Petition — National Labor Relations Board v. Behring International, Inc.
Supreme Court brief1983
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In the Supreme Cowt of the Anited States
OCTOBER TERM, 1982
NATIONAL LABOR RELATIONS BOARD, PETITIONER
V.
BEHRING INTERNATIONAL, INC.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Rex E. Lee
Solicitor General
Department of Justice
Washington, D. C. 20580
(202) 633-2217
WILLIAM A. LUBBERS
General Counsel
JOHN E. HiceIns, JR.
Deputy Gen: i Counsel
Ropert E. At . N
Associate Ge, -ral Counsel
NorRTON J. Come
Deputy Associate General Counsel
_ National Labor Relations Board
Washington, D. C. 20570
QUESTION PRESENTED
Whether the National Labor Relations Board proper-
ly concluded that an employer violates Section 8(a)(3) of
the National Labor Relations Act, 29 U.S.C. 158(a)(3),
if its hostility to employees’ protected union activity is
shown, by a preponderance of the evidence, to be a
motivating factor in its decision to lay off those employ-
ees, and the employer cannot establish by a preponder-
ance of the evidence that it would have taken the same
action for legitimate reasons, absent the employees’ un-
ion activities.
(I)
TABLE OF CONTENTS
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( .. eee 000
Statutory provisions involve
/// // / / / / / ⸗ r 0
Reasons for granting the peti tion
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TABLE OF AUTHORITIES
Cases:
Mt. Healthy City School District Board of Educa-
tion v. Doyle, 429 U.S. 2770 „
NLRB v. Transportation Management Corp., peti-
tion for cert. pending, No. 81-168 (filed July 30,
WA
Wright Line, a Division of Wright Line, Inc., 251
N.L.R.B. 1083, enforced, 662 F.2d 899, cert.
denied, No. 81-987 (Mar. 1, 1982) .............
Statute and regulation:
National Labor Relations Act, 29 U.S.C. 151 et
seq.:
ret eee
Section 8(a), 29 U.S.C. 1580aꝓaů
Section 8(a)(1), 29 U.S.C. 158(a)(1) ..........
Section 8(a)(3), 29 U.S.C. 158(a)(3) ..........
Section 10(c), 29 U.S.C. 160(c) ..............
.. el
(i
6,7
7, 8,9
In the Supreme Court of the Gnited States
OCTOBER TERM, 1982
No.
NATIONAL LABOR RELATIONS BOARD, PETITIONER
U.
BEHRING INTERNATIONAL, INC.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
The Solicitor General, on behalf of the National La-
bor Relations Board, petitions for a writ of certiorari to
review the judgment of the United States Court of Ap-
peals for the Third Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App. A, infra,
la—16a) is reported at 675 F. 2d 83. The decision and or-
der of the National Labor Relations Board (App. C,
infra, 22a—27a) and the decision of the administrative
law judge (App. C, infra, 28a—68a) are reported at 252
N.L.R.B. 354.
JURISDICTION
The judgment of the court of appeals (App. B, infra,
17a—21a) was entered on June 14, 1982. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
(1)
STATUTORY PROVISIONS INVOLVED
Section 7 of the National Labor Relations Act, 29
U.S.C. 157, provides in part:
Employees shall have the right to self-
organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representa-
tives of their own choosing, and to engage in other
concerted activities for the purpose of collectively
bargaining or other mutual aid or protection“ *.
Section 8(a) of the National Labor Relations Act, 29
U.S.C. 158(a), provides in part:
It shall be an unfair labor practice for an
employer—
(1) to interfere with, restrain, or coerce em-
ployees in the exercise of the rights guaranteed
in section [7] of this title;
* XR KK *
(3) by discrimination in regard to hire or ten-
ure of employment or any term or condition of
employment to encourage or discourage mem-
bership in any labor organization * * *.
Section 10(c) of the National Labor Relations Act, 29
U.S.C. 16000), provides in part:
* * *If upon the py of the testimony
taken the B Board shall be of the opinion that any
person named in the complaint has engaged in or is
engaged in any such unfair labor practice, then the
Board shall state its findings of fact and shall issue
and cause to be served on such person an order
— oy such person to cease and desist from such
labor practice, and to take such affirmative
action including reinstatement of employees with
or without back pay, as will effectuate the policies
of this [Act]: * * * No order of the Board
quire the reinstatement of any individual as an em-
ployee who has been suspended or discharged, or
3
the payment to him of any back pay, if such indi-
vidual was suspended or discharged for
cause * * *
STATEMENT
1. Respondent, which sold equipment to the Iranian
air force, operated a warehouse in Edison, New Jersey,
at which it stored merchandise before shipping it to
Iran (App. C, infra, 23a—24a n.4, 29a-30a). In Febru-
ary 1977, warehouse employee Eric Stromberg con-
tacted the union, which began an organizational cam-
paign among the warehouse employees. After several
employees signed authorization cards, the union filed
with the National Labor Relations Board, on March 22,
a petition seeking a representation election (id. at
30a-3 la).
During the following week, respondent reclassified
three warehouse employees into higher-paying posi-
tions (App. C, infra, at 4la—42a). The Board found that
this step was taken as a response to the union’s
organizing efforts (id. at 24a—25a, 57a—58a). At approx-
imately the same time, respondent ordered freight
shipments to the Edison warehouse diverted to a
nearby warehouse operated by another firm, Summit
Associates, Inc. The rates Summit charged for the use
of its employees were substantially higher than those
paid by respondent to its own employees (id. at
38a-—40a). The manager in charge of respondent’s
Edison warehouse stated in front of another supervisor
that respondent “wanted the men to see an empty
warehouse and to let them think a bit on the union mat-
ter” (id. at 39a; see id. at 31a, 56a—57a).
On March 31, employees Lesniakowski and Jaconski
called a meeting of warehouse employees at which they
reported that the warehouse manager had said he
would either subcontract the warehouse’s work or close
the warehouse if the employees voted for the union
1
(App. C, infra, 3la). The administrative law judge
found, and the Board agreed, that this meeting was
conducted “with the direction, assistance, and encour-
agement of management” (id. at 54a, 24a—25a). At the
instance of Lesniakowski and Jaconski, the employees
signed a petition opposing the union (id. at 35a—36a).
Before the election on April 25, respondent’s vice presi-
dent held a meeting of the employees at which he an-
nounced that “if the employees did not organize things
looked good” for the warehouse (id. at 45a); the ware-
house manager held a meeting at which he warned that
the employees might lose certain benefits if they voted
for the union (id. at 46a); and another supervisor inter-
rogated employees about their support for the union
and about who the union’s principal supporters were
(id. at 47a-49a). Respondent also promised the ware-
house employees a wage increase after the union elec-
tion (id. at 43a, 58a), and granted recognition to an em-
ployee grievance committee (id. at 50a n.32, 59, 61a).
The union lost the representation election. Under
Board regulations, an objection to an election must be
filed within five days. 29 C.F.R. 102.69. Two days after
the election, respondent granted the wage increase it
had earlier promised to the warehouse employees (App.
C, infra, 42a, 58a). Approximately two weeks later,
the warehouse manager announced to other supervisors
that respondent intended to subcontract the warehouse
work and lay off the warehouse employees; in connec-
tion with this announcement, the manager explained
that respondent “did not want the threat of the Union
hanging over its head because in all probability the em-
ployees would gu union in another year * * * when a
new election could be heid” and that respondent “would
probably close the Edison terminal if the men did go
union” (id. at 50a).
Shortly thereafter, three employees were laid off.
They included Ray Stromberg, who was the brother of
the employee who initially contacted the union and
5
whose name was mentioned in the course of the com-
pany supervisor’s interrogation as one of those active in
the organizing campaign (App. C, infra, 48a—49a, 52a).
According to respondent, however, these layoffs were
part of a reduction in force and were unrelated to the
subcontracting decision (id. at 52a). Approximately one
month later, five more employees were laid off in favor
of the subcontractor (ibid.). Lesniakowski and
Jaconski—the employees who conducted the anti-union
meeting at respondent’s behest—were retained and as-
signed to train the subcontractor’s employees (ibid.). A
company supervisor subsequently told Eric Stromberg
(the employee who initially contacted the union) that
the layoffs were his fault (id. at 48a—49a, 60a).
The administrative law judge found that respondent
had violated Section 8(a)(3) and therefore Section
8(a)(1) of the National Labor Relations Act, 29 U.S.C.
158(a)(3), 158(a)(1), by laying off the eight employees
and subcontracting out their work (App. C, infra, Ga,
64a).' He was “prepared to accept [respondent’s} posi-
tion that subcontracting the warehouse labor ultimately
could be financially beneficial” (id. at 62a), but he con-
cluded, on the basis of the timing of the decisions, the
remarks made by respondent’s supervisors, and re-
spondent’s sustained anti-union campaign, that the de-
cision was motivated by anti-union bias in violation of
Sections 8(a)(3) and 8(a)(1) (App. C, infra, 68a).
2. The Board sustained this finding. It recounted the
evidence suggesting that the layoffs and subcontracting
The administrative law judge also found (App. C, infra,
64a) und the Board agreed (id. at 22a—23a) that respondent vio-
lated Section 8(a)(1) by threatening and coercively interrogating
its employees, soliciting them to sign the anti-union petition,
granting and promising benefits, and diverting freight from the
warehouse to dampen employee union sentiments. The court of
appeals sustained these rulings (App. A, infra, 4a), and this pe-
tition raises no question concerning them.
were prompted by an improper purpose (App. C, infra,
24a-—25a). The Board stated (id. at 25a; footnote
omitted):
[Allthough [respondent! has proffered an economic
defense, we find that [respondent] has failed to
substantiate that defense with probative evidence
that it would have subcontracted out its operations
at the time it did had it not feared the resumption
of organizational activity. For this reason, we find
that [rjespondent has failed to rebut the General
Counsel’s prima facie case and, like the Adminis-
trative Law J , we therefore conclude that [re-
spondent!] unla y laid off its warehouse employ-
ees and subcontracted its warehouse work.
In reaching this conclusion, the Board relied (id. at 25a
n.6) on its decision in Wright Line, a Division of Wright
Line, Inc., 251 N.L.R.B. 1083 (1980), enforced, 662
F. 2d 899 (Ist Cir. 1981), cert. denied, No. 81-987 (Mar.
1, 1982). There the Board explained that in determining
whether an employer’s action violated Section 8(a)(3), it
would first require the General Counsel to show that
the employee’s protected activities were a “motivating
factor” in the employer’s decision to take adverse action
against the employee. If the General Counsel made this
showing, the Board ruled—explicitly following this
Court’s decision in Mt. Healthy City School District
Board of Education v. Doyle, 429 U.S. 274 (1977)—
that the employer could avoid an unfair labor practice
finding only if it proved, by a preponderance of the evi-
dence, that the adverse action would have been taken
even if the employee had not engaged in protected ac-
tivities. 251 N.L.R.B. at 1089.
3. The court of appeals, stating that it disagreed
with an aspect of the Wright Line test, declined to en-
force the portions of the Board’s order dealing with the
layoffs and subcontracting. The court of appeals gener-
ally endorsed the Wright Line approach (App. A,
infra, 8a). But it ruled that if the General Counsel had
7
shown by a preponderance of the evidence that an im-
permissible motive underlay respondent’s decisions
about the layoffs and subcontracting, respondent had
only the burden of producing evidence that it would
have taken the same action for legitimate, economic
reasons (id. at 14a). The court of appeals rejected the
Wright Line test insofar as it places on an employer,
shown to have acted for an impermissible reason, the
burden of persuasion—that is, the burden of proving by
a preponderance of the evidence—that it would have
taken the same action for legitimate reasons (App. A,
infra, 14a; see id. at 9a). The court of appeals rejected
the analogy to the Mt. Healthy test on the ground that
Mt. Healthy involved constitutional, not statutory, is-
sues (App. A, infra, 9a—10a).
In reaching these conclusions, the court of appeals
explicitly agreed with the First Circuit’s decisions re-
jecting the allocations of the burden of proof specified
by the Board in Wright Line (App. A, infra, IIa). The
court stated that respondent “did articulate a legitimate
business reason for” its actions, and that “the General
Counsel did not prove that the company’s real motive
was antiunion animus” (id. at 15a), although the court
recognized that there was evidence supporting a finding
that respondent had acted for an impermissible purpose
(id. at 14a). The court concluded that t his case must
be remanded for reconsideration because the burden of
proof was misallocated” (ibid.).
REASONS FOR GRANTING THE PETITION
In NLRB v. Transportation Management Corp., pe-
tition for cert. pending, No. 82-168 (filed July 30,
1982), we have sought review of a First Circuit decision
rejecting the burden- shifting aspect of the Board's
8
Wright Line test.2 We urge that the First Circuit’s de-
cisions conflict with the decisions of several other
courts of appeals, and that the Board’s Wright Line
test is fully consistent with the National Labor Rela-
tions Act.
Here, the court of appeals expressly relied on First
Circuit decisions* and disagreed with the decisions of
other circuits (App. A, infra, 13a—14a n.6) in conclud-
ing, like the First Circuit, that only the burden of pro-
duction, not the burden of persuasion, could shift to re-
spondent. Moreover, as its remand order makes clear,
the court considered the allocation of the burdens of
proof to be material to this case. This case therefore
presents the same issue that we raise in our petition in
Transportation Management.
2 A copy of our petition in Transportation Management has
been sent to respondent.
3 The First Circuit initially expressed its disapproval of the
Board’s Wright Line test in the proceedings to review the
Wright Line order. 662 F. 2d at 904-907. (Because the First Cir-
cuit believed that the shifting of the burden of proof was not
material to the outcome of Wright Line itself, it enforced the
Board's order in that case (id. at 907-909)). Both the court of
appeals in this case (App. A, infra, Ila) and the First Circuit in
Transportation Management (82-168 Pet. App. 3a) relied on
the First Circuit's discussion in the Wright Line case.
CONCLUSION
The petition for a writ of certiorari should be held
and disposed of in light of the disposition of No. 82-168,
NLRB v. Transportation Management Corp.
Respectfully submitted.
Rex E. Lee
Solicitor General
WILLIAM A. LUBBERS
General Counsel
JOHN E. HIGGINns, JR.
