Arbco Electronics, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1967

165 N.L.R.B. 758 (N.L.R.B. 1967)

758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arbco Electronics , Inc. and International
Union , United Automobile , Aerospace &
Agricultural Implement Workers of
America, UAW-AFL-CIO.
Arbco Electronics, Inc. and International
Union , United Automobile , Aerospace &
Agricultural Implement Workers of
America, UAW-AFL-CIO. Cases 31-CA-245,
31-CA-245-2, and 31-RC-111.
June 21, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On November 18, 1966, Trial Examiner Martin S.
Bennett issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also recommended that the petition
in Case 31-RC-111 be dismissed. Thereafter, the
Respondent, the Charging Party, and the General
Counsel filed exceptions to the Trial Examiner's
Decision. Respondent and the Charging Party filed
briefs in support of their exceptions; General
Counsel filed a brief in support of the Trial
Examiner's Decision and in support of his
exceptions thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner,' as modified herein.'
We find merit in the General Counsel's and the
Charging Party's exceptions to the Trial Examiner's
failure to find that Respondent's posted notices to its
employees on September 22 and November 4, 1966,
were violations of Section 8(a)(1). In the first of these
notices, Respondent stated that there had been a 30-
percent decrease in production since the Union
' Member Brown , for the reasons set forth in his separate
statement in Dan Howard Mfg Co , and Dan Howard Sportswear,
Inc, 158 NLRB 805, In 5 , would find all the authorization cards to
be valid designations of the Union as the collective - bargaining
representative of the employees in the appropriate unit
2 We also note that the Trial Examiner found , and we agree, that
Respondent "did discriminatorily deprive employees of overtime"
in violation of Section 8 (a)(3) of the Act However , the Trial
began its organizational campaign, that as a result of
the "slowdown" Respondent had lost a substantial
number of orders, and that if the "slowdown"
continued, there would be a layoff of employees and
a reduction in overtime. In the November 4 posted
notice, Respondent said that the decrease in
production had continued, that "worse still" quality
of parts had deteriorated and Respondent was
receiving complaints and rejections from its
customers, and that an unnamed company had
rejected Respondent's low bid for business because
the customer noticed union buttons being worn by
employees and feared the possiblity of a strike which
would prevent deliveries.
The Trial Examiner found that Respondent had
presented no probative evidence of a "slowdown," of
a decline in quality of parts, or of an increase in the
proportion of rejects. He also found that Respondent
had refused to divulge the name of the customer who
allegedly declined to place an order because of the
fear of strikers, and that other parts of the statement
were false.
In these circumstances, we find that the two
posted notices by their false statements were
intended to convey the belief that, if the Union
should be successful in its campaign of
representation, the effect would be loss of jobs and
earnings for employees and were thereby calculated
to coerce employees into rejecting the Union.
Accordingly, we find that by the September 22 and
November 4 posted statements, Respondent
violated Section 8(a)(1) of the Act.
ADDITIONAL CONCLUSIONS OF LAW
Upon the basis of the foregoing additional findings
of fact and the entire record in this case, we do not
adopt the Trial Examiner's Conclusions of Law 3
and 7 and in their place conclude as follows:
3. By discriminating with respect to the hire and
tenure of employment of Ileen Vaughan, the wage
rates of Alice Sorg and Judith Prairie, and the
overtime hours awarded to all employees,
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
7. By the foregoing conduct, by threatening
employees with economic reprisals for unionization,
and by material misrepresentation in notices to
employees dated September 22, 1966, and
November 4, 1966, having a coercive purpose,
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
Examiner inadvertently failed to find, as we do , that Respondent
deprived all employees of overtime for a certain period of time as
well as certain designated badge wearers for an extended period
of time after overtime was gradually restored to other employees
Accordingly, we shall amend the Trial Examiner's Conclusions of
Law, Recommended Order, and the Appendix, to reflect these
modifications
165 NLRB No. 94
ORDER
ARBCO ELECTRONICS, INC. 759
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Arbco
Electronics, Inc., Van Nuys, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, with the following modifications:
1. Substitute the following for paragraph 2(b) in
the Recommended Order. "(b) Make whole Ileen
Vaughan, Alice Sorg, Judith Prairie, and all
employees who were deprived of overtime, for any
loss of earnings suffered by reason of the
discrimination against them, in the manner provided
in the section entitled `The Remedy.' of the Trial
Examiner's Decision, as modified herein."
2. Substitute the following for the third indented
paragraph of the Appendix.
WE WILL make whole Ileen Vaughan, Alice
Sorg, Judith Prairie, and all employees who
were deprived of overtime, for any loss of pay
suffered by reason of our discrimination against
them.
3. Add the following paragraphs to the
Recommended Order.
"IT IS FURTHER ORDERED that the petition for
certification of representatives, filed by the
Petitioner in Case 31-RC-111, be, and it hereby
is, dismissed, and that all prior proceedings
held thereunder, be, and they hereby are,
vacated."
"IT IS FURTHER ORDERED that the complaint
be, and it hereby is, dismissed insofar as it
alleges violations of the Act other than those
found herein."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT,Trial Examiner: This consolidated
matter was heard at Los Angeles, California, on 10 hearing
dates between June 20 and July 7, 1966. The complaint in
the unfair labor practice cases' alleges that on and after
September 10, 1965, Respondent had engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (5) of the Act.
The representation matter consolidated and heard with
the foregoing stems from an election conducted on
December 10, 1965, in the customary plantwide unit,
pursuant to a direction of election issued by the Regional
Director on November 17, 1965. The Union lost and duly
filed objections to conduct affecting the election. On
March 31, 1966, the Regional Director directed a hearing
on said objections and, on April 8, 1966, the cases were
ordered consolidated.
I Issued March 30, 1966, and based upon charges filed
December 6 and 15, 1965, and January 10, 1966, by International
After the close of the hearing, the General Counsel
moved for the correction of certain errors in the transcript
of testimony. The motion has merit, it is hereby granted,
and the pleading is received in evidence as Trial
Examiner's Exhibit 1.
Ruling having been reserved on various motions to
strike the testimony of witnesses because they refused to
answer questions ruled to be relevant, those motions are
hereby denied. Similarly, Respondent's Exhibits 15 and 16
are hereby received in evidence, ruling having been
previously reserved because certain matter was excised
therefrom.
