

be put into effect once the merger was completed on

April 23. (These benefits were put into effect on May

1.) None of the employees raised the question of a

union at this meeting.

On June 7, 1974, one month after he became the

Company ’s president, Oddi instructed Plant Manager

Fazzino, to discharge six employees for their refusal

to work on Palm Sunday, a regularly scheduled work

day at the plant for the past 25 years. The Lasaponara

plant had customarily been operated on Palm Sunday

because that holiday occurs during the Easter season

which is the busiest time of the year in the Ricotta

cheese industry. Seven-day-a-week production is neces-

sary during the Easter season since Ricotta cheese is

highly perishable and cannot ’

held for storage. ot be made in advance or

The Company was taken by rise when o i

5, the Friday before Palm Sede ang a Union ae

ative presented Fazzino with a typewritten petitio

signed by 12 of the Company’s 20 employees eed.

ing that Palm Sunday not be scheduled as a work day

and advising that if this was not done the undersigned

employees would not report for work that day. He then

assembled the employees and explained that he needed

them in order to get production out at this very critical

period. Six of the twelve employees who had signed the

petition responded to his plea for help and reported to

work on Sunday with the rest of the work force. The

other six employees did not report for work.

Fazzino then advised Oddi of the employees’ demand

and of the six absences. Oddi told him that, since he was

not yet in control of the Company, he couldn’t tell Faz-

zino what to do, but suggested caution. After the sale

was finally consummated on April 24, 1974, Oddi com-

menced an investigation and consulted with legal coun-

sel on this matter. This investigation and advice of

counsel resulted in the June 7 decision to discharge the

six absent employees.

The General Counsel filed a complaint alleging that

the Company violated Sections 8(a) (1), (3) and (5) of

the National Labor Relations Act and a hearing was

held before an Administrative Law Judge. On Novem-

ber 22, 1974, the Administrative Law Judge issued his

decision. He concluded:

1. Lasaponara and ERE violated Section 8(a) (1)

and (5) by making unilateral changes in the terms and

conditions of employment and by otherwise ignoring

the Union after Lasaponara had ‘‘agreed”’ in December

1973, to prospectively recognize the Union as of April

1, 1974, contingent upon the sale or merger of the

Company.

2. Lasaponara and ERE violated Section 8(a) (1)

and (3) by discharging the six employees who refused

to work on Palm Sunday, April 7, 1974.

3. Lasaponara and ERE violated Section 8(a) (1)

by interrogation of employees regarding Union activ-

ities."

1The factual details of this finding are not material to the

questions presented in this petition.

4. Lasaponara and ERE violated Section 8(a) (3

by refusing to rehire Peter Muraca because of gt

ployee’s Union activities.’

Based on these findings, the J udge ordered the Com-

pany to offer reinstatement, with backpay to the dis-

charged employees; to offer employment, with back

pay to Muraca; to cease and desist from interfering

with the employees in the exercise of their Section 7

rights; to rescind the unilateral changes made in the

terms and conditions of employment and: upon re-

quest, to bargain collectively with the Union as the

exclusive bargaining representative of its employees.

With minor exception, the Board. o

u nd

= without discussion the oH | om a

conclusions of the Administrative Lat

NLRB No. 168 (1975). ap") lees

By decision issued September 13, 1976, the United

States Court of Appeals for the Sec ircui

ond Cire

enforcement of the Board’s order. —— a r

LRRM 2314 (C.A. 2, 1976).

REASONS FOR GRANTING THE WRIT

l. The Decision Below Conflicts With Decisions of Other Courts

of Appeals as to the Proper Interpretation of “Protected

Activity” under the National Labor Relations

§ 151, et seq. tes

The heart of the National Labor Relations Act is

Section 7, 29 U.S. j i i

| S.C. § 157, which provides in pertinent

‘Employees shall have the ri

ght to self- i-

zation ... and to engage in other concerted aa.

-_-

* 1d.

ities for the purpose of collective bargaining or

other mutual aid or protection.’’

Despite the broad language of Section 7, the Board and

the Courts found that not all concerted activity is pro-

tected and have excluded certain concerted activities

from the protection of the Act.’ Surprisingly, after all

these years, the law is in a state of conflict amounting

to confusion as to what types of concerted activities are

protected and what are not.

Although the Palm Sunday strike engaged in by six

of the Company’s employees may not fit precisely into

any of the unprotected areas listed in footnote 3 be-

low, the principles governing these decisions clearly

apply in the instant case. Petitioners believe that the

’ See, NLRB v. Rockaway News Supply Co., 345 U.S. 71 (1952)

(discharge, for violation of an obligation to make deliveries, even

though crossing a picket line, sustained); Jnternational Union,

U.A.W., A.F. of L., Local 232 v. Wisconsin Employment Rela

tions Board, 336 U.S. 245, 255-263, (1948) (arbitrary unannounced

interruptions of work, not protected by § 7) ; Southern 8.8. Co. Vv.

NLRB, 316 U.S. 31 (1941) (discharge of seamen, for disobedience

on shipboard while away from home port, sustained) ; Allen-Bradley

Local 1111, United Electrical Radio and Machine Workers of

America v. Wisconsin Employment Relations Board, 315 U.S. 740

(1941) (mass picketing, unprotected); Hotel and Restaurant

Employees’ International Alliance, Local No. 122 v. Wisconsin

Employment Relations Board, 315 U.S. 437 (1941) (violence, while

picketing, unprotected) ; NLRB v. Sands Manufacturing Co., 306

U.S. 332 (1938) (discharge, for repudiation of employee’s agree-

ment, sustained) ; NLRB v. Fansteel Metallurgical Corp., 306 U.S.

240 (1938) (discharge, for tortious conduct, violence or sit-down,

sustained) ; NLRB v. Local Union No, 1229, International Brother-

hood of Electrical Workers, 346 U.S. 464 (1953) (discharge, for

disparaging attacks on quality of Company’s product and its

business policies, sustained); Emporium Capwell Co. Vv. Western

Addition Community Organization, 420 U.S. 50 (1975) (discharge

of two employees picketing to protest alleged racial discrimination

by the employer where employees did not operate through the

union, sustained).

walkout here was unprotected since it was called for

the obvious purpose of disrupting the Company’s work

schedule at a time these employees knew they could

inflict the most severe economic loss on the Company

without obtaining any substantial countervailing bene-

fit to themselves.

Nevertheless, the Second Circuit held that the walk-

out was protected under Section 7. Such a holding is in

confiict with decisions by the other Courts of Appeals

and the decisions of this Court which are listed in foot-

note 3. This conflict requires that the Court grant cer-

tiorari to review the judgment below.

In determining that the strike was protected un

Section 7, the Second Circuit held that the Ae ager

thumb is whether the economic pressure brought to

bear upon the Company was grossly disproportionate

to the goal the employees sought to achieve. The Sec-

ond Circuit found that the Palm Sunday strike served

a “‘legitimate work-related goal’? and was therefore

protected by the Act. NLRB v. Lasaponara & Sons. 93

LRRM at 2319. The Court further found that the

economic hardship inflicted was not di

> thal cae sproportionate

‘ These findings are intriguing in that there was no

work-related goal’’ argued, presented or identified by

the employees or by the Court. The only reason the

employees gave for their absence was that Palm Sun-

day was ‘‘a religious holiday.’’ But the employees did

not state that their religion was a factor and neither

the Board nor the Court so found. The employees at

Lasaponara had worked on Palm Sunday for the past

25 years and, because Palm Sunday production was

absolutely essential to the very existence of the Italian

cheese business of the Company, the refusal of the 12

employees to work on Palm Sunday would have dealt

a death blow to the business.

It is thus apparent that the economic hardship to

the employer was certainly disproportionate to any

undefined benefit to the employees. The Board’s rea-

soning was not that of the Court. The Board never at-

tempted to balance the hardship to the Company

against any benefit to the employees. The Administra-

tive Law Judge held, with the Board’s rubber stamp of

approval, that the activity was permitted because it

was a one-time strike with no evidence of intent to

engage in repeated or intermittent strikes. This is du-

bious reasoning at best, and at odds with the theory

relied on by the Court below in affirming the opinion

of the Judge and the Board.

All of this serves to further confuse the ctate of the

law.

To support its position, the Second Circuit relied on

decisions by the First Circuit in NLRB v. Leprino

Cheese Co., 424 F.2d 184 (C.A. 10, 1970), cert. denied,

400 U.S. 915 (1970); the Third Circuit in NLRB v.

Morris Fishman and Sons, Inc., 278 F.2d 792 (C.A. 3,

1960); and the Tenth Circuit in NZURB v. M&M

Bakeries, Inc., 271 F.2d 602 (C.A. 1, 1959). As in the

instant case, Leprino Cheese, Morris Fishman and

Mc&M Bakeries, each involved one day strikes called on

short notice, which were aimed at jeopardizing the

Company’s production of perishable goods and at its

vulnerability during a high demand holiday seasou.* A

‘It is important to note that in Leprino Cheese, supra, (strike

to compel double-time pay on holidays); Morris Fishman, supra

(strike to compel recognition) ; and M&M Bakeries, supra (strike

to compel contract negotiations), the employees involved had a

common element in each of these decisio -

ing that although the strike sponssinae ptt eed

nomic hardship on the employer and was called on

short notice, it was still protected under Section 7 be-

cause the Company was not threatened with aggra-

vated physical injury or exposed to severe economic

ee aa A Sons, supra at 2319; Leprino

: ty igh

pr Fcc pati pasting Fishman, supra at 796;

Other Circuit Courts, however, hav

ireuit ( ’ e found that con-

certed activity intended to inflict serious proud

hardship on an employer and concerted activity which

is of such a nature that it interferes with efficient pro-

duction should also be unpro . .

Thus, in NLRB v. Marshall Car Wheel

Co., 218 F.2d 409, 413 (C.A. 5, 1955), tp:

that the Company lawfully discharged those employees

who had engaged in a walkout which was “ delib-

erately timed with .. . the purpose of causing maximum

plant damage and financial loss . . .”’ to the employer

Moreover, in that case the strike was an economic strike

and as such served a ‘‘work-related”’ interest of the

strikers. Accord; NLRB v. Reynolds & Manley Lumber

Co., 212 F.2d 155 (C.A. 5, 1954) ; U.S. Steel Company

v. NLRB, 196 F.2d 459 (C.A. 7, 1952). Subsequently, —

in Dobbs Houses, Inc. v. NLRB 325 F

» inc. v. NLRB, 2d 531, 539

be . 1963), the Fifth Circuit found that a sudden

out by waitresses during the dinner hour was an

a method of protesting the discharge of a

avored supervisor since the concerted means were not

reasonably justified by the ends to be achieved. ’

long-term objective. In the j

ws instant case, Pa

was completely satisfied by their walkout Be mnths aro

negotiate with the Company. was nothing left

The Fifth Circuit’s opinion in Dobbs Houses was

closely followed by the Seventh Circuit in American

Art Clay Co. v. NLRB, 328 F.2d 88 (C.A. 7, 1964);

another case involving a strike to protest a change in

supervisory personnel. In American Art, the Seventh

Circuit held that:

‘; there is a distinction between moderate con-

duct as protected activity, on the one hand, and

intemperate activities during working hours which

destroy the efficient operation of an employer’s

business, on the other hand.’’ 328 F.2d at 90-91.

The Ninth Circuit similarly found in Shelly & An-

derson Furniture Co. v. NLRB, 497 F.2d 1200, 1203

(C.A. 9, 1974) that a “‘partial or intermittent’? work

stoppage is not protected by Section 7 of the Act.

The above cited decisions indicate that there is wide

disparity among the Circuits regarding the scope of

protected activity under the National Labor Relations

Act. These conflicts justify the grant of certiorari to

review the important questions raised by the judgment

below.

2. The Decision Below Raises Important Questions Left Unre-

solved by the Court’s Opinion in NLRB v. Burns International

Security Services, Inc., 406 U.S. 272 (1972) Concerning the

Obligation of a Successor Employer to Recognize and Bargain

with An Incumbent Union

The court below found that because ERE Industries,

Inc., was the successor to A. Lasaponara & Sons, Inc.,

it was, therefore, bound by this Court’s decision in

NLRB v. Burns International Security Services, Inc.,

406 U.S. 279 (1972), to recognize and bargain with the

incumbent Union. NLRB v. Lasaponara & Sons, 93

LRRM at 2316. By so ruling, the Court of Appeals

overlooked the following significant factual distinctions

between Burns, supra, and the instant case:

BURNS THE INSTANT CASE

1. The incumbent union 1. The incumbent union

was victorious in a re-

cent Board representa-

tion election and wag

certified by the Board

(Burns, supra, at 278).

2. The successor employer

had knowledge of cur-

rent recognition of the

Union at the time it

took over the business

(Burns, supra at 278-

279),

. The incumbent union

had entered into a col-

lective bargaining agree-

ment with the predeces-

sor employer and the

successor employer was

aware of that agree-

ment (Burns, supra, at

278).

was prospectively rec-

ognized by the predeces-

sor employer on a vol-

untary basis contingent

on the sale or merger of

the Company and was

not certified by the

Board (A. Lasaponara

& Sons, supra, at 2316-

2317).

. The successor employer

had no knowledge of the

secret and prospective

recognition by the pre-

decessor prior to taking

Over operation of the

Company. (This fact

was raised by the Com-

pany in its brief below,

but was not addressed

by the Court of Ap-

peals).

. There was no collective

bargaining agreement

between the incumbent

union and the predeces-

sor employer (A. Lasa-

ponara & Sons, supra,

at 2316).

Petitioners maintain that the above stated differ-

ences readily demonstrate that the Second Circuit was

wrong in ruling that Burns, supra, was controlling in

the instant case. To the contrary, Petitioners contend

that the instant case raises important and compelling

questions left unresolved in Burns, regarding the ex-

tent to which a successor employer has a legal obliga-

tion to recognize an incumbent union, which are now

ripe for review by this Court.

Since Burns, supra, some Circuits have had the op-

portunity to rule on the obligation of a successor em-

ployer to recognize an uncertified incumbent union.

In NLRB v. Tragview, Inc., 470 F.2d 669 (C.A. 9,

1972), the Ninth Circuit held that the successor em-

ployer did not violate the National Labor Relations

Act by refusing to recognizing the incumbent union,

which it alleged did not represent a majority of the

employees, where the union had been voluntarily rec-

ognized by the predecessor employer and the expira-

tion of the last collective bargaining agreement coin-

cided with the sale of the business. The Seventh Cir-

cuit apparently disagreed. It found that where there

is at least a prima facie showing that the incumbent

union represented a majority of the employees within

the year prior to the change in ownership, it must be

presumed that the union’s majority status continued

beyond the changeover.’ NLRB v. Bachrodt Chevrolet

Co., 468 F.2d 963 (C.A. 7, 1972).° But for reasons

stated, that decision is not apposite here.