Deputy General Counsel
RoBertT E. ALLEN
Associate General Counsel
NorTON J. CoME
Deputy Associate General Counsel
LINDA SHER
Assistant General Counsel
RICHARD MICHAEL FISCHL
Attorney
National Labor Relations Board
SEPTEMBER 1982
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 81-1987
BEHRING INTERNATIONAL, INC., PETITIONER
.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT
ON PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
DATED SEPTEMBER 26, 1980
(NLRB No. 22-CA-7824)
Argued February 2, 1982
Before: GIBBONS, WEIS and GARTH, Circuit Judges
(Opinion filed April 7, 1982)
OPINION OF THE COURT
WEIS, Circuit Judge.
One of the most persistent sources of labor litigation
is the controversy that arises when an employee’s dis-
charge is based on dual motives—one being a legiti-
mate business consideration and the other antiunion an-
imus. In an effort to resolve the recurring controversy
over its approach to this problem, the National Labor
Relations Board adopted a rule which permits a finding
of a violation if the employee would not have been dis-
charged but for his union activity. Wright Line, a Divi-
2a
sion of Wright Line, Inc., 251 N.L.R.B. 1083 (1980). As
part of its rule, the Board shifts the burden of proof on
this issue onto the employer after the General Counsel
has established a prima facie case. We conclude that
the Board’s causation test is right, but that the proce-
dural aspect is wrong because it runs afoul of statutory
provisions on the burden of proof. Since the Board
misallocated the burden in this case, we remand for fur-
ther consideration.
March 13, 1977, Teamsters Local No. 478 began
al. urganizing campaign at a warehouse operated by
Behring International in Edison, New Jersey. A major-
ity of the warehouse employees voted against the union
in the election held on April 25, and no objections were
filed. About ten days after the election, however, three
employees were laid off, followed by five more on June
3. Meanwhile, on May 26, Behring subcontracted for re-
placement labor with an outside firm.
On July 26, the union charged Behring with unfair la-
bor practices and, after a hearing, an ALJ found
avainst the company. The Board affirmed the findings
of the ALJ, issued a cease and desist order and, in addi-
tion, directed reinstatement of the employees with back
pay.
The ALJ found that the company violated § 8(a)(1)
of the National Labor Relations Act, 29 U.S.C.
§ 158(a)(1) (1976), on several occasions before and
shortly after the election.! In one instance, two employ-
ees, acting as agents for the company, convened a
meeting of their fellow workers during business hours
at the warehouse. The two employees told the workers
Section 8(a)(1) makes it an unfair labor practice for an em-
ployer “to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 157 of this title. See-
tion 7 of the Act, 29 U.S.C. § 157 (1976), provides in part: Em-
ployees shall have the right to self-organization, to form, join or
assist labor organizations. and to engage in other concerted
activites for . . . other mutual aid or protection.
3a
that they would be better off without a union, and said
that the company would subcontract their work or close
the plant if the union were voted in. They also solicited
a document requesting that the union petition be
withdrawn.
After the meeting, the company established a griev-
ance committee, an action which the ALJ categorized
as a pre-election benefit. The company had already
reclassified three receiving clerks to higher-paid posi-
tions in the week after the election petition was filed,
and later granted an across-the-board pay raise at a
point when objections to the election would still have
been timely.
Another § 8(a)(1) violation was found to have oc-
curred when the company diverted freight to a facility
owned by a different firm in order to emphasize that
work was slow and jobs were in jeopardy. The company
also intimated that the employees might lose their stock
option and profit-sharing plans, as well as their pension
benefits, if the union won the election. Finally, three
days before the election, a supervisor interrogated an
employee to discover the names of the persons who had
started the union’s organizing effort and to learn how
each of the employees would vote.
The ALJ also found that the eight discharges and the
decision to subcontract violated § 8(a)(3) of the Act, 29
U.S.C. § 158(a)(3) (1976).? Behring had argued that its
actions were prompted by a severe decline in business
at the warehouse, and the ALJ agreed that “subcon-
tracting the warehouse labor ultimately could be finan-
cially beneficial.” Nevertheless, he concluded that “al-
though the Respondent eventually could have reduced
2 Section 8(a)(3) makes it an unfair practice for an employer
“by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage
membership in any labor organization”.
4a
its costs by laying off most of its own warehouse em-
ployees and by subcontracting their work . . ., the Re-
spondent was motivated, at least in part, in so doing at
that time by a desire to reduce the possibility of an-
other union election in the future.”
With one minor exception, the Board affirmed the
findings of the ALJ and adopted his recommendations,
determining that the company’s economic defense to
the § 8(a)(3) charges “failed to rebut the General Coun-
sel’s prima facie case” of unlawfully motivated dis-
charges. To support this conclusion, the Board referred
to its ruling in Wright Line, a Division of Wright Line,
Inc., 251 N.L.R.B. 1083 (1980).
Behring raises three contentions on appeal. First, it
claims that the § 8(a)(1) findings are not supported by
substantial evidence and rest upon erroneous credibility
determinations by the ALJ. Second, it asserts that it
was denied a fair hearing because the ALJ revoked a
subpoena duces tecum served on a Board agent who
had investigated an earlier charge against the company.
Third, it attacks the Board’s Wright Line test for
§ 8(a)(3) violations as improperly shifting the burden of
proof on the issue of the company’s motive for discharg-
ing its employees and subcontracting its work.
We see no need to discuss the § 8(a)(1) violations at
length. Behring strongly contests the finding of the
ALJ and we might well have come to a different conclu-
sion had we tried the case in the first instance. Our
role, however, is limited to determining whether there
is substantial evidence in the record as a whole to sup-
port the Board’s findings of fact. 29 U.S.C. § 160(e)
(1976). Similarly, credibility resolutions generally rest
with the ALJ when he considers all the relevant factors
in his explanation. Edgewood Nursing Center, Inc. v.
NLRB, 581 F. 2d 363, 365 (3d Cir. 1978). Since we can-
not say that substantial evidence is lacking here, we
must reject the company’s challenges to the § 8(a}(1)
findings.
5a
As for the subpoena, Behring surmised that the testi-
mony and notes of the Board agent would reveal admis-
sions impeaching the credibility of the General Coun-
sel’s witnesses. The agent had secured statements from
employees in the course of investigating an earlier
charge that had been withdrawn for cause. At the hear-
ing, however, the ALJ revoked the subpoena after the
company was given access to the statements obtained
from the witnesses. The Board upheld the ALJ’s action
because the information sought by Behring fell within
the “‘limited evidentiary privilege which protects the
informal investigatorial and trial-preparatory processes
of regulatory agencies such as the NLRB,’ Stephens
Produce Co., Inc. v. NLRB, 515 F.2d 1373, 1376 (8th
Cir. 1975),” and the company had not shown a substan-
tial reason to disregard the privilege.
Behring contends that the subpoena should not have
been quashed because the material it sought from the
agent is available under the Freedom of Information
Act. But see, New England Medical Center Hospital v.
NLRB, 548 F.2d 377 (ist Cir. 1976). We need rot ad-
dress the provisions of the FOIA however, for the com-
pany never made a request for disclosure. Since
Behring was furnished with the witnesses’ prior state-
ments and no prejudice resulted, we do not believe that
the Board erred in finding that a limited evidentiary
privilege justified the ALJ’s action.
Of far greater concern to us is the Board’s treatment
of the lay-offs. An employer accused of discharging
workers in violation of §8(a)(3) may assert, as did
Behring here, that it was motivated by legitimate busi-
ness considerations rather than antiunion bias. When
this occurs, the Supreme Court has said, “[iJt is the
‘true purpose’ or ‘real motive’ in hiring or firing that
constitutes the test” whether the statute has been vio-
lated. Local 357, International Brotherhood of Team-
sters v. NLRB, 365 U.S. 667, 675 (1961). It is essential
that the Board ascertain the true reason for the em-
ployer’s action in these “dual motive” cases, since it he
6a
Act does not interfere with the normal exercise of the
right of the employer to select its employees or to dis-
charge them. and . . . the Board is not entitled to
make its authority a pretext for interference with the
right of discharge when that right is exercised for other
reasons than . . intimidation and coercion.” NLRB v.
Jones & Laughlin Steel Corp., 301 U.S. 1, 45-46
(1987).*
Despite this directive, for many years the Board took
the position that a discharge violated § 8(a)(3) as long
as it was motivated “in part” by antiunion animus. See
cases collected in Wright Line, 251 N.L.R.B. at 1084.
The Board’s “in part” test received a mixed recepition
among the courts of appeals. The First Circuit rejected
it, saying that “[t]he mere existence of antiunion ani-
mus is not enough” to establish that a discharge vio-
lated § 8(a)(3) when a legitimate business reason for
the employer’s action also existed. NLRB v. Billen
Shoe Co., 397 F.2d 801, 803 (Ist Cir. 1968). Instead, the
court required the Board to show that the employer’s
“dominant” or actual motive was hostility towards the
employee’s union activity. See NLRB v. Lowell Sun
Publishing Co., 320 F. 2d 835 (Ist Cir. 1963) (Aldrich,
J., concurring). The rationale was that an employee
who engaged in organizational activity should not be
We recognize that there is a distinction between “pretext”
and “dual motive” cases. In Lippincott Industries, Inc. v.
NLRB, 661 F.2d 112, 114 (9th Cir. 1981), however, the court
observed that “in terms of the proper legal standard to be ap-
plied, the difference between these two types of cases is of little
importance.” It explained: “In either instance, the employer has
asserted justifiable, legitimate business reasons for the dis-
charge. The difference is that in a pretext case the employer’s
reasons are discredited or otherwise rejected, leaving only the
impermissible reason, while in a mixed motive case the relative
causative force of the employer’s reasons is compared against
the impermissible reason to determine whether the latter is the
moving cause behind the discharge.” /d.
7a
entitled to immunity if another worker similarly situ-
ated except for the union activism would be subject to
discharge.
The Supreme Court confronted an analogous situa-
tion in Mt. Healthy City School District Board of Edu-
cation v. Doyle, 429 U.S. 274 (1977). There, a school
board did not rehire a teacher after his contract ex-
pired, in part because it was offended by his exercise of
First Amendment rights and in part because of other
reasons. The “ourt decided that it was necessary to
formulate “a test of causation which distinguishes be-
tween a result caused by a constitutional violation and
one not so caused.” Jd. at 286. Since the “constitutional
principle at stake is sufficiently vindicated if such an
employee is placed in no worse a position than if he had
not engaged in the [protected] conduct,” id. at 285-286,
the employer was free to show that it would have
reached the same decision even in the absence of the
teacher’s First Amendment activity.
In Wright Line, 251 N.L.R.B. at 1087, the Board
recognized that the Supreme Court’s causal analysis in
Mt. Healthy “represent a rejection of an ‘in part’ test
which stops with the establishment of a prima facie
case or at consideration of an improper motive.” Even
though Mt. Healthy was not an National Labor Rela-
tions Act case, the Board decided to adopt the Supreme
Court’s approach because it saw “the advantage of
clearing the air by abandoning the ‘in part’ language in
expressing our conclusion as to whether the Act was vi-
olated.” Jd. at 1089. Henceforth, the Board announced,
it would employ a new causation test in all cases
turning on employer motivation:
“First, we shall require that the General Counsel
make a prima facie showing sufficient to support
the inference that protected conduct was a ‘moti-
vating factor’ in the employer’s decision. Once this
is established, the burden will shift to the employer
8a
to demonstrate that the same action would have
taken place even in the absence of the protected
conduct.”
Id. at 1089.
The Wright Line test has both substantive and proce-
dural components. Substantively, it analyzes the con-
nection between an employee’s discharge and an em-
ployer’s antiunion animus in terms of “but for”
causation. To find a § 8(a)(3) violation, the Board must
determine that the employee would not have been dis-
charged but for his protected union activity. No viola-
tion exists if the employer would have made the same
decision to discharge the employee in any event, absent
the shielded conduct.
The Board's adoption of the “but for” test is a wel-
come development which should reduce the confusion in
this controversial area of labor law. The “but for” test
satisfies this court’s requirement that the Board seek
the “real motive” or “real cause” for an employee’s dis-
charge. See, NLRB v. General Warehouse Corp., 643
F.2d 965, 972 (3d Cir. 1981). In Edgewood Nursing
Center, Inc. v. N.L.R.B., 581 F.2d 368, 368 (3d Cir.
1978), we said:
If the employee would have been fired for cause
irrespective of the employer’s attitude toward the
union, the real reason for the discharge is
nondiscriminatory. In that circumstance there is no
causal connection of any anti-union bias and the
loss of the job.”
Or, as we put it in Gould Incorporated v. NLRB, 612
F.2d 728, 734 (3d Cir.), cert. denied, 449 U.S. 890
(1980), “if it is found that the employee would have
been disciplined for proper cause notwithstanding the
employer’s attitude toward the union, the discipline
must be held to be nondiscriminatory, because in that
case the causal relationship between the anti-union bias
9a
and the discipline would be insufficient to support a
conclusion that the discipline was administered ‘because
of the protected activity. . . .”
There are difficulties, however, with the procedural
aspect of the Wright Line rule. As mentioned earlier,
the Board first requires the General Counsel to make “a
prima facie showing sufficient to support the inference
that protected conduct was a ‘motivating factor’ in the
employer's decision.” 251 N. L. R. B. at 1089. Once this
is done, the burden shifts onto the employer to “demon-
strate” that the same action would have taken place
even in the absence of the protected conduct. Id. By
“demonstrate,” the Board means that the burden of
persuasion shifts to the employer, not merely the bur-
den of going forward with evidence to rebut the prima
facie case. Consistent with this, the Board “views the
employer’s asserted justification as an affirmative de-
fense.” Id. at 1084 n.5, 1088 n. 11.
The shifting burden of persuasion undermines the
“but for” test and reintroduces the confusion which
Wright Line purported to eliminate. To understand
why, it is only necessary to realize that in establishing a
prima facie case, the General Counsel need not prove
that antiunion discrimination was the “real cause” of
the employee’s discharge. Instead, the Wright Line
procedure only requires the General Counsel to show
that antiunion animus was “a” motivating factor in the
employer’s decision. If the employer then proffers a le-
gitimate reason for its action, but does not do so with
enough weight to carry the burden of persuasion, the
Board would rule that the § 8(a)(3) charge had been
proved. This would be so despite the fact that two
factors—neither outweighing the other—had been ad-
vanced as causes, and the Board never determined
which was the real one. As such, the procedural aspect
of the rule is plainly at odds with the “but for” test.
