Ace Mfg. Co.

National Labor Relations Board - Board Decisions

Apr 21, 1978

235 N.L.R.B. 1023 (N.L.R.B. 1978)

ACE MANUFACTURING CO.
Ace Manufacturing Co., Inc. Division of A-T-O, Inc.
and Southwest Regional Joint Board, Amalga-
mated Clothing and Textile Workers Union, AFL-
CIO and Ace Manufacturing Co., Inc. Communi-
cations Committee, Party in Interest. Cases 23-
CA-6213 and 23-CA4213-3
April 21, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
TRUESDALE
On December 14, 1977, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National 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
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Ace Manufactur-
ing Co., Inc., Division of A-T-O, Inc., San Antonio,
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
The Administrative Law Judge dismissed certain allegations of the
complaint relating to ridicule and harassment of employees, surveillance,
and solicitation of grievances. In the absence of exceptions thereto, we
adopt these findings proforma.
DECISION
STATEMENT OF THE CASE
HENRY L. JALETrE, Administrative Law Judge: This
proceeding involves allegations that the Respondent, Ace
Manufacturing Co., Inc., Division of A-T-O, Inc., violated
Section 8(a)(1) and (2) of the Act. The proceeding was
initiated by a charge filed by Southwest Regional Joint
Board, Amalgamated Clothing and Textile Workers
Union, AFL-CIO, on September 14, 1976,1 in Case 23-
CA-6213, and a charge filed on September 28 in Case 23-
CA-6213-3. Pursuant to such charges, complaint issued on
December 20. On April 19 through 21, and May 24, 1977,
hearing was held in San Antonio, Texas.
Upon the entire record, including my observation of the
witnesses, and after consideration of the briefs of the
parties, I make the following:
FnNDINGs OF FACT
I. THE FACTUAL SETTING
Respondent, a division of A-T-O, Inc., is engaged in the
manufacture and sale of wearing apparel at a plant in San
Antonio, Texas.2 Its president is Albert Lewis; its control-
ler, Isaac Blumberg; and its labor relations manager, Al
Blum. On June 22, the Union began its organizational
campaign by handbilling the plant. On June 23, the first
union meeting was held at a local Holiday Inn. Subsequent
meetings were also held there and at a large parking lot
which faces the entrance of the plant. During this period,
Respondent is alleged to have engaged in the following acts
and conduct.
11. THE ALLEOED UNFAIR LABOR PRACTICES
A. The Alleged Interference, Restraint, and
Coercion
1. Interrogation
Theresa Huerta was an employee of Respondent in the
job of machine operator. She attended the first union
meeting at the Holiday Inn. She testified that the following
morning, at her machine, Lewis asked her whether there
were a lot of girls at the meeting. She told him no and he
answered she could do whatever she wanted to on her own
time.
Lewis admitted to a conversation with Huerta on this
occasion, but he testified that all it consisted of was his
remark to her that her friend Yolanda Gonzalez had told
him there were only 8 or 10 girls at the meeting the night
before and he said he could not believe it. Huerta said that
was true.
Paragraph 8(a) of the complaint alleges this constituted
interrogation, and Lewis' own testimony supports a finding
of interrogation. Whether Lewis made an affirmative
I Unless otherwise indicated, all dates are in 1976.
2 Jurisdiction is not in issue. Respondent admits it meets the Board's
direct outflow standard for the assertion ofjurisdiction.
235 NLRB No. 137
1023
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement or expressly asked Huerta how many employees
were at the meeting is immaterial. His remark was clearly
designed to elicit a response. Such conduct by the president
of the Company with no legitimate purpose cannot but
have a tendency to coerce employees and I find that Lewis'
conduct was violative of Section 8(a)(1) of the Act.
Carmen Ramos is a 63-year-old lady employed by
Respondent for over 3 years. Her job was to clean the
restrooms and the cafeteria. She testified that sometime in
September or October Lewis called her into his office and
told her to be more careful of her work because he had
been told she belonged to the Union. She told him she did
not know anything about the Union. He asked her if she
was a leader of the Union and she said no. She also told
him she had not heard anything about the Union in the
restrooms and he told her to listen carefully and report
back to him. Lewis admitted to a conversation with Ramos
on or about September 15, and although he did not
expressly deny asking Ramos if she was a leader of the
Union, he denied telling her he knew she belonged to the
Union and denied asking her to report on what she
overheard about the Union. According to Lewis, his
conversation with Ramos was precipitated by reports of
employees spending too much time in the restrooms and he
instructed Ramos to tell employees not to tarry in the
restrooms.
Ramos cannot speak English and Lewis cannot speak
Spanish. Their conversations are through an interpreter. In
this instance, Supervisor Irene Garza was the interpreter
and she corroborated Lewis. She testified there was no
mention of the Union in the conversation. I was favorably
impressed by Garza's demeanor and I credit her. I also
credit Lewis and find that he did not interrogate Ramos as
alleged in the complaint, nor did he solicit her to report on
the union activities of employees. In not crediting Ramos, I
am moved partly by the fact that there existed a language
barrier between her and Lewis, and partly by the lack of
coherence in her testimony.