* The one-year period adopted by the Seventh Circuit apparently

was based on this Court’s earlier holding that once a union is

certified there is an irrebuttable presumption that the union retains

its majority status for one year. Brooks v. NLRB, 348 U.S. 96

(1954).

*The Court granted certiorari in this case for the purpose of

ordering the Court of Appeals to remand to the Board with in-

A union is certified under Section 9(c) of the Na-

tional Labor Relations Act, 29 U.S.C. §159(c), as ex-

clusive bargaining representative only if it wins a

Board-conducted election. This Court most recently

affirmed its prefere'.e for the electoral process in

Linden Lumber Division, Summer & Co. v. NLRB,

419 U.S. 301 (1974) where it found that an em-

ployer has the absolute right to refuse recognition

based on authorization cards only and that a union

faced with such a refusal has the burden of taking

the next step of invoking the Board’s election pro-

cedures. The Union in the instant case gained recog-

nized status on the basis of authorization cards shown

to the predecessor employer. Neither Lasaponara

nor the Union ever communicated the existence of

the Union to ERE Industries prior to the merger.

Most importantly, Lasaponara did not currently rec-

ognize the Union but at most gave it prospective rec-

ognition in secret. It was as if the predecessor was

making a deal to avoid the Union during the prede-

cessor’s tenure by agreeing to foist the Union on the

unknowing successor.’ Nor was there a written recogni-

tion or collective bargaining agreement in the Com-

pany’s records which might have put ERE Industries

on notice as to the existence of the Union. Petitioners

thus believe, contrary to the opinion of the Second

Circuit, that ERE Industries, although a successor

employer, was not required by this Court’s decision in

structions to reconsider in accordance with Burns. supra, 423 U.S.

927 (1973).

"See NLRB v. Spooner and D.4F. Super Market, 76 LC § 10699

(C.A. 10, 1975), where the court found that under Burns a suc-

cessor employer who learned that the incumbent union had been

voluntarily recognived only after taking over the operation of the

business had a duty to barga:” with the Union.

: ; f

Burns, supra, to recognize the noncertified Union 0

which it had no knowledge when it purchased the

Company. |

In view of the significance of this issue and its im-

t on the collective bargaining obligation of a succes-

- employer, it is essential that the Court grant

review.

CONCLUSION

For the reasons set forth above, a writ of certiorari

should issue to review the judgment and opinion of the

Second Circuit.

Respectfully submitted,

Guy FARMER

Farmer, SHistey, McGuinn & FLoop

1120 Connecticut Avenue, N.W.

Washington, D.C. 20036

APPENDIX

APPENDIX A

U.S. COURT OF APPEALS, SECOND CIRCUIT (NEW YORK)

NLBEB v. Lasaponana & Sons, Ino.

Natrona, Lasor Rexations Boarp v. A. Lasaponara &

Sons, Inc., a wholly owned subsidiary of ERE [npvusrrrs,

Inc. and ERE Inovvsrruiss, Inc., No. 75-4215.

(Frzep Serremser 13, 1976)

Before Hays, Mutuican, and Mesxm, Circuit Judges.

Full Text of Opinion

Hays, Circuit Judge:—Petitioner National Labor Rela-

tions Board pursuant to Section 10(e) of the National

Labor Relations Act, 29 U.S.C. § 160(e) seeks enforcement

of its order filed on June 30, 1975, adopting the findings and

conclusions of the Administrative Law Judge that respond-

ents have engaged in several unfair labor practices in vio-

lation of Sections 8(a)(1), (3) and (5) of the Act, 29 U.S.C.

§ 151 et seq.' We enforce the Board’s order in all respects.

I. Withdrawal of Recognition and Uniiateral Changes in

the Terms of Employment

Respondent A. Lasaponara & Sons, Inc. (the ‘‘Com-

pany’’ or ‘‘employer’’) is engaged in the manufacture and

wholesale distribution of cheese and related products at

its plant in Oriskany, New York. During the autumn of

1973 a majority of the production and maintenance em-

ployees at the Oriskany plant signed authorization cards

*The Board’s decision is reported at 218 NLRB No. 168, 89

LRRM 1858 (1975).

designating the Mechanics Educational Society of America,

AFL-CIO (the ‘‘Union’’), as their sole representative for

the purposes of collective bargaining.* On December 3,

1973 Joseph Lasaponara, president of the Company, re-

ceived a letter from James Kozma, an officia] of the Union,

requesting Lasaponara to meet with the Union representa-

tives to negotiate a collective bargaining agreement. On

December 5 the Union filed a petition for a representation

election with the National Labor Relations Board and two

days later informed the Company by letter that several of

the Company’s employees had been elected to the Union

shop committee at the plant. Lasaponara contacted the

president of the Oneida Development Corporation, Thomas

Zappone, and requested him to meet with the Union to

discuss the situation. Oneida Development Corporation had

been instrumental in bringing the Company to Oriskany

and it maintained certain authority with respect to any

sale of ownership interests in the business. At his meeting

with the Union representatives Kozma and James DeBella

on December 10, Zapone explained his relationship to the

Company and stated that the Company was currently en-

gaged in merger discussions with another corporation

which might be jeopardized by a representation election

at that time. The Union officials replied that they had no

wish to disrupt the negotiations and requested a meeting

with Lasaponara so that a solution could be achieved.

On December 12, 1973 Kozma and DeBella met with Lasa-

ponara and Zappone. The Board found that at the meeting

Lasaponara stated that he had no objection to the Union

but expressed concern that an election at that time could

affect production and consequently upset merger negotia-

tions. The Union officials informed Lasapanora that an

* The respondents do not disyrt+ the Board’s conclusion that

these employees constitute an i.ppiopriate collective i

aa. the meaning vi Se tion 9(b) of the Act, 29 U.S.C.

159(b).

election would be unnecessary because the Employer could

voluntarily recognize the Union as its employees’ exclusive

bargaining agent on the basis of the authorization cards

which the Union had secured from a majority of the Orisk-

any plant workers. In addition to voluntary recognition the

Union officials proposed an immediate 25¢ per hour wage

increase and a delay in formalizing a contract. There also

was a discussion of certain other contract terms and Lasa-

ponara stated that he wouid consider the Union’s proposal.

On December 14, 1973 Lasaponara again met with Kozma

and DeBella. According to credited testimony at the Board

hearing Lasaponara stated that he was not willing to sign

a contract with the Union at that time but that he would

grant a 20¢ per hour wage increase if the Union would take

it into account when negotiations for a full contract took

place. The Union representatives agreed to the 20¢ figure

provided that the Employer continued certain past prac-

tices concerning ‘employment benefits and regular wage

increases. The Board found that at the December 14 meet-

ing Lasaponara agreed to sign a formal Recognition Agree-

ment and begin full contract discussions with the Union on

April 1, 1974 by which time it was assumed the merger

negotiations would be completed. In return the Union rep-

resentatives agreed to withdraw the election petition from

the Board. On December 20, 1973 Kozma and DeBella pre-

sented the Employer’s Production Manager, Fazzino, with

the written Recognition Agreement for transmittal to Lasa-

ponara.* On the same day the Union sent a withdrawal

* This document provided in full:

‘*RECOGNITION AGREEMENT

by and between

Lasaponara & Sons, Inc.

and

Mecuantics Epucationa, Socrery

or AMERICA

AFTt-CIO

Effective April 1, 197[4], Lasaponara & Sons, Inc. will recog-

request to the NLRB which was granted on December 26.‘

Although the Company, as it had agreed, instituted the

20¢ per hour wage increase on December 24, 1973, Lasa-

ponara failed to sign the formal Recognition Agreement.

DeBella contacted Fazzino shortly after the lst of Janu-

ary to inquire why the document had not been signed and

returned. Fazzino told DeBella that the intervening holi-

days had delayed transmittal of the document to Lasapo-

nara but that the Union would soon receive it. On February

5 DeBella spoke to Fazzino about certain employee com-

plaints concerning health insurance coverage and wage

increases and, on this occasion, again raised the matter of

the unexecuted Recognition Agreement. Fazzino replied

that Lasaponara had been very busy. The next day DeBella

contacted Zappone in an attempt to arrange a meeting with

Lasaponara. This effort was unsuccessful.

In early March, 1974 DeBella again contacted Fazzino to

discuss the proposed layoff of certain employees, including

several members of the Union committee. DeBella con-

tended that such a layoff would be improper and that the

Union would file charges if it took place. Fazzino discussed

the matter with Lasaponara and the layoff was not effectu-

ated. In addition, DeBella spoke directly with Lasaponara

on March 5 about certain other employee complaints. Lasa-

ponara suggested that DeBella put these grievances into

writing and the latter did so in a letter dated March 8.

nize the Mechanics Educational Society of America, AFL-CIO as

the sole collective bargaining agency on behalf of the employees

employed at its plant located on Base Road, Oriskany, N.Y. for

rates of pay, wages, hours of work and any other conditions of

employment.’’

*On January 14, 1974 the Union sought to withdraw a repre-

sentation petition that it had filed with the New York State Labor

Department. This request was granted on February 8, 1974.

In the meantime merger discussions were continuing be-

tween the Company and respondent ERE Industries, Inc.

(‘*ERE’’) which was to purchase all the Company’s stock.

DeBella was made aware of this in March by Zappone who

also gave DeBella the name and telephone number of Frank

Oddi, the president of ERE. On March 27, 1974, Oddi ad-

dressed the Company’s employees telling them in effect that

he was to be the new president of A. Lasaponara & Sons,

Inc., and that the employment benefits provided by the

parent company, ERE, would be extended to them. On

April 1 DeBella placed a telephone call to Oddi and, failing

to reach him, left a message requesting that he call the

Union. It was determined by the Board that Oddi was

apprised of the call but. never returned it. On April 23

ERE assumed ownership of the Company.’ On May 1, the

changes in the employment conditions of the Company

promised by Oddi were put into effect.

On the basis of the foregoing findings the Board held

that the Company violated Sections 8(a)(5) and (1) of the

Act, 29 U.S.C. §§ 158(a) (5), (1),° by withdrawing recogni-

* Joseph Lasaponara remained with the Company as its sales

manager.

*29 U.S.C. § 158 provides, in relevant part:

**(a) It shall be an unfair labor practice for an employer—

**(1) to interfere with, restrain, or coerce employees in the

exercise of the rights guaranteed in section 157 of this title;

o eo @

**(5) to refuse to bargain collectively with the representatives

of his employees...

**(d) For the purposes of this section, to bargain collectively is

the performance of the mutual obligation of the employer and the

representative of the employees to meet at reasonable times and

confer in good faith with respect to wages, hours, and other terms

and conditions of employment, or the negotiation of an agreement,

or any question arising thereunder, and the execution of a written

contract incorporating any agreement reached if requested by either

tion from the Union and refusing to bargain collectively

and by unilaterally changing the terms and conditions of

employment of its employees. We agree. Once a collective

bargaining agent is voluntarily recognized by an employer

as the representative of its employees the bargaining rela-

tionship must be permitted to continue and recognition may

not be withdrawn at will. See N.L.R.B. v. Broad Street

Hospital] and Medical Center, 452 F.2d 302, 78 LRRM

3075 (3d Cir. 1971); N.L.R.B. v. San Clemente Publishing

Corp., 408 F.2d 367, 70 LRRM 2677 (9th Cir. 1969). Uni-

lateral changes in the terms of employment made by an

employer in disregard of the duly-recognized collective bar-

gaining agent is a well established violation of the employ-

er’s statutory duty to bargain collectively. N.L.R.B. v. Katz,

369 U.S. 736, 50 LRRM 2177 (1962), N.L.R.B. v. General

Electric Co., 418 F.2d 736, 746, 72 LRRM 2530 (2d Cir.

1969), cert. denied, 397 U.S. 965, 73 LRRM 2600 (1970).

The only issue here is whether the Board correctly deter-

mined that the Employer voluntarily recognized the Union

as the representative of its employees at the December 14

meeting between Lasaponara and the Union officials, Kozma

and DeBella.’ We hold that this conclusion is fully sup-

party, but such obligation does not compel either party to agree

toa proposal or require the making of a concession .. .”’

* Contrary to respondents’ contention, the Administrative Law

Judge and, consequently, the Board did not reject the General

Counsel’s theory that the Union was orally recognized at the De-

cember 14 meeting. The opinion of the Administrative Law Judge

states, with respect to the Genera] Counsel’s argument:

‘‘Considering all of the foregoing, I find that the facts support

the General Counsel’s contentions and do not support the Respond-

ent’s contentions. Thus, the facts reveal that the Union was desig-

nated as the collective bargaining representative by a majority

of the employees in the appropriate bargaining unit. The facts are

clear that the employing entity, in December, 1973, had no ques-

tion as to the union’s majority status but in fact agreed that such

status existed. Thus, the employer’s action in agreeing to recognize

the Union in the future, without other evidence as to majority

ported by substantial evidence on the record as a whole.

See Universal Camera Corp. v. NLRB, 340 U.S. 474, 27

LRRM 2373 (1951).

Respondents argue that Lasaponara agreed on December

14 to recognize the Union only in the event that the busi-

ness was not sold and that therefore the Union at that time

agreed to defer its demand for recognition until the merger

negotiations were finished. However, the sole evidence sup-

porting this position is Lasaponara’s own testimony which

the Administrative Law Judge declined to credit. On the

other hand, the Board’s finding of oral recognition on De-

cember 14 is supported by testimony of the Union officials

Kozma and DeBella and by subsequently occurring events

including (1) the fact that although the Union officials had

secured authorization cards from a majority of the em-

ployees they had agreed to the Employer’s request to fore-

go an election and withdrew their petition to the Board,

(2) the institution of a 20¢ per hour wage increase by tle

Employer shortly after December 14, which had been re-

quested by the Union officials at that meeting, and (3) su-

pervisor Fazzino’s grievance adjustments with Union rep-

resentative DeBella acting on behalf of certain employees.