The Board relies on the Supreme Court’s decision in
Mt. Healthy to support its allocation of the burden of
proof. The employer there was required to prove by a
10a
preponderance of the evidence that the same decision
not to rehire an employee would have been reached
even absent his constitutionally-protected activity. 429
U.S. at 287. Mt. Healthy is inapposite in its burden-
shifting phase, however, because the Board is bound by
statutory limitations which foreclose the issue. The Act
itself imposes the burden of proving an unfair labor
practice on the General Counsel. Section 10(c) of the
Act, 29 U.S.C. § 160(c) (1976), provides in part:
“If upon the preponderance of the testimony taken
the Board shall not be of the opinion that the per-
son named ih the complaint has engaged in or is en-
gaging in any such unfair labor practice, then the
Board shall state its findings of fact and shall issue
an order dismissing the said complaint.”
As interpreted by the Board’s own regulations, this
means that it he Board’s attorney has the burden of
proof of violations of section 8 of the National Labor
Relations Act.” 29 C.F.R. § 101.10(b) (1981). More-
over, § 7(c) of the Administrative Procedure Act, 5
U.S.C. § 556(d) (1976), states that “[e)xcept as other-
wise provided by statute, the proponent of a rule or or-
der has the burden of proof.” Since none of these statu-
tory or regulatory provisions were applicable in Mt.
Healthy, the Supreme Court was free to allocate the
burden of proof. The Board, on the other hand, has no
power to shift that burden onto the employer.
We believe that the more appropriate precedent is
found in the line of recent Supreme Court decisions
outlining the procedure to be followed in Title VII em-
ployment discrimination cases. Teras Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981);
Board of Trustees of Keene State College v. Sweeney,
439 U.S. 24 (1978); and Furnco Construction Corp. v.
Waters, 438 U.S. 567 (1978). In those cases, the Court
emphasized that the ultimate burden of proving dis-
crimination rests upon the plaintiff; it never shifts to
the defendant. If the plaintiff establishes a prima facie
lla
case, the defendant must articulate some legitimate,
nondiseriminatory reason for its action. The Court
stressed that this is only a burden of going forward, not
of persuasion. Should the defendant carry this burden,
the plaintiff must then prove by a preponderance of the
evidence that the legitimate reasons offered by the de-
fendant were not its true reasons.“
Discrimination in employment because of race, reli-
gion, or nationality is often as subtle and as difficult to
ferret out as that resulting from antiunion bias. The Su-
preme Court recognized the problems of proof in the
Burdine line of cases, but concluded that only the bur-
den of production, and not persuasion, shifts to the de-
fendant. Since the sante considerations are present
where the discrimination is based on union activity, the
Board should follow the Burdine procedure in those
cases as well.
The Wrigh ne test was thoughtfully and thorough-
ly analyzed wnen it reached the United States Court of
for the First Circuit. NLRB v. Wright Line, a
Division of Wright Line, Inc., 662 F.2d 899 (Ist Cir.
1981), cert. denied, 50 U. S. L. W. 3695 (March 2, 1982).
As we do today, the court welcomed the adoption of
“but for” causation and rejected the Board’s attempt to
shift the burden of proof onto the employer. The court
The Burdine opinion noted that the distinction between
burden of proof and burden of production is a traditional feature
of the common law. The Court said, lin a Title VII case, the
allocation of burdens and the creation of a presumption by the
establishment of a prima facie case is intended progressively to
sharpen the inquiry into the elusive factual question of inten-
tional discrimination.” 450 U.S. at 255 n.8. Since the employer
presumably is most likely to be in possession of evidence show-
ing the real reason for its action, it must produce that evidence
to rebut plaintiff's prima facie showing of discrimination.
Nevertheless, the ultimate burden of proof remains on the dis-
criminatee. We found the reasoning in the Burdine line of cases
to be persuasive and applied it in a Title VI context. See,
NAACP v. Medical Center, Inc., 657 F. 2d 1322 (3d Cir. 1981).
12a
also noted that the Board has mischaracterized the em-
ployer’s burden of producing rebuttal evidence as an af-
firmative defense, which it in no way resembles. /d. at
905 n.9. We agree with the First Circuit, and believe
that the Board failed to take into account the General
Counsel’s statutory burden to prove the unfair labor
practice.
Before the First Circuit, as it does here, the Board
relied on language in NLRB v. Great Dane Trailers,
Inc., 388 U.S. 26 (1967), to support its allocation of the
burden of proof. In that case, the employer discrimi-
nated between strikers and nonstrikers with respect to
vacation pay. The Supreme Court said:
Once it has been proved that the employer en-
gaged in discriminatory conduct which could have
adversely affected employee rights to some extent,
the burden is upon the employer to establish that
he was motivated by legitimate objectives since
proof of motivation is most accessible to him.”
Id. at 34. The First Circuit distinguished Great Dane
because it involved “a challenge to an overall policy of
the employer rather than to a single discharge.” 662
F. 2d at 904 n.8. We think a similar distinction applies
to the case at hand.
More importantly, Great Dane was not concerned
with the difference between the burden of production
and the burden of persuasion, and terms applicable to
both are used somewhat interchangeably throughout
the opinion. For example, in the sentence preceding the
one quoted above, the Court said that “an antiunion
motivation must be proved to sustain the charge if the
employer has come forward with evidence of legitimate
and substantial business justifications for the conduct.”
388 U.S. at 34. The Court then held that an unfair labor
practice was proved because “the company came for-
ward with no evidence of legitimate motives for its dis-
meet the burden of proof... .” Jd. Notably lacking is
13a
the precision the Court later applied in Burdine when
it addressed the specific issues of the burdens of pro-
duction and persuasion. On the whole, then, we are
convinced that Great Dane does not run counter to the
result reached by the First Circuit and us.“
From a practical standpoint, it is unlikely that the de-
cision in many cases will turn on whether the employ-
er’s burden is characterized as being one of persuasion
or production. Nevertheless, as the Board recognized in
Wright Line, 251 N. L. R. B. at 1087, t his distinction
is a crucial one since the decision as to who bears this
burden can be determinative.” We think that fewer er-
rors will result if the distinction is properly observed.®
5 In Wright Line, the Board seized upon a few remarks in the
legislative history of the 1947 amendment to § 10(c) of the Act
to support shifting the burden of proof. 251 N.L.R.B. at 1088.
The First Circuit found this legislative history to be inconclu-
sive, 662 F. 2d at 904 n.8, and we are inclined to agree. In any
event, we think there is little need to consult the legislative his-
tory because the statute is clear on the General Counsel's bur-
den of proof and the Board’s regulation is a significant expres-
sion of agreement on that point.
Other Courts of appeals that have reviewed the Wright Line
test have reacted to it with general approval, but only the First
Circuit has scrutinized the burden-shifting issue in depth.
In the Fifth Circuit, TRW, Inc. v. NLRB, 654 F. 2d 307 (5th
Cir. 1981), is consistent with the First Circuit view. Two other
cases, NLRB v. Charles H. McCauley Associates, Inc., 657
F. 2d 685 (5th Cir. 1981), and NLRB v. Robin American Corp.,
654 F.2d 1022 (5th Cir. 1981), merely recite the Wright Line
test. In Red Ball Motor Freight, Inc. v. NLRB, 660 F.2d 626
(5th Cir. 1981), petition for cert. filed, 50 U.S.L.W. 3773 (U.S.
Mar. 23, 1982) (No. 81-1605), an employer’s challenge to the
shifting burden of proof is rejected without analysis.
In the Sixth Circuit, Charge Card Association v. NLRB, 658
F. 2d 272 (6th Cir. 1981), held that the Board failed to prove its
case under either the “dominant motive” test or the Wright
Line rule. In NLRB v. Consolidated Freight Ways, 651 F. 2d
436 (6th Cir. 1981), the court also denied enforcement. In
NLRB v. Lloyd Fry Roofing Co., 651 F. 2d 442 (6th Cir. 1981),
the court recited the Wright Line test but did not analyze it.
l4a
In summary, the Board’s Wright Line test repre-
sents a substantial improvement over its prior practice
and, except for its shifting burden of persuasion, meets
with our approval. Under our formula, once the Gener-
al Counsel has established a prima faciecase of discrim-
inatory discharge, the employer should rebut this with
evidence of a legitimate business reason for its action.
The ultimate burden of proof does not shift from the
General Counsel and does not devolve upon the employ-
er at any stage. Therefore, no violation may be found
unless the Board determines that the General Counsel
has proved by a preponderance of the evidence that the
employer’s antiunion animus was the real cause of the
This case must be remanded for reconsideration be-
cause the burden of proof was misallocated. The Board
held that Behring failed to subs t antiate its economic de-
fense because it could not justify the timing of the dis-
charges. The relevance of thai observation is not clear
The Seventh Circuit said that it was adopting the Wright
Line rule in Peavey Co. v. NLRB, 648 F. 2d 460 (7th Cir. 1981).
The court seemed concerned only with its substantive phase,
however, and the Board’s petition for enforcement was denied.
The same result occurred in NLRB v. Eldorado Manufacturing
Corp., 660 F. 2d 1207 (7th Cir. 1981).
In NLRB v. Fixtures Manufacturing Corp., F. 2a
No. 81-1398 (8th Cir. Jan 14, 1982), the Eighth Circuit rejected
the First Cireuit's approach and approved the Board's burden-
shifting rule as within the latitude it should have in structuring
its fact-finding process. The court did not discuss the con-
straints placed on the Board by the burden of proof assigned to
the General Counsel by the Act, the Administrative Procedure
Act, and the Board’s own regulations.
In NLRB v. Nevis Industries, Inc., 647 F.2d 905 (9th Cir.
1981), the Ninth Circuit approved Wright Lines procedural
shift, but again without discussion of the General Counsel's stat-
utory burden of proof. See also, Doug Hartley, Inc. v. NLRB,
— | , Nos. 81-7368 and 81-7457 (9th Cir. Feb. 17,
1982).
15a
from the Board’s decision. The lay-offs occurred soon
after the election and, therefore, could not have af-
fected it.
Although the ALJ referred to testimony that the
company was afraid the union would try for another
election in the following year, the lay-offs could hardly
have been further removed in time from that possible
eventuality. Lay-offs were not limited to union activists
and the Board did not find a suspicious pattern in the
terminations. On the other hand, the company’s evi
dence of shrinking revenues and mounting administra-
tive costs was not simply “poor mouthing,” but was
substantiated by the ALJ's own findings and subse-
quent events, including closing of the warehouse.
The Board’s citation of Electrical Products Division
of Midland-Ross Corp. v. NLRB, 617 F.2d 977 (3d
Cir.), cert. denied, 449 U.S. 871 (1980), is not helpful.
In that case, the timing of the employer’s action was
significant because it could have had an influence on a
pending election. No such considerations are present
here. Since Behring did articulate a legitimate business
reason for the discharges, and the General Counsel did
not prove that the company’s real motive was antiunion
animus, the case must be remanded to the Board for
further proceedings consistent with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
16a
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 81-1937
BEHRING INTERNATIONAL, INC., PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT
Present: GIBBONS, WEIS and GARTH, Circuit Judges
ORDER
It is ORDERED that the opinion heretofore filed in
this case be amended as follows:
Add a footnote* on page 9 of the slip opinion, at the
end of the carryover paragraph which ends “. . . the pro-
tected activity. ...” The footnote to read as follows:
In Herman Bros., Inc. v. NLRB, 658 F.2d 201 (3d
Cir. 1981) the employer argued that Wright Line is
inconsistent with Edgewood Nursing Center, Inc.
v. NLRB, and Gould Incorporated v. NLRB. The
court left the question open, however, saying wle
need not decide here whether Wright Line and
Third Circuit law differ.” 658 F.2d at 208.
The succeeding footnotes will be renumbered
accordingly.
BY THE COURT
JOSEPH F. WEIS, JR.
Circuit Judge
Dated: May 20, 1982
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
17a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 81-1937
BEHRING INTERNATIONAL, INC., PETITIONER,
.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT.
JUDGMENT
Before: GIBBONS, WEIS and GARTH, Circuit Judges
THIS CAUSE came on to be heard upon a petition
filed by Behring International, Inc., to review an order
of the National Labor Relations Board issued against
said Petitioner, its officers, agents, successors, and as-
signs, on September 26, 1980, and upon a cross-
application filed by the National Labor Relations Board
to enforce said order. The Court heard argument of re-
spective counsel on February 2, 1982, and has consid-
ered the briefs and transcript of record filed in this
cause. On April 7, 1982, the Court, being fully advised
in the premises, issued its opinion ordering enforce-
ment of the Board’s order in part and otherwise re-
manding the case to the Board for further proceedings
consistent with the Court’s opinion. In conformity
therewith, it is hereby
ORDERED AND ADJUDGED by the Court that
Petitioner, Behring International, Inc., Edison, New
Jersey, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their union activities, sympathies, and desires, those of
other employees, and as to the identities of employees
active in bringing about Local Union No. 478, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
18a
housemen and Helpers of America’s (hereinafter called
the Union) organizational campaign.
(b) Threatening employees that if the Union comes in
or a representation election is conducted their work will
be subcontracted or that the plant will be closed.
(e) Threatening employees with loss of benefits if
they support the Union.
(d) Promising and granting employees a wage in-
crease and other employment benefits to induce em-
ployees to abandon their support for the Union.
(e) Soliciting employees to request, in writing, with-
drawal of the petition for a representation election.
(f) Deliberately reducing the work available to its
employees in the period before a representation elec-
tion by diverting freight and using contract labor to dis-
courage employees from supporting the Union.
(g) Coercively informing employees that they would
be better off without the Union.
(h) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed them under Section 7 of the National
Labor Relations Act (hereinafter called the Act).
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its Edison, New Jersey, location copies of
the attached notice marked “Appendix.” Copies of said
notice, on forms provided by the Regional Director for
Region 22 of the National Labor Relations Board
(Newark, New Jersey), after being signed by the Peti-
tioner’s authorized representative, shall be posted by
the Petitioner immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including ail places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Petitioner to insure that said no-
tices are not altered, defaced, or covered by any other
material.
19a
(b) Notify the aforesaid Regional Director, in writ-
ing, within 20 days from the date of this Judgment,
what steps the Petitioner has taken to comply
herewith.