Employee Della McNally testified that, in July, Garza
approached her, asked how everything was going with the
Union, and, when McNally replied fine, said that if the
Union got in the girls would have to start from scratch.
Garza denied ever talking to McNally about the Union.
As I indicated earlier, Garza impressed me favorably by
her demeanor and I credit her. Accordingly, I shall dismiss
paragraph 10(b) of the complaint.
Employee Mary Cruz testified that in June, the day
following her attendance at her first union meeting,
floorlady Esther Burriola approached her at her machine
and asked her if she had attended the union meeting. Cruz
told her she had not and Burriola asked her if she knew
who did. Cruz said she did not.
Respondent defends against the allegation of unlawful
interrogation described by Cruz on the ground it did not
occur, and on the further ground that Burriola is not a
supervisor within the meaning of the Act. Burriola denied
interrogating Cruz and I credit her. For that reason, I shall
dismiss paragraph 10(a) of the complaint.
2. Ridicule of employees
Employee Fidencio Herrera testified that in mid-August
he asked Lewis for a $100 loan to be repaid at $25 per
week. Lewis told him any amount loaned would have to be
repaid in 2 weeks. He added "why didn't I go and ask my
union leader, Ms. Suarez." Herrera left the office. Lewis
gave essentially the same version of the conversation.
The complaint alleges that Respondent violated Section
8(a)(l) of the Act by this conduct in that Lewis "ridiculed
an employee and undermined the Union by telling an
employee who desired money to request the Union for a
loan." Thus, General Counsel does not contend that
Respondent unlawfully denied Herrera a loan, nor does
General Counsel contend that the remark gave the impres-
sion of surveillance. General Counsel has cited me no
authority for a finding that ridicule of a union constitutes
interference, restraint, and coercion within the meaning of
Section 8 (a)(1) of the Act.3 I fail to see any interference,
restraint, or coercion in the incident herein described and I
shall recommend dismissal of the allegation.
Reynaldo Biazon was production manager in July and,
according to employee Della McNally, in the latter part of
July, Biazon came to her machine and told her that he
understood that during the floorladies' meeting she had
stood on a chair on company time and passed out union
cards. McNally denied the accusation and demanded to
know who was making the accusation. McNally was angry
and spoke loudly and Garza was attracted to the conversa-
tion. Garza advised Biazon to take McNally to Blumberg's
office. As McNally walked through the plant to Blumberg's
office, she declaimed loudly to employees about the false
accusation. In Blumberg's office, Biazon repeated to
Blumberg what he had told McNally. McNally again
denied the accusation and insisted on knowing who had
made it. Blumberg told her to forget about it and return to
work.
General Counsel contends that the conduct of Biazon
constituted ridicule and harassment of an employee in
violation of Section 8(aX I) of the Act. I find no merit to the
contention. All that appears from McNally's testimony,
which is uncontradicted, is that Biazon approached her
and inquired about a report he had received. He did not
accuse her of the conduct in question, but merely inquired
about a report he had received and he did not warn or
threaten her. The thrust of McNally's testimony was that
she was ridiculed. However, she did not describe how
Biazon ridiculed her. It was she who made a commotion
and drew attraction to herself. I find nothing violative in
the incident and shall dismiss paragraph 10(c) of the
complaint.
3. Assignment of more onerous duties
Carmen Ramos testified that, on November 8, Lewis
gave her additional duties of sweeping the plant floor and
carrying out the trash, onerous duties for a woman of her
age and a very small one at that.
The complaint alleges that the assignment of such duties
to Ramos was violative of Section 8(aX)(1) of the Act. In
3 The cases cited by General Counsel are factually distinguishable.
1024
ACE MANUFACTURING CO.
support of this contention, General Counsel relies on
Ramos' version of the September conversation with Lewis
described above, and argues that when Ramos failed to
report the union activities of employees to Lewis, he
assigned her the more onerous duties to pressure her to
cooperate. I find no merit in General Counsel's conten-
tions.
Lewis testified that the duties were assigned to Ramos
because it had been concluded that the Company could not
afford to keep an employee whose main duties were ladies'
room attendant. Inasmuch as Ramos was a senior employ-
ee, she was offered the option of continuing with part of
her restroom cleaning duties, plus some janitorial duties
previously performed by a janitor who had been laid off.
Although one of her new duties was to carry out trash, it is
undisputed that Lewis told Ramos she could get help from
the male janitors. I credit Lewis' explanation for the
assignment. It is undisputed the janitorial force was
reduced from three to two and General Counsel has
offered no evidence to refute Lewis' assertion that he was
trying to reduce labor costs. It is true, as General Counsel
notes, that earlier Lewis had secured an additional week of
vacation for employees. This fact, however, does not refute
his assertion about reducing labor costs; rather, the
assertion puts into question the motive for the improved
vacation policy. As indicated below, I find the improved
vacation policy was unlawfully motivated.