The inferences that the board drew from these incidents

are reasonable and must therefore stand. Universal Camera

Corp. v. N.L.R.B., supra. Since the Employer’s voluntary

oral recognition of the Union as the collective bargaining

agent of its employees on December 14 is binding, N.L.R.B.

v. Broad Street Hospital, supra 452 F.2d at 305, the fact

that Lasaponara never signed the formal Recognition

Agreement is immaterial. Under these circumstances the

Company’s refusal to bargain with the Union after the

transfer of ownership and its institution of unilateral

changes in the terms of employment constituted a clear

status, clearly fixes the Union as the recognized exclusive collective

bargaining agent of the employees involved. Contrary to Respond-

ent’s contentions, the facts do not reveal that the Union aban-

doned or agreed to give up bargaining rights.

violation of Sections 8(a)(1) and (5) of the Act. N.L.R.B.

v. Katz, supra. This conclusion is unaffected by the change

in stock ownership of the Company. See N.L.R.B. v. Burns

Security Services, Inc., 406 U.S. 272, 80 LRRM 2225 (1972).

Il. Threats of Reprisals

The Board held that the Employer violated Section 8

(a)(1) of the Act by interfering with its employees’ orga-

nizational rights guaranteed under Section 7, 29 U.S.C.

§ 157,° Finding that its officers aad coercively interrogated

and threatened certain employees concerning Union-related

activities. This conclusion is fully supported by undisputed

facts and evidence in the record. During December, 1973,

Lasaponara, then president of the Company, held a series

of meetings with his employees whom he interrogated in his

office, two at a time, concerning the reasons why they

wanted or thought they needed a union. Crediting the testi-

mony of certain of these employees while rejecting Lasapo-

nara’s corresponding denials, the Administrative Law

Judge determined that at some of these meetings Lasapo-

nara made undisguised threats of reprisal to employees for

assisting or being sympathetic to the unionization drive

under way at Oriskany. Lasaponara told severa] employ-

ees that if they helped the Union ‘‘he would fix them.’’ He

told others that he could not give them their scheduled

raises so long as they dealt with the Union. Similarly, a

supervisor of the Company, John Kosh, stated to one em-

*29 U.S.C. § 157 provides:

“Employees shall have the right to self-organization to form,

join, or assist labor organizations, to bargain collectively through

representatives of their own choosing, and to engage in other con-

certed activities for the purpose of collective bargaining or other

mutual aid or protection, and shal] also have the right to refrain

from any or all of 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 158(a) (3) of this title.’’

ployee in November, 1973, that ‘‘it would be futile for the

employees to select the Union since the employer would not

accept the Union as an agent for the employees.’’* In

addition, it was found by the Administrative Law Judge

that on two occasions early in 1974 production manager

Fazzino * questioned several employees about the identity

of those who had been active in promoting the Union or

had signed authorization cards on its behalf and whether

any and Union meetings had taken place. Fazzino was also

found to have crumpled and thrown on the floor a petition

signed by several employees protesting the scheduling of

work on Palm Sunday and calling the employee who had

presented bim with it, Eva Wilson, Chairman of the Union

shop committee, a ‘‘troublemaker.’’

These actions taken by the president of the Company

and its production manager and supervisor constitute

archetypal Section 8(a)(1) violations since they ‘‘ were cal-

culated to frustrate the union’s organization campaign by

instilling fear of reprisals in the employees.’’ N.L.R.B. v.

L. E. Farrell Co., Inc., 360 F.2d 205, 207, 62 LRRM 2130

(2d Cir. 1966). The president of the Company called the

employees into his office and there questioned and explicitly

threatened them concerning the Union. A clearer example

of coercive interrogation would be difficult to imagine. See,

N.L.R.B. v. Gladding Keystone Corp., 435 F.2d 129, 76

LRRM 2099 (2d Cir. 1970); N.L.R.B. v. Milco, Inc., 388

F.2d 133, 67 LRRM 2202 (2d Cir. 1968). Fazzino’s requests

for the names of those who have signed authorization cards

plainly indicated to the interrogated employees that open

* Respondents do not dispute the fact that Kosh was a super-

visory employee within the meaning of Section 2(11) of the Act,

29 U.S.C. § 152(11). An employer may be held liable for coercive

statements made by supervisory personnal. See, e.g. Irving Air

Chute Co. v. N.L.R.B., 350 F.2d 176, 179, 59 LRRM 3052 (2d Cir.

1965).

* Fazzino was also Lasaponara’s partner in the business.

10a

support of the Union would undoubtedly place one in an

unfavorable light with the Employer in contrast to those

employees who refrained from exercising their statutory

rights. That this would be the case was dramatically dem-

onstrated when Fazzino called Eva Wilson a ‘‘trouble-

maker’’ and threw the proffered petition on the ground.

Similarly, Kosh’s remark about the purported futility of

supporting the Union could have had no other purpose but

to discourage such an effort by the employees. These kinds

of statements by employers’ agents are prohibited by Sec-

tion 8(a)(1). See, N.L.R.B. v. Long Island Airport Limov-

sine Service Corp., 468 F.2d 292, 296-97, 81 LRRM 2445 (2d

Cir. 1972) ; N.L.R.B. v. Gerbes Super Markets Inc., 436 F.2d

19, 76 LRRM 2348 (8th Cir. 1971); N.L.R.B. v. Interna-

tional Metal Specialties, Inc., 433 F.2d 870, 75 LRRM

2568 (2d Cir. 1970), cert. denied, 402 U.S. 907, 76 LRRM

3028 (1971); Synder Tank Corp. v. N.L.R.B., 428 F.2d

1348, 74 LRRM 2626 (2d Cir.), cert. denied, 400 U.S. 1021,

76 LRRM 2272 (1970); Federation of Union Representa-

tives v. N.L.R.B., 339 F.2d 126, 129-30, 57 LRRM 2547 (2d

Cir. 1964).

Ill. Discharge of Employees for Engaging im Protected

Concerted Activities

Palm Sunday is customarily a work day for the Company

since it falls one week before Easter Sunday and the Easter

season is one of the biggest of the year in the cheese in-

dustry. Given the increased demand for its product and the

short shelf life of certain types of cheese the Company has

found it necessary to lengthen the work week to seven days

at this time of the year. On Friday, April 5, 1974 the Chair-

man of the Union shop committee presented plant manager

Fazzino with a petition signed by twelve of the Company’s

twenty employees protesting the scheduling of Palm Sun-

day, April 7 as a work day. The petition stated:

lla

‘*Since this is a religious holiday that is important to us,

we request that this schedule be rescinded.

‘*In the event that this schedule is not changed, you are

advised that we will not report for work on Palm Sunday,

April 7, 1974, but will report to work on Monday, April 8,

1974.”’

On Saturday, April 6 Fazzino received a telephone call

from Union representative DeBella concerning the peti-

tion. Fazzino told DeBella that ‘‘everyone knows we have

to work’’ on Sunday and refused to accede to the demand

that the schedule be changed. DeBella reiterated the signa-

tory employees’ objection to working on a religious holiday

and stated that they would be willing to work overtime the

following week. Fazzino rejected this offer as unsatisfac-

tory and the conversation was terminated. The next day,

Palm Sunday, six of the petitioners failed to appear for

work. They did report for work the next day however and

nothing further was said. On June 7, 1974, two months later,

the Employer fired these employees for their refusal to

work on Palm Sunday. We agree with the Board that these

discharges interfered with the employees’ right, statutorily

protected by Section 7 of the Act, to engage in ‘‘concerted

activities for the purpose of collective bargaining or other

mutual aid or protection’’ thereby violating section 8(a) (1)

of the Act, 29 U.S.C. § 158(a) (1).

Discharge of employees for engaging in concerted activ-

ities protected by Section 7 is an unfair labor practice.

N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 50

LRRM 2235 (1962); Shelly & Anderson Furniture Manu-

facturing Co., Inc. v. N.L.R.B., 497 F.2d 1200, 86 LRRM

2619 (9th Cir. 1974); First National Bank of Omaha v.

N.L.R.B., 413 F.2d 921, 71 LRRM 3019 (8th Cir. 1969);

N.L.R.B. v. Morris Fishman and Sons, Inc., 278 F.2d 792,

46 LRRM 217” (3d Cir. 1960) ; N.L.R.B. v. M&M Bakeries,

Inc., 271 F.2d 602, 45 LRRM 2085 (ist Cir. 1959). The one

day strike or work stoppage by the discharged employees

12a

in support of their petition protesting the Palm Sunday

schedule is statutorily protected because it constituted

concerted activity aimed at changing working conditions

at the plant. See N.L.R.B. v. Leprino Cheese Co., 424 F.2d

184, 73 LRRM 2865 (10th Cir.), cert. denied, 400 U.S. 915,

75 LRRM 2565 (1970). While the strike undoubtedly

brought inconvenience and economic loss to the Company

in view of its unusually heavy production schedule due to

the Easter season, such a result is obviously the very object

of any concerted employee action protected by the Act.

Although it is true that not all concerted employee activi-

ties are protected by Section 7, see N.L.R.B. v. Washington

Aluminum Co., supra, at 17, the economic pressure brought

to bear here, unlike that present in the narrow class of cases

relied on by respondents, clearly failed to reach a degree so

grossly disproportionate to the goal sought to be achieved

that it renders the conduct unprotected and thereby justi-

fies discharge of the participating employees. In N.L.R.B.

v. Marshall Car Wheel & Foundry Co., 218 F.2d 409, 411, 35

LRRM 2320 (5th Cir. 1955) cited by respondents, the

planned employee walk-out held to be unprotected occured

at the moment molten iron was ready to be poured and

this action ‘‘might well have resulted in substantial prop-

erty damage’’ to the plant. Similarly in Dobbs Houses, Inc.

v. N.L.R.B., 325 F.2d 531, 54 LRRM 2726 (5th Cir. 1963)

a mass departure of waitresses at the dinner hour to pro-

test the discharge of a supervisor was held unprotected by

Section 7. See also, N.L.R.B. v. Local Union No. 1229, Int.

Brotherhood of Electrical Wkrs., 346 U.S. 464, 33 LRRM

2183 (1953) ; Southern Steamship Co. v. N.L.B.B., 316 U.S.

31, 10 LRRM 544 (1942). The employees’ conduct in the

instant case was not simply an attempt to deliberately in-

flict economic harm on the Company without compensatory

gain to themselves. It served a legitimate work-related goal

and was therefore protected by the Act.

Respondents’ reliance on Emporium Capwell Co. v.

Western Addiiicn Community Organization, 420 U.S. 50,

13a

88 LRRM 2660 (1975) is also misplaced. In Emporium a

minority group of employees, dissatisfied with their union’s

reliance upon the existing collective bargaining agreement ’s

grievance procedure refused to participate in it and, acting

contrary to the union’s advice picketed their employer’s

store in an attempt to circumvent the union and bargain

separately with the company over the terms and conditions

of employment with respect to racial minorities. The Court

held such conduct to be unprotected by Section 7 because it

undercut the statutory principle of exclusive representation

embodied in Section 9(a) of the Act, 29 U.S.C. § 159(a). In

the instant case, however, there is no evidence that the

Palm Sunday strikers were at odds with or attempting to

by-pass their Union. Indeed, Union representative DeBella

spoke to Fazzino before the strike and stated, in effect,

that the Union supported the employees in this effort.

Under these circumstances, Emporium is inapposite.*

IV. Refusal to Rehire Employee Muraca Because of Umon

Actiwities

Peter Muraca, who had been active in the Union’s orga-

nization drive, was discharged for cause by the Company

in December, 1973. According to Muraca’s testimony which

the Administrative Law Judge credited, on May 27, 1974

Muraca went to the plant and asked Fazzino if the Com-

pany would rehire him. F'azzino told him, ‘‘I know we need

people, I have to wait until this union thing gets settled .. .

you got me in trouble and some guy from the Board

[NLRB] had a meeting with [Fazzino] and [Oddi].’’ Faz-

zino did not call Muraca as he had promised and Muraca

“In view of our holding that the employees’ conduct was pro-

tected by Section 7, we do not reach the question whether by tak-

ing no acti against the strikers for two months the Company

condoned their action. See Confectionery and Tobacco Drivers

and Warehousemen’s Union, Local 805 v. N.L.R.B., 312 F.2d 108,

52 LRRM 2163 (2d Cir. 1963).

l4a

returned on June 10. At that time Fazzino again stated

that he would contact Muraca in the future about rehire

but he never did. Given this uncontradicted testimony and

the evidence of Muraca’s earlier support of the Union the

Board concluded that the Company’s failure to rehire

Muraca was based on his Union-related uctivities in viola-

tion of Section 8(a)(3) and (1).** See, Phelps Dodge Corp.

v. N.L.R.B., 313 U.S. 177, 8 LRRM 439 (1941); Marlin-

Rockwell Corp. v. N.L.R.B., 133 F.2d 258, 11 LRRM 1108

(2d Cir. 1943). This determination is supported by sub-

stantial evidence in the record. Respondents attack Mu-

raca’s credibility but, of course this is a question to be

determined at the Board hearing not in the Court of

Appeals.

Enforcement granted.

Sd oe a os oe e oe eo e eo

= ion 8(a)(3), 29 U.S.C. § 158(a)(3) provides in relevant

part:

**(a) It shall be unfair labor practice for an employer—

(3) by discrimination in regard to hire or tenure of employ-

ment or any term or condition of employment to encourage or dis-

courage membership in any labor organization .. .”’

— |

l5a

APPENDIX B

(Recerveo June 30, 1975)

218 NLRB No. 168 D—9836

Oriskany, N.Y.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

Case 3—CA—5634

A. Lasaponara & Sons, Inc.,

A Wuotiy Ownep Sussmiary or ERE Invvustnzies, Ino.

and

Mecaanics EpvcationaL Society or America, AFL-CIO

Case 3—CA—5708

A. Lasaromana & Sons, Inc.,

A Wuotiy Ownep Sussmpmaey or ERE Invvstries, Ino.

anp ERE Inpvusrtries, Inve.

and

Mecnuanics Epvucationat Society or America, AFL-CIO

Decision and Order

On November 22, 1974, Administrative Law Judge Jerry

B. Stone issued the attached Decision in this proceeding.

Thereafter, Respondents filed exceptions and a support-

ing brief, and General Counsel filed an answering brief.’

* We note that on February 3, 1975, the General Counsel filed as

part of its answering brief to Respondents’ exceptions his motion

to correct transcript which earlier had been filed with the Admin-

istrative Law Judge. In this regard we note that on October 29,

1974, the Administrative Law Judge granted the General Counsel’s

motion to correct the transcript and we hereby affirm the Admin-

istrative Law Judge’s ruling in this respect.

l6a

Pursuant te the provisions of Section 3(b) of the Na-

tional Labor Relations Act, as amended, the National Labor

Relations Board has delegated its authority in this pro-

ceeding to a three-member panel.