IT IS FURTHER ORDERED AND ADJUDGED
that each party shall bear its own costs and that this
case be remanded in part to the Board for further pro-
ceedings consistent with the Court’s opinion.
By the Court
/s/___ 8 te
JOSEPH F. WEIS, JR.
Circuit Judge
Dated: JUNE 14, 1982
Certified as a true copy and issued in lieu of a formal
mandate on July 6, 1982
Test: M. Elizabeth Ferguson
Chief Deputy Clerk,
United States Court of Appeals
for the Third Circuit
20a
APPENDIX
NOTICE TO EMPLOYEES
POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS GRANT-
ING ENFORCEMENT OF THE BOARD’S ORDER
IN PART AND OTHERWISE REMANDING THE
CASE TO THE NATIONAL LABOR RELATIONS
BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
After a hearing at which we were represented by our
attorney and presented evidence, it has been found that
we have violated the National Labor Relations Act in
certain respects. To correct and remedy these viola-
tions, we have been directed to take certain actions and
to post this notice.
WE WILL NOT question you concerning your activi-
ties, sympathies, and desires as to Local Union No.
478, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
of the union activities and sympathies of other
employees.
WE WILL NOT ask you for the names of employees
who were active in bringing about the Union’s organiza-
tional campaign.
WE WILL NOT threaten that your work will be sub-
contracted or the warehouse closed if you support,
work for, or vote for the Union.
WE WILL NOT threaten to take away job-related
benefits if you support or vote for the Union.
WE WILL NOT promise or give you pay raises or
other economic or job benefits to persuade you to with-
draw your support for the above-named Union, or any
other labor organization.
WE WILL NOT solicit you to request withdrawal of
any petition for representation election or to withdraw
your support from the Union.
21a
WE WILL NOT seek to induce you to encourage our
other employees to withdraw their support from the
Union.
WE WILL NOT deliberately reduce the work avail-
able to you in the warehouse by diverting freight, using
contract labor or other means, to discourage you from
supporting the Union.
WE WILL NOT coercively inform you that your
[sic] are better off without the above-named Union or
any other labor organization.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce you in the exercise of your
rights under Section 7 of the National Labor Relations
Act, as amended.
BEHRING INTERNATIONAL, INC.
(Employer)
Dated ____ By
(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 ques-
tions concerning this notice of compliance with its pro-
visions may be directed to the Board’s Office, Federal
Building, Room 1600, 970 Broad Street, Newark, New
Jersey 07102, Telephone 201—645-2100.
22a
APPENDIX C
Behring International, Inc. and Union No. 478, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America.
Case 22-CA-7824
September 26, 1980
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 8, 1979, Administrative Law Judge Robert
M. Schwarzbart issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief and a document marked “verifi-
cation petition supplementing the record below.“!
Pursuant to 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 proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings,? findings,* and conclu-
’ Respondent’s request for oral argument is hereby denied,
inasmuch as the record and brief adequately present the issues
to be decided.
2 Respondent asserts that the Administrative Law Judge ex-
hibited bias against Respondent in certain of his rulings and
comments during the hearing. We have carefully examined the
record and find no merit in this contention.
Respondent asserts that it should have been allowed to ad-
duce testimony from Board Agent Susan Anderson concerning
“her investigation of the initial charge as well as ceftain affida-
vits and other material.” Respondent asserts that the testimony
and decuments would have contained admissions from various
witnesses who testified, obtained when Anderson solicited a
withdrawal of the original charges filed against Respondent. At
the hearing, the Administrative Law Judge revoked the subpe-
na. We are satisfied that the testimony sought by Respondent
23a
sions* of the Administrative Law Judge and to adopt
his recommended Order, as modified herein.“
fell within the “limited evidentiary privilege which protects the
informal investigatorial and trial-preparatory processes of regu-
latory agencies such as the NLRB,” Stephens Produce Co., Inc.
v. N.L.R.B., 515 F.2d 1373, 1376 (8th Cir. 1975), and that Re-
spondent has shown no substantial reason to disregard this priv-
ilege. We note that, upon proper request, Respondent was giv-
en access to the prior statements by the General Counsel's
witnesses following their testimony on direct examination. We
further find that the evidence sought to be adduced is irrelevant
to any issue in this proceeding. Accordingly, we conclude that
the Administrative Law Judge properly revoked the subpena of
Board Agent Anderson.
3 Respondent has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's estab-
lished policy not to overrule an administrative law judge's
resolutions with respect to credibility unless the clear prepon-
derance of all of the relevant evidence convinces us that the res-
olutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F. 2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his
findings, with one exception.
In fn. 17 of his Decision, the Administrative Law Judge cred-
ited testimony by employee Michael Jaconski, which was denied
by Station Manager James Waters, to the effect that a hand-
written employee petition was signed by employees and taken
to Waters, and that Waters then asked that the petition be
typed. We note that Jaconski, whose testimony was generally
discredited by the Administrative Law Judge, was the only
witness who testified to the signing of a handwritten petition,
and that both the General Counsel’s witnesses and Respondent's
witnesses testified specifically that only the typed petition was
signed by employees. We therefore find that only the typed pe-
tition was signed before Waters received it, although this find-
ing does not detract from our finding, in agreement with the
Ndministrative Law Judge, that Respondent instigated the
and the formulation of an employee petition requesting
the withdrawal of the petition for an election.
We take administrative notice of the fact that, following the
close of the hearing herein, a change occurred in the leadership
24a
In finding that Respondent unlawfully laid off its em-
ployees and subcontracted out its work, the Adminis-
trative Law Judge observed that Respondent had not
established any reason for taking ti ese actions at the
time it did. Thus, he noted that the layoff and sub-
contracting occurred shortly after unlawful threats and
grants of benefits in response to an organizing cam-
paign. Moreover, the employees at the facility in ques-
tion had been praised recently for the quality of their
work. The Administrative Law Judge noted that two
employees who attempted to forestall the election were
retained at higher rates of pay following the subcon-
tracting, while those employees who had not distin-
guished themselves by their opposition to the
organizing effort, as well as those employees who had
of Iran, Respondent's primary customer at its Edison facility.
In its “verified petition supplementing the record below,” Re-
spondent alleges that, as a result of this change, it reduced and
later closed its operations at the Edison warehouse. We shall
leave to the compliance stage of these proceedings the determi-
nation of the timing and nature of the impact of Iran's change in
leadership on the operations at the facility involved herein, as
well as the period during which employees would have worked
had it not been for Respondent's unlawful layoff of employees
and the subcontracting of its operations.
5 The Administrative Law Judge found that the instant viola-
tions go “to the very heart of the Act” and recommended that
Respondent be ordered to cease and desist from “in any other
manner” interfering with, restraining, or coercing employees in
the exercise of their protected Section 7 rights. In our recent
Decision in Hickmott Foods, Inc., 242 NLRB 1357 (1979), we
held that such broad injunctive language is warranted only
when a respondent has been shown to have a proclivity to vio-
25a
supported the Union, were laid off. Finally, Respond-
ent can point to no contemporaneous event which might
have motivated the layoffs at that time. Accordingly,
although Respondent has proffered an economic de-
fense, we find that Respondent has failed to substanti-
ate that defense with probative evidence that it would
have subcontracted out its operations at the time it did
had it not feared the resumption of organizational activ-
ity.“ For this reason, we find that Respondent has
failed to rebut the General Counsel's prima facie case
and, like the Administrative Law Judge, we therefore
conclude that Respondent unlawfully laid off its ware-
house employees and subcontracted its warehouse
work
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 Administrative Law Judge, as modified below, and
hereby orders that the Respondent, Behring Interna-
tional, Inc., Edison, New Jersey, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
1. Substitute the following for paragraph 1(i):
i) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed them under Section 7 of the Act.”
2. Substitute the attached notice for that of the Ad-
ministrative Law Judge.
For a general discussion of the burden of going forward once
a prima facie case of unlawful discrimination has been made
out, see Wright Line, a Division of Wright Line, Inc., 251
NLRB No. 150 (1980).
26a
APPENDIX
Notice To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which we were represented by our
attorney and presented evidence, it has been found that
we have violated the National Labor Relations Act in
certain respects. To correct and remedy these viola-
tions, we have been directed to take certain actions and
to post this notice.
WE WILL NOT question you concerning your ac-
tivities, sympathies, and desires as to Local Union
No. 478, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, or of the union activities and sympathies
of other employees.
WE WILL NOT ask you for the names of employ-
ees who were active in bringing about the Union's
organizational campaign.
WE WILL NOT threaten that your work will be
subcontracted or the warehouse closed if you sup-
port, work for, or vote for the Union.
WE WILL NOT threaten to take away job-related
benefits if you support or vote for the Union.
WE WILL NOT promise or give you pay raises or
other economic or job benefits to persuade you to
withdraw your support from the above-named Un-
ion, or any other labor organization.
WE WILL NOT solicit you to request withdrawal
of any petition for representation election or to
withdraw your support from the Union.
WE WILL NOT seek to induce you to encourage
our other employees to withdraw their support
from the Union.
WE WILL NOT deliberately reduce the work
available to you in the warehouse by diverting
27a
freight, using contract labor or other means, to dis-
courage you from supporting the Union.
WE WILL NOT coercively inform you that you are
better off without the above-named Union or any
other labor organization.
WE WILL NOT subject you to discharge or layoff
because of your support for the above-named Un-
ion or any other iabor organization.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce you in the exercise
of your rights under Section 7 of the National La-
bor Relations Act, as amended.
WE WILL offer Ray Stremberg, Eric Stromberg,
Clara Kitson, Michael Lanza, Eugene Colacino,
Anthony Ippolito, Edmund Ringen, and Joseph
Sanders immediate and full reinstatement to their
former jobs or, if such jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges previ-
ously enjoyed, and WE WILL make each of them
whole, with interest, for losses they may have suf-
fered by reason of our discrimination against them.
28a
BEHRING INTERNATIONAL, INC.
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law
Judge: This case was heard in Newark, New Jersey, on
a complaint based upon a charge and first amended
charge filed by Local Union No. 478, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union. The
complaint, as amended at the hearing, alleges that
Behring International, Inc., herein called the Respond-
ent, violated Section 8(a)(1) of the National Labor Rela-
tions Act, as amended, herein called the Act, by coer-
cively interrogating certain of its employees concerning
their membership in, activities on behalf of, and sympa-
thies for the Union; by offering, promising, and grant-
ing its employees wage increases and other employ-
ment benefits in order to undermine their support for
the Union; by warning its employees that they would
be discharged if they became or remained union mem-
bers; and by coercively informing its employees that
they would be better off without a union; and violated
Section 8(a)(3) and (1) of the Act by discriminatorily
laying off a total of eight employees on May 6 and June
3, 1977,! and replacing them with employees of an inde-
pendent contractor.? With respect to certain of these al-
legations, the General Counsel, contrary to the Re-
spondent, contends that Robert Lesniakowski and
Michael Jaconski, warehouse employees, acted as
All dates hereinafter are 1977 unless stated to be otherwise.
2 The Employees laid off on May 6 were Ray Stromberg,
Clara Kitson, and Michael Lanza. The employees laid off on
June 3 were Eugene Colacinlol, Anthony Ippolito, Edmund
Ringen, Eric Stromberg, and Joseph Sanders.
29a
agents on behalf of the Respondent within the meaning
of Section 2(11) of the Act.
The Respondent, in its answer, denied the commision
of any unfair labor practices. Counsel for the General
Counsel and the Respondent have filed briefs which
have been carefully considered.
Upon the entire record, including my observation of
the witnesses, I make the following:
FINDINGS OF FACT
I, THE BUSINESS OF THE RESPONDENT
The Respondent, a Texas corporation, is engaged in
the business of providing warehousing and related serv-
ices at its place of business in Edison, New Jersey, its
only facility involved in this proceeding. In the course
and conduct of the Respondent’s business operations
during the 12 months preceding issuance of the com-
plaint herein, a representative period, the Respondent
caused to be purchased, transferred, and delivered to
its Edison warehouse goods and materials valued in ex-
cess of $50,000, of which goods and materials valued in
excess of $50,000 were transported to said warehouse
in interstate commerce directly from States of the
United States other than the State of New Jersey.
In accordance with the foregoing conceded facts, I
find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material here-
in, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent operates a warehouse in Edison,
30a
New Jersey,® where with its New York, New York, of-
fice it serves as the purchasing, storage, and freight-
forwarding arm of the air force of a foreign government
which, during the time relevant herein, obtained much
of its material in the United States. Equipment pro-
cured by the customer government, often with the as-
sistance and support services of the Respondent, would
be received and stored at the Edison warehouse prior
to transshipment to the purchasing country. This oper-
ation was under the general supervision of George Mur-
phy, the Respondent’s vice president and director of
military programs. Murphy, who reported to the Re-
spondent’s president, Alan Newhouse, was responsible
for both the New York City and Edison facilities and
had established the Edison warehouse ir: November
1975. In 1977, during the events considered herein,
James Waters was the Edison station manager in im-
mediate charge of that warehouse’s operation, and
Thomas (Wier) Wiercizewski was the warehouse super-
visor and Waters’ assistant. The parties are in agree-
ment that all of the above-named individuais are super-
visors within the meaning of Section 2(11) of the Act.
With the assistance of employee Eric Stromberg,
who had made initial contact in February, the Union
began its organizing campaign among the Respondent’s
warehouse employees, conducting its first meeting on
March 13 at a restaurant near the Edison warehouse.
This was attended by Union Business Representative
John Senick and about 9 of the Respondent’s 14 ware-
house employees. Among those who attended that
meeting and signed union authorization cards were
Lesniakowski and Jaconski, both who were both em-
ployed by the Respondent as rank-and-file
warehousemen.
3 Nationally, the Respondent also operates about eight other
warehouses.
3la
On March 22, the Union filed the petition in Case
22-RC-7093 for a representation election among the Re-
spondent’s warehouse employees and, pursuant to an
Agreement for Consent Election approved on April 7,
an election was conducted on April 25. Although the
Union was not successful in the election and here ques-
tions certain of the Respondent’s preelection conduct,
no objections to the election were filed.“
B. Alleged Acts of Interference, Restraint, and
Coercion
1. The employee meeting of March 31
Evelyn Barbato® testified that, on March 31 at ap-
proximately 9 a.m., she and all the other warehouse
employees were called by Lesniakowski and Jaconski to
an immediate meeting in the conference room. No su-
pervisors were present.
