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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 430 U.S. 914

## Text

| S; Supreme Court, US. Fa,
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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
v.

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
v.

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

2

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

ee

3

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) ;
or

(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) ;

4

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

5

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

6

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

7

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.

8

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.

9

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).

10

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

11

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

12

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

13

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

14
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).

15

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-

16

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.

17

: ; 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

la
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).

2a

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).

3a

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-

4a

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.

5a

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

6a

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

Ta

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.

8a

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.’’

9a

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.

oe

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 necess

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1053%3A1. Public record. Not legal advice.