The Board has considered the record and the attached

Decision in light of the exceptions and briefs and has

decided to affirm the rulings, findings,? and conclusions *

of the Administrative Law Judge and to adopt his recom-

mended Order,‘ as modified.

*The Administrative Law Judge found, inter alia, that Sec.

8(a)(1) of the Act was violated by the actions of Production

Manager Fazzino, on April 5, 1974, in crumpling a petition pro-

testing the scheduling of work and in informing employee Wilson

that she was a troublemaker after she presented the petition to

him. While we agree that the singling out of Wilson and calling

ber a troublemaker violates Sec. 8(a)(1), we do not find that

Fazzino’s crumpling of the petition, in the circumstances herein,

additionally violates Sec. 8(a)(1). In this regard, the record

reveals that on April 6 Fazzino spoke with Union Business Agent

DeBella, and explained to DeBella his reasons for wanting the

employees to work the scheduled day, Palm Sunday. He informed

DeBella that the empoyees should have given advance notice that

they wanted the day off. Thus, we do not find, as did the Admin-

istrative Law Judge, that Fazzino’s conduct reveals a rejection of

the principles of collective bargaining.

*In the absence of exceptions thereto, we adopt pro forma, the

Administrative Law Judge’s dismissa] of the allegation the: the

discharge effectuated on June 7, 1974, violated Sec. 8(a)(3) of

the Act.

‘The recommended Order of the Administrative Law Judge

omits the requirement that Respondents cease and desist from

making unilateral changes in existing benefits and other terms and

conditions of employment for unit employees. We shall correct this

omission.

In addition, since it has been found that on or about April 23,

1974, ERE Industries, Inc., purchased A. Lasaponara & Sons, Inc.,

and Lasaponara became a wholly owned subsidiary of ERE, we

perceive no necessity for separate Orders as fashioned by the

aman Law Judge. Accordingly, we shall so modify the

er.

17a

ORDER

Pursuant to Section 10(c) of the National Labor Rela-

tions Act, as amended, the National Labor Relations Board

adopts as its Order the recommended Order of the Ad-

ministrative Law Judge, as modified, and hereby orders

that Respondents A. Lasaponara & Sons, Inc., a wholly

owned subsidiary of ERE Industries, Inc., Oriskany, New

York, and/or ERE Industries, Inc., Medford, Massachu-

setts, their officers, agents, successors, and assigns, shall

take the action set forth in said recommended Order as

modified below:

1. Delete Part B.

2. Substitute the following for the introductory para-

graph:

‘‘Respondents, A. Lasaponara & Sons, Inc., a wholly

owned subsidiary of ERE Industries, Inc., and/or ERE

Industries, Inc., their officers, agents, successors, and as-

signs, shall :’’

3. Insert the following as paragraph 1(e) and reletter

former paragraph 1(e) as 1(f):

‘*(e) Unilaterally changing existing benefits and other

terms and conditions of employment of employees in the

appropriate bargaining unit found herein.’’

4. Substitute the attached notice for that of the Ad-

ministrative Law Judge.

Dated, Washington, D.C., June 30, 1975.

Joun H. Fannina, Member

Howarp Jenkins, Jr., Member

Nationa Lasor Retations Boarp

(SEAL)

18a

CuamMan Morpay, dissenting in part:

I differ with the decision of my colleagues in only one

respect. I would base no violation findings on any part of

the evidence depicting the reactions of Production Manager

Fazzino on April 5, 1974, when Wilson, who had identified

herself as the chairman of the employee committee spon-

soring the work scheduling protest, presented the employ-

ees’ petition to him. It seems to me that the same con-

siderations which militate against finding anything unlaw-

ful in Fazzino’s crumpling of the petition also militate

against finding anything unlawful in the remark which

accompanied that action. In any event, I am unable to read

in Fazzino’s comment to Wilson that she was ‘‘a trouble-

maker’’ a threat of reprisal to her.

In all other respects, I concur in the decision of my

colleagues.

Dated, Washington, D.C., June 30, 1975.

Betry Sournarp Murpxy, Chairman

NationaL Lasor Reiations Boarp

19a

D—9836

APPENDIX

Notice To EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

We wi not threaten our employees with reprisals to

dissuade them from supporting the Union.

WE wi not coercively interrogate our employees con-

cerning their union membership, activities, or desires.

We wit. nor unilaterally change existing benefits and

other terms and conditions of employment of employees

in the appropriate bargaining unit found herein.

We wut nor refuse to bargain collectively with the

Union as the exclusive collective-bargaining representative

of the employees in the bargaining unit herein found to

be approved.

WE wu not refuse to hire, will not discharge, or other-

wise discriminate against employees in regard to hire or

tenure of employment, in order to encourage or discourage

membership in a labor organization or to interfere with,

restrain, or coerce employees in the exercise of Section 7

rights, except to the extent that such rights may be affected

by lawful agreements in accord with Section 8(a)(3) of

the Act.

We wi nor in any other manner interfere with, re-

strain, or coerce the employees of A. Lasaponara & Sons,

Inc., a wholly owned subsidiary of ERE Industries, Inc.,

in the exercise of their rights guaranteed in Section 7 of

the Act, except to the extent that such rights may be

affected by lawful agreements in accord with Section

8(a)(3) of the Act.

20a

WE wi, upon request, bargain with Mechanics Educa-

tional Society of America, AFL-CIO, as the exclusive

collective-bargaining representative of our employees in

the unit herein found appropriate and embody any under-

Standing reached in a signed agreement. The appropriate

bargaining unit is:

All production and maintenance employees, em-

ployed by A. Lasaponara & Sons, Inc., a wholly owned

subsidiary of ERE Industries, Inc., at its Base Road,

Oriskany, New York, location; excluding all office

clerical employees, professional employees, guards and

supervisors as defined in the Act.

WE wi, if required by the Union, rescind the unilateral

changes, made around May 1974, and thereafter, in benefits

of employment of the employees in the appropriate bar-

gaining unit, set forth above, provided, however, absent

such request by the Union, there is no requirement for a

rescinding of such changes in benefits.

WE wnt offer to Peter Muraca immediate employment

to the position for which he was discriminatorily considered

on May 27, 1974, or, if such position no longer exists, to a

substantially equivalent position, and make him whole for

any loss of pay suffered by reason of the discrimination

against him.

We wu offer to Eva Wilson, William Bonville, Robert

Kraeger, Margaret Peck, Richard Hayes, and Gary Bartle

immediate and full reinstatement to his or her former

position or, if such position no longer exists, to a sub-

stantially equivalent position, without prejudice to his or

her seniority or other rights previously enjoyed, and make

each whole for any loss of pay suffered by reason of his

or her unlawful discharge.

All of our employees are free to become or remain, or

refrain from becoming or remaining, members of any labor

21a

organization except to the extent that such rights may be

affected by lawful agreements in accord with Section 8

(a)(3) of the Act.

A. Lasaponara & Sons, Inc.,

A Waotiy Ownep Sussmmey or

ERE Inovvstrrs, Inc.

(Employer)

SEES Géddeeudsdvicusdedcicn.

EE Ee ee sees

(Representative) (Title)

ERE Inyovvustriss, Inc.

(Employer)

DE Kinds nedcostinssivianis

(Representative) (Title)

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive days

from the date of posting and must not be altered, defaced,

or covered by any other material.

Any questions concerning this notice or compliance with

its provisions may be directed to the Board’s Office, 901

Federal Building, 111 West Huron Street, Buffalo, New

York 14202, Telephone 716-842-3100.

JD-724-74

Oriskany, N.Y.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

WASHINGTON, D.C.

Case No. 3-CA-5634

A. Lasaponara & Sons, Inc.,

A Waotiy Ownep Sussmuary or ERE Invustrrs, Inc.

and

Mecuanics Epvcationat Society or America, AFL-CIO

Case No. 3-CA-5708

A. Lasaponara & Sons, Inc.,

A WxHot_y Ownep Sussmpmary or ERE Inpustags, Inc.

anp ERE Inpvstraigs, Inc.

and

Mecuanics EpvucationaL Society or America, AFL-CIO

Francis J. Novak, Jr., Esq.,

for the General Counsel.

Mr. James Kozma and

Mr. James DeBella, Rome, N.Y.,

for the Union (Charging Party).

Rolland R. Benzow, (Benzow,

Finck, Handel, Barrett é Owens),

Buffalo, N.Y., for the

Respondent Employer.

JD-724-74

Statement of the Case

Jerry B. Sronz, Administrative Law Judge: This pro-

ceeding, under Section 10(b) of the National Labor Rela-

tions Act, as amended, was tried pursuant to due notice

on September 11 and 12, 1974, at Rome, New York.

As to Case 3-CA-5634, the original charge was filed on

April 10, 1974, the amended charge was filed on May 31,

1974, and the complaint was issued on June 14, 1974.

As to Case 3-CA-5708, the original charge was filed on

June 12, 1974, the first amended charge was filed on

July 23, 1974, the second amended charge was filed on

July 26, 1974, and the complaint was issued on July 29,

1974.

Cases Nos. 3-CA-5634 and 3-CA-5708 were duly con-

solidated for hearing by Order dated July 29, 1974.

The issues concern (1) whether Respondents have vio-

lated Section 8(a)(1) of the Act by acts of interrogation,

statements, threats, promises of benefits, discharges of

and refusal to hire certain employees, and refusal to bar-

gain with the Union; (2) whether Respondents have vio-

lated Section 8(a)(3) of the Act, by discharges of and

refusal to hire certain employees, and (3) whether Re-

spondents have violated Section 8(a)(5) of the Act by

refusal to bargain with the Union.

All parties were afforded full opportunity to participate

in the proceeding, and the General Counsel and the Re-

spondent have filed briefs which have been considered.

Upon the entire record in the case and from my ob-

servation of witnesses, I hereby make the following:

24a

Findings of Fact

I. The Business of the Employer’

A. Lasaponara & Sons, Inc., herein sometimes called

simply Lasaponara, is, and has been at all times material

herein, a corporation duly organized under, and existing

by virtue of, the laws of the State of New York. At all

times material herein, Lasaponara has maintained its

principal office and place of business at RD #1, Phillips-

burg Road, in the City of Goshen, and State of New York,

herein called the Goshen plant, and at Base Road in the

City of Oriskany, and the State of New York, herein called

the Oriskany plant, and is, and has been at all times material

herein, engaged at said plants and locations in the manu-

facture and wholesale distribution of cheese and related

products. During a recent 1 year period, Lasaponara in

the course and conduct of its business operations, manu-

factured, sold, and distributed at said Oriskany plant,

products valued in excess of $50,000 of which products

valued in excess of $50,000 were shipped from said plant

directly to States of the United States other than the

State of New York.

ERE Industries, Inc., herein sometimes called simply

ERE, is engaged in the manufacture and wholesale dis-

tribution of cheese and related products in Medford,

Massachusetts. On April 23, 1974, ERE purchased Lasa-

ponara, and Lasaponara became a wholly-owned subsidiary

of ERE.

Based upon the foregoing and as conceded by the Re-

spondents, Lasaponara and ERE each is now, and has been

at all times material herein, an employer: ergaged in

commerce within the meaning of Section 2(5) of the Act.

———

* The facts are based upon the pleadings and admissions therein.

25a

II. The Labor Organization Involved?

Mechanics Educational Society of America, AFL-CIO,

is, and has been at all times material herein, a labor or-

ganization within the meaning of Section 2(5) of the Act.

It is so concluded and found.

Ill. The Unfair Labor Practices

A. Preliminary Issues

Supervisory Status *

At all times material herein, the following-named persons

occupied positiens set opposite their respective names,

and have been and are now agents of Lasaponara and

ERE, acting on their behalf, and are supervisors within

the meaning of Section 2(11) and 2(13) of the Act.

Frank Oddi—President of ERE— President of Lasa-

ponara since April 23, 1974

Joseph Lasaponara—President of Lasaponara until April

23, 1974—Sales Manager—Lasaponara since April 23,

1974

Anthony Fazzino—Plant Manager—at Lasaponara Ori-

skany Plant

John Kosh-Foreman—at Lasaponara Oriskany Plant until

April, 1974

B. The Refusal to Bargain

1. The parties are in agreement as to the appropriate

collective bargaining unit of Respondents’ employees in-

volved in this proceeding. Thus, based upon the pleadings ‘

and statements (at the hearing) narrowing the issues, it

* The facts are based upon the pleadings and the narrowing of

issues at the hearing.

*The facts are based upon the pleadings, admissions therein,

and statements narrowing the issues at the hearing.

26a

is concluded and found that ‘‘all production and main-

tenance employees, employed by A. Lasaponara & Sons

until April 23, 1974, and since that time by A. Lasaponara

& Sons, a wholly-owned subsidiary of ERE Industries,

Inc., at its Base Road, Oriskany, New York location; ex-

cluding all office clerical employees, professional employees,

guards and supervisors as defined in the Act’’ constitutes

a unit appropriate for the purpose of collective bargaining

within the meaning of Section 9(b) of the Act.

2. The parties stipulated to the effect that there were

20 employees in the appropriate collective bargaining unit,

described above, and that 11 cf such employees had signed

proper union authorization cards, designating the Union

as the employees’ collective bargaining representative, by

on or about December 1, 1973. Accordingly, it is concluded

and found that on or about December 1, 1973, a majority

of the employees of A. Lasaponara & Sons, Inc., in the

unit described above, designated or selected the Union

(Mechanics Educational Society of America, AFL-CIO)

as their representative for the purpose of collective bar-

gaining with A. Lasaponara & Sons, Inc.

3. The facts reveal that the Union, on December 3,

1973, requested A. Lasaponara & Sons, Inc., to bargain

collectively with respect to rates of pay, hours of employ-

ment, and other terms and conditions of employment as

the exclusive collective bargaining representative of all

of the employees of the Respondent m the bargaining

unit described in Sec. ITI B1 above.

4. A. Lasaponara & Sons, Inc., and ERE Industries,

Inc., had been in negotiations since August, 1973, for the

sale of controlling ownership interest in A. Lasaponara

& Sons, Inc., a family owned corporation, was so involved

in December, 1973, continued such negotiations, reached

firm understanding as to such sale in March and early

April 1974, and completed the sale of such interests to

ERE on April 23, 1974.

27a

5. Oneida Development Corporation and its head, a

Mr. Zappone, had been instrumental in the initial location

by A. Lasaponara & Sons, Inc., of a plant at Oriskany,

New York. Such Oneida Development Corporation had an

interest and some influence with respect to any sale of

ownership interest by A. Lasaponara & Sons, Inc., be-

cause of its needed approval of certain financial involve-

ments or releases.