For the foregoing reasons, I shall dismiss the allegations
of paragraph 8(f) and (i) of the complaint.
4. Impression of surveillance
On August 17, at a union meeting, Huerta was elected to
an organizing committee and selected to attend an upcom-
ing Board hearing. She testified that the following morning
Lewis approached her at her work station and remarked
that he knew she had turned against him. Huerta asked
him what he meant and Lewis merely replied, "That is
what I heard." Huerta told him not to take it personally
and that if she tried to explain what she was trying to do he
would not understand.
On September 28, Huerta gave an affidavit to a Board
agent. She testified that, sometime in October, Lewis
approached her at her work station and said, "I hear you
filed a complaint against me." Having in mind the
affidavit, Huerta replied yes. Lewis asked her why and she
said she was only telling the truth.
Apart from the first conversation described above, Lewis
could only recall one conversation with Huerta. His
recollection of that conversation included the matters
described by Huerta in two conversations. Whether there
were one or two conversations is not too important. The
critical question is how did the conversation or conversa-
tions come about. According to Lewis, except for his first
conversation, his conversation or conversations with Huer-
ta about the Union thereafter came about by her address-
ing him and not by his approaching her. I am not
persuaded of the reliability of Huerta's testimony and I
credit Lewis. I find that he did not create the impression of
4 See IT Automotive Electrical Products Division, 231 NLRB 878, fn. I
(1977).
surveillance as alleged in paragraph 8, subparagraphs (d)
and (h) of the complaint.
5. Surveillance
On August 30, three union organizers appeared at the
front of Respondent's plant about 5 p.m., to distribute
literature to employees as they left the plant. According to
organizers Isabelle Barboza and Oralia Garza, they were
standing on the sidewalk handing out leaflets for a few
minutes and Lewis came out on the porch at the front of
the plant and watched them. They testified that because of
his presence employees refused to accept leaflets saying
"The old man is watching." Because of this, Garza moved
away about 30 feet toward the Company's parking lot.
Barboza and Garza testified that Lewis left the porch and
followed Garza and watched her attempt to distribute
leaflets.
Garza testified that on October 5, she was across the
street from the plant about noon talking with five or six
employees and she noticed Lewis standing in front of the
plant, hands on hips and looking towards the employees.
Lewis testified to an occasion similar to that described
first above. According to him, he went out for a minute or
two to see that driveway traffic was not obstructed. He
stated he warned one of the ladies to move out of the
driveway area to let cars out and returned to the plant.
Lewis could not recall an incident such as the one
described as occurring on October 5.
In support of the contention that the foregoing conduct
of Lewis constituted unlawful surveillance, General Coun-
sel cites one case, Taylor-Rose Manufacturing Corp., 205
NLRB 262 (1973), which is substantially different factual-
ly. In Tarrant Manufacturing Company, 196 NLRB 794, 799
(1972), Trial Examiner John Funke stated with regard to
surveillance of handbilling from company property that
"The notion that it is unlawful for a representative of
management to station himself at a point on management's
property to observe what is taking place at the plant gate is
too absurd to warrant comment. If a union wishes to
organize in public it cannot demand that management
must hide." The Board left this statement undisturbed.
Administrative Law Judge Paul Weil's reliance on the
statement in Larand Leisurelies, Inc., 213 NLRB 197, 205
(1974), was also left undisturbed by the Board. Whether
such a broad statement is valid for all circumstances is, in
my judgment, questionable. In any event, its application
here is warranted, because the record indicates that the
Union distributed leaflets on many occasions without any
surveillance and Lewis' assertion of the purpose for his
being on the porch on August 30 was in no way impugned
by the General Counsel's evidence. 4 The October 5
incident is not deserving of comment.
As noted earlier, during the organizational campaign,
union organizers would meet with employees in a large
parking lot facing the plant entrance. Employee Susie
Merla testified that she was at a meeting there on July 29,
that she was handed a union card and observed that
floorlady Alice Puente saw her, stood there a few minutes,
1025
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and left. Employee Mary Cruz testified she was at a
meeting on August 2 and that she saw Alice Puente
"around there" for about 5 minutes. While such testimony
suggests that Puente was seen at two meetings, the
complaint only alleges that she "attended" a union meeting
on one occasion, namely, August 1. I conclude that both
Merla and Cruz were describing the same incident and
whether it was July 29, August 1, or August 2, is not
important.
The important issue is why was Puente there. Puente
admitted to having observed employees meeting in the
parking lot on several occasions and that on one occasion
she stopped for a little while. She testified she did so
because she and two employees were returning to work
from a nearby bank, and the two employees wanted to stop
and stay at the meeting. She talked with them briefly
before leaving them there. She did not stay because she was
a floorlady and she had been instructed not to spy on the
girls.