Briefs have been submitted by the General Counsel and
Respondent. Upon the entire record in the case, and from
my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Arbco Electronics, Inc., is a California corporation
maintaining its principal office and place of business at
Van Nuys, California. It is engaged in the manufacture
and sale of printed circuit boards and sells and ships
products valued in excess of $50,000 per annum directly to
points outside the State of California. I find that the
operations of Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America,
UAW-AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues; Introduction
Respondent had 90 production and maintenance
employees in the unit hereinafter found appropriate who
were unorganized prior to the events discussed below. In
the unfair labor practice case, the General Counsel
contends that Respondent ( 1) interrogated employees
concerning union activities and threatened them with
reprisals for so engaging ; (2) granted reduced merit
increases to two employees because of their union
activities ; (3) unilaterally granted wage increases without
notification to the Union; (4) temporarily abandoned and
thereafter reduced overtime hours because of union
activities ; (5) discharged one employee because of union
activity ; and (6 ) refused to bargain with the Union. The
objections to the election parallel part of the foregoing.
B. Sequence of Events
Interference , Restraint , and Coercion
Organizational activities commenced late in August or
early in September 1965, and cards were signed on and
after September 8. Ileen Vaughan, whose alleged
discriminatory discharge on December 3 is discussed
below, was the most prominent employee organizer.
Union, United Automobile , Aerospace & Agricultural Implement
Workers of America , UAW-AFL-CIO , herein called the Union
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 11, Vaughan was lunching with two other
named employees and encountered Foreman Joe Tokojai.2
Vaughan testified that she told Tokojai she had heard a
rumor that Respondent would close down the plant
"because of the Union." Tokojai replied that A.R.
Buckles, then president and elevated to chairman of the
board on September 24, had told him that "he would shut
the plant down rather than have a union in there and work
just a handful of people." Vaughan commented that this
seemed foolish. Tokojai replied that Buckles was stubbon
enough to "close it down." Tokojai did not testify herein
and Respondent stated on the record that he was on
vacation until July 11, 1966, a date shortly after the close
of the hearing. Of the two named as present by Vaughan,
only one, Schneider, testified and she was not questioned
concerning the incident. Vaughan impressed me
throughout as a clear and straightforward witness who
endeavored to tell the truth and not shade her testimony in
support of her personal interests. Her testimony is
credited here as elsewhere. I find that Respondent
threatened employees with reprisals for engaging in union
activities, within the meaning of Section 8(a)(1) of the Act.
The General Counsel has also adduced the following
evidence. William Berryman became a volunteer
organizer and wore a badge to work daily after
September 30. On or about November 10, as he
uncontrovertedly testified, Berryman went to the office of
Night Foreman Lon Kastonguay and asked about a rumor
that Respondent had been guilty of racial discrimination.
Kastonguay replied that he knew nothing about this and
asked Berryman why he was not wearing his union badge.
Berryman said that it no longer seemed necessary to do so
and Kastonguay responded that he was "glad" that
Berryman felt that way. Kastonguay asked Berryman if he
had worn the badge because of a reprimand for excessive
time off. Berryman replied that he put it on to protect
female badge wearers from harassment; that this
harassment had stopped; and that it was no longer
necessary for him to wear it.
Berryman then asked Kastonguay for some paper and
the use of a typewriter but did not tell Kastonguay what he
proposed to do. He went to another room and typed a
notice which stated, in essence , that he had decided that a
union could not be of service to employees of Respondent;
that he was not opposed to organized labor; that he had
been treated fairly; and that he had acted impulsively in
participating in union activities. The notice closed with a
suggestion that others reconsider "current events."
Berryman handed Kastonguay the notice and proceeded
to tear up a card designating him as a volunteer organizer.
Kastonguay read the statement given him by Berryman,
ascertained that he was doing this voluntarily, and then
obtained his consent to use both the typed statement and
the torn volunteer organizer card. I find that Berryman
freely consented to their use. Within a day or two, both the
statement and the torn card which had been reassembled
and affixed thereto were placed on the company bulletin
board by management. I see no basis for a finding adverse
to Respondent based upon this incident.
Demand and Refusal of Recognition
On September 16, International Representative Karlin
of the Union wrote to Buckles and named six day-shift
employees who had agreed to serve as volunteer
' Also spelled as Tokoiay Willie disputing his agency.
Respondent c om edes that he is a supervisor within the meanuIn
organizers. They were Vaughan, Harold, Faubert,
Gallegos, Pilkinton, and Pettit. All these promptly donned
union badges at work on that date. Within the next few
weeks, six swing-shift employees, the above-named
Berryman, D'Andrea, Feliz, Fries, Prairie, and Sorg, did
likewise. The record demonstrates that Respondent was
well aware of their identity and most of these are the
alleged victims of deprivation of overtime, discussed
below.
On September 28, Karlin again wrote to Buckles; stated
that a majority of Respondent's production and
maintenance employees had signed authorization cards
designating the Union as their bargaining representative;
offered to prove this majority by submitting the cards to a
mutually selected impartial person; and requested the
negotiation of a collective-bargaining contract. On
September 30, Buckles, as chairman of the board,
responded as follows:
We acknowledge receipt of your letter of
September 28, 1965, in which you request recognition
of the Union as a collective bargaining representative
in a unit not specifically defined. In your letter you
offer to prove your contention that a majority of our
employees are members of your Union by a check of
authorization cards.
We have been advised that employees of this
Company have been threatened by Union solicitors
with discharge and other substantial injury if they do
not join your Union. Membership applications
obtained by restraint and coercion do not reflect a
true desire for representation by your Union. For this
specific reason, and also because application cards
are notoriously unreliable in determining the true
desire of employees, your request for a card check is
hereby denied. In addition, other information has
come to our attention which indicates most strongly
that your Union does not in fact represent a majority
of our employees in an appropriate collective
bargaining unit.
In view of the effort of your agents to force
employees, by threats and inflated promises, to sign
application cards, it is quite understandable to us why
you wish, at all costs, to avoid a secret ballot election,
supervised by the federal government. Under the
circumstances, we must insist that our employees
have the opportunity, without fear of restraint and
coercion, to express their wish in a free and secret
election. We are confident, and we are sure you
realize, that your Union will be rejected if a secret
and democratic vote is permitted.
I find, contrary to Respondent 's claim , that the unit was
adequately defined in the Union's letter of September 28.
As set forth, the Union filed a petition for an election on
October 4 and an election was held on December 10.
Majority Representation in the Appropriate Unit
The complaint alleges, Respondent's answer admits,
and I find that all production and maintenance employees
at Respondent's plant, including shipping and receiving
employees, truckdrivers, chemists, photographers, and
regular part-time employees, but excluding office clerical
and professional employees, guards, and supervisors,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
of the Act There is no evidence that Respondent ever advised
employees that he was not a representative of management.