When assembled, Lesniakowski told the employees
that he and Jaconski had spoken with Waters, and that
Waters had stated that he was going to either subcon-
tract the work or close down the warehouse if the Un-
ion were voted in. In the discussion that followed,
various employees asked if Lesniakowski was certain of
this and all wanted to know why he and Jaconski had
gone to the office themselves without having asked any-
one else. Barbato recalled that Lesniakowski left the
conference room on several occasions during the meet-
ing, returning each time. On one occasion after leaving,
he returned and announced that, if the employees
wrote and signed a petition against the Union, then
The agreed-upon unit included all warehouse employees em-
ployed by the Respondent at its Raritan Center, Edison, New
Jersey, facility, but excluding all office clerical employees, pro-
fessional employees, managerial employees, and guards and
supervisiors as defined in the Act.
5 Barbato was employed by the Respondent in various ware-
house positions from October 1975 to May 4, 1977, when she was
terminated for reasons unrelated to this proceeding.
32a
Station Manager Waters would not do anything to
them; there would be no retribution. They could keep
their jobs if the petition could stop the Union. Barbato,
in longhand, then wrote a document rejecting the forth-
coming election, which was dictated to her by someon:
present. Jaconski took the page from her, left the room,
and returned with the following typed version of Bar-
bato’s draft:®
3-31-77
To: Jim Waters, Station Manager
From: Whse.
Subject: N.. [sic] Labor Board
We, the Whse. of Behring International agree to
withdraw our union petition from the N. J. [sic] La-
bor Board.
Before signing the petition, however, the employees
agreed that they did not want Lesniakowski and
Jaconski to take the paper by themselves to Waters’ of-
fice but that someone else should go with them. It gen-
erally was agreed that Barbato should accompany the
two men to Waters’ office when they took him their pe-
tition. The employees then signed the typed page in al-
phabetical order and broke for lunch at or about noon.
Lesniakowski and Jaconski, who ate together, had
agreed to meet Barbato in the conference room after
lunch and go together to Waters’ office. However,
when Barbato returned at or about 1 p.m., she found
that Lesniakowski and Jaconski had already gone to
Waters’ office without her. She went to the office area
in search of them and encountered Warehouse Supervi-
sor Wier in the reception room. Wier told Barbato that
Lesniakowski and Jaconski were in Waters’ office. The
door to that office was closed. When Barbato replied
that she was supposed to be in Waters’ office with
The record reveals that the document had been typed on the
Respondent’s stationery by an expeditor. Jaconski testified that
he had had Barbato’s draft typed at Waters’ insistence.
33a
Lesniakowski and Jaconski, Wier told her that they
were not to be disturbed. Barbato persisted that she
was supposed to be in Waters’ office with them and
Wier repeated that Waters said that he did not want to
be disturbed. Barbato returned to the conference room
where the other employees had reassembled after their
lunch break to await the return of Lesniakowski and
Jaconski.
Jaconski and Lesniakowski, on reentering the confer-
ence room, replied to Barbato’s question as to why they
had not waited for her by stating that Waters would
not have spoken in front of her. The employees then be-
gan to draw up a list of items they wanted from the Re-
spondent, including overtime pay after an 8-hour work-
day,’ a grievance committee, equal pay to all employees
for equal work, and no repercussions because of the em-
ployees’ previous support for the Union. These propos-
als were written by Ray Stromberg.®
According to Barbato, Lesniakowski took the em-
ployees’ proposals out of the room and later returned
stating that Waters had said that he was not certain as
to what could be done with regard to a grievance com-
mittee but would give the employees an answer to that
matter later. Waters could not himself decide whether
the other items could be granted but would have to
seek approval from the Respondent’s main office in
Houston, Texas. The meeting then broke up at approxi-
mately 3:30 p.m.
Barbato’s account of the March 31 meeting was sub-
stantially corroborated by employees Eric Stromberg,
Edmund Ringen, Eugene Colacino, and Anthony Ippo-
lito, all of whom recalled that Lesniakowski and Jacon-
ski had called the meeting, at which Lesniakowski had
7 At that time, overtime premium pay was available only af-
ter an employee had worked for 40 hours in a given week, al-
though he may have worked more than 8 hours on a given day.
®Employees Erie and Ray Stromberg are brothers.
34a
announced that he and Jaconski, concerned about their
jobs, had been talking to Waters, who had informed
them that there was a good chance that if the employ-
ees voted for the Union the Respondent would close the
warehouse or subcontract the work. If the employees
would sign a paper to end the union election, there was
a good possibility that the two men could talk Waters
out of attempting to close the warehouse or subcontract
the work. Ippolito, however, recalled that the employ-
ees had attempted unsucejcjessfully to condition their
signing the request to withdraw the representation
election petition on Waters’ agreement in writing to the
employees’ list of demands from the Company. Lesnia-
kowski, however, had reported to the group that
Waters would [not] agree to the list of employee pro-
posals in writing, as, the situation being what it was,
Waters did not want his name to appear on aything
written.“
Ippolito and Erie Stromberg recalled that, before the
meeting ended on March 31, the employees elected a
three-member grievance committee, which included the
two Strombergs and Sanders. In addition, Stromberg
and Jaconski recalled that Waters personally came to
the March 31 meeting shortly before it ended. Strom-
berg related that Waters encouraged the employees to
elect a grievance committee, which was done, and also
discussed various grievances with the committee and
the other employees, including the matter of equal pay
for equal work, agreeing that all should be paid on an
equal basis for the same warehouse work. 10
These employees signed the election petition withdrawal re-
quest although Waters did not grant all their demands because,
after some discussion, it was concluded that they still would be
better off signing and hoping for the best.
1 Jaconski’s recollection of the March 31 meeting of which he
clearly was a cosponsor and principal participant was so uncon-
vincingly poor and his testimony so evasive that absent inde-
pendent corroboration he is not credited where his testimony
conflicts with that of other witnesses. As the other witnesses to
35a
The employees were paid for the time spent at the
March 31 meeting, their signed request for withdrawal
of the election petition was retained by Waters, and the
March 31 meeting conducted by and among employees
without supervisors, which consumed the time of the
entire warehouse staff for virtually the whole workday,
was unprecedented at the Edison warehouse. !!
Lesniakowski testified that immediately before tell-
ing the employees to go to the meeting on March 31 he
and Jaconski had asked Waters for the use of the con-
ference room to discuss with the employees what was
happening in the warehouse, the union problem, and
other matters. Waters had told them to use the confer-
ence room if it was all right with Warehouse Supervisor
Wier, who thereafter assented to the meeting after be-
ing assured that Waters had not objected.
Lesniakowski related that he and Jaconski then gath-
ered all the warehouse employees into the conference
room where he did most of the talking. Lesniakowski
told the group that the way everything was going? it
was very possible that the Company would subcontract
the work. It was also possible that it would close up.
Lesniakowski stated that the Respondent could do ei-
ther one of the two and the employees would all be out
of work and collecting unemployment. Accordingly,
Lesniakowski stated his belief that, if the employees
the March 31 meeting did not testify that Waters had come to
the conference room toward its end and as Stromberg, the only
other witness to agree with Jaconski on this point also showed a
poor general recollection of events, I find from the weight of the
evidence that Waters did not appear at the March 31 meeting,
but that a grievance committee was elected which thereafter
was recognized by management, and which processed griev-
ances in the time period before the election.
1! That night, Erie Stromberg reported the meeting to
Senick, the union representative, who told him not to worry.
12 At the time of the meeting, business volume was low in the
warehouse.
36a
drew up a petition to withdraw the union election while
they still had jobs, everything would continue and the
employees would have work. If they did not do this and
the Union came in, nobody knew what was going to
happen. Accordingly, Lesniakowski stated that the un-
ion matter was an important thing to resolve and the
employees should settle down, go back to work, and
keep their jobs. 1
Lesniakowski conceded that while the conference was
in session he left the room several times for various
reasons, but asserted that he went to Waters’ office
only after the petition was signed to take it to him. In
this, he was accompanied by Jaconski and Barbato.
However, when they arrived in the office area, Waters’
assistant, Joyce Hesse, informed them that Waters was
out to lunch. Accordingly, Lesniakowski left the peti-
tion on Waters’ desk and they all returned to the con-
ference room. While still in the conference room, some-
one reported that Waters had returned from lunch and
13 Lesniakowski denied that he had used Waters’ name as the
source of his concern and proposed antiunion document, but
testified as to two reasons for telling the employees on March 31
that if an election were held the Respondent would subcontract
their work. The first was his knowledge that at the time in
question freight which otherwise would have been delivered to
the Respondent's Edison warehouse was being diverted to the
nearby warehouse of Summit Associates, whose employees
were handling it, and, second, because of an incident about 3
days before the March 31 meeting. At that time, while seated
two stools down from Warehouse Foreman Christopher Houli-
han at a bar, Lesniakowski overheard Houlihan tell an acquaint-
ance that the freight was being diverted to the Summit building
and that it looked as though “they” were going to subcontract
out the work if the Union came in. Contrary to the Respond-
ent’s argument, I find that, although this incident occurred in a
public place, Lesniakowski was sufficiently near to Houlihan for
the latter to have been aware of his presence when he spoke,
and, in view of Houlihan’s other conduct found below, it is con-
cluded that Houlihan intended that Lesniakowski hear his
remark.
37a
was in his office. It was then that Lesniakowski, accom-
panied by Jaconski, returned to the office.
On being reassured by Waters that he was too busy
to see them, Lesniakowski picked up the petition,
which was still on Waters’ desk, and stated that every-
one in the warehouse had drawn up a petition to with-
draw from the Union. Waters replied that he could not
answer any questions but would give the petition to
someone to examine.
Lesniakowski, too, recalled that of [sic] overtime,
paid medical benefits, a grievance procedure, and equal
pay for equal work were discussed at the March 31
meeting.“
Lesniakowski and Jaconski both denied that they had
acted as agents for the Respondent in conducting the
meeting and that they had interrogated any employees
concerning their union sympathies or activities.!“
Waters testified that he had told Jaconski and Les-
niakowski that they could use the conference room for
the employees’ meeting when they had requested its
use so that the employees might discuss the union mat-
ter among themselves. He told them that it was their
conference room as well as everyone else’s but refused
to talk to them about the Union. By his estimate, about
15 minutes after this conversation, Waters left for
lunch. 6
14 Lesniakowski testified that, approximately 3 days after
giving Waters the petition on March 31, he encountered Waters
in the warehouse and asked if Waters thought that the petition
was the right way. Waters told Lesniakowski that he had a
right to do whatever he wanted.
1 As noted, both Lesniakowski and Jaconski earlier had
signed authorization cards at the union meeting of March 13.
16 Waters denied Jaconski's account that, during the lunch pe-
riod that day, Jaconski and Lesniakowski had encountered him
at a nearby restaurant at which time the two employees had
told Waters that the employees had signed the petition. As
38a
When Waters returned to the office, he found the pe-
tition signed by the employees on his desk. Although
the petition had been typed on the Respondent's sta-
tionery, Waters testified that this was the only copy of
the petition that he had seen and did not know how it
had come to be typed.“
Waters conceded that he never checked on how long
the meeting had lasted either personally or by asking
his supervisors. His only conversation that day with
Jaconski and Lesniakowski was when he gave them
permission to use the conference room.
In evaluating the evidence herein, I do not find
Waters to be a credible witness. In spite of his clear in-
volvement in authorizing the March 31 meeting and the
general testimony of his dealings with Lesniakowski
and Jaconski while it was in progress, he testified that
he had no knowledge of the meeting’s substance and du-
ration, although it occupied his entire work crew for
nearly a full day. As the weight of evidence, as will be
discussed below, established Waters as a participant in
much of the activity found unlawful herein, his testimo-
ny is not deemed reliable.
2. The preelection diversion of freight from the Re-
spondent’s warehouse
The General Counsel contends that in April, during
the weeks preceding the election, the Respondent re-
routed freight destined for the Edison warehouse to a
Jaconski’s testimony, noted above, is generally discredited,
Waters’ denial of this incident is accepted.
17 This denial contradicts Jaconski's testimony that the hand-
written petition originally brought to Waters was typed at
Waters’ insistence. While Jaconski's testimony generally is not
credited, his testimony in this regard is accepted as the almost
daylong meeting certainly required company approval and as it
appears most unlikely that a warehouseman could have required
an expeditor to type the document on company stationery with-
out supervisory authorization. Accordingly, it is found that the
petition was typed at Waters’ direction.
39a
facility 1 block away, owned and operated by another
company, Summit Associates, and that this had been
done to further drive home the message of the March
31 meeting that work in the warehouse was scarce and
that if the employees voted in the Union their jobs
would be in jeopardy. The Respondent, in turn, con-
tends the freight was diverted to Summit to reduce the
content of the warehouse and thus make room for the
application of a sealant to the warehouse floor to end a
dust problem.
Thomas Wier, who at the time of the events herein
was warehouse supervisor, 1s testified that about a
week before the April 25 election Waters had told him
that the Respondent was going to start subcontracting
work to Summit Associates and had instructed Wier to
send trucks arriving with freight at the Respondent's
receiving dock to the Summit warehouse where it was
to be received and unloaded. Waters told Wier that the
Respondent wanted the men to see an empty ware-
house and to let them think a bit on the union matter.
The General Counsel argues that, in the context of
Waters’ testimony that April was part of a slow period
at the Edison warehouse and that studies were then be-
ing made to determine how labor costs could be re-
duced, the Respondent’s manner of preparing for the
floor sealant application was singular. Although Waters
testified that the Respondent did not receive a cost
breakdown for the respective storage and labor serv-
ices furnished by Summit during this priod, but, rather,
received an all-inclusive bill, Respondent’s Exhibit 11,
which evidences the arrangement for these services, re-
veals that Summit billed the Respondent at a stated
rate for the space in minimum units of 1,440 square feet
and also for separate labor costs of $9.10 per hour,
18 Wier, called as a witness by the General Counsel, was em-
ployed by the Respondent from November 1975 until severed on
about October 7, 1977.
40a
which rates were substantially higher than that paid by
the Respondent to its own warehouse employees. The
Respondent’s determination to use Summit labor al-
most exclusively to handle the diverted incoming
freight during this period and to use its supervisors to
move in-house inventory from the floor area to be
sealed to other parts of the warehouse proceeded in the
face of Waters’ statement that the Respondent’s em-
ployees did not at that time have enough work.