The supervisory status of Puente is disputed, but need
not be resolved. Assuming, arguendo, that Puente is a
supervisor within the meaning of the Act, I conclude that
her brief stay at the meeting, under the circumstances she
described and which I credit, was not conduct tending to
coerce employees in the exercise of Section 7 rights. In
reaching this conclusion, I rely on the facts that even if a
supervisor, Puente was a very low level supervisor, that the
employees who accompanied her had no hesitany about
her knowing that they were staying for the meeting, and
that she left after only a brief stay.
On August 4, the union organizers were meeting with
employees in the parking lot and comptroller Blumberg
and labor relations manager Al Blum approached the area
where they were congregated. According to Barboza and
Garza, they leaned on a nearby truck a few feet from the
group of employees and watched them. Barboza walked
over to them and asked them if they knew a union meeting
was going on. Blum said no, that he had not heard a speech
yet. Barboza told him he knew now. Blum or Blumberg
said they were going to a nearby restaurant and Barboza
said it was out of their way. Garza testified that meanwhile
she was asking the employees to stay, assuring them that
the men's conduct was unlawful surveillance. Blum inter-
jected by saying it was not unlawful and, pointing his
finger at Garza, asked her if she knew the law. Barboza
asked the men their names; they gave them and left.
Only Blumberg testified about this incident and he
testified that he and Blum were on their way to lunch at a
nearby restaurant and the path they followed brought them
close to the group of people where they stopped because
someone called out Blum's name. His testimony of what
was said thereafter was sketchy, but he did not contradict
the testimony of Barboza and Garza.
I conclude that the conduct of Blum and Blumberg was
unlawful surveillance designed to disrupt the meeting
between the union organizers and the employees. I am
persuaded that the route to the restaurant towards which
they were headed did not require that Blum and Blumberg
come near the meeting. I do not credit the testimony of
Blumberg that they stopped at the meeting because Blum
was called. No reason appears for the employees to have
called Blum who had indicated earlier to the employees his
opposition to the Union. The evidence suggests to me that
Blum may have been amusing himself, but whether or not
he considered his conduct amusing, it clearly had a
tendency to coerce employees from staying at the meeting.
I find Respondent thereby violated Section 8(a)(1) of the
Act.
6. Grant of benefits
Prior to the organizational campaign, employees received
a I-week paid vacation regardless of length of service. On
July 22, Respondent announced that thereafter employees
with 3 years' service would receive 2 weeks' paid vacation.
Prior to the organizational campaign, employees received
one break per shift. On August 3, employees were advised
that thereafter they would receive two breaks per shift.
General Counsel contends that the foregoing benefits
were granted to employees because of the Union's organi-
zational campaign. It is, of course, unlawful for an
employer to grant its employees benefits where its intent is
to dissuade them from supporting the Union. 5 As to the
second break given the employees, Respondent offered no
explanation for giving it. It could hardly do so. Uncontra-
dicted testimony indicates that the matter of a second rest
break was raised by an employee in a meeting with Blum
and Blumberg and a large number of employees on July 30.
The meeting itself, discussed elsewhere, was clearly in
response to the organizational campaign, and it is clear
that in granting the second break Respondent was seeking
to remedy employee grievances to dissuade them from
supporting the Union.
The grant of a second week of vacation stands on similar
footing although Respondent attempted to give some
explanation for its action. According to Lewis, he conclud-
ed a second week of vacation was necessary to remain
competitive after discussions with business friends and he
recommended the change in January. Accepting this
testimony, I fail to see how it explains the decision to grant
the benefit in July, I month after the Union began its
organizational campaign. As a matter of fact, the very
delay in implementing the recommendation, with no
explanation for the timing, warrants the inference that the
decision was prompted by the Union's organizational
campaign. Lewis explained that his superior was a busy
man who was hard to reach. I cannot believe he was so
hard to reach that he could not have made his decision
before the Union's campaign. Lewis' superior in this matter
was Jim Anderson, Director of Industrial Relations for A-
T-O. As his letter of September 7, to the employees
hereinafter discussed indicates, with the advent of the
Union he found time to attend to the working conditions in
the San Antonio plant, I conclude the improved vacation
policy was adopted to thwart the union campaign.
5 N.L. R B. v. Exchange Parts Company, 375 U.S. 405 (1964).
1026
ACE MANUFACTURING CO.
7. Promises of benefit
On August 5, Richard Carver, who identified himself as
the general manager of Carver Research Associates, a firm
hired by A-T-O, gave the employees a questionnaire
containing 85 questions, plus a request for additional
comments. These questions covered the entire range of
working conditions and asked the employee to rate each
condition very good, average, poor, or very poor, or some
similar rating.
On September 7, all employees received the following
letter:
September 7, 1976
Dear Fellow Employee:
My name is Jim Anderson. I am Director of Industrial
Relations for A-T-O. I'm pretty new on the job having
just taken this position in April 1976. However, I've
been with A-T-O since 1964 in the Automatic Sprinkler
Division. At "Automatic" I took pride in the communi-
cations we had with our employees and in the interest
we had in the welfare and lives of our workers. I hope
to be able to do the same thing all over A-T-O.