6. The Union, on December 5, 1973, filed a standard

NLRB Representative Petition (Case No. 3-RC-5913) with

Region 3 of the National Labor Relations Board.‘

7. The Union, on December 7, 1973, transmitteed a

letter to A. Lasaponara & Sons, Inc., in which the Union

notified the company of certain employees on the Union’s

organizational committee.

8. Joseph Lasaponara, President of A. Lasaponara

& Sons, Inc., contacted Zappone of the Oneida County De-

velopment Corporation with respect to the Union letters

and petition referred to above, and requested Zappone to

contact the Union for the Lasaponara interests.

9. Tom Zappone, of the Oneida Development Corpora-

tion, met with union officer Kozma and Debella on Decem-

ber 10, 1973, told the union officials that the Oneida De-

velopment Corporation had built the plant, helped finance

the plant, and had been instrumental in bringing Lasapo-

nara into Oneida County. Zappone told the union officials

that the Lasaponara Company was involved in discus-

sions with some other company about merging and that

an election or union at this time could jeopardize the

operation and cause the loss of jobs for 20 people.’ The

*Such position invokes the NLRB investigation of questions

concerning representation and the holding of elections and issuance

of certifications thereto when appropriate.

*I credit Kozma’s testimony to the effect that the word ‘‘merg-

ing’’ was used. Joseph Lasaponara and Fazzino testified to the

28a

union officials told Zappone that they did not want to drive

anyone out of business, that they, however, had to protect

the interests of the employees who had joined the Union,

that they thought that if they could sit down with the Lasa-

ponara principals, they could work out the problems.

10. Later, a meeting between the union officials and

Lasaponara officials was arranged by Zappone for Decem-

ber 12, 1973. At such meeting were Zappone, Joseph Lasa-

ponara and Fazzino for the Company, and Kozma and De-

Bella for the Union.

The parties discussed the fact that A. Lasaponara &

Sons, Inc., was involved in discussions with another com-

pany concerning the sale of the ownership interest in A.

Lasaponara & Sons, Inc., to another company.’ Joseph

Lasaponara told the union officials in effect that he had

no objection to a union being in his plant, however, that

this was not the time for such to be since an election could

affect production and upset the sale or merger.’

The union officials (Kozma and DeBella) told Lasapo-

nara that the question of an election did not present a

problem, that there were other ways to handle the question

effect that in the conversations in which they were involved on

December 12 and 14, 1974, that the term ‘‘sale’’ was used. What

actually was involved was the sale of ownership interest and the

merging of the Lasaponara Corporation at the time of such sale

into the ERE enterprise as an entity.

® Whether the words ‘‘sale’’ or ‘‘merge’’ was used is not ma-

terial since I am persuaded that enough details were discussed

about the transaction to warrant an interpretation by Kozma and

DeBella that the Lasaponara Company was to be merged into the

other company.

™ The facts relating to the events of December 12 and 14, 1973,

are based upon a composite of the credited aspects of the testi-

mony of Kozma, DeBella, Lasaponara and Fazzino, the exhibits

(including the December 20, 1973, proposed recognition agreement)

and the logical consistency of all of the facts.

29a

of recognition.’ The union officials told Lasaponara in

effect that the question of an election would be solved if

the company would recognize the Union, give a 25 cent

wage increase, and that a contract could be formalized

later. Lasaponara inquired at this point as to what the

employees were interested in as regards a contract. De-

Bella, for the Union, made notes of certain proposals, read

the proposals to Lasaponara, and Lasaponara made notes

of such proposals. Lasaponara and Fazzino ° told the union

officials that they would think about th

them know.”* u e pr oposals and let

11. Joseph Lasaponara met with the union officials on

December 14, 1973. Lasaponara told Kozma and DeBella

that he was not ready to sign a contract at this time, that

he did not want a long term but a shorter term contract

that 25 cents an hour increase in wages was too much, and

that he could live with 20 cents an hour wage increase if

pe pages credit for it when he bargained for a full con-

ract.

The parties discussed and agreed in effect to a wage in-

crease, continuation of the past practice of wage increases,

and the availability of other benefits to employees in re-

*I discredit Lasaponara’s testimony to the effect that the union

officials indicated an uncertainty as to how to dispose of the repre-

sentative petition. Fazzino’s testimony supports Kozma’s and De-

Bella s testimony as to what occurred. Considering this and the

logical consistency of the facts, I find the facts as set forth.

* Fazzino, in addition to being production man

, ager, was an in-

law and part owner of the family owned (A. Lasaponara & en

Inc.) corporation.

*° At some point in the discussion, it a

. ppears that Lasaponara

adverted to the fact that he needed time to complete his merger

discussions and that such time needed was estimated to be until

some time in February or March, 1974.

30a

turn for Lasaponara’s agreement to formally recognize

the Union at a future date, April 1, 1973."

Excepting with respect to the agreement to recognize in

the future, more precise details of the agreement reached

on December 14, 1973, are revealed by the following credit-

ed excerpts from Kozma’s testimony:

A. We thought that we could live with the twenty cents

an hour provided of course that he continued the

past practice of granting increases every three

months and also making the Welfare Program, Hos-

pitalization and what not available to employees

after they had been there six months. He also wanted

to know if at that time, if the twenty cents an hour

would be—if he get credited for it when he negotiated

the complete contract.

Q. Was there a discussion when a complete contract

would be negotiated?

A. Yes, at that meeting and prior meetings there is a

time element they thought they had to have and we

talked about a February date, a March Ist date and

I think on that date, March 1st, we weren’t quite

sure whether that would be time enough to consumate

their negotiation or whatever they were doing and

we suggested the middle of March or lets make it

The fact that the agreement was to formally recognize the

Union in the future is based upon a composite of all the credited

facts, the credited aspects of Lasaponara’s testimony, and the pro-

posed recognition agreement drafted by the Union and presented

on December 20, 1973. The overall facts clearly reveal an agree-

ment of recognition. Lasaponara’s testimony reveals an. agreement

to recognize the Union. The proposed draft reveals that the agree-

ment was for future recognition. Considering the logical consistency

of all the facts, I discredit Lasaponara’s testimony to the effect

that ultimate recognition was contingent upon his failure to sell

the business.

3la

April lst. We told them we would prepare a recog-

nition agreement and withdraw the Petition for an

election with the National Labor Relations Board.

Q. Did he give any response when you told him that?

A. He said fine, then we will formulize it, we could do

that at the plant and we were going to set up a date

or we did set up a date for about the 20th and this

is going to be formulized where Mr. Fazzino who is

the Plant Manager and a brother-in-law to Mr. Lasa-

ponara, would formulize it and we go on from there.

12. On December 20, 1973, union officials Kozma and

DeBella and certain employees (Wilson, Muraca, Bonville

and Krager) met with Production Manager Fazzino. At

such time Kozma signed a document relating to recogni-

tion, had certain employees to witness the document, and

gave the document to Fazzino for transmittal to Joseph

Lasaponara. Such document is as herein set out:

32a

Recognition Agreement

by and between

Lasaponaka & Sons, Inc.

and

Mecsanics Epucationat Socrery or AMERICA

AFL-CIO

Effective April 1, 1973, Lasaponara & Sons, Inc. will

recognize the Mechanics Educational Society of America,

AFL-CIO as the sole collective bargaining agency on be-

half of the employees employed at its plant located on Base

Road, Oriskany, N.Y. for rates of pay, wages, hours of

work and any other conditions of employment.

Fazzino told Kozma and the employees that the eom-

pany was having problems, and it would take time to iron

out the problems and that the employees would get 20

cents an hour raise on the day before Christmas. Fazzino

also told Kozma and the employees that he would send

the ‘‘document’’ to Joseph Lasaponara for signature.

Kozma told Fazzino that Eva Wilson was the chair-

lady of the employee committee, that if there were any

problems, Fazzine should work with her, and gave Fazzino

33a

a telephone number for DeBella, told Fazzino that if

there were any additional problems that "azzino could

contact DeBella.

13. On December 20, 1973, the Union mailed an

executed ‘‘withdrawal request’’ (in Case 3-RC-5913) to

the Regional Director for Region 3 of the NLRB, and

said ‘‘withdrawal request’’ was approved by the Regional

Director on December 26, 1973, the date of the scheduled

hearing in such representation proceeding.

14. On December 24, 1973, the Respondent put into

effect the 20 cents an hour raise increase previously

referred to.

15. On January 14, 1974, the Union sought with-

drawal of a representation petition concerning Respond-

ent’s employees that it had filed with the New York State

Labor Department. Such request was granted on wuts

ary 8, 1974.

16. In the meantime, during mid-December, the last

of December, 1973, and the first of January, 1974, the

Respondent, by its agents Joseph Lasaponara and Faz-

zino, interfered with, restrained, and coerced employees in

the exercise of Section 7 rights, and thereby violated

Section 8(a)(1) of the Act by interrogating employees as

to why they wanted a union, and by telling employees in

effect that they could not get raises because of the

pendency of the union question.”

17. As to the proposed written agreement for recog-

nition and Lasaponara’s failure to return the instru-

ment in an executed state, I note the following. Union

official DeBella telephoned Production Manager Fazzino

shortly after January 1, 1974, and inquired as to why

he had not received such instrument. Fazzino told De-

12 Such conduct, and other conduct violative of Section 8(a) (1)

of the Act, is set out in Section J77 C of this Decision.

34a

Bella that because of the holidays there had been a delay,

that he had not been able to get the document to Joseph

Lasaponara, that he would do so, and that the Union

would be hearing from Lasaponara.

On February 5, 1974, DeBella for the Union spoke to

Fazzino about some employee complaints concerning

health insurance coverage and the fact that some em-

ployees had not received their automatic wage increase.

On such occasion DeBella again spoke to Fazzino about

the fact that the Union had not received the executed

‘‘agreement to recognize.’’ Fazzino told DeBella that he

did not receive an executed agrement, that it must be

because Joseph Lasaponara had been busy.”

On February 6, 1974, DeBella contacted Zappone, for

the Oneida Development Corporation, and requested help

in arranging a meeting with Lasaponara. Zappone indi-

cated that he would and later indicated that he was un-

able to arrange a meeting at the time.”

18. In the meantime Joseph Lasaponara was in con-

tact with Oddi, President of ERE, during the middle of

January, 1974. Lasaponara told Oddi that there had been

some union activities but that the same was under control.

19. Around February 28 or March 1, 1974, DeBella

again contacted Fazzino of the Respondent and discussed

the question of a layoff of certain employees, including

several of the employees on the union committee. The

** Fazzino testified to the effect that this conversation took place

on January 25, 1974. The exact timing does not appear material.

I found DeBella, however, to appear to be a more accurate witness,

and find the facts as set forth.

** Kozma, the other union official, was away on vacation for

several days after December 20, 1973, was back for approximately

3 weeks in January, 1974, and was on vacation in February, 1974.

oo the question of following up as to the ‘‘recognition”’

to .

35a

gist of DeBella’s conversation was a contention that the

layoff was improper, that the girls could not be laid off

because they were for the Union, that the girls could not

be laid off because of sex, and that the Respondent should

reconsider or the Union would file charges.

Fazzino discussed the matter with Joseph Lasaponara,

and the ‘‘layoff’’ was not effectuated.*

20. On March 5, 1974, DeBella, for the Union, spoke

to Joseph Lasaponara about grievances, employee prob-

lems concerning insurance, automatic wage increases, and

a ‘‘proper rate’’ for one employee. Lasaponara suggested

that De Bella put these grievances in writing. DeBella,

thereafter, on March 8, 1974, gave Fazzino a letter dated

March 8, 1974, referring to such grievances for deliver-

ance to Joseph Lasaponara.

In the meantime, Joseph Lasaponara was in contact

with Oddi, for ERE, and related the fact that the Union

was contacting the Respondent concerning grievances.

Oddi told Lasaponara, in effect, to be very creful, that he

was not authorized to bind ERE Industries without their

knowing about the matter.

DeBella later attempted to contact Joseph Lasaponara.

Being unsuccessful in contacting Lasaponara, DeBella

contacted Zappone, of the Oneida Development Corpora-

tion. Zappone told DeBella in effect about Oddi, and ERE

Industries’ involvement in the purchase of the ownership

interests in Lasaponara, and gave DeBella a telephone

number for contacting Oddi.

DeBella, around April 1, 1974, placed a telephone call

to Oddi, did not reach Oddi himself, but left a message

for Oddi to call DeBella. Oddi was apprised of such

The question of whether the proposed layoff was discrimina-

tory is not an issue.

36a

telephone call, knew that the call was from the Union, and

did not call DeBella or the Union.

21. As has been indicated, A. Lasaponara & Sons,

Inc., and ERE Industries, Inc., had been in negotiations

since August, 1973, as to the sale or purchase of the

ownership interests in A. Lasaponara & Sons, Inc. The

final closing of such transaction was supposed to be in

March, 1974. The facts are revealed in effect by the fol-

lowing credited excerpts from Oddi’s testimony.

A. Yes. The finite closing was to have taken place in

March of 1974. To elaborate a little if you wish me

“te,_the closing was to have taken place earlier than

that ‘but_for reasons I could go into or not, it did

not but thé-papers were finally prepared and signed

on March the 6th, March the 7th, 1974, pending

receiyit of one document which was of critical im-

portance and without that document this closing

would not have been completed. So why we were

waiting for that document, everything had been

signed and was held in escrow and the—then the

document was finally received and escrow dispursed

on April 23rd.

22. In the meantime, on March 27, 1974, Oddi ad-

dressed the employees of A. Lasaponara & Sons, Inc.,

told them in effect that he would be the new president of

A. Lasaponara & Sons, Inc., and that the benefits of the

parent company, ERE Industries, Inc., would be extended

to employees of A. Lasaponara & Sons, Inc. Oddi told

the employees in effect that some of the changes would

be effective as of May 1, 1974, and that the others would

be effectuated at a later date.

23. On May 1, 1974, as Oddi had told the employees,

certain changes in benefits were placed in effect. Since

37a

that date and prior to September 11, 1974, other changes

in benefits have been effected so as to extend the em-

ployee benefits of the parent company to the employees

of A. Lasaponara & Sons, Inc. Thus, it is clear that the

Respondents have changed the benefits of employees of

A. Lasaponara & Sons, Inc., as regards holidays, sick

days, bereavement, health and life insurance.”