ARBCO ELECTRONICS, INC. 761
The record demonstrates that as of September 28, there
were 90 in this unit . The General Counsel has introduced
in evidence 51 cards containing only language authorizing
the Union to represent the signer for the purposes of
collective bargaining . All were signed on or before
September 28, except as described below. One card, that
of William Berryman, was signed on September 30. As I
construe the Union's demand for recognition to be a
continuing one, this card is deemed timely. Another card,
that of Marlien Hartman , is dated "9/65." It being
stipulated that volunteer organizer Sorg donned a union
badge on October 4; that a union meeting was held some
days earlier; and that Hartman signed the card 1 or 2
weeks prior to this meeting, I deem her card to be timely
and find that she signed prior to September 28.
Without passing on the merits, I do not rely on the card
of Mary Lou Goodwin. She originally testified that she
signed the card in September or October. She later
testified that the date of September 20, not affixed by her
and manifestly not in her writing, was on the card when
she signed. Similarly, without passing thereon, I do not
rely upon the card of Tullio Perotti. At one point, he
testified that he asked to sign the card, that he considered
the card for several hours and then signed. On the other
hand, he twice testified that the volunteer organizer,
apparently Faubert, told him that the card was "just for a
vote." I equate this with a statement that it was solely for a
vote.
A small group of signers, approximately 10 in number,
were variously told that the card was for an election among
other purposes; that the Union could then demand an
election; that this was being done in order to take an
election vote; that the Union could demand a vote; and
that it was to set up a vote if enough signed.
None of these were told that the sole purpose of the card
was for an election. The authorization cards were
unambiguous on their face and the record demonstrates
that the signers had adequate opportunity to inspect the
cards and sign or refuse to sign. I find, therefore, that as of
September 28, the Union had at least 48 and, as of
September 30, 49 valid authorization cards.
I further find that at all times material herein, the Union
was the validly designated representative of a majority of
the employees in the above-described appropriate unit
within the meaning of Section 9(a) of the Act. See
N.L.R.B. v. Gotham Shoe Manufacturing Co., 359 F. 2d
442 (C.A. 2); N.L.R.B. v. Cumberland Shoe Corporation,
351 F.2d 917 (C.A. 6); and Bernard S. Happach v.
N.L.R.B., 353 F.2d 629 (C.A. 7).'
Merit Reviews
The employees of Respondent receive a merit review or
employee appraisal at approximately 6-month intervals.
Considered herein are merit reviews to Alice Sorg and to
Judith Prairie in November 1965, which the General
Counsel alleges to be discriminatory.
Alice Sorg entered the employ of Respondent in August
1963 and left in June 1966. She was a driller on the swing-
shift at $1.85 per hour and, on October 4, commenced
wearing a volunteer organizer badge nightly. Nightshift
Foreman Lon Kastonguay admitted that Sorg had been
branching out, learning other tasks and developing new
skills, during the 6-month period prior to her review on
November 12,1965.
He admitted that a 10-cent raise is normal when an
employee is doing a job satisfactorily. Sorg, according to
Kastonguay, received a low score of 59 on her
November 12 rating and, accordingly, received but a 5-
cent raise. I note herein that in the case of Prairie who
received a score of 63, Kastonguay recommended a 10-
cent raise, but admitted that a 10-cent raise was given in
"many cases much lower than this [Prairie]."
Kastonguay testified that Sorg, because of her "barely
passing" grade, would normally not have received a merit
increase. However, aware of the fact that she was a union
organizer , and to avoid a claim of discrimination, she was
given an increase . Sorg testified that at the end of her shift
on November 12, Kastonguay discussed her merit review.
He adverted to the discard by employee Berryman of his
volunteer organizer badge. Kastonguay said that the
quantity and quality of her work were excellent and that
she was most punctual, but that her "attitude had been
moody" and that she was perforce "unhappy."
He amplified the last, stating that "If you were not
unhappy you would not be wearing a badge.... It shows
you are against the Company ... so I can only recommend
a 5-cent increase ... what would George [Plant Manager
George Morris] say if I gave you 10 cents, and that the fact
that you were wearing a badge indicates that you are
against the Company." Indeed, Kastonguay admitted that
Sorg asked him if the wearing of her badge had anything to
so with his decision and he replied "Yes it did. It changed
your attitude tremendously."
Sorg protested this was unfair, stating that she had
learned to operate all the machines, that she was
performing work done by male employees and that she
was learning drill work. She pointed out that she had
previously told him her donning a union badge signified no
animosity to Respondent.'
Kastonguay admitted telling Sorg that her wearing of the
union badge disclosed her unhappiness with Respondent.
When Sorg asked if the wearing of the badge was the
cause of the reduced 5-cent raise, he responded that it did
not help her "attitude" and, as noted above, that it had
changed her "attitude tremendously." He denied making
reference to his inability to justify it to Morris if he gave
her more than 5 cents.
Kastonguay attempted to explain Sorg's low rating as
based in large measure on her being awarded only four out
of a possible ten points for "attitude." He stated that she
displayed her dislike toward coworkers who teased her
about union activities, this allegedly affecting her work
performance. There is no direct evidence of this and, more
significantly, there is no evidence of any reprimand to Sorg
by any official about this alleged dereliction. Indeed,
President Pacent testified that he approved this reduced
wage increase, consistent with his policy to bend over
backwards to badge wearers in an effort to have Sorg
"straighten up." I note also that the raise to $1.90 put Sorg
5 cents over the top scale for class B assemblers, hardly
' Vaughan was asked if she told employees , when asking then[
to sign, that it was "only" for a vote and replied that she "ought
have " Volunteer Organizer Pilkuuon testified that he told a "few
people," when asked about the cards, that they were "just" for an
election Attempts were made by Respondent to ascertain that the
lard signers involved herein were the recipients of such
statements, but these were entirely unsuccessful I deem this
evidence not relevant
I It is clear, and I find, that the merit reviews are passed upon
and approved by top management personnel prior to consultation
with the employee
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consistent with treatment of one whose attitude had
changed tremendously.
Sorg was an intelligent and impressive witness. The
explanation of Kastonguay, corroborated by that of
President Pacent, falls flat. And, a reading of the
testimony of Kastonguay demonstrates that all he knew
was that on one occasion an employee had heckled Sorg
for her union activities. And the merit review in evidence
points out, in contrast to Respondent's position, that she
received a superior rate in intelligence and judgment as
well as a superior grade in another category reflecting
"Has no trouble in work environment. Has native ability to
adjust and adapt to people and situations." I credit Sorg
herein on a strong preponderance of the evidence.