In July, I suggested that we take an opinion survey at
Ace Manufacturing to find out how our people at Ace
felt about their wages, benefits, job conditions, supervi-
sion and management. We now have all the results of
the survey and it has been most helpful. We have done
many opinion surveys but never have we received the
participation and cooperation that we got from you.
You are to be congratulated for your fine efforts.
I want you to know that the comments you made have
been heard at the top level of A-T-O and your
suggestions will be acted upon.
As you may know, in matters like benefits and working
conditions, companies are not allowed to make previ-
ously unscheduled improvements while a union cam-
paign is going on. Our failure to positively respond to
the survey at present is a recognition of this restriction.
When A-T-O purchases a company, after about two or
three years and if the plant has done reasonably well,
we do a complete review of vacation and holiday
benefits, insurance programs, wage levels, management
performance - fair and equal treatment of all employ-
ees. In other words, the whole works. We expect to do
that in the case of Ace Manufacturing in the beginning
of 1977. Your answers to the communication survey
will be our greatest help in trying to pinpoint areas that
we should try to improve or correct.
Back in July, I also suggested that we establish a
committee of labor and management representatives to
communicate with each other. Al Blum of our staff and
Isaac Blumberg then met with your representatives and
were very pleased with the way things were going.
Unfortunately, as soon as we established the commit-
tee, the union filed a petition. In such cases, our lawyers
have advised us to disband the committee until after
the election to comply with the rules of the National
Labor Relations Board.
I am hopeful that as of October 2nd,6 we will be able to
re-establish that committee. Because of these policies in
the last couple of years A-T-O employees have been
rejecting unions in our NLRB elections. We are
confident that given a chance to develop these policies
at Ace that you will find little if any need for a union. I
am looking forward to meeting with all of you in the
next several weeks.
Sincerely yours,
/s/ Jim
Director-Industrial Relations
JSA:ml
On September 14, all employees received the following
letter:
September 14, 1976
To All Ace Employees:
Most of you participated in the Opinion Survey
conducted at Ace on August 5, 1976. The purpose of
this letter is, as promised, to provide you with a brief
summary of my findings.
In general, Ace employees are proud of their company.
You show a strong respect for the abilities of the
Production Manager, and have faith in his desire to
improve the general working environment for Ace
employees. Most of you are complimentary about the
facilities at Ace, and mention the location, air condi-
tioning, and fellow employees as positive factors.
On the negative side, there was considerable comment
about favoritism, and that not all employees are treated
fairly. Communications to employees from manage-
ment appear to need improvement. Many employees
state that they do not feel a part of the company, as no
one encourages them to do so. Some employees show a
concern over a lack of opportunity for promotion. As in
most surveys, a substantial number of employees
consider wages and benefits a problem area.
Ace employees, by a margin of 20 to 1, feel this survey
to be an excellent means of communication, and more
than 5 to I feel it will result in positive action. I share
that confidence. As a result of conversations, the
meetings, with A-T-O management about this survey,
and the results it shows, I am certain a concentrated
effort will be made to correct problem areas at Ace.
B A Board election was scheduled for October I.
1027
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I appreciate your warm response and cooperation, and
trust this survey, and future surveys, will make Ace an
even better place for you to work.
Sincerely,
/s/ Richard L. Carver
Richard L. Carver
General Manager
RLC:ksc
The complaint alleges that the letters of Anderson and
Carver contain promises of benefit which are violative of
Section 8(a)(l) of the Act. While neither letter contains
promises of specific benefits, both promise improvements
in wages, hours or other conditions of employment. In
Anderson's letter, the promise is to act on employee
suggestions and to do a complete review of vacation and
holiday benefits, insurance programs, and wage levels. In
Carver's letter, there is assurance of a concentrated effort
to correct problem areas which have been identified as
wages and benefits. The issue, then, is not whether
promises of benefits were made.
In my judgment, the only issue is the motive for the
promises made. Anderson's letter indicates very strongly
that the promises are related to the Union's organizational
campaign. Thus, he stated "Because of these policies in the
last couple of years A-T-O employees have been rejecting
unions in our NLRB elections. We are confident that given
a chance to develop these policies at Ace that you will find
little if any need for a union." But more important than this
statement is the evidence that the promises by Anderson
were in response to the Union's campaign and were an
integral part of conduct beginning in late July. Thus, on
July 28, according to the uncontradicted testimony of
former employee Ofelia Casiano, which I credit, she was
told by Supervisor Irene Garza to go to the cafeteria.