The sealant was applied on April 16 and sometime af-
ter that but before the election the Respondent stopped
diverting freight to Summit.
Waters in turn testified that it had been necessary to
divert this freight in order to reduce the quantity of
material in the warehouse and to enable inventory al-
ready in the warehouse to be moved out of the way so
that the warehouse floor could be chemically sealed in
response to a dust problem. Although it only took 1 day
to apply the sealant, which dried in 48 hours, additional
weeks had been needed in advance in order to make the
necessary preparations. These included emptying and
cleaning the warehouse so that the sealant would take
und moving freight out of the way as required. Waters
related that he first had authorized the contractor to do
the sealing work in February but the start was delayed
by uncertainty as to how much of the warehouse floor
was to be sealed. Whatever was done in preparation for
the floor sealing, including the diversion of freight and
the rearrangement of in-house material, had been done
at the contractor’s instructions.
Waters explained that his decision to use Summit la-
bor was not unusual as in the past the Respondent, had
done business with Summit Associates, as the situation
required. From the time the Respondent had assumed
the foreign air force account in November 1975, when
the Edison warehouse opened, through April 1976, a
busy interlude, the Respondent had augmented its own
work force by using three to six employees provided by
4la
Summit. In that interval Summit employees worked at
the Respondent’s warehouse with the Respondent’s
own employees sorting freight and driving two trucks.
In the slower periods which followed, the Respondent
discontinued the use of outside labor as unnecessary,
and did not again resort to Summit until March 1977 in
connection with the Respondent’s floor sealing opera-
tion. 1 In March and April no freight was transferred
from the Respondent’s warehouse to Summit, but in-
coming shipments were diverted to the Summit ware-
house and stored there until shipped to the customer
country.
3. The alleged unlawful pay raises and other improve-
ments in job benefits
The General Counsel contends that in the preelection
period the Respondent promised and granted various
unlawful pay increases to discourage employee support
for the Union.
Specifically, the General Counsel argues that the Re-
spondent, in the preelection period, reclassified and
granted accompanying pay increases to Michael Jacon-
ski, Clara Kitson, and Michael Lanza. In late March
these three employees, without evaluation, were
reclassified by the Respondent from the designation of
receiving clerk to warehouseman.”° All three employ-
ees testified that, while working as receiving clerks in
parcel post, their jobs had been to consolidate and seg-
regate freight by priority and to containerize the goods.
Their duties remained the same after their reclassifica-
tions, which involved only the change of title to ware-
*® Waters’ testimony that the Respondent began to use Sum-
mit in February and March in connection with the floor sealing
procedure is contradicted by the Respondent’s arrangement for
Summit’s services, which is dated March 28 and by its terms
1 that Summit's services would be rendered in the
ture.
20 Kitson and Lanza were reclassified effective March 26 and
Jaconski on March 28.
42a
housemen and the increased compensation. The expla-
nation given to the employees by Waters for their
reclassification at that time was that the receiving clerk
classification was being eliminated.
Waters testified that under the Respondent’s pay
policy as it was in the first half of 1977 employees re-
ceived salary and performance evaluation 90 days after
employment, and thereafter received evaluations and
warranted pay increases, consecutively, 6 months after
the anniversary date of their employment, 1 year after
the anniversary date, and every 6 months thereafter.
Under this evaluation system, employees could receive
either no raises for bad performance or could receive in-
creases of 4, 6, or 8 percent, respectively, depending
upon how highly they were rated, until they reached
the highest pay rate available for their job classifica-
tions. Accordingly, employees Eric Stromberg and San-
ders both were evaluated by the Respondent in Janu-
ary and, respectively, were found to merit pay
increases of 4 percent. However, they were informed at
the time that, as they had reached the top of the pay
scale for their respective jobs, they would receive no in-
crements. However, both Sanders and Stromberg later
received pay increases effective April 27, made retroac-
tive to their January evaluation dates. The April 27 in-
creases, part of a general across-the-board raise for all
employees, was given without use of the Respondent's
evaluation procedures.??
21 In being reclassified to warehousemen, Kitson received a
monthly increment of $207 while Jaconski and Lanza each re-
ceived $238.80 a month.
22 J find no merit to the General Counsel's contention that em-
ployees Anthony Ippolito, Edmund Ringen, and William Tide-
mann, all of whom received pay increases on April 9, had re-
ceived them unlawfully because they were given in the
preelection period. Rather, the payroll evidence shows that
they each had received their previous increments on October 9
and at like intervals before then. It is therefore concluded that
their raises of April 9 were consistent with the Respondent's
43a
In addition to granting the foregoing preelection
raises to Lanza, Kitson, and Jaconski, the General
Counsel contends that the Respondent also unlawfully
promised a general across-the-board wage increase be-
fore the election, which was paid shortly after the elec-
tion was conducted.
Employee Ippolito testified that, in the period be-
tween the filing of the petition in the representation
case and the conduct of the April 25 election, Waters,
at a meeting of employees, promised to provide such an
across-the-board increase. On that occasion, Waters
told the employees that he was trying to fight for equal
pay for equal work in the warehouse and that $300 per
week per employee was a justifiable wage. Although
Ippolito agreed that the concept of equal pay for equal
work had been discussed before the petition was filed
and again after the election, this was the first instance
where the specific figure of $300 had been mentioned.
The Respondent’s payroll records reveal that a gen-
eral across-the-board pay increase was given to all
warehouse employees effective April 27, bringing their
pay rate to the uniform scale of $300 per week or $1,300
per month. At the same time, the three parcel post em-
ployees who worked in the small package area, Ringen,
Barbato, and William Tiedemann, were raised to ap-
proximately $280 per week or $1,217.88 per month.
Waters testified that 1 or 2 days after the April 25
representation election he conducted a meeting in the
conference room with the entire warehouse staff.
Waters asked the employees if they had any complaints
and suggested that the employees should submit any
ideas for improved conditions in the warehouse to him
longstanding policy of affording pay raises at 6-month intervals
as warranted by its calculations.
23 The reason for paying less money to the employees in the
small package area was that their work was lighter and less de-
manding. These positions were usually filled by older male and
by female employees.
44a
and he would see what he could do. Waters emphasized
that he could not guarantee anything. A few days later
Waters received a handwritten list itemizing the em-
ployees’ proposals. Included in this list were employee
requests for equal pay for work, paid hospitalization in-
surance, a grievance committee, and other unrecalled
items.
On the day Waters received the list he read it to the
Respondent’s vice president, Murphy, who, in turn, re-
ported its contents to the Respondent’s president,
Newhouse. Within 4 or 5 days of receiving the list from
the employees, Murphy informed Waters that certain of
the items on the list had been agreed to by the Re-
spondent and some were unacceptable. Among the
items approved by the Respondent was a provision for
overtime pay at time and a half after 8 hours per day
rather than after 40 hours per week, the grievance
committee, and equal pay for equal work at the above-
referred rates for warehouse and parcel post employ-
ees. According to Waters, the raises were to become ef-
fective 2 to 3 weeks after the election and were not to
be retroactive.*4
The Respondent denies that any of the pay raises and
reclassifications were granted as a result of or to coun-
ter the Union’s organizational campaign, and argues
that the across-the-board increase and other benefits
did not become effective until after the election, to
which no objections had been filed.?5
24 The Respondent did not agree to the employee proposal for
paid hospitalization insurance.
25 Waters’ testimony with regard to the timing of the across-
the-board pay increase, as noted, is contradicted by the Re-
spondent’s payroll records, which show that the raise became
effective on April 27, the date that Waters testified that he first
suggested to the employees that they submit their proposals for
improved job benefits. Also, while it is true that no objections
to the election were ultimately filed, as noted, such objections
still could have been timely filed after April 27 when the raises
were given. Had objections been filed the raises thus given
45a
As indicated in the General Counsel’s brief, the Re-
spondent produced no evidence of a general across-the-
board pay increase for employees at any location other
than the Edison warehouse.
4. The alleged threatened loss of job benefits
Employee Edmund Ringen testified that in March or
early April, after the filing of the representation case
petition, he and other warehouse employees were sum-
moned to a meeting called by the Respondent’s vice
president, Murphy. Ringen recalled that Murphy told
the employees that he had been to the National Labor
Relations Board, that a date for an election had been
agreed upon, and that he would like everyone to vote.
If the vote resulted in a tie, the Company would win,
and that was what he hoped for.?“ Employee Anthony
Ippolito related that Murphy on that occasion had an-
nounced that he had just returned from the road and
was looking for more contracts for the Respondent as
the Company just could not depend on the one (foreign
air force) contract that it had. Murphy said that that
there was a chance they might get some new contracts
and, if the employees did not organize things looked
good.??
would have been unlawful. See Belcor, Inc., d/b/a Modesto Con-
valescent Hospital, 235 NLRB 1059, 1063 (1978).
26 Murphy testified that he met with the warehouse staff on
about April 8 at which time he announced that agreement had
been reached for a Board-conducted election on April 25. The
employees were encouraged to vote as this decision affecting
their future should not be reached by default. Murphy stated
that he was precluded from trying to influence the employees in
any way, and further stated, “What will be will be and the Com-
pany will go on from there.”
27 Ippolito was also present at a meeting of all employees be-
fore the election in which the Respondent’s president, New-
house, praised the work of the Edison warehouse employees,
described the customer air force’s satisfaction with their per-
46a
Ringen also testified that in April, before the elec-
tion, he and the other warehouse employees attended a
meeting called by Station Manager Waters and his as-
sistant, Joyce Hesse. On that occasion Waters asked
the employees what their problem was. When there
was no answer, Waters said that if the employees did
vote for a union he probably would handle the negotia-
tions and there was a good chance, that they would
loose their stock option plan, profit-sharing plan, and
pension benefits. Ringen interjected that as the em-
ployees had vested rights how could they lose these
benefits? Waters did not reply.
Employee Michael Lanza averred that at a preelec-
tion meeting of all warehouse employees Waters de-
scribed the Respondent’s stock plan, telling the employ-
ees that if they were employed for 2 years they would
receive stock in the Company. After a while, the em-
ployees would start to own the Company. Waters told
the employees that the Respondent’s branch in New
York had a union but did not have the stock plan.
Before the election, Waters also met with the ware-
house staff, divided into separate groups, to discuss
employee grievances. Ringen testified that he and
members of his group, when they met with Waters,
told him of their desire for overtime pay after 8 hours
of work each day and of their wish for more pay.
Waters stated his agreement with the employees but
told them that they were dealing with a southern-based
formance, and called them the best warehouse employees in the
Respondent’s organization.
28 At the time in question fringe benefits provided for its em-
ployees by the Respondent, in addition to paid vacations, holi-
days, and Christmas bonuses, included the following company-
wide benefits: hospitalization and major medical insurance, the
Respondent’s stock program whereby the Respondent made
stock purchases for eligible employees, and a profit-sharing pro-
gram. While, as noted, these last programs were companywide,
not all of the employees had sufficient service to be eligible.
47a
outfit. He said that he would see what he could do when
he went to the Respondent’s Houston headquarters. 2“
Waters, in turn, testified that before the election he
conducted two meetings with the warehouse staff. The
first was in the beginning of April at which time he
merely read verbatim a prepared statement to the
staff, saying nothing more than what was contained
therein. The statement announced the coming election,
the date and time, and advised the employees of their
right to participate therein, and reassured them that no
effort would be made by management to harass or in-
timidate anyone involved in the election procedure. The
General Counsel does not contend that the verbatim
statement assertedly read to the employees contained
unlawful language.
Waters described a second meeting of all warehouse
personnel conducted later in April when he told the em-
ployees of the profit-sharing and stock option plans, the
existing hospitalization, sickpay, and other benefits. On
that occasion, employees asked questions as to the
available fringe benefits. Waters denied having threat-
ened employees with the loss of existing benefits if they
voted for the Union.
5. The alleged unlawful interrogations
Warehouseman Sanders testified that on April 22,
just 3 days before the election, he stopped for a drink at
a nearby bar and restaurant where he joined Supervi-
sor Houlihan and Lesniakowski at a table. After several
minutes of general discussion, Lesniakowski asked San-
ders what he thought about the Union and how he was
going to vote. Sanders replied that he would vote “no,”
20 Ringen’s testimony on this point is, in substance if not in
time, corroborated by that of Jaconski, who related that, when
Waters came to the conference room at the conclusion of the
March 31 meeting, he promised the employees that he would
check with the main Houston office on the matter of obtaining
equal pay for them.
48a
as he did not believe the Union was going to win.
Lesniakowski then asked how Sanders thought every-
one else was going to vote. Sanders answered to best of
his knowledge.
About 35 minutes later, Lesniakowski departed,
leaving Sanders and Houlihan alone at the table. San-
ders testified, still without contradiction, that Houlihan
asked what was the matter with those people. When
Sanders asked if he meant the people at Behring, Hou-
lihan replied “Yes.” Houlihan declared that he did not
understand why those people could possibly want the
Union, repeating this statement. Houlihan noted that
the Respondent was a good company to work for with
profit-sharing and stock ownership plans. Employees
were not pushed by the supervisors to work harder and
if anyone asked for time off they received it. Sanders
replied that he guessed that the employees felt that
they needed the time off because they did not receive
overtime pay after 8 hours’ work and had to work over-
time on Saturdays and Sundays when the warehouse
was busy. Sanders declared that people were complete-
ly fed up with the conditions there. Houlihan then
asked Sanders how he felt the other employees were
going to vote and how Sanders would vote, the same
questions earlier put to him by Lesniakowski. Again,
Sanders stated that he was going to vote “no,” and
gave his estimate of how the various other employees
were going to vote. Houlihan then asked who had
started the Union. Sanders replied that Eric Stromberg
had started the Union along with his brother, Ray, the
two having contacted the union delegate.
As a sequel to the above incident, Eric Stromberg
testified that after work on June 3, the day he was laid
off, he went out for the evening with Houlihan and a
number of the Respondent’s employees. Later, after
dinner and a number of drinks, he was left alone with
Houlihan at a bar. In the course of their conversation,
49a
Houlihan told Stromberg that it was all Stromberg’s
fault that everyone was getting laid off and the whole
union thing. Stromberg said that it was not, that the
Union was not his idea alone, but that actually it was
Houlihan’s fault. Houlihan had hired three men into the
warehouse at pay rates higher than several incumbent
warehouse employees were receiving at the time.