Contentions

Concusions

The General Counsel alleges and contends that (1)

A. Lasaponara & Sons, Inc., on December 14, 1973, volun-

tarily recognized the Union as the exclusive collective

bargaining representative of the employees in the appro-

priate bargaining units; (2) A. Lasaponara & Sons, Inc.,

on or about early April, 1974, withdrew recognition from

the Union; and (3) that A. Lasponara & Sons, Inc., a

wholly owned subsidiary of ERE Industries, Inc., refused

to bargain collectively with the Union by unilaterally

changing conditions of employment.

The Respondent contends in effect that the Union agreed

to abandon and did abandon its bargaining rights in

December, 1973 and January, 1974, and that ERE was

unaware of what had transpired and therefore was not

obligated to bargain with the Union as to the ‘‘unilateral’’

changes.

Considering all of the foregoing, I find that the facts

support the General Counsel’s contentions and do not

support the Respondent’s contentions. Thus, the facts

The exact details are not important since such details are a

matter easily determined in compliance. I note as an example

that the General Counsel contends that vacation benefits were

changed. Although employee Wilson testified to the effect that

the employees were told about vacation benefits, the evidence does

not reveal what, if any, were the former vacation benefits.

38a

reveal that the Union was designated as the collective

bargaining representative by a majority of the employees

in the appropriate bargaining unit. The facts are clear

that the employing entity, in December, 1973, had no

question as to the union’s majority status but in fact

agreed that such status existed. Thus, the employer’s

action in agreeing to recognize the Union in the future,

without other evidence as to majority status, clearly fixes

the Union as the recognized exclusive collective bargain-

ing agent of the employees involved. Contrary to Re-

spondent’s contentions, the facts do not reveal that the

Union abandoned or agreed to give up bargaining rights.

The withdrawal of representation petitions under the

circumstances of agreements to recognize do not reveal

abandonment or waiver of bargaining rights. Rather, the

facts reveal that the employer and union agreed to keep

the matter of formal recognition and formal contracts

in abeyance until the ‘‘sale’’ or ‘‘merger’’ of the em-

ployer’s controlling ownership interest had been deter-

mined. The credited facts reveal that the employing entity

has remained the same and that the obligation to recog-

nize the Union has continued. Since the agreement to hold

formal recognition and formal contracts in abeyance was

contingent upon the ‘‘sale”’ or ‘‘merger”’ completion, and

since such act of ‘‘sale”’ or ‘‘merger’’ occurred on April

23, 1974, the employing entity’s action in ignoring the

Union with respect to bargaining and in making uni-

lateral changes in employment conditions on May 1, 1974,

and thereafter, was tantamount to a withdrawal of its

recognition that the Union was the exclusive bargaining

representative of the employees in the appropriate unit,

and constituted a bypassing of the exclusive collective

bargaining representatives as to such unilateral changes.

Such conduct is violative of Section 8(a)(5) and (1) of

the Act. It is so concluded and found.”

** The Respondent found to have violated Section 8(a)(5) and

(1) of the Act is A. Lasaponara & Sons, Inc., a wholly owned

39a

C. Interference, Restraint and Coercion ™

1. Tureat or ReprisaL

The General Counsel alleges and contends that the

Respondent, by John Kosh, on or about November, 1973,

suggested to an employee that it would be futile to give

any assistance or support to the Union.

The facts reveal and the parties do not dispute that

Kosh was a supervisor of the Respondent at the time

involved. The Respondent contends in effect that Kosh

was not clothed with authority to engage in bargaining

negotiations or to make statements on its behalf in such

regard. As a supervisor, it is clear, however, that Kosh

is an agent within the meaning of the Act for the type of

conduct engaged in by him in this case.”

Bartle credibly testified to the effect that Kosh, in

November, 1973, stated that it would not be permitted

for a union to come in if a union were trying to come in.

By such statement, the employee was told in effect that

if a union were trying to organize the employees, it would

be futile for the employees to select the Union since the

employer would not accept the Union as an agent for the

subsidiary of ERE Industries, Inc. ERE Industries, Inc. was not

alleged to have violated the Act in such regards.

8 Although the General Counsel in the complaint in Case 3-CA-

5708 alleges in effect that both A. Lasaponara & Sons, Inc., a wholly

owned subsidiary of ERE Industries, Inc. and ERE Industries,

Inc. are Respondents liable for certain specific 8(a)(1) conduct,

the facts and allegations involved in Section III C reveal that the

conduct involved was conduct of A. Lasaponara & Sons, Inc. and

not that of ERE Industries, Inc. Allegations to the effect that

ERE Industries, Inc. is responsible for such 8(a)(1) conduct will

be recommended to be dismissed. The Respondent responsible for

the specific 8(a)(1) comduct found herein is A. Lasaponara &

Sons, Inc., a wholly owned subsidiary of ERE Industries, Inc.

* See The Rupp Forge Company, 201 NLRB 393, 394.

40a

employees. By such conduct the Respondent engaged in

conduct violative of Section 8(a)(1) of the Act. It is so

concluded and found.

2. JosepH LasaPonaka: INTERROGATION, THREATS OF

Reprisais,” Promise or BEenerirs

In the middle of December and at the end of December,

1973, Joseph Lasaponara held meetings in his office with

employees, two at a time, in which he admittedly spoke

to such employees about the fact that A. Lasaponara &

Sons, Inc., was a family run company and inquired as

to why they wanted a union and thought they needed

a union.

The foregoing is not disputed. What is disputed is

whether Joseph Lasaponara, at some of the meetings,

made threats of reprisals or promises of benefits con-

cerning the Union.

Eva Wilson credibly testified to the effect that Joseph

Lasaponara, at one of the mid-December meetings, told

her and Peck that he could not give them raises as long

as they were negotiating with the Union. Bonville credi-

bly testified to the effect that Joseph Lasaponara, at

one of the mid-December meetings, told him and Radley

in effect that if they helped the Union or wanted the

Union, he would fix them. Kraeger credibly testified to

the effect that Joseph Lasaponara, at one of the meetings

at the end of December, told him and Culver in effect that

if they helped the Union or wanted the Union, he would

fix them.” Bartle credibly testified to the effect that Joseph

Lasaponara told him and Wyckoff that if they would vote

no on the Union, he could go ahead and give them the

benefits that they were entitled to.

*° The facts are based upon a composite of the credited aspects

of the testimony of Eva Wilson, Smith, Peck, Bartle, Bonville, and

Joseph Lasaponara.

* Bonville’s and Kraeger’s testimony was in more pungent and

descriptive detail. The meaning is as set forth.

4la

Joseph Lasaponara testified in conclusionary effect that

he made no threats of reprisals or promises of benefits

to the employees. Considering the factual detail presented

by the testimony of Wilson, Kraeger, Bonville, and Bartle,

I am persuaded that their testimony is more complete,

objective and reliable than that of Lasaponara and credit

such testimony over Lasaponara’s where in conflict.

Considering the foregoing, I am persuaded and con-

clude and find that the Respondent, as alleged, inter-

rogated its employees in mid-December, 1973, about their

union desires, in a manner constituting interference, re-

straint, and coercion within the meaning of Section 8(a)

(1) of the Act.** Such conduct is conduct violative of

Section 8(a)(1) of the Act. It is so concluded and found.

Considering the foregoing, I am persuaded and con-

clude that the Respondent, by Lasaponara’s statements

to Wilson and Peck concerning inability to give raises

because of pending union negotiations, and to Bonville

and Radley and to Kraeger and Culver to the effect that

if they helped or wanted the Union, he would fix them,

engaged in threats of reprisals to employees to cause such

employees to desist from union activity. Such conduct

is violative of Section 8(a)(1) of the Act. It is so con-

cluded and found.

Considering the foregoing, I am also persuaded that

the evidence relating to the remarks by Joseph Lasa-

ponara to Bartle and Wyckoff—to the effect that if they

would vote no on the Union, he could go aheed and give

them the benefits that they were entitled to—constituted

a threat of reprisal to employees because of or if they

*? The Respondent’s contention that the interrogation and con-

versations were not coercive is rejected. As indicated, the facts

reveal threats of reprisals. Further, the total text of the conver-

sations do not reveal any assurances of non-reprisals, and reveal

dissatisfaction with the employee union interests.

42a

selected a union. Such statement, at first blush, may

appear to have two meanings. One meaning may be said

to be a threat that a benefit is not forthcoming because

of union consideration. The other meaning may be said to

be a promise of a benefit if the union considerations

adverse thereto were removed. Since the statement by

Lasaponara referred to benefits to which the employees

were entitled, 1 am persuaded that the statement should

be construed as a threat of reprisal. I note further that

Bartle’s testimony places the timing of such statement

as being in mid-December, 1973, and that there is no

allegation of improper ‘‘promise of benefit’’ relating to

the events of mid-December, 1973. At the trial of this

matter, the General Counsel] contended that Bartle’s testi-

mony in such regard related to an alleged ‘‘promise of

benefit’? which allegedly occurred in January, 1974. I am

persuaded that this contention is in error and that no

evidence was presented with respect to the alleged viola-

tive conduct of a ‘‘promise of benefit’? by Joseph Lasa-

ponara, occurring in January, 1974. The facts, excluding

the testimony of Bartle, already clearly establish that

the Respondent, by Joseph Lasaponara, made unlawful

threats of reprisals in violation of Section 8(a)(1) of

the Act. Since the Respondent, by pre-trial motions, has

acted diligently to have the issues presented squarely,

since the General Counsel’s complaint included allega-

tions of improper promises of benefits by Joseph Lasa-

ponara in January, 1974, and since the Genera] Counsel,

at the trial, contended such evidence, by Bartle, in sup-

port of the allegation of ‘‘unlawful promise of benefits,’’

I do not think that due process would be served by a

finding that Bartle’s testimony as to Joseph Lasapo-

nara’s statement, a threat of reprisal, constituted a

separate incident of alleged mid-December, 1973, mis-

conduct in such regard. Further, since the evidence does

not support an allegation of improper promises of bene-

43a

fits, by Joseph Lasaponara, in January, 1974, recom-

mendation will be made that such allegation be dismissed.

3. AntHony Fazzino

Interrogation

A composite of the credited aspects of the testimony

of Marcelletta and Smith reveals that Production Man-

ager Fazzino questioned them during the week of Janu-

ary 8, 1974, about the signing of union cards. What

occurred is revealed in effect by tHe following excerpts

from the testimony of Smith.

A. Karen and I went in there to ask why he was in

such a bad mood and he told us since we wanted to

treat him bad that he was going to treat us the

same way, that he was going to act like a boss

should act.

Q. Is that all that was said during that conversation?

A. No, then he asked Karen and I who signed Union

Cards and we told him we didn’t know. He said its

okay, he knew who signed them and asked if Karen,

me and Pete Muraca started the union and we said

no, and he said he knew who started it.

Bartle credibly testified to the effect that Production

Manager Fazzino questioned him, around March 1, 1974,

about the occurrence of a union meeting. What occurred

is revealed in effect by the following credited excerpt

from Bartle’s testimony:

A. I believe I did but Tony Fazzino asked me—it was

about girls being layed off and—

Q. The lay offs that occurred in late February, lay

offs of Marge Peck and Eva Wilson?

44a

A. Yes, I remember it now and ask me if the union

meetings had taken place and I told him that if

there has been a union meeting that I would have

been notified. I told him there was no union meeting.

Considering the foregoing, it is clear and I conclude

and find that the Respondent, by Fazzino, as alleged,

engaged in coercive interrogation of employees about

union activities of employees. Such conduct is violative of

Section 8(a)(1) of the Act. It is so concluded and found.

4. THREATS

The General Counsel alleges and contends that the

Respondent violated Section 8(a)(1) of the Act (inter-

fered with, restrained, and coerced employees in the

exercise of protected concerted activities) by the conduct

of Production Manager Fazzino, on April 5, 1974, in

crumpling a petition protesting the scheduling of work

and in informing an employee that she was a trouble-

maker after she presented the petition to him.

The facts are undisputed excepting as to whether

Fazzino called Eva Wilson a troublemaker. Wilson was

a more impressive witness than Fazzino. I found her to

appear more objective, frank and forthright in he: testi-

monial demeanor than I did Fazzino. I credit her testi-

mony over Fazzino’s where such testimony is in conflict.

The facts* reveal] that Wilson gave Fazzino, on April

5, 1974, a petition relating to the scheduling of work for

Palm Sunday.*

2° The facts are based upon a composite of the credited testimony

of Wilson, Peck and Fazzino. As indicated, I credit Wilson’s and

Peck’s testimony to the effect that Fazzino called Wilson a trouble-

maker. I discredit Fazzino’s testimony to the effect that he did

not call Wilson a troublemaker.

**T found Peck’s overall testimony to the effect that the incident

occurred on April 5, 1974, to be the most believable and reliable

as to the timing of the presentation of petition.

45a

Such petition was as is herein set out.

We, THE UNDERSIGNED MEMBERS OF MecHanics Epvca-

tionaL Socretry or America, AFL-CIO (M.E.S.A., AFL-

CIO), emprorzzs or Lasaponana & Sons, Inc. Have BEEN

ADVISED THAT Patm Sunpay Apri 7, 1974 Has BEEN SCHED-

ULED AS A DAY OF WORK.

Since this is a religious holiday that is important to us,

we request that this schedule be rescinded.

In the event that this schedule is not changed, you are

advised that we will not report for work on Palm Sunday,

Apr. 7, 1974, but will report to work on Monday, April 8,

1974.

/s/ Eva Wilson

/s/ Gary Bartle

/s/ Marge Peck

/s/ Dick Hayes

/s/ Douglas

/s/ John Tartaglia

/s/ Norman C. Bolton

/s/ Patricia J. Wilson

/s/ Douglas A. Hitts

/s/ Lindsey K. Wyckoff

/s/ Robert J. Kraeger

/s/ Bill Bonville

What occurred at the time of the presentation of the

petition is revealed in effect by the following excerpts

from Wilson’s testimony:

A. Yes, I give him the Petition and told him those are

the list of names that the union wrote a Petition,

we didn’t want to work Palm Sunday. He got kind

of mad and crumbled it up and threw it on the

floor and wanted to hear it from everybody’s mouth.

46a

He got us together and asked us if we would work

and we said no, except Pat Wilson and he said he

was going to turn our names into Boston whoever

didn’t work.

Q. Any remarks during this conversation directed to

you?