Judith Prairie entered the employ of the Respondent in
April 1965 as an automatic driller on the swing shift and
left in February 1966. She regularly wore a volunteer
organizer badge during the period material herein. At
issue here is the granting to Prairie of a 10-cent increase
on November 22 rather than one of 25 cents.
About one month before that date, Foreman Kastonguay
had exchanged positions with his daytime counterpart,
Stone, and the latter signed her merit review form.
Kastonguay, it is clear, at the very least consulted with
Stone and, indeed, Kastonguay recommeded the 10-cent
raise. Prairie had received an increase from $1.50 to $1.75
per hour in May 1965 from Kastonguay because of her
"ability and speed." On attitude toward company
superiors and associates , she was given 9 out of a possible
10 points . She was then told that her work was
exceptional.
Prairie testified that she spoke with Kastonguay several
weeks before her November interview and asked about a
merit increase, pointing out that Stone had told her
Kastonguay would make the decision. Kastonguay asked
what she expected and she replied 25 cents. Kastonguay
stated that there was no way to do this and she protested
that she was qualified and deserved it. He merely grinned
and stared at her with a "long look at the [union] badge on
my shoulder," He also stated "I guess you know why."
Prairie received a 10-cent raise to $1.85 per hour at her
interview. Shortly thereafter, Kastonguay happened to
visit the plant one night and asked if she was satisfied with
the raise; she replied that she was not. Kastonguay then
stated "I could have told you that you would not be ... just
off the record [Plant Manager] Morris told me that all you
guys would get a nickel. If you bitched, then you got a
dime."5 On this occasion, Kastonguay also stared at her
badge.6
Kastonguay denied staring at the badge and making any
reference to Plant Manager Morris and his wishes in the
matter. Here as well, Kastonguay pointed to a change in
"attitude" on the part of Prairie, claiming that she had
become unfriendly to a great many people, includisig him-
self. President Pacent admitted that Prairie, as a badge
wearer, received special consideration in November, as
did Sorg. There is no evidence that Prairie's outstanding
performance and rating as "very good at automatic
drilling" in the May report had deteriorated, other than in
the reference to her attitude. Her point score in November
fell from 70 to 63, this in part reflecting a drop in attitude
from 9 to 6. And, as in the case of Sorg, there is no
evidence that she was spoken to or reprimanded for this
purported change in "attitude."
Here as well, I credit the testimony of Prairie over that
of Kastonguay and Pacent. It is entirely conceivable that
on a nondiscriminatory basis, Prairie would have received
only a 10-cent raise. On the other hand, Respondent was
willing to elevate Sorg, allegedly possessing a poor
attitude, to a rate of $1.90. The inference is strongly
warranted that Respondent equated unsatisfactory
attitude with union adherence. I find that Prairie was told
that she was receiving a 10-cent rather than a 25-cent
increase because of her union activities. Indeed, as will
appear in the discussion of the discharge of Vaughan,
treated below, Respondent was not averse to granting
increases one month apart where it felt so inclined. I find
that by the foregoing conduct, Respondent has
discriminated against its employees within the meaning of
Section 8(a)(3) of the Act.7
Elimination and Reduction of Overtime
Prior to commencement of organizational activities by
the Union early in September 1965, employees regularly
worked overtime. The day shift worked most Saturdays
and the swing-shift employees would frequently work a
double shift on Friday nights, and, on occasion, a separate
shift on Saturdays. There was some overtime on other
days.
The General Counsel has introduced in evidence much
data reflecting this overtime work which is taken from the
records of Respondent and has made extensive
computations based thereon in support of his contention
that Respondent discriminatorily shuffled its overtime
policy. In most respects, these figures support his
arguments.
It is the position of Respondent that overtime was
stopped for 2 weeks on or about October 1 and thereafter
gradually resumed. The record discloses that there was
indeed little overtime worked during this 2-week period
with a substantial drop from the overtime previously
worked; e.g., overtime hours dropped from 443 to 53 in the
weeks ending September 29 and October 10, respectively.
The General Counsel points out that the weekly
overtime average rose to 142 hours in October and to 253
in November and, in December, it increased even further.
Throughout this period, the work load remained at a
constant if not increasing level and President Pacent
admitted that the reduction in overtime caused
Respondent to fall behind in its deliveries, this indeed
resulting in a latter decision to resume overtime.
Respondent's reasons for temporarily eliminating and
thereafter gradually resuming overtime are reflected in
certain bulletins to employees. On September 22," it
posted the following notice, primarily prepared by Pacent,
on the plant bulletin board.
She later testified that the reference could have been to "you
all " In either event, I construe this, on the basis of her overall
testimony , as a reference to union adherents
'' Prairie wore the badge below her left shoulder While
Respondent raised the inference that Kastonguay was merely
staring at her body, it is clear that he stared only at the vicinity of
her left shoulder where the badge reposed I find that he was
looking at the badge
' The complaint alleges that Respondent engaged in conduct
violative of Section 8(a)(5) and (1) of the Act by unilaterally
granting the foregoing increases without notification to or
consultation with the Union As it appears that these merit
reviews were made in conformity with existing company policy
antedating the advent of the Union, I shall recommend dismissal
of this allegation
" It is noted that this issued 6 days after the Union wrote to
Respondent on September 16 and supplied President Buckles
with the names of six volunteer organizers
ARBCO ELECTRONICS, INC. 763
TO OUR EMPLOYEES
Our latest figures show that there has been a 30%
decrease in production since the Union
representatives began their agitation for your
membership. We believe that this is a deliberate
slowdown by a few employees who are in key jobs
which affect the entire plant. If this is the way the
Union and its supporters conduct themselves we do
not wish to have anything to do with them. We are
sure you do not either.
Because of the slowdown we have not been able to
make our shipments on time and, consequently, we
have lost a substantial number of orders. If this
situation continues, we will not have enough work
next month for you to do. We have never had a layoff
for lack of work in the past, and hope that those
responsible for this slowdown will not force one upon
you.
We cannot afford to continue a regular overtime
day and overtime on regular days if production does
not return soon to its usual level. It would be
unfortunate to eliminate the extra work day, and we
do not want to do so as most of you would be penalized
for the unwarranted actions of a few. We request that
each of you report to the office any knowledge you
may have of those who are responsible for this
slowdown so that appropriate action can be taken.