Stromberg told Houlihan that he had been approached
by Lesniakowski and Jaconski about bring in the Un-
ion, which was what had started the ball rolling.
Houlihan, however, persisted that the Union was
Stromberg’s fault. As Houlihan was becoming increas-
ingly belligeraii, Stromberg left.
6. The alleged unlawful! layoffs and postelection
contracting
On May 6 the Respondent laid off Ray Stromberg,
Clara Kitson, and Michael Lanza and on June 3 laid off
Eugene Clollacino, Anthony Ippolito, Edmund Ringen,
Eric Stromberg, and Joseph Sanders, all warehouse
employees, while concurrently contracting for labor
services to be provided by ESP, Inc., an outside firm.
The record also reveals that Lesniakowski and
Jaconski, the sponsors of the March 31 employees’
meeting, were not laid off but were assigned to work
under a new supervisor in quality control. The record
reveals that in their new quality control assignment
their duties remained what they had been as ware-
housemen except that they also were responsible for
training new warehouse personnel provided and em-
ployed by ESP, Inc.!
0 ESP, Inc., had been established by two men not connected
with Summit Associates, one of whom earlier had worked for
the Respondent on an efficiency report.
31 Ringen testified that after the election and subsequent to
the start of the layoffs Jaconski, passing by, had told Ringen
and another employee that he was on his way to the office.
When Ringen asked who the Company was laying off, Jaconski
50a
Former Warehouse Supervisor Wier testified that
about 2 weeks after the election he and the other super-
visors attended a meeting called by Waters, who told
them that as of Friday of that week all the men would
be laid off, and beginning with the following week the
Respondent was going to use an outside agency to do
all the warehouse work. Wier asked when he should in-
form the employees. Waters replied that Wier should
tell the employees on Friday, when they were paid at
the end of the week, and to give them a week’s notice
at that time. Waters explained that the layoffs were be-
ing effectuated because it was estimated that the Com-
pany could save $50,000 a year by going to an outside
agency in that it would not have to pay employee bene-
fits, pensions, and other related expenditures. Waters
also stated that the Respondent did not want the threat
of the Union hanging over its head because in all prob-
ability the employees would go union in another year
from that time when a new election could be held.
Waters told the group that the Respondent's president,
Newhouse, would probably close the Edison terminal if
the men did go union. The Company wanted to remain
nonunion.
Both Murphy and Waters described a series of stud-
ies they, respectively, had made in May on the compar-
ative costs of subcontracting the warehouse labor upon
which the estimated savings were based.*?
answered that Murphy, the Respondent’s vice president, had
told him that the Company was taking care of him and owed him
for what he had done for it.
32 The record reveals that the Respondent’s labor costs for its
own employees had increased in that as of April 27 all ware-
house employees received equalizing increases aligning them at
uniform weekly pay levels, and the Respondent, since the elec-
tion, for the first time was paying its employees time and a half
in overtime pay after 8 hours per day. In addition, the Respond-
ent also had recognized the employees’ grievance committee and
had obligated itself to process grievances. The Respondent’s
fringe benefit package for its own employees, however, was less
5la
Murphy testified that the Respondent had followed a
practice of subcontracting its work and that he, in fact,
had first recommended subcontracting work in the
Edison workhouse to the Respondent’s Houston head-
quarters office in 1975. Later, in January 1977, because
of the financial problems then extant, he requested au-
thority to investigate subcontracting the warehouse
work in order to reduce costs. He reasoned that
subcontracting would give him control of the number of
employees to work at a given time so that, based on
fluctuating work volume, only those employees actually
required would be used. This could provide substantial
savings over the need to employ a fixed group as done
with the Respondent’s own employees.
Murphy testified that the Respondent’s financial situ-
ation continued to worsen in that its contract with the
customer air force underwent two changes in scope.
The first major change occurred in June 1976 when the
Respondent was required to interface with the custom-
er air force’s logistics system, which resulted in in-
creased costs to the Respondent. The second major
change occurred when the customer air force acquired a
fleet of large air cargo carriers which it began to oper-
ate as a wing of its own air force. This reduced the
number of charter flights for which the Respondent had
been contracting, and thus the Respondent lost a previ-
ously earned 5-percent CAB commission on all such
flights. In addition, the customer’s newly acquired
airlift capacity resulted in a reduction of ocean bookings
costing the Respondent an additional decline in reve-
nues generated through brokerage fees for these ocean
voyages.
A final factor increasing the Respondent’s costs at
that time was the need to install a computer, which was
done in May or June, to enable the Respondent to keep
costly than it might appear, as before the May 6 layoff only four
Edison employees had sufficient service to be eligible to partici-
pate in the profit-sharing and stock option plans.
52a
current with the customer air force’s requirements. The
air force refused to renegotiate its contract to allow the
Respondent to recover any part of these lost earnings
or higher costs.
Based upon a financial reversal in December 1976,
the above-described factors which served to further re-
duce the Respondent’s earnings, and his economic anal-
ysis, Murphy again recommended to Newhouse that the
warehouse work be subcontracted and that five ware-
house employees be laid off with severance pay and
vacation allowances.
On May 6 the first layoffs—of Ray Stromberg,
Kitson, and Lanza—were accomplished. These, how-
ever, were not a part of the subcontracting decision,
but were based on Waters’ statement to Murphy about
2 weeks earlier that he thought it was possible to re-
duce his warehouse work force by three. Murphy ap-
proved this action and the three employees were laid
off
Murphy testified that the June 3 layoffs of Colacino,
Ippollito, Ringen, Sanders, and Erie Stromberg oc-
curred pursuant to the decision to subcontract the
work, which thereafter was done by employees of ESP,
Inc., the contractor. The ESP personnel, in turn, there-
after were trained for their work by Lesniakowski and
Jaconski,** whe, as noted, had been assigned to work in
quality control after the election under a new supervi-
sor. They were the first assistants to be assigned to
33 The contract with ESP, Inc., the contractor who finally as-
sumed the warehouse work, was not executed until May 26 and
no costs were executed under it until June 6.
%4 Jaconski temporarily quit his job with the Respondent on
May 6, against the urging of company officials, because he felt
badly about the layoffs and sensed that other employees disliked
him presumably because of his involvement in cosponsoring the
March 31 employees’ meeting. However, after later being asked
to return by the Respondent, he went back to work on May 23.
53a
that area, which previously had been handled by one
man.
C. Analysis and Concluding Findings
1. The March 31 employees’ meeting
The General Counsel, contrary to the Respondent,
contends that, in conducting the meeting of the entire
warehouse staff on March 31 in the absence of supervi-
sors, Lesniakowski and Jaconski acted as agents of the
Respondent and that their acts in connection with that
meeting were binding on the Respondent. The Re-
spondent denies that they acted as agents, indicating
their general rank-and-file status.
To determine such agency, it is not necessary to find
direct evidence that the activities of Lesniakowski and
Jaconski actually were authorized or subsequently
ratified. Rather, agency may be inferred from the cir-
cumstances. *5
Summarizing the credited evidence in this area,
Lesniakowski and Jaconski were the first employees al-
lowed to call a meeting of other employees during
working hours when no supervisor was present, receiv-
ing permission from Waters for the same in order to
discuss “the union matter.” Although the meeting
occupied the great bulk of the workday of all the Edison
Warehouse employees, all were paid for the time spent
at the meeting and none were questioned or repri-
manded with respect to their long absences from their
work stations. The antiunion petition drafted and
signed at that meeting was typed at Waters’ insistence
on company stationery and delivered to Waters. Later
that day Lesniakowski and Jaconski also brought to
35 See Razco, Inc., d/bia Hit & Run Food Stores, 231 NLRB
660, 669 (1977); Dellridge Associates, Inc., d/b/a Dellridge
Nursing Home, 234 NLRB 595, 599 (1978); Birmingham Pub-
lishing Company, 118 NLRB 1380, 1381-82 (1957), enfd. 262
F. 2d 2 (5th Cir. 1958).
54a
Waters the employees' list of requested improvements
and benefits prepared in the context of their having
signed the request for withdrawal of the election peti-
tion. To some employees, these proposals represented a
hoped-for exchange for the antiunion petition. The list
included requests for overtime after 8 hours of work,
paid hospitalization, equal pay for equal work, and es-
tablishment of a grievance procedure. The grievance
committee members were elected on March 31 and
were recognized and dealt with by management before
the election. Subsequently, Waters pursued the re-
maining proposals with management and all but paid
hospitalization were eventually granted.
In these circumstances, noting particularly that
Waters had allowed the unprecedented meeting and
had accepted the employees’ signed request for with-
drawal of the union petition and their list of requested
job improvements which had evolved from the meeting,
that he subsequently granted most of the employees’
requests, and that it is inconceivable that the meeting
could have lasted for as long as it did without disci-
plinary action by the Respondent unless conducted with
the direction, assistance, and encouragement of man-
agement, I find that Lesniakowski and Jaconski acted
as the Respondent’s agents in conducting the March 31
meeting and that their statements to the warehouse
employees and actions on that occasion were binding
upon the Respondent. Therefore, it is concluded that
the Respondent, through Lesniakowski and Jaconski,
violated Section 8(a)(1) of the Act by threatening em-
ployees during the March 31 meeting that their work
would be subcontracted or the warehouse would be
closed if the election was conducted and the Union was
voted in.
36 There is no evidence that Lesniakowski or Jaconski inter-
rogated employees as to their union sympathies or desires on
March 31. While it could be argued that, in impelling the em-
ployees to sign the request for withdrawal of the union petition,
55a
2. The preelection diversion of freight
In concluding that the Respondent, in the preelection
period, was utilizing and building upon a slow period in
the warehouse to impress upon its employees the mes-
sage of the March 31 meeting that work was slow and if
they supported the Union their jobs would be in jeop-
ardy, I note former Warehouse Supervisor Wier’s testi-
mony that in April, before the election, Waters, in di-
recting him to divert incoming freight to the Summit
warehouse, had told him that the Respondent wanted
the employees to see an empty warehouse and let them
think a little bit on the matter.
Although Wier, on cross-examination, continued to
adhere to this testimony, the Respondent contends that
Wier, who was subsequently severed by the Company,
was a disgruntled witness whose testimony against the
Respondent should not be credited. Wier testified that
in the course of his employment he had received three
disciplinary letters from the Respondent relating to his
job performance, and that in September he was told by
Hesse that she had learned from Waters that Wier
would be laid off in 1 month. In connection with his lay-
off the Respondent offered to give Wier 1 month's sev-
erance pay and bear the cost of the forthcoming mater-
nity hospitalization for Wier’s wife if Wier signed a
letter of resignation. If Wier refused to sign he would
receive nothing. Although Wier did not sign the resig-
nation letter, he did receive the severance pay and also
was paid through October 7 although he actually ceased
to work for the Respondent 2 weeks before that date.
Still pending at the time of the hearing was Wier's
hopes for hospitalization benefits as his child had not
yet been born.
the employees were obliged to go on record as to their stand on
the Union at that time, this is a separate form of interference
with their rights under Sec. 7 of the Act, to be considered be-
low, and to find that this constituted interrogation would strain
the customary usage of that term.
56a
Although Wier was not pleased at his treatment by
the Respondent, I find him to be a credible witness. His
testimony is consistent with the general fact pattern of
this case, which, as will be discussed below, shows a de-
termined effort by the Respondent to defeat the Union
by extreme tactics which are detailed in this Decision.
While Wier may have lost his position by the time of
the hearing, he had received at least 1 month’s sever-
ance pay and still hoped to obtain hospital coverage
from the Respondent for his wife’s maternity period.
Accordingly, as Wier’s testimony adverse to the Re-
spondent was inconsistent with his interest in receiving
the hospitalization payment, his account of the events is
afforded additional credence.
However, Wier’s testimony as to the significance of
the empty warehouse is corroborated by other factors
indicated above. Although the dust accumulation in the
warehouse which led to the floor sealing operation had
been a problem for some time, it was decided to deal
with it only in a preelection period. The warehouse
staff, underutilized at the time, was not assigned to
move the in-house inventory from the area to be sealed,
but, rather, this work was assigned to the supervisors,
who did this work after the regular work hours. Even
accepting, arguendo, the Respondent’s assertion that it
was necessary in the preelection period to have leased
the space from Summit to reduce the freight level in its
own warehouse in preparation for the floor sealing, the
record reveals that it would have been less costly for
the Respondent to merely have leased the space at
Summit and used its own employees to handle the di-
verted frieght on Summit’s premises. Instead, the Re-
spondent hired both space and labor from Summit while
retaining its own employees. That the Respondent was
free to have assigned its on employees to work at the
Summit warehouse is clear from the fact that in this pe-
riod it actually did assign Lesniakowski and two others
to that location to work with the Summit crew. The Re-
57a
spondent as part of its antiunion campaign, as particu-
larly evidenced by the remarks of Lesniakowski at the
March 31 meeting, specifically called attention to the
lack of work in the warehouse and the threat of possible
future layoffs as its means of inducing employees to
give up the Union. That this was intended is eorrobo-
rated by Wier. While the floor sealing operation may
have abated the dust and solved a real problem for the
Respondent, the way the matter was handled served to
provide an atmosphere continually supportive of the
March 31 threats of layoff or shutdown.
Although the use of the freight division before the
election, at least in part, to make its employees appre-
hensive about supporting the Union was not alleged as
a violation in the complaint, the matter was fully liti-
gated at the hearing and is closely related to matters
actually alleged. Accordingly, I find this conduct to be
violative of Section 8(a)(1) of the Act.
3. The alleged unlawful promises and granting of wage
increases and other benefits
The General Counsel, contrary to the Respondent,
contends that various pay increases were granted un-
lawfully in the preelection period to discourage union
support and activity by Respondent’s employees.
From the credited evidence, including the Respond-
ent’s payroll records, it is concluded that on March 26
Michael Lanza and Clara Kitson and on March 28 Mi-
chael Jaconski, respectively, were unlawfully reclas-
sified from receiving clerks to the higher paid position
of warehousemen. In view of the timing of these raises
after the start of the Union’s organizational drive, and
the Respondent’s other conduct found unlawful herein,
noting also that it ix established that the institution of a
3® Wier’s testimony that he informed the Respondent of the
start of the Union’s campaign upon learning of it from employ-
ees in the first week in March is credited.
