Ace Mfg. Co.Download PDFNational Labor Relations Board - Board DecisionsApr 21, 1978235 N.L.R.B. 1023 (N.L.R.B. 1978) Copy Citation 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 Copy with citationCopy as parenthetical citation