Please note that the card distributed by the Union
is an authorization card, and not one which merely
permits the Union to secure an election. Do you know
the obligations you incur by signing such a blank
check?
Although the Union has a right to agitate for your
membership, (and dues) it does not have the right to
destroy this Company and your jobs. We hope you will
refuse to sign any authorization to the Union. In that
way you can show your disapproval of such
irresponsible conduct which can only harm you and
the Company.
I note, initially, that Respondent presented no probative
evidence of the purported slowdown. President Pacent
was queried concerning the identity of customers and
volume of orders allegedly lost but was unable to supply
these. The reference to not having enough work in the
following month is simply not the fact because Respondent
admittedly then had a substantial backlog of orders.
Moreover, Pacent, who was absent in the East from
approximately August 30 to September 11 and again from
September 19 to 26, variously testified that his reference
to the 30 percent drop reflected production between
September 1 and 15 and between September 2 and 21. He
also admitted that a later calculation disclosed that the
figure was much too high and that the purported drop in
production was actully between 18 and 20 percent. In this
respect, it is noted that is was Pacent, as Plant Manager
Morris put it, who was handling "the present union
situation." There is not an iota of evidence of any
employee slowing down and there is only the claim of
Pacent that he could sense this as he traversed the plant.
The General Counsel has directed attention to a
compilation reflecting greatly improved production in the
7-day period between September 22 and 30 as contrasted
with 7 production days preceding the bulletin, despite the
fact that less overtime was worked in the later period.
Even Pacent admitted that he had noticed some
improvement as of October 1. Yet Respondent went ahead
with its decision on overtime. On November 4,
Respondent posted the following bulletin, signed by
Buckles:
On September 22 we stated in a bulletin that there
had been a 30% decrease in production since the
Union representatives began their agitation for your
membership. Our last production figures show that
there has been no improvement. Worse still, the
quality of the parts which have been produced has
been very poor and we are receiving complaints and
rejections from our customers.
We have been bidding for new business. Yesterday
a company in the Bay Area advised us that although
our bid for their business was the lowest and our plant
was rated higher than any other which bid on the
order, we would not be given the order because a
strike might occur which would prevent delivery of
the order on schedule. The customer noticed the
Union buttons which are being worn in the plant and
talked to the Union agents about our situation. We are
convinced that a few disgruntled employees are
responsible for our present difficulties. Apparently,
they feel that the destruction of this firm is warranted
if they do not get what they want. The welfare of all
other employees of the Company seems to mean
nothing to them.
We hope this Union will soon be behind us so we
can settle down to work again in our usual way.
Conduct as irresponsible as this can only hurt all of
us. May we again request that you report to the office
any knowledge you may have of those who are
responsible for the slowdown and the poor quality of
our product. Unless we can correct this situation
soon, a serious loss of business will occur which will
necessitate strong measures if we are to survive.
As is apparent, the same admittedly erroneous 30
percent figure is used. Pacent testified that he did not
learn of his error in using this figure for 30 to 60 days after
September 22.
Respondent adduced testimony and documentary
evidence concerning the company described in this notice
as refusing to place this order, but declined to divulge the
name of the customer because of fear of harassment by the
Union.9 Be that as it may, it is clear from the record that
the notice is false to the extent that it states that the
customer "talked to the Union agents about the situation."
The testimony of Sales Manager Thomas Snodgrass
demonstrates that he escorted a group of three from this
concern about the plant and that, to his knowledge, they
spoke with no one else. And there is affirmative evidence
from volunteer agents that no such conversations took
place.
While Pacent claimed that October rejects were higher
than in a normal month, he was unable to provide any
basis for a normal ratio of rejections and had no record of
these rejections in October. And as for the "poor quality"
of the products, there is no probative evidence in support
of this, either by description or name of customer.
The General Counsel contends further that when
overtime hours were gradually resumed in the October-
December period, Respondent, contrary to its previous
" This was the subject of the motion to strike evidence and
reject exhibits previously considered, with ruling adverse to the
General Counsel
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
policy of distributing overtime equitably among the
employees, did not apply this to certain badge wearers.
Respondent's records disclose the following with respect
to the overtime hours of certain volunteer organizers.
Ileen Vaughan, on the day shift, averaged 24.2 hours of
overtime from June through September, but was allowed
only 6 hours thereafter until her termination on
December 3, this reflecting one occasion when another
employee was unable to work.
Armand Faubert of the day shift did janitorial, plant
maintenance, and truckdriving work for Respondent. His
June-September average was 18 hours per month. From
September 22 on, he never received any overtime.
Respondent has adduced evidence that it hired an
additional maintenance employee in August, this allegedly
obviating the need for Faubert to work overtime. But the
record discloses that Faubert's truckdriving duties
occupied 60 percent of his time. Moreover, he was given
overtime work in the weeks ending September 1, 15 and
22; this is hardly consistent with Respondent's claim.
Finally, Faubert uncontrovertedly testified about his
efforts to obtain overtime work. This work was customarily
assigned on Friday afternoons, and each Friday he would
ask Foreman Stone for overtime work; the latter, in
response, would literally laugh. On one occasion in
November, Stone told Faubert that he was wasting his
time and that Faubert "should know better than to ask ...
because I was Union. I was wearing a button ... I was a
badge wearer."
Any lingering doubt about Respondent's motivation in
the case of Faubert is dispelled by his uncontroverted
testimony that between September and December,
Foreman Stone and Kastonguay had offered him Saturday
work at straight time, this predicated on his taking time off
during the week. Stated otherwise, the need was
present.' e
Volunteer Organizer William Berryman worked much
overtime, averaging 51 hours per month from June through
September. He received 12 hours of overtime in October
and 9 in November. As found, he abandoned the Union on
or about November 10 and authorized Respondent to post
his written withdrawal on the bulletin board. Thereafter,
he received 37 hours of overtime in the month of
December.
Mary Pettit, an assembler on the day shift, averaged
13.8 hours of overtime per month from June through
December. After October 1, she worked overtime but
once, for 5 hours during the week ending December 19.
In a number of cases stressed by the General Counsel,
the evidence is less compelling. Thus, Leadman Douglas
Feliz of the swing shift averaged approximately 11.2 hours
of overtime from June through September. He worked a
total of 18 hours, averaging approximately 6 hours per
month during the period from October through December,
with 16 of these after he doffed his badge on or about
November 1. The General Counsel points to much heavier
overtime work by other leadmen. On the other hand, the
testimony of Feliz discloses that he did not desire much
overtime.