There, she and six other employees participated in a
meeting with Blumberg in which Blumberg spoke against
union representation. On Friday, July 30, a few employees
met in a conference room with Blum and Blumberg. (There
is no evidence how the meeting was called or who selected
who to go. Ofelia Casiano was told by Garza, but she did
not go because it was almost lunchtime.) After lunch, the
meeting was moved to the cafeteria where it was attended
by about 100 employees and Blum and Blumberg. Blum
opened the meeting by introducing himself as a labor
relations man. He said he fought unions and that up north
where companies have no unions they have a company
committee. There is no testimony that he solicited com-
plaints, but several employees started to voice complaints
and Ofelia Casiano was urged by the employees to speak
out on their behalf. She said the employees wanted better
wages and more benefits. Another employee complained
about the fact that employees received only one break per
shift and Blum remarked that one break might not be
I Eagle-Picher Industries, Inc., Electronics Division, Precision Products
Department, 171 NLRB 293 (1968). However, the principle that an employer
violates the Act when he solicits employee grievances during an organiza-
tional campaign is not a principle of per se application; rather, it comes into
adequate. Employee Belia Casiano complained about not
receiving her vacation pay in 1975 and Blum said he would
see to it she was paid. The meeting concluded with Blum
promising to return. (Blum took notes of what the employ-
ees said.)
The following Monday, according to Casiano, the floor-
ladies passed out pieces of paper to the employees with
instructions to write the name of the employee they desired
to represent the department. These papers were collected
and shortly thereafter Supervisor Irene Garza announced
over the P.A. system who had been selected as representa-
tives. Shortly thereafter, the elected employees were called
to the conference room where they met with Blumberg. He
told them that they were to talk to each employee in their
departments to find out what they wanted. He also told
them to advise the employers that starting that day they
would receive an afternoon break.
The following day another meeting was held wherein
Blumberg checked to see if the committee members had
done as he instructed them to. At the meeting, employee
Josie Duarte asked whether her vacation check would be
reduced because she had taken 3 weeks off. He said he
would see to it that it was not reduced.
It can be seen from the foregoing that Respondent's
immediate response to the Union's organizational cam-
paign was to ferret out the causes of employee discontent
which might induce them to support the Union. While
there is no testimony that Blum or Blumberg solicited
grievances at the meeting on July 30, the inference that this
was the purpose of the meeting is inescapable. According
to Ofelia Casiano, meetings such as that had never been
conducted before, and, while it is true that there had been a
change in ownership and Respondent should not be
burdened by its predecessor's inaction, Respondent had
been in control since some date before January 1977, and it
had not conducted meetings earlier. Blum's statement that
he fought unions and that up north the Company had
committees clearly indicates that the meeting was in
response to the Union's organizational campaign and that
its purpose was to solicit employee grievances. The only
evidence offered by Respondent respecting the purpose of
the meeting was Blumberg's testimony that employees had
been coming to him with complaints and he had informed
Vice President Evan Baker at headquarters and as a result
Blum was sent. According to Blumberg, his report to Baker
and Blum's visit had nothing to do with the Union's
organizational campaign. The whole thing was a coinci-
dence! I reject Blumberg's testimony whose demeanor was
one of arrogance and indifference to the entire proceeding,
and whose recollection was vague and entirely void of
details. I find that the meeting was initiated by Respon-
dent.
The Board has long held that the solicitation of employee
grievances during an organizational campaign is unlawful.7
This is so even though the Employer may not have
play "where, as here, an employer... has not previously had a practice of
soliciting employee grievances or complaints...." Reliance Electric Com-
pany, Madison Plant Mechanical Drives Division, 191 NLRB 44, 46 (1971).
1028
ACE MANUFACTURING CO.
promised to remedy the employees' grievances, and may
even have expressly disclaimed making any promises.8 The
promise is implied from the circumstances of the case. In
this case, the implication is reinforced by the remedying of
grievances. Thus employee Belia Casiano complained
about not receiving her vacation pay in 1975 and Blum said
he would see to it she was paid, and the employee
grievance respecting the practice of only one break was
remedied on August 3. I1 make no finding that Respondent
violated Section 8(a)(1) of the Act by soliciting grievances
either at the July 30 meeting or by Blumberg's instruction
to committee members referred to below, because the
complaint did not so allege; however, I rely on such
conduct in finding that the letters of Anderson and Carver
contained unlawful promises. 9
In addition to the foregoing, there is the uncontradicted
testimony of Casiano respecting the meeting of the employ-
ees selected as representatives of their departments that in
the first meeting with Blumberg on August 2 he instructed
the representatives to talk to each employee in their
departments to find out what they wanted. Apparently not
satisfied with the results of that instruction, Respondent
undertook the survey by Carver, a survey designed to
detect more exactly the areas of employee dissatisfaction.
The foregoing conduct belies the suggestion in the
correspondence that Respondent was merely thereby pre-
senting to employees a statement of existing policies
affecting wages, hours, and other conditions of employ-
ment. In fact, the conduct discloses a determined plan to
thwart the Union's organizational campaign by promising
to improve working conditions. Under the circumstances,
the promises contained in the letters were violative of
Section 8(a)( ) of the Act.
One defense asserted by Respondent respecting Carver's
letter is that there is no evidence to establish that Carver
was in any position to make a promise. In effect, this is an
argument that there is no showing that Carver was
authorized to make a promise. As Section 2(13) of the Act
indicates, whether specific acts were actually authorized is
not controlling in determining agency and responsibility.