A. Yes, he said I was a troublemaker.

a e e e eo e e o @ e

Considering all of the foregoing facts, I am persuaded

and conclude and find that the Respondent, by Fazzino’s

conduct in crumpling the petition (concerning the schedul-

ing of hours for Palm Sunday) and in calling Eva Wilson

a troublemaker, engaged in conduct violative of Section

8(a)(1) of the Act. Such conduct, in the context of a

previous understanding of the handling of grievances and

a contemporaneous avoidance of such understanding, re-

veals a rejection of the principles of collective bargaining

and a singling out of the Union’s spokesman for an

implied threat of reprisal. Accordingly, as indicated, it is

concluded and found that such conduct is violative of

Section 8(a)(1) of the Act.

D. Discriminatory Refusal to Hire Muraca—

May 27, 1974

Peter Muraca was working for A. Lasaponara in No-

vember, 1973. In November, 1973, Muraca signed a card

authorizing the Union (Mechanics Educational Society

of America, AFL-CIO) to be his collective bargaining

representative. Later the Union put Muraca on its shop

organizational committee and so notified A. Lasaponara &

Sons, Inc., by letter, dated December 7, 1973. As a part

of such shop committee, Muraca met with the union

representatives, other members of the committee, and

Fazzino on December 20, 1973, when the Union gave

Fazzino a document relating to recognition of the Union.

47a

The last day that Muraca worked for A. Lasaponara &

Sons, Inc., was on December 21, 1973. Muraca was given

a 2 weeks suspension as of December 26, 1973, and re-

ceived his final pay and was terminated around January

21, 1974. Although the exact details as to what occurred

may be in some dispute, there is no contention that the

suspension for 2 weeks, or the termination around Janu-

ary 21, 1974, were for discriminatory reasons within the

meaning of the Act.

Later there appears to have arisen some problems

concerning the receipt of unemployment pay by Muraca.

It is clear, however, that there is no evidence to relate

such problem to the refusal of the Respondent to rehire

Muraca on May 27, 1974.

As the instant record reveals, the Union filed unfair

labor practice charges in Case 3-CA-5634 concerning the

instant allegations of refusal to bargain. The record fur-

ther clearly reveals that the investigation of such charges

were pending and being processed in May, 1974.

The only evidence relating to Muraca’s attempt to se-

cure employment from the Respondents on May 27, 1974,

consists of the testimony of Muraca. I credit such testi-

mony, and the facts as to what occurred on May 27,

1974, are revealed by the following credited excerpts from

Muraca’s testimony: *

A. Well, on the 27th I had been on unemployment for

a while and I wanted to get back to work. I was

telling Lindsey Wyckoff if I could get back to work,

he said the best thing would be is to go back to

the plant and talk to him. On May 27th I went in

** Fazzino did not testify to these events of May 27 and June 10,

1974, nor did he testify as to why he would not rehire Muraca at

such time. Rather, Fazzino’s testimony was directed to the validity

of the January 21, 1974 discharge.

48a

the office and talked to Tony and asked Tony if I

could have my job back and he said, Pete, I know

we need people, I have to wait until this union thing

gets settled, I said what does this have to do with

me and he said you got me in trouble and some

guy from the Board had a meeting with him and

some guy Oddi and I don’t see what this has to do

with me and if I am a good worker and need help,

I don’t know why I can’t get work. He said he

would call me so I left.

Q. Did he call you?

A. No.

Q. Did you ever return to the plant after that?

A. On June 10th, I went back there and went in the

office and talked to Tony and asked Tony could I

have my job back. He said I will have to talk to

Oddi and at this time I noticed he was hiring all

these new people and I noticed them and I asked

Tony what is this, you hired all these other people

and you don’t give me a call to give me a job, he

said we need help and he would have to talk to Oddi

and would call me. I left again and never got a call.

Considering all of the foregoing, I am persuaded and

conclude and find that the Respondents refused to hire

Muraca on May 27, 1974, and thereafter, because of knowl-

edge of his adherence to the Union and the pending unfair

labor practice charges and union claims as an exclusive

collective bargaining representative. Thus, it is clear that

the Respondents knew Muraca was a union supporter sad

was basing its consideration upon union considerations

and the pendency of NLRB charges. Under such circum-

stances, the selection for employment is one based upon

discriminatory considerations. Accordingly, it is concluded

and found that the Respondent violated Section 8(a)(3)

49a

and (1) of the Act by discriminatorily refusing to hire

Muraca on May 27, 1974, and thereafter.”

E. The June 7, 1974 Discharges

As indicated previously, Eva Wilson, the chairlady of

the Union shop committee, on April 5, 1974, presented a

petition requesting the rescinding of the scheduling of

hours of work on a religious holiday, Palm Sunday, to

Production Manager Fazzino, Also, as indicated previ-

ously, Fazzino crumpled the petition, called Wilson a

troublemker, and then ascertained which employees would

say that they would work on Palm Sunday. Later, on

April 6, 1974, DeBella, for the Union, and Fazzino dis-

cussed the petition, the fact that Fazzino had called Wilson

a troublemaker concerning the petition, Wilson’s right

to present the petition, a suggestion by DeBella that the

employees would be willing to work overtime during the

week to make up for the Sunday hours, and Fazzino’s

problems and need for production and time for distribu-

tion. Fazzino told DeBella in effect that if the employees

did not want to work, he could not force them to work.

Around April 5, 1974, Fazzino spoke to Oddi, president

of ERE Industries, Inc. What occurred is revealed by the

following credited excerpts from Oddi’s testimony:

————

**The General Counsel’s complaint alleged in effect that both

A. Lasaponara & Sons, Inc., a wholly owned subsidiary of ERE

Industries, Inc. and ERE Industries, Inc. were the Respondents

responsible for the discriminatory refusal to hire Muraca on May

27, 1974. Since ERE Industries, Inc. had acquired ownership con-

trol of A. Lasaponara & Sons, Inc., since Oddi, president of ERE

became president also of A. Lasaponara, and since the local man-

agement looked to ERE for top management and handling of labor

relations, I find that the Respondent’s operations were intertwined

> me a single employer for the purposes of Section 8(a) (3)

50a

A. This would have been my recollection, is that he either

called me on the Thursday or Friday that it hap-

pened and in short there was this threat of absentee-

ism during this period and I said first keep in mind

that I am not the owner of this company nor do I

have any authority in it and therefore, no responsi-

bility so whatever you do, is really your own decision.

However, my suggestion is that because some people

apparently have responded, they will come in, why

don’t you wait and see how many do come in and make

the best of it as you possibly can. At that point, he

really had little alternative.

On Palm Sunday, April 7, 1974, employees Eva Wilson,

William Bonville, Robert Kraeger, Margaret Peck, Richard

Hayes, Gary Bartle, and Douglas Hitts did not work. Said

employees however returned to work on April 8, 1974.

Later, Hitts was terminated for reasons unimportant to

the issues in this case. The other named employees con-

tinued to work until June 7, 1974.

A. Lasaponara & Sons, Inc., took no action and made

no statements to the above-named employees from April 7,

1974, until the date that ERE Industries, Inc., obtained

ownership interest on April 23, 1974. Thereafter, A. Lasa-

ponara & Sons, Inc., a wholly owned subsidiary of ERE

Industries, Inc., took no action and made no statements to

the above-named employees unti] June 7, 1974. At this

time, Oddi, president of ERE Industries, Inc., and presi-

dent of A. Lasaponara, instructed Fazzino to terminate

such employees because they had refused to work on Palm

Sunday. Thereupon, Fazzino terminated the employment

of Eva Wilson, William Bonville, Robert Kraeger, Mar-

garet Peck, Richard Hayes, and Gary Bartle. Fazzino told

such employees that they were being terminated because

they had refused to work on April 7, 1974, Palm Sunday.

Sla

In addition to the foregoing, the following facts are

noted.” (1) Prior to 1974, A. Lasaponara & Sons, Inc.,

customarily worked on Palm Sunday with respect to pro-

duction needs for the oncoming Easter week. (2) The

employees gave notice only as of April 5, 1974, of their

intended refusal to work on April 7, 1974. (3) The em-

ployees evidenced no intent to engage in repeated or in-

termittent refusals to work. (4) The Respondent did not

question the employees as to their future intentions re-

gading such work or similar work. (5) The facts reveal

that Eva Wilson, William Bonville, Robert Kraeger, Mar-

garet Peck and Gary Bartle all had signed union cards by

December 1, 1973, that Wilson, Kraeger, Bonville, Muraca

and Peck were on the union organizational or shop com-

mittee, as notified to the Respondent on December 7, 1973,

and that Wilson, Kraeger and Bonville were with the union

representatives on December 20, 1973, in the meeting with

Fazzino.

Further, on Monday, April 8, 1974, Production Manager

Fazzino telephoned Oddi, president of ERE Industries,

Inc., and told him about the employees who had not worked

on Palm Sunday. Oddi told Fazzino that he (Oddi) had

no authority to tell him what to do at the time (since

ownership by ERA of A. Lasaponara had not been acquired

at this time), suggested that he do nothing but let him

(Oddi) investigate and get expert advice, and that he

would later let Fazzino know what should be done.”

Oddi contacted his attorney about the legal ramifications

of the employees’ refusal to work on Palm Sunday. Oddi’s

attorney suggested that he contact other counsel. Oddi

contacted other counsel about this matter and ultimately

** The facts are based upon a composite of the credited aspects

of all the witnesses’ testimony.

* The facts are based upon a composite of the credited aspects

of the testimony of Fazzino and Oddi. |

52a

instructed Fazzino to discharge the employees who had

refused to work on Palm Sunday as is revealed by the

following credited excerpts from Fazzino’s testimony.

A. He told me that the people never came to work on

Palm Sunday to be dismissed and I asked Mr. Oddi

what reason, because I forget about—about Palm

Sunday and he said, tell the people they were dis-

missed for not reporting to work when we needed

them.

oe . e e e _ e J . o

Contentions

ConcLusions

The Genera! Counsel alleges and contends that the Re-

spondents discharged Wilson, Bonville, Kraeger, Peck,

Hayes and Bartle on June 7, 1974, because of their union ac-

tivities and because they engaged in protected concerted ac-

tivities. I am persuaded from the statements of Counsel, the

cases cited, and the facts as a whole, that the real issue

presented is whether the employees were discharged be-

cause of their protected concerted activities. I would note,

however, that the overall facts make it suspicious that the

union activities of the employees might be a part of the

motivation for the June 7, 1974, discharges. Thus, most

of the discharged employees had engaged in union acti-

vity which was known to the Respondents, and the unfair

labor practice charges relating to the refusal to bargain

issues were pending. Respondents have, one or the other

or both, engaged in conduct violative of Section 8(a)(1) of

the Act, have refused to bargain with the Union in vio-

lation of Section 8(a)(5) of the Act, and have discrimi-

nated in the employment of Muraca on May 27, 1974,

based upon union considerations. Accordingly, it is sus-

picious that the discharge of the employees on June 7,

1974, was based upon considerations of the union activities

53a

of the employees, a desire to destroy the Union, and a

utilization of a belief of an unprotected concerted activity

as a pretext. However, I am persuaded that the overriding

nature of the ‘‘protected concerted’’ activity issue makes

a finding that the discharges were for discriminatory

reasons somewhat speculative. Accordingly, it will be rec-

ommended that the allegation of conduct violative of Sec-

tion 8(a)(3) be dismissed.

Considering all of the facts, I am persuaded and con-

clude and find that the employees’ refusal to work on

April 7, 1974, Palm Sunday, was a protected concerted

activity. Such refusal to work constituted a strike of limit-

ed duration and was unaccompanied by evidente of an

intent to engage in repeated or intermittent strikes. Board

ease law reveals that when an employee engages in a

strike of limited duration, a one time strike is presumed

to be protected unless there is evidence of an intent to en-

gage in repeated or intermittent strikes. In such a limited

and one time strike, the employee is not attempting to

enjoy the benefits of a strike without the detriments of

a strike.” Such is the case here. The facts are undis-

puted that the Respondent discharged Wilson, Bonville,

Kraeger, Peck, Hayes and Bartle on June 7, 1974, because

they refused to work on Palm Sunday, April 7, 1974.

Accordingly, it is concluded and found that the discharge

of employees for their protected concerted refusal to work

on April 7, 1974, constituted conduct violative of Section

8(a)(1) of the Act.”

* Polytech Incorporated, 195 NLRB 695.

*° Tt is not necessary to determine whether Respondent’s conduct

in waiting from April 7, 1974 to June 7, 1974, to discharge the

employees constituted ‘‘condonation’’ of such refusal to work. If

necessary, however, I would make such a finding. Thus, between

April 8, 1973, and, April 23, 1974, the authority to discharge the

employees was in the hands of the officials of A. Lasaponara &

Sons, Inc. at that time. Such officials took no action and, in fact,

Fazzino, part owner and Production Manager, obviously forgot

the events of April 7, 1974. Such conduct revealed condonation in

O4a

IV. The Effect of the Unfair Labor Practices

Upon Commerce

The activities of the Respondents set forth in section

III, above, occurring in connection with the Respondents’

operations described in section I, above, have a close, inti-

mate, and substantial relationship to trade, traffic and

commerce among the several states and tend to lead to

labor disputes burdening and obstructing commerce and

the free flow of commerce.

V. The Remedy

Having found that the Respondents have engaged in

unfair labor practices, it will be recommended that the

Respondents cease and desist therefrom and take certain

affirmative action designed to effectuate the policies of

the Act.

It having been found that the Respondents refused to

hire Peter Muraca on May 27, 1974, in violation of Sec-

tion 8(a)(3) and (1) of the Act, the recommended Order

will provide that Responder ‘ts offer him employment in the

position for which he was discriminatorily considered, or

to a substantially equivalent position if such position no

longer exists, and make him whole for loss of earnings

within the meaning and in accord with the Board’s deci-

sions in F. W. Woolworth Company, 90 NLRB 289; Isis

Plumbing @ Heating Co., 1388 NLRB 716, except as speci-

fically modified by the wording of such recommended Order.

It having been found that the Respondents discharged

Eva Wilson, William Bonville, Robert Kraeger, Margaret

Peck, Richard Hayes and Gary Bartle on June 7, 1974, in

violation of Section 8(a)(1) of the Act, the recommended

Order will provide that Respondents offer each reinstate-

ment to his or her former position or if such position is

not available, to a substantially equivalent position, and

fact. As indicated elsewhere, I find that the Respondents’ business

was intertwined, a single employer in effect, and that both are

responsible for the June 7, 1974, discharges of employees.

55a

make each whole for loss of earnings within the meaning

and in accord with the Board’s decisions in F. W. Wool-

worth Company, 90 NLRB 289; Isis Plumbing ¢ Heating

Co., 138 NLRB 716, except as specifically modified by the

wording of such recommended Order.