Attention is also directed to swing-shift organizers
Ginny Gallegos, Alice Sorg, Judith Prairie, and Helen
D'Andrea. Gallegos averaged 8 hours per month from June
through September, but worked a total of 6 hours from
October through December 20 when she left the employ of
Respondent. On the other hand, the record discloses that
she had frequent absences.
Sorg averaged 14.2 hours of overtime from June through
September, but was not given overtime work again . Prairie
averaged 10 hours per month from June through
September, but was not assigned any overtime after
October. There is evidence that family responsibilities
limited her availability for overtime work. D'Andrea
averaged 19.3 hours of overtime per month from June
through September, but thereafter received only 5 hours
during the week ending November 14. I note also that Eva
Fries of the swing shift worked 16 hours of overtime from
June through September and none thereafter.
Respondent has contended that it ordered overtime
reduced because it learned that it was violating a
California law forbidding the employment of women in
excess of 8 hours per day or 48 hours per week. And the
record does demonstrate that, prior to the latter part of
September, Respondent had frequently worked its Friday
swing-shift employees a double shift into early Saturday
morning, this shift including women.
While this evidence is uncontroverted, it is also suspect.
Respondent paid female employees for overtime on
separate invoices, these not being reflected in the regular
payroll records prior to October. And while witnesses
Pacent and Morris for Respondent equivocated somewhat,
the basic thrust of their testimony is that they became
aware of their entanglement with California law at the
"end" or "very end" of September. Yet the basic threat to
reduce overtime issued on September 22, prior to serious
consideration of these overtime violations.
Moreover, Respondent never communicated its intent to
abide by the California law to its employees, there was
never any discussion of this matter with them, and the
November 4 notice is conspicuously silent in this area.
Indeed, Pacent admitted that his quarrel was not with the
California authorities, but with the Union.
Lending some assistance to Respondent is the fact that
an inspection of its records discloses that all female swing-
shift employees thereafter suffered a substantial reduction
in overtime. On the other hand, of further support to the
General Counsel is the fact that on the day shift, there
were but two class A silk screen operators, badge wearers
Harold Pilkinton and Marlin Harold. If Respondent wished
overtime to be worked in this department, it perforce had
to assign this to a badge wearer. This was done in the case
of Pilkinton, the record disclosing that Harold was averse
to overtime work. And there is evidence that, in the past,
Respondent had on occasion worked female swing-shift
employees for a separate shift on Saturdays.
The General Counsel points out that a consideration of
the 5-week period of weeks ending November 21 through
December 19 discloses that the average overtime hours for
all full-time employees ranged from 3.9 to 8.2 hours
whereas those of designated badge wearers ranged from .6
to 3.3 per week. While he points to a similar contrast in the
overtime work by Leadman Feliz and other leadmen, this
is not deemed to be truly indicative, in view of the overall
pattern of more overtime being worked by other leadmen
and the fact that Feliz did not desire much overtime.
And, turning to Respondent's claim based upon the
California statute with respect to the hours of women,
"' Stone did not testify and Kastonguay was not questioned
concerning this Foremen Stone and Kastonguay exchanged shifts
sometime in October.
ARBCO ELECTRONICS, INC.
Respondent's records disclose that some swing shift
female employees did work overtime in the weeks
following October. In fact, in two cases, those of Compton
and Dalton, the records disclose a total of more than 48
hours worked on a number of occasions involving the
former and one in the case of the latter. And, as noted, the
drop in overtime given to certain day-shift employees
belies this thesis.
In view of all the foregoing considerations, I find, on a
preponderance of the evidence, that Respondent did
discriminatorily deprive employees of overtime and
thereafter withold it from volunteer organizers for the
Union, thereby engaging in conduct violative of Section
8(a)(3) of the Act.
The Termination of Ileen Vaughan
Ileen Vaughan entered the employ of Respondent in
March 1962. At the time of her termination on
December 3, 1965, she was classified as a class A
inspector on the day shift. As Plant Manager Morris put it,
and I so find, Vaughan was a "topnotch inspector. Her
ability was excellent . She was probably one of the better
inspectors we had. . . ." Indeed, Vaughan alone was
assigned to and devoted 75 percent of her time to the task
of "releasing." This was a most important step because it
constituted a decision that the circuit board could go to the
shop for manufacture.
She became the chief organizer for the Union in the
plant and distributed a substantial number of
authorization cards, including many of those received in
evidence herein. Her status as a volunteer organizer in
behalf of the Union was well known to management.
Vaughan had previously applied for a position in the
post office, and received a notice that she was eligible for
hire, but not a specific offer of work. On or about
November 15, she informed Foreman Joe Tokojai1I that, in
anticipation of such an offer, she would probably be
leaving the employ of Respondent "in a couple of weeks."
That same day, Tokojai sent a memorandum to Plant
Manager Morris advising that Vaughan had given notice of
her intent to leave. He also recommended that Inspector
Syble Bandy be moved to the "number one position" (that
of Vaughan) and that another inspector be hired to fill the
vacancy. Morris approved the recommendation and added
to the memo a statement that the resignation was to be
effective not over three weeks after November 15.
On November 16, Morris handed Vaughan a copy of this
memorandum. He told her that while employees were
normally retained for a maximum of 2 weeks after giving
notice to leave, she would be granted 3. As Morris put it,
he wanted to keep skilled inspectors on the job as long as
possible and he regretted the departure of Vaughan.
Vaughan admitted telling Morris that she had not been
happy at the plant, that she did not like working there, and
that, but for her high opinion of Foreman Tokojai, she
would not have given 5 minutes' notice.
Two weeks later, on November 30, Vaughan changed
her mind. She told Tokojai that she would like to remain in
the employ of Respondent because no offer of employment
had been forthcoming from the Post Office Department,
and he agreed to take up her case with Morris. Later that
day, Tokojai told Vaughan that Morris no longer had any
authority to act in the matter and that he had nothing to
tell her. Vaughan persisted in her efforts to remain in the
" As noted, Tokojai did not testify and findings as to this and
other conversations with him are based upon Vaughan's
765
employ of Respondent and, on November 30, wrote to
Chairman of the Board Buckles. The letter, received on
December 1, stated:
On or about November 15, 1965, I informed my
supervisor, Mr. Tokaji, [sic] that I would probably be
leaving my employment with Arbco some time in the
future, as there was a possibility that I would be
getting a job with the United States Post Office
Department.