Here, Carver had been held out to employees as its agent to
conduct a survey and employees could reasonably infer
that he had the authority to make the statements in his
letter. I find Respondent was responsible for Carver's
promises.
8. Threats
The complaint alleges that on or about August 2
Blumberg told an employee that he was going to double
her production and give her "hell" because she had stated
the employees wanted better wages and benefits. The
allegation is based on the testimony of Ofelia Casiano that
at a meeting of employees with Blum and Blumberg on
July 30, at the urging of employees, she spoke out that the
employees wanted better wages and more benefits. Upon
her saying this, Blumberg told her that for that he was
going to double the production on her and give her hell.
8 Landis Tool Company, Division of Litton Industries, 190 NLRB 757,
enfd. 460 F.2d 23 (C.A. 3, 1972).
9 For the same reason, namely, that it was not alleged, and, in my
Blumberg denied making such a statement. He testified
that he remarked she wanted more benefits, they wanted
more production. As I indicated elsewhere in this Decision,
Blumberg was not a credible witness. The remarks attrib-
uted to him by Casiano is a rather foolish remark for a
person in his position to have made and for that reason,
one might be inclined to credit Blumberg in this instance.
Yet, Casiano was corroborated by employee Yolanda
Moreno and by Della McNally to a degree. Moreover,
according to Moreno, Blumberg ridiculed a young man
about his hair at this same meeting and indicated thereby
his recklessness of speech. In the circumstances, I find that
Blumberg did make the remark attributed to him by
Casiano and that it constituted a threat of reprisal against
an employee for seeking better wages and working condi-
tions and that Respondent thereby violated Section 8(aX)(1)
of the Act.
B. The Alleged Domination
As noted earlier, on July 30, Blum told the employees at
a meeting that up north where companies have no unions
they have a company committee, and the following
Monday, employees were asked to select representatives to
represent their departments and such representatives met
with Blumberg on three occasions before being disbanded
because the instant unfair labor practice charges were filed.
Paragraph 12 of the complaint alleges that the calling of
the meeting, Blum's statements at the meeting, the adjust-
ment of an employee's complaint about one break period,
the passing out of slips of paper to select a representative,
the announcement of the selection and Blumberg's instruc-
tion and statements to the representatives in meeting with
them, constitute domination or interference with the
formation or administration of a labor organization, or the
contributing or financial or other support to a labor
organization in violation of Section 8(a)(1) and (2) of the
Act.
The facts relative to the 8(a)(2) allegation are essentially
undisputed. To the extent there is any dispute it is over the
motive for the formation of the committee. According to
Blumberg, the meeting of July 30 was not in response to the
Union's organizational campaign; rather, it was occa-
sioned by the fact that many employees were coming into
his office with complaints and he reported this to a vice
president and Blum was sent to San Antonio. On the day
Blum was there, Blumberg advised employees by word of
mouth that Blum would be in his office. As a result, so
many employees gathered that a meeting took place.
Again, I do not credit Blumberg. It is noteworthy that he
did not give any details whatsoever of the alleged employee
complaints that allegedly precipitated his call to a vice
president and the ensuing visit by Blum. More importantly,
Director of Industrial Relations Anderson's letter of
September 7 belies Blumberg's assertions wherein Ander-
son wrote, "Back in July, I also suggested that we establish
a committee." Based on this admission, the testimony of
General Counsel's witnesses concerning Blum's remarks at
the July 30 meeting, and their testimony concerning the
judgment not fully litigated. I do not find that the survey by Carver
constituted unlawful solicitation.
1029
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
selection of representatives for the committee and their
meetings with Blumberg, I find that Respondent sponsored
the formation of a committee as a means of thwarting the
Union's organizational effort, directed the election of its
representatives, dictated its purpose and controlled its
functioning, thereby assisting, dominating, and supporting
it in violation of Section 8(a)(1) and (2) of the Act.
Although not expressly stating so, Respondent appears
to contend that the committee was not a labor organization
within the meaning of Section 2(5) of the Act. I surmise
such a contention from Blumberg's testimony that the
committee's function was not to negotiate or deal with the
employees, but only to listen to their complaints. While
admitting that certain complaints were resolved, Respon-
dent asserts that this was not a function of the committee.
It appears that, in effect, Respondent is asserting that to
qualify as a labor organization under Section 2(5) of the
Act the committee must exist, at least in part, for the
purpose of negotiating with Respondent and not merely
dealing with it in the manner here shown. In N.LR.B. v.
Cabot Carbon Company and Cabot Shops, Inc., 360 U.S. 203
(1959), the Supreme Court rejected a similar contention.