Having found that the Respondent, A. Lasaponara &

Sons, Inc., a wholly owned subsidiary of ERI Industries,

Inc., unlawfully, unilaterally made changes in its benefits

including at least in part holidays, sick days, bereavement,

health and life insurances, it will be required, if requested

by the Union, to rescind such changes, provided however

that, absent such request, there is no requirement for a

rescinding of such changes in benefits.

Having found that the Respondent, A. Lasaponara &

Sons, Inc., a wholly owned subsidiary of ERE Industries,

Inc., has refused to bargain collectively with the Union,

it will be recommended that the Respondent, A. Lasaponara

& Sons, Inc., a wholly owned subsidiary of ERE Industries,

Ine., upon request, bargain with the Union as the exclu-

sive representative of its employee in the appropriate

unit.

Since A. Lasaponara & Sons, Inc. is a wholly owned

subsidiary of ERE Industries, Inc. and the employees in-

volved are directly employed by such subsidiary corpora-

tion, I am persuaded that the normal posting of a reme-

dial notice by said subsidiary adequately disposes of such

remedial requirement in such regard, and thereby shall

recommend the posting of such remedial notice only by

A. Lasaponara & Sons, Inc., a wholly owned subsidiary

of ERE Industries, Inc.

Because of the character and scope of the labor prac-

tices herein found, the recommended Order will provide

that the Respondents cease and desist from in any other

manner interfering with, restraining, and coercing em-

56a

ployees in the exercise of their rights guaranteed by Sec-

tion 7 of the Act.

Upon the basis of the above findings of fact and upon

the entire record in the case, I make the following:

Conclusions of Law

1. A. Lasaponara & Sons, Inc., at all times relevant

prior to April 23, 1974, and A. Lasaponara & Sons, Inc.,

a wholly owned subsidiary of ERE Industries, Inc., sub-

sequent to April 23, 1974, and ERE Industries, Inc. each,

at all times relevant herein, is an employer engaged in

commerce within the meaning of Section 2(6) and (7) of

the Act.

2. Mechanics Educational Society of America, AFL-

CIO, is a labor organization within the meaning of Sec-

tion 2(5) of the Act.

3. By refusing to hire Peter Muraca on May 27, 1974,

the Respondents have discouraged union membership by

discriminating in regard to tenure of employment, there-

by engaging in unfair labor practices in violation of Sec-

tion 8(a)(3) and (1) of the Act.

4. By discharging Eva Wilson, William Bonville, Rob-

ert Kraeger, Margaret Peck, Richard Hayes, and Gary

Bartle on June 7, 1974, the Respondents have interfered

with, restrained and coerced employees in the exercise

of Section 7 rights and have thereby violated Section

8(a)(1) of the Act.

5. All production and maintenance employees, em-

ployed by A. Lasaponara & Sons, Inc., (a wholly owned

subsidiary of ERE Industries, Inc., since April 23, 1974)

at its Base Road, Oriskany, New York, location; excluding

all office clerical employees, professional employees, guards

and supervisors as defined in the Act constitute a unit

appropriate for the purpose of collective bargaining with-

in the meaning of Section 9(b) of the Act.

57a

6. At all times on and after December 1, 1973, the

Union has been the exclusive representative of all the em-

ployees in said unit for the purpose of collective bargaining

with respect to rates of pay, wages, hours of employment,

and other conditions of employment.

7. By making unilateral changes in conditions of em-

ployment of the employees in the above unit around May

1974, the Respondent, A. Lasaponara & Sons, Inc., a whol-

ly owned subsidiary of ERE Industries, Inc., has refused

to bargain with the Union and has thereby engaged in

unfair labor practices within the meaning of Section 8(a)

(5) and (1) of the Act.

8. By interfering with, restraining and coercing its

employees in the exercise of rights guaranteed in Section

7 of the Act, Respondent, A. Lasaponara & Sons, Inc.,

(a wholly owned subsidiary of ERE Industries, Inc., since

April 23, 1974) has engaged in unfair labor practices pre

scribed by Section 8(a)(1) of the Act.

9. The aforesaid unfair labor practices affect com-

merce within the meaning of Section 2(6) and (7) of the

Act.

Upon the foregoing findings of fact, conclusions of law,

and the entire record and pursuant to Section 10(c) of

the Act, I hereby issue the following recommended:

Orp=r *

A. Respondent, A. Lasaponara & Sons, Inc., a wholly

owned subsidiary of ERE Industries, Inc., its officers,

agents, successors and assigns, shall:

"In the event no exceptions are filed as provided by Section

102.46 of the Rules and Regulations of the National Labor Rela-

tions Board, the findings, conclusions and recommended Order

herein shall, as provided in Section 102.48 of the Rules and Regu-

lations, be adopted by the Board and become its findings, con-

clusions and Order, and all objections thereto shall be deemed

waived for all purposes.

58a

1. Cease and desist from:

(a) Coercively interrogating employees concerning

their union membership, activities or desires.

(b) Threatening employees with reprisals to dis-

suade them from supporting the Union.

as the exclusive collective bargaining representative of

the employees in the bargaining unit herein found to be

appropriate.

(d) Refusing to hire, discharging or otherwise dis-

criminating against employees in regard to hire or tenure

of employment or any term or condition of employment,

in order to encourage or discourage membershi. in any

labor organization or to interfere with, restrain or coerce

employees in the exercise of Section 7 rights, except to the

extent that such rights may be affected by lawful agree-

ments in accord with Section 8(a)(3) of the Act.

(e) In any other manner interfering with, restrain-

ing or coercing the employees of A. Lasaponara & Sons,

Inc., a wholly owned subsidiary of ERE Industries, Inc.,

in the exercise of their rights guaranteed in Section 7 of

the Act, except to the extent that such rights may be af-

fected by lawful agreements in accord with Section 8(a)

(3) of the Act.

2. Take the following affirmative action which it is

found will effectuate the policies of the Act:

(a) Upon request, bargain with Mechanics Educa-

tional Society of America, AFL-CIO, as the exclusive

collective bargaining representative of its employees in

the unit herein found appropriate and embody any under-

standing reached in a signed agreement. The appropriate

bargaining unit is ‘‘al] pro eetion and maintenance em-

ployees, employed by A. Lasaponara & Sons, Inc., a wholly

592

owned subsidiary of ERE Industries, Inc., at its Base

Road, Orskany, New York, location; excluding all office

clerical employees, professional employees, guards and

supervisors as defined in the Act.’’

(b) If requested by the Union, rescind the unilater-

al changes made around May, 1974, and thereafter, in

benefits of employment of the employees in the appropriate

bargaining unit found herein—provided, however, absent

such request by the Union, that there is no requirement

for a rescinding of such changes in benefits.

to the position for which he was discriminatorily consid-

ered on May 27, 1974, or if such position no longer exists,

to a substantially equivalent position, and make him whole

for loss of pay suffered by reason of the discrimination

against him in the manner described above in the section

entitled ‘‘The Remedy.”’

(d) Offer Eva Wilson, William Bonville, Robert

Kraeger, Margaret Peck, Richard Hayes, and Gary Bartle

immediate and full reinstatement to his or her former po-

sition or, if such position no longer exists, to a substantial-

ly equivalent position, without prejudice to seniority or

other rights previously enjoyed, and make each whole for

any loss of pay suffered by reason of their unlawful dis-

charge in the manner described above in the section en-

titled ‘‘The Remedy.”’

(e) Preserve and, upon request, make available to

the Board or its agents, for examination and copying, all

payroll records, social security payment records, timecards,

personnel records and reports, and all other records nec-

essary to analyze the amount of backpay under the terms

of this recommended Order.

(f) Post at its place of business at Base Road,

Oriskany, New York, copies of the attached notice marked

60a

‘‘ Appendix.”’* Copies of said notice, on forms provided

by the Regional Director for Region 3, after being duly

signed by said Respondent’s representative, shall be posted

by it immediately upon receipt thereof, and be maintained

by said Respondent for 60 consecutive days thereafter,

in conspicious places, including all places where notices

to employees are customarily posted. Reasonable steps

shall be taken by said Respondent to insure that said no-

tices are not altered, defaced or covered by any other ma-

terial.

(g) Notify the Regional Director for Region 3, in

writing, within 20 days from the date of the receipt of this

Order, what steps the Respondent has taken to comply

herewith.

B. Respondent, ERE Industries, Inc., its officers,

agents, successors and assigns, shall :

1. Cease and desist from:

(a) Through and with its subsidiary, A. Lasaponara

& Sons, Inc., refusing to hire, discharging or otherwise

discriminating against employees in regard to hire or ten-

ure of employment or any term or condition of employ-

ment, in order to encourage or discourage membership

in any labor organization or to interfere with, restrain

or coerce employees in the exercise of Section 7 rights,

except to the extent that such rights may be affected by

lawful agreements in accord with Section 8(a)(3) of tne

Act.

(b) Through and with its subsidiary, A. Lasapo-

nara & Sons, Inc., in any other manner interfering with,

restraining, or coercing the employees of A. Lasaponara

*2 In the event that the Board’s Order is enforced by a Judgment

of a United States Court of Appeals, the words in the notice read-

ing ‘‘Posrep sy Orper oF THE NaTionaL Labor RELaTIons BoaRpD’’

shall be changed to read ‘‘Postep Pursuant TO a JUDGMENT OF

THE Untrep States Courr or Appeals Enrorcine aN ORDER OF

THe NaTionaL Lasor RetatTions Boarp.”’

6la

& Sons, Inc., a wholly owned subsidiary of ERE Indus-

tries, Inc., in the exercise of their rights guaranteed in

Section 7 of the Act, except to the extent that such rights

may be affected by lawful agreements in accord with Sec-

tion 8(a)(3) of the Act.

2. Take the following affirmative action which it is

found will effectuate the policies of the Act:

(a) Through and with its subsidiary, A. Lasaponara

& Sons, Inc., offer to Peter Muraca immediate employment

to the position for which he was discriminatorily consid-

ered on May 27, 1974, or if such position no longer exists,

to a substantially equivalent position, and make him whole

for any loss of pay suffered by reason of the discrimination

against him in the manner described above in the section

entitled ‘‘The Remedy.’”’

(b) Through and with its subsidiary, A. Lasapo-

nara & Sons, Inc., offer Eva Wilson, William Bonville,

Robert Kraeger, Maragaret Peck, Richard Hayes, and

Gary Bartle immediate and full reinstatement to his or

her former position or, if such position no longer exists, to

a substantially equivalent position, without prejudice to

seniority or other rights previously enjoyed, and make

each whole for any loss of pay suffered by reason of their

unlawful discharge in the manner described above in the

section entitled ‘‘The Remedy.’’

_ (e) Notify the Regional Director for Region 3, in

writing, within 20 days from the date of the receipt of this

Order, what steps the Respondent has taken to comply

herewith.

Tt is recommended that the allegation of the complaint of

violative conduct, not found herein, be dismissed...

Dated at Washington, D.C.

/3/ Jerry B. Sroxe

Jerry B. Stone

Aaministrative Law Judge

Form NLRB-4727 (9-69) J D-724-74

(SEAL) (SEAL)

NOTICE TO EMPLOYEES

Posted by Order of the National Labor Relations Board

AN AGENCY OF THE UNITED STATES GOVERNMENT

We wm not threaten our employees with reprisals to

dissuade them from supporting the Union.

We wm wot refuse to bargain collectively with the

Union as the exclusive collective bargaining representative

of the employees in the bargaining unit herein found to be

approved.

We wi not refuse to hire, will not discharge, or other-

wise discriminate against employees in regard to hire or

tenure of employment, in order to encourage or discourage

membership in a labor organization or to interfere with,

restrain, or coerce employees in the exercise of Sectior 7

rights, except to the extent that such rights may be affected

by lawful agreements in accord with Section 8(a)(3) of

the Act.

WE WILL noT in any other manner interfere with, rectrain

or coerce the employees of A. Lasaponara & Sons, Inc., a

wholly owned subsidiary of ERE Inxpusrars, Inc., in the

exercise of their rights guaranteed in Secticn 7 of the

Act, except to the extent that such rights may be affected

by lawful agreements in accord with Section 8(a)(3) of

the Act.

WE wi, upon request, bargain with Mecuanics Epvca-

TionaL Socrery or America, AFL-CIO, as the exclusive

collective bargaining representative of our employees in

63a

the unit herein found appropriate and embody any under-

standing reached in a signed agreement.

The appropriate bargaining unit is ‘‘All production

and maintenance employees, employed by A. Lasaponara &

Sons, Lyc., a wholly owned subsidiary of ERE Ispvusrars,

Inc., at its Base Road, Oriskany, New York, location;

excluding all office clerical employees, professional em-

ployees, guards and supervisors as defined in the Act.’’

We wuz if requested by the Union, rescind the unilateral

changes, made around May, 1974 and thereafter, in benefits

of employment of the employees in the appropriate bar-

gaining unit, set forth above, provided, however, absent

such request by the Union, there is no requirement for a

rescinding of such changes in benefits.

We wit offer to Peter Muraca immediate employment

to the position for which he was discriminatorily con-

sidered on May 27, 1974, or if such position no longer

exists, tc a substantially equivalent position, and make

him whole for any loss of pay suffered by reason of the

discrimination against him.

We wu offer to Eva Wilson, William Bonville, Robert

Kraeger, Margaret Peck, Richard “Iayes, and Gary Bartle

immediate and full reinstatement to his or her former

position or, if such position no longer exists, to a substan-

tially equivalent position, without prejudice to his seniority

or other rights previously enjoyed, and make each whole

for any loss of pay suffered by reason of their unlawful

discharge.

All of our employees are free to become or remain, or

refrain from becoming or remaining, members of any

labor organization except to the extent that such rights

64a

may be affected by lawful agreements in accord with

Section 8(a)(3) of the Act.

A. Lasaporara & Sons, Inc.,

A Wauo.iy Owxep Sussmuky or

ERE Lnspvsrrzies, inc.

(Employer)

(Representative) (Title)

THIS IS AN OFFICIAL NOTICE AND MUST NOT

BE DEFACED BY ANYONE

This notice must remain posted for 60 consecutive days

from the date of posting and must not be altered, defaced,

or covered by any other material. Any questions concerning

this notice or compliance with its provisions may be

directed to the Board’s Office, 9th Floor, Federal Building,

111- W. Huron Street, Buffalo, New York 10007, (Tel. No.

716-842-3100).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.