The next day, Mr. Morris informed me that I could
continue to work for Arbco for the next three weeks. I
thought this was unreasonable because there was
nothing definite on the Post Office appointment.
As events have turned out, nothing has developed on
the Post Office appointment, and I am writing this to
inform you that it is my intention and desire to
continue my employment with the Arbco Company.
This was brought to the attention of President Pacent
who, with the assistance of Respondent's industrial
relations representative, prepared an employee-status or
termination form for Vaughan. This form, prepared on or
about December 3, states under "Reasons and Remarks:"
Your resignation was effective on December 3, 1965
and replacement has been hired and trained.
Consequently the withdrawal of your resignation
cannot be accepted as the vacancy has been filled. If
you desire, we will notify you of the next vacancy, for
which you are qualified. You are subject to rehire.
At quitting time on December 3, Foreman Tokojai told
Vaughan that he had some "dirty work" to do and handed
her a copy of this form. Vaughan subsequently went to
work for the Post Office Dpartment on January 3, but
resigned on January 27, 1966.
Around mid-February, Vaughan received a telephone
call from Tokojai. He stated that he had learned she had
left the Post Office Department and was seeking
employment and asked if she was interested in returning
to work for Respondent. Vaughan replied that she did wish
to return but not as a "new employee"; according to
Vaughan, this would have affected certain fringe benefits.
Vaughan asked for time to think the matter over. Shortly
thereafter, she telephoned Tokojai and told him that she
wanted to return. He agreed to explore the matter and said
he would contact his "boss." Tokojai returned the call and
advised Vaughan that there were no vacancies for
inspectors. Vaughan having been an inspector for a
substantial period of time prior to her termination, I find
that this discussion related to employment as an inspector.
Respondent initially defended herein on the theory that
there were no vacancies for Vaughan as an inspector as of
the time she left on December 3. Contrary evidence
supporting the position of the General Counsel is indeed
impressive. During the hearing, Rspondent shifted
grounds and claimed that Vaughan's intemperate remark
on November 16 to Morris rendered her unsuitable for
rehire because of her "attitude." This too does not hold
water.
Turning to the former claim, the record discloses the
following. It is Respondent ' s basic premise that it
transferred Syble Bandy between November 15 and
December 3 to take the place of Vaughan. Indeed,
Vaughan did participate in training Bandy to take over her
duties. According to Vaughan,12 she spent approximately
20 percent of her time during a 5-day period to pass on her
uncontroverted and credited testimony
12 Bandy did not testify herein
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
skills to Bandy. Respondent was so impressed with
Bandy's performance that on December 6, Bandy received
an increase from $2.75 to $2.85 per hour; the lower rate
had been awarded her approximately one month earlier on
November 8. Indeed, this put her rate above Vaughan's
rate of $2.70 per hour. Morris deemed it unnecessary in
December to have another performance review of Bandy
because she had received one so recently. As indicated,
Respondent's reasons do not stand up and for the
following reasons:
(1) Despite the rapid advancement of Bandy, the fact is
that, as of November 15, Vaughan was the top inspector
and the only one who handled the important function of
"releasing." Morris did not know of any occasions when
Bandy had performed this work previously and, according
to Vaughan, Bandy had done it only once or twice prior to
November 15. Yet, on November 30, Respondent chose
not to retain Vaughan.
(2) Respondent was uncertain as to who replaced
Bandy. Morris testified at one point that it was Inspector
Bowers, newly hired on November 5 as a class B inspector
at a rate of $2.50 per hour. Morris also testified that Bethel
Harrell was hired on November 17 as a class B inspector
but was uncertain whether she replaced Bandy or Bowers.
(3) Morris admittedly preferred to have only class A
inspectors in his employ. Yet, he refused Vaughan her
unconditional request of November 30 to stay on and
thereafter did not recall her to work. Moreover, on
December 14, Respondent hired two class B inspectors,
Schantz and Moseley, and another, Hoffman, on
December 17. In fact, Morris admitted that Respondent
was in "dire need of additional inspectors" during
December.
(4) Compounding the foregoing is the fact that on or
about December 20, two class B inspectors, Gallegos and
Christophel, quit. Vaughan was not offered employment
despite her pending request for same and the statement in
her termination notice that she was eligible for rehire.
(5) The abortive attempt of Tokojai to recall Vaughan to
work in February buttresses of foregoing. The testimony of
Morris discloses that the prior union activities of Vaughan
played a part in the decision, albeit in an effort to avoid
committing an unfair labor practice. The statement of
Tokojai to Vaughan that a vacancy did not exist is
intrinsically inconsistent with his invitation to Vaughan to
return to work; surely, he was in a position to be aware of
vacancies on his shift and there is no claim that he was
not.
Turning to Respondent's secondary claim that Vaughan
was not subject to rehire because of her intemperate
statement on November 16, this reflecting an
unsatisfactory "attitude," the following factors are
immediately apparent:
(1) Pacent testified that Morris had recommended a
three rather than a two week notice period for Vaughan
because she had been a "good employee." Yet, the
purported shock of Morris on November 16 at this
statement by Vaughan was not so great as to warrant his
suspending her employment at that time.
(2) When asked about the use of the words "You are
subject to rehire" on the December 3 termination notice,
'1 President Pacent testified that he attended an
unemployment compensation hearing on December 20, 1965, that
Vaughan was then asked if when she wrote the letter of
November 30. she wished to continue as a permanent employee,
and that she replied in the negative, stating that she wished to
work only until such time as her appointment came through In
Morris conceded that he had the authority to change this
language. He then testified that she was subject to rehire
"Because of her loyality to Tokojai and further discussion
with other people on this it was agreed that we would leave
the statement like this."
(3) President Pacent was asked why, if Vaughan was
not eligible for rehire , this statement was placed on her
December 3 termination notice. He explained that she was
a badge wearer , that she was not eligible for rehire
because of her attitude , and that he wrote this on the
advice of his industrial relations representative. I have
heretofore noted in the cases of Sorg and Prairie that
Respondent 's concept of attitude meant prominence in
union activities . And, in the posture most favorable to
Respondent , it was an untruthful statement.
(4) Any lingering doubt about Respondent 's need for
help is the fact that it was running advertisements in the
local press on December 12, 14, and 16 for new employees
and the language used therein was broad enough to
include the classification of inspector . The advertisement
was for factory help on printed circuits and both skilled
and unskilled employees were sought. While Morris
testified at one point that President Pacent chose as a
policy matter to promote inspectors from within, he
conceded that the advertisement was broad enough to
include inspectors . Indeed , Respondent did hire new
inspectors in December , as set forth.