The phrase "dealing with" in Section 2(5) of the Act has a
broader connotation than "negotiating with," and in my
judgment, it is clear that a purpose and function of the
committee was to deal with Respondent concerning condi-
tions of employment within the meaning of Section 2(5) of
the Act. Blumberg's own testimony indicates that the
committee was formed to talk about what some of the
problems might be, which he admitted included working
conditions, such as hours, vacations, and benefits, and he
did not contradict the testimony of Ofelia Casiano that the
committee members were instructed to talk to each
employee to find out what they wanted. That Respondent
assertedly intended only to listen to the reports of the
committee members and did not intend to negotiate does
not mean that it was not dealing with the committee. It is
true that there is no showing that prior to disbanding the
committee Respondent dealt with it on matters of concern
to employees as a group (I view the resolution of the Josie
Duarte vacation issue as a matter personal to Duarte, and
while the announcement of the second rest break was made
to the committee the matter was one raised at the July 30
meeting and was not dealt with by the committee)-
nevertheless, the testimony of Blumberg and Casiano
supports a finding that the purpose of the committee was to
bring to Respondent's attention all problems respecting
working conditions whether affecting a group of employees
or individuals. It is a reasonable inference that any
communications by committee members of problems re-
specting working conditions would generate some discus-
sion, if not negotiation, and the conclusion that a purpose
of the committee was to deal with Respondent with regard
to working conditions is inescapable. Accordingly, I find
that the committee was a labor organization within the
meaning of Section 2(5) of the Act.
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with operations described
in section 1, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
I. Ace Manufacturing Co., Inc., Division of A-T-O,
Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Southwest Regional Joint Board, Amalgamated
Clothing and Textile Workers Union, AFL-CIO, and the
Committee, and each of them, are labor organizations
within the meaning of Section 2(5) of the Act.
3. By interrogating employees about their union activi-
ties under circumstances tending to coerce them in the
exercise of rights guaranteed under Section 7 of the Act, by
engaging in surveillance of the union activities of its
employees, by grantifl employees a second rest break and
improved vacation benefit and promising employees im-
provements in wages, hours, or other conditions of employ-
ment in order to discourage them from supporting the
Union, and by threatening an employee with reprisal for
seeking better wages and working conditions, Respondent
has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(aXl) and 2(6) and (7) of
the Act.
4. By sponsoring the formation of the Committee on or
about August 3, 1976, directing the election of its represen-
tatives, dictating its purposes and controlling its function-
ing, Respondent has assisted, dominated, and contributed
support to a labor organization, and has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(1) and (2) and Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8 (aX1) and (2) of the
Act, I find it necessary to order Respondent to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act. As Respon-
dent has disbanded the Committee, it is not necessary to
recommend that Respondent withdraw and withhold rec-
ognition therefrom. The purposes of the Act respecting
such violation can be effectuated by the cease-and-desist
provisions of the Order and by proper notice to employees
as herein provided.
Upon the basis of the foregoing findings of fact,
conclusions of law, and upon the entire record in this case,
I hereby issue the following recommended:
1030
ACE MANUFACTURING CO.
ORDER 10
The Respondent, Ace Manufacturing Co., Inc., Division
of A-T-O, Inc., San Antonio, Texas, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about their union activities
in a manner constituting interference, restraint, and coer-
cion of employees in their exercise of Section 7 rights.
(b) Engaging in surveillance of the union activities of its
employees.
(c) Granting employees benefits or promising employees
improved wages, hours, and other conditions of employ-
ment for the purpose of inducing them not to support the
Union.
(d) Threatening employees with reprisals for seeking
better wages and working conditions.
(e) Assisting, dominating, and contributing to the sup-
port of the Committee formed on or about August 3, 1976,
or any other labor organization.
(f) Recognizing the Committee formed on or about
August 3, 1976, or any successor thereto, as a representa-
tive of any of its employees for the purpose of dealing with
Respondent concerning grievances, wages, rates of pay,
hours of employment, or conditions of work.
(g) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its place of business in San Antonio, Texas,
copies of the attached notice marked "Appendix.""
Copies of said notice on forms provided by the Regional
Director for Region 23, after being duly signed by
Respondent's representative, shall be posted immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges that Respondent
violated the Act other than as found herein.
lo In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
X] 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 Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question employees about their union
activities.
WE WILL NOT engage in surveillance of the union
activities of our employees.
WE WILL NOT grant employees benefits, nor promise
improvements in wages, hours, or other conditions of
employment for the purpose of inducing them not to
support the Southwest Regional Joint Board, Amalga-
mated Clothing and Textile Workers Union, AFL-
CIO, or any other labor organization.
WE WILL NOT threaten employees with reprisals for
seeking better wages and working conditions.
WE WILL NOT assist, dominate, or contribute support
to the Committee of employees formed on August 3,
1976, or any other labor organization.
WE HAVE withdrawn all recognition from and com-
pletely disestablished the Committee formed on August
3, 1976, and WE WILL NOT recognize the Committee, or
any successor thereto, as the representative of any of
our employees for the purpose of dealing with us
concerning grievances, wages, rates of pay, hours of
employment, or conditions of work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights under Section 7 of the Act.
You are free to become or to remain members of the
Southwest Regional Joint Board, Amalgamated Clothing
and Textile Workers Union, AFL-CIO, or any other labor
organization.
ACE MANUFACTURING Co.,
INC., DIVISION OF A-T-O,
INC.
1031