58a
new classification and wage scale in response to an or-
ganizational drive is unlawful,®® I find, under the cir-
cumstances herein, that the reclassification of these
three employees to higher paying positions is violative
of Section 8(a)(1) of the Act. Waters’ explanation that
the reclassifications had occurred because the receiving
clerk job was being eliminated as all warehouse employ-
ees were doing the same work illustrates the Respond-
ent’s timing as this situation apparently had been true
for some time before.
Crediting the testimony of employee Ippolito, I con-
clude that Waters, at a preelection meeting of all ware-
house employees in April, announced that he was try-
ing to fight for equal pay for equal work and that $300 a
week was a justifiable wage.“ This raise was actually
given but 2 days after the election at a time when ob-
jections to the election could still have been timely
filed.
In my view, Waters’ statement to the employees, as
described by Ippolito, constituted a promise of a pay in-
crease in the stated amount, and apparently was a pre-
election response to the list of employee proposals sent
to him by them on March 31 in consideration of their
having signed the petition withdrawing their support
for the Union. Contrary to Waters’ testimony that in-
creased wages and other benefits were not requested
until 2 days after the election when the request was
processed, the Respondent’s own records, as noted,
show that the across-the-[bJoard increment became ef-
fective 2 days after the election. Accordingly, I find
that the Respondent had announced and undertaken to
obtain the pay raise well before the election was con-
ducted in violation of Section 8(a)(1) of the Act.
39 Frymaster Corporation, 233 NLRB 619 (1977).
4% At that time, the most highly paid warehouse employees
earned a weekly raise of $289.
59a
The only other job benefit granted by the Respond-
ent in the preelection period was the establishment and
recognition of the three-member grievance committee
formed at the March 31 meeting and as a result thereof.
Although this committee took its inception from the
employees’ request for such representation, the com-
mittee received its validity and standing from the
Respondent as part of the consideration for the
employee-signed petition requesting withdrawal of the
representation election petition. In that sense, the
grievance committee was an unlawful job benefit given
before the electic’ to encourage the employees to aban-
don their support for the Union and to seek redress of
their job-related problems and grievances through the
alternative thus provided. Accordingly, it is concluded
that, in recognizing the grievance committee under the
circumstances herein, the Respondent violated Section
8(a)(1) of the Act.
4. The alleged unlawful threat of loss of job benefits
In accepting the testimony of employee Edmund
Ringen that, at a preelection meeting of all warehouse
employees in April, Waters declared that if the employ-
ees did vote for the Union he probably would handle ne-
gotiations and that there was a good chance that they
would then lose their stock option plan, profit-sharing
plan, and pension benefits, Waters’ denial of the same
is not credited as, for reasons set forth above, he is not
deemed a reliable witness.
The Respondent contends that, even if Waters had
made the remarks attributed to him by Ringen in
threatening the loss of job benefits, such comments
were recognized as insubstantial by Ringen himself, as
Ringen, in response, has asked, in effect, how could
these benefits be lost as the employees had vested
rights. However, this argument lacks merit. Ringen’s
statement was in the nature of a protest which did not
reduce the significance of the threat. It did not even de-
60a
scribe the relevant situation, as only 4 of the approxi-
mately 14 employees who heard Waters that day had
vested rights to these benefits. Accordingly, it is con-
cluded that, in threatening the loss of such benefits, the
Respondent violated Section 8(a)(1) of the Act.
5. The alleged unlawful interrogation
From the uncontradicted testimony of Joseph San-
ders, it also is found that about 3 days before the elec-
tion, at a bar, Warehouse Supervisor Houlihan, in vio-
lation of Section 8(a)(1) of the Act, had asked Sanders,
in effect, why the employees wanted a union, how he
and each of the other employees would vote in the
forthcoming election, and who had started the Union.
Two other incidents involving Houlihan, referred to
above and not specifically alleged in the complaint, also
are worthy of note. First, Lesniakowski testified, also
without contradiction, that about 3 days before the
March 31 meeting, while but two bar stools away, he
overheard Houlihan tell an acquaintance that the work
was being diverted to the Summit warehouse and that
it looked as though the Company was going to subcon-
tract out the work if the Union came in. Lesniakowski
gave this incident as a motivating factor in his decision
to seek the March 31 meeting. The second undisputed
occurrence is taken from Eric Stromberg’s testimony
that on the night of June 3 immediately following his
layoff, while Stromberg also was in a bar with
Houlihan, the latter told him that the layoffs and the
whole union thing were all Stromberg’s fault, repeating
this with increasing belligerence. Houlihan’s conduct
relating to Stromberg and Lesniakowski was sufficient
to constitute unlawful coercive interference with the
rights of the affected employees. However, in view of
my other conclusions in this matter, which include ex-
tensive violations of Section 8(a)(1) of the Act, no unfair
labor practice finding will be made with respect to the
incidents relating to Lesniakowski and Stromberg as
6la
these events were not alleged in the complaint and, if
found, would not materially affect the remedy found
herein.
6. The alleged unlawful layoffs
In agreement with the General Counsel, the econom-
ic defense offered in justification of the layoffs on May 6
and June 3, respectively, of eight employees must be
considered in the context of the union animus shown by
the Respondent. At the March 31 meeting employees
were told that if the Union came in or an election were
conducted their work would be subcontracted or the
warehouse would be closed and thus were persuaded to
sign a written request for withdrawal of their represen-
tation petition. In the critical period before the election
the Respondent also gave and promised to give pay in-
creases, recognized an employee grievance committee,
and conducted meetings of employees where, at various
times, they were told by members of management that
if they did not organize business prospects looked good,
and if the employees became unionized there was a
good chance that they would lose their profit-sharing
plan, stock option plan, and pension benefits. To create
a sense of anxiety among its employees during the
preelection period, the Respondent magnified a slow
period in the warehouse by diverting incoming freight
to a contractor’s premises where it was handled by that
employer’s crew, and used its own supervisors after
hours to move inventory away from the floor area to be
sealed, although the Respondent’s own employees were
underutilized at the time. As Wier credibly testified, a
purpose of the strategem was to let the employees see
an empty warehouse and think about the union matter.
After the last layoffs occurred, on June 3, Houlihan told
Eric Stromberg, the principal employee union activist,
that the layoffs and the Union had been Stromberg’s
fault.“
*! As noted, Houlihan also, at various times after the repre-
{Continued next page
62a
While subcontracting had been considered by the Re-
spondent for years and some contractor labor had been
utilized during the first 6 months of the warehouse’s op-
eration, no subcontracting was again done until the Un-
ion began to organize the Respondent’s employees.
Although the General Counsel argues with regard to
Waters’ study that, adjusting for the salaries and fringe
benefits of employees Lesniakowski, Jaconski, and
Tiedemann, who was omitted therefrom, the cost to the
Respondent of operating the warehouse with ESP labor
for the 4-week period between the weeks ending June 4
to June 25 was nearly $3,000 more than it had cost to
run the operation with its own employees between the
4 weeks ending April 15 and May 6, this would not nec-
essarily be a valid projection for future comparative
costs. Most of the benefits considered herein, including
the across-the-board pay raise and liberalized overtime
pay policy, became effective only on or after April 27,
and were not factors during most of the earlier 4-week
period referred to by the General Counsel. As the Re-
spondent, in subcontracting, could reduce or expand
the work force according to need with greater flexibili-
ty, would be spared the processing of employee griev-
ances and payment of fringe benefits, and could keep
fewer records, I am prepared to accept the Respond-
ent’s position that subcontracting the warehouse labor
ultimately could be financially beneficial.
However, noting that the layoffs began on May 6,
only about 1% weeks after the effective date of the
across-the-board pay increase of April 27 and soon after
other benefits such as the grievance committee and in-
creased overtime benefits were granted, and Wier’s
[Footnote continued
sentation petition was filed, deliberately stated in Lesniakow-
ski’s hearing that the work was being diverted to Summit and
that it looked as though the Respondent would subcontract out
the work if the Union came in, and unlawfully interrogated San-
ders as to how he and the other employees would vote in the
election and who had started the Union.
63a
testimony that Waters, in directing the start of the lay-
offs, had told him and the other supervisors of the Re-
spondent’s continuing concern that the Union would try
for another election in the following year when one
could again be conducted, in the context of Newhouse’s
words of praise for the work of the Edison staff, it is
concluded that, although the Respondent eventually
could have reduced its costs by laying off most of its
own warehouse employees and by subcontracting their
work to ESP, the Respondent was motivated, at least
in part, in so doing at that time by a desire to reduce
the possibility of another union election in the future.
Accordingly, I find that the employee layoffs on May 6
and June 3, respectively, were in violation of Section
8(a)(3) and (1) of the act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States, and tend to lead to la-
bor disputes burdening and obstructing commerce and
the free flow thereof.
42 The treatment of the laid-off employees contrasts markedly
with that afforded Lesniakowski and Jaconski, who were kept
on at the new higher pay rate in apparent reward for their serv-
ices to the Respondent in having conducted the March 31 meet-
ing. In fact, when Jaconski left the Respondent's employ after
the first layoffs, he returned only after having been invited back
by the Respondent.
43 Also considered in reaching the conclusion herein is the fact
that the Respondent, through Houlihan’s interrogation of San-
ders, had actual knowledge that laid-off employees Eric and
Ray Stromberg were principal union activists.
64a
CONCLUSIONS OF LAW
1. Behring International, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local Union No. 478, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the meaning
of Section 2(5) of the Act.
3. ſhe Respondent violated Section 8(a)(3) of the Act
by permanently laying off or terminating Ray
Stromberg, Eric Stromberg, Clara Kitson, Michael
Lanza, Eugene Colacino, Anthony Ippolito, Edmund
Ringen, and Joseph Sanders because of their support
for and activities on behalf of the Union.
4. The Respondent violated Section 8(a)(1) of the Act
by all of the foregoing conduct and by coercively
interrogating an employee concerning his union senti-
ments, those of other employees, and as to the identity
of the employees who instigated the Union; promising
and granting employees a pay raise and improved em-
pioyment benefits to discourage them from supporting
the Union; threatening employees that their work
would be subcontracted or the warehouse would be
closed if an election were conducted and the Union
were voted in; threatening employees with loss of bene-
fits if the Union were voted in; soliciting employees to
sign a request that the petition for a representation
election be withdrawn; coercively telling employees
that they would be better off without a union; and de-
liberately reducing the available amount of work in the
warehouse in the preelection period by diverting
freight and using contract labor in order to make em-
ployees apprehensive about supporting the Union.
5. The General Counsel has failed to prove by a pre-
ponderance of the evidence its contention that on
31, 1977, the Respondent, through Robert Lesniakow-
65a
ski and Michael Jaconski, its agents, unlawfully interro-
gated employees.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, it will be recommended
that the Respondent be ordered to cease and desist
therefrom and that it take certain affirmative action
which is necessary to effectuate the policies of the Act.
In view of the finding that the Respondent unlawfully
laid off or terminated Ray Stromberg, Clara Kitson,
and Michael Lanza on May 6, 1977, and Eugene Cola-
cino, Anthony Ippolito, Edmund Ringen, Erie Strom-
berg, and Joseph Sanders on June 3, 1977, and that the
Respondent had failed and refused to reinstate them, it
will be recommended that the Respondent be ordered
to offer each of them immediate and full reinstatement
to his or her former job or, if it no longer exists, to a
substantially equivalent position, without prejudice to
their seniority or other rights and privileges, and to
make each of them whole for any loss of earnings that
they may have suffered from the time of their termina-
tion to the date of the Respondent’s offer of re-
instatement, with backpay and interest computed in ac-
cordance with the Board’s established standards as set
forth in F.W. Woolworth Company“ and Florida Steel
Corporation.*® As the Respondent’s conduct found un-
lawful herein goes “to the very heart of the Act,” a
broad remedy is warranted.*
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section
“4 90 NLRB 289 (1950).
*5 231 NLRB 651 (1977). See, generally, Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
„V. LR. B. v. Entwistle Mfg. Co., 120 F.2d 582, 536 (4th
Cir. 1941).
66a
10(c) of the Act, I hereby issue the following
recommended:
ORDER”
The Respondent, Behring International, Inc.,
Edison, New Jersey, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) eoereively interrogating employees concerning
their union activities, sympathies, and desires, those of
other employees, and as to the indentities of employees
active in bringing about the Union’s organizational
campaign.
(b) Threatening employees that if the Union comes in
or a representation election is conducted their work will
be subcontracted or that the plant will be closed.
(e) Threatening employees with loss of benefits if
they support the Union.
(d) Promising and granting employees a wage in-
crease and other employment benefits to induce em-
ployees to abandon their support for the Union.
(e) Soliciting employees to request, in writing, with-
drawal of the petition for a representation election.
(f) Deliberately reducing the work available to its
employees in the period before a representation elec-
tion by diverting freight and using contract labor to dis-
courage employees from supporting the Union.
(g) Coercively informing employees that they would
be better off without the Union.
47 In the event no exceptions are filed as provided by Sec.
102.46 of the Rules and Regulations of the Natienal Labor Rela-
tions Board, the findings, conclusions, and recommended Order
herein shall, as provided in Sec. 102.48 of the Rules and Regula-
tions, be adopted by the Board and become its findings, conclu-
sions, and Order, and all objections thereto shall be deemed
waived for all purposes.
67a
(h) Discharging or laying off and refusing to rein-
state or recall its employees in order to discourage its
employees from becoming or remaining union members
or otherwise supporting the Union.
(i) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Ray Stromberg, Clara Kitson, Michael
Lanza, Eugene Colacino, Anthony Ippolito, Edmund
Ringen, Eric Stromberg, and Joseph Sandeis immedi-
ate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions of employment, without prejudice to their se-
niority or other rights and privileges, and make them
whole for any loss of earnings, with interest thereon, to
be computed according to the formula described above
in the section of this Decision entitled “The Remedy.”
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at its Edison, New Jersey, location copies of
the attached notice marked Appendix.“ Copies of
said notice, on forms provided by the Regional Director
for Region 22, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt thereof, and be
In the event that this Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading
“Posted by Order of the National Labor Relations Board” shall
read “Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Re-
lations Board.”
68a
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that those allegations of the
complaint found to be without merit are hereby
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