To sum up, Respondent was in dire need of inspectors in
December ; it preferred to employ class A rather than class
B inspectors because of their superior ability; it chose to
hire class B inspectors rather than recall Vaughan; the
claim of Vaughan 's unsatisfactory attitude based upon an
intemperate statement on November 16 falls flat in the
light of the language in her termination notice on
December 3; and her foreman 's abortive effort to procure
her return in February demonstrates Respondent's
unmitigated hostility to Vaughan , particularly in view of
the admission that she was eligible for rehire because of
her loyality to Tokojai. One further notes that Vaughan
was terminated on December 3 but 1 week before the
scheduled election.
I find , on a strong preponderance of the evidence, that
Respondent , by releasing Vaughan on December 3, 1965,
and thereafter refusing to recall her to work, was
motivated by its desire to rid itself of the leading union
adherent in the plant and has discriminated with respect
to her hire and tenure of employment, thereby engaging in
conduct violative of Section 8(a)(3) and , derivatively,
Section 8(a)(1) of the Act.13
Refusal to Bargain
I have previously found that the Union was the duly
designated representative of a majority of the employees
of Respondent in an appropriate unit at all times material
herein. On September 30, Respondent rejected the
Union's offer of September 28 to prove its majority and its
request for recognition.
Respondent proceeded to state in this communication
that it had been "advised that employees of the Company
have been threatened by Union solicitors with discharge
view of the fact that this took place after Respondent made its
decision on December 3, based upon the unconditional offer in
her letter of November 30, 1 deem this immaterial to the basic
issue of Respondent 's motivation in previously terminating
Vaughan
ARBCO ELECTRONICS, INC.
and other substantial injury if they do not join your Union"
and that membership applications had been obtained by
"restraint and coercion," thus not reflecting a "true
desire" for union representation. It then stated, "For this
specific reason" and because cards were "notoriously
unreliable" recognition was refused. The letter further
claimed that Respondent had information that the Union
did not in fact represent a majority. It closed by insisting
on an election "In view of the effort of your agents to force
employees, by threats, and inflated promises" to sign
cards.
There is simply not a shred of evidence to support any of
the foregoing assertions. No testimony was adduced of
threats of discharge or "substantial injury" to those being
asked to sign. The record is silent as to any cards being
obtained by "restraint and coercion," the evidence
reflecting solely persuasion in some cases.
Respondent adduced no evidence to support its
assertion that it possessed information that the Union did
not enjoy a majority. And, finally, there is no evidence of
anyone signing a card as a result of a threat; in fact, the
record contains no evidence of any threats.
Respondent did not sit idly by after making these
unfounded assertions on September 30. On or about
October 1, it eliminated all overtime for 2 weeks, relying
on a claim made in a September 22 bulletin that there had
been a 30-percent drop in production which it attributed to
deliberate slowdowns as a result of "agitation" by the
Union. As shown, not only was this claim at best greatly
exaggerated, but production had risen sharply during the
last week of September. And, as found, when overtime
was gradually resumed, union badge wearers were singled
out for reduced overtime in contrast with past practice.
Respondent's bulletin of November 4 repeated the
erroneous claim of a 30-percent drop in production and
contended that there had been complaints and rejections
of shipments; this was not established herein.
I have also previously found that Respondent's
treatment of Sorg and Prairie in their November merit
reviews was clearly discriminatory and in obvious
retaliation for their union activities. Finally, on
December 3, but 1 week before the election, Respondent
grasped the opportunity to eliminate the most active union
adherent, Ileen Vaughan. As in the cases of Sorg and
Prairie, its conduct was predicated upon her "attitude"
whch, on this record, is perforce equated with union
activities.
In sum , Respondent rejected the Union's request for
recognition, making various claims of a tainted majority
which are entirely unsupported by the record. Consistent
with its prior expressions of hostility to the Union and its
unsupported claims of a slowdown, it embarked upon a
campaign of reprisals, as set forth, which was designed to
include employees to disaffiliate from and reject the
Union.
A preponderance of the evidence does not support the
claim that Respondent entertained a good-faith doubt of
the Union's majority. I find, therefore, that by rejecting the
Union's demand for recognition on September 30, 1965,
Respondent has refused to bargain within the meaning of
Section 8(a)(5) of the Act and has thereby also engaged in
conduct violative of Section 8(a)(1) of the Act. Joy Silk
Mills v. N.L.R.B., 185 F.2d 732 (C.A.D.C.), cert. denied
14 No precise argument has been made, and I am unable, on
this ecord, to determine what overtime hours would have been
worked by the designated union badge wearers had they been
allotted on a nondiscriminatory basis I believe this is a matter
767
341 U.S. 914, and Bryant Chucking Grinder Company, 160
NLRB 1526.
Although the termination of Vaughan on December 3,
1965, would alone appear to be grounds for setting aside
the election, I have found that there was an unlawful and
continuing refusal to bargain with the Union on or after
September 30, 1965. Thus, there being no question
concerning representation at the time of the holding of the
election on December 10, it will be recommended that the
representation petition be dismissed and the proceeding
vacated. See Bernel Foam Products Co., Inc., 146 NLRB
1277, and Irving Air Chute Company, Inc., 149 NLRB 627.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that Respondent has discriminated
with respect to the hire and tenure of employment of Ileen
Vaughan, the wage rates of Alice Sorg and Judith Prairie,
and overtime hours worked by union badge wearers. 14I
shall recommend that Respondent offer Ileen Vaughan
immediate and full reinstatement to her former or
substantially equivalent position, without prejudice to her
seniority or other rights and privileges. See The Chase
National Bank of the City of New York, San Juan, Puerto
Rico, Branch,65 NLRB 827.
I shall further recommend that Respondent make whole
Vaughan, Sorg, Prairie, and designated union badge
wearers for any loss of pay or overtime, as the case may
be, suffered by reason of its discrimination against them.
Said loss, based upon earnings which each normally would
have earned as wages from the date of discrimination to
the date of reinstatement or departure from the employ of
Respondent, as the case may be, 15 shall be computed on a
quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289. See N.L.R.B. v.
Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344.
Interest thereon at the rate of 6 percent per annum shall
be added, as provided in Isis Plumbing & Heating Co.,138
NLRB 716.
I shall also recommend that Respondent recognize the
Union as the representative of its employees in the above-
described appropriate unit; that, upon request,
Respondent bargain with said Union concerning rates of
pay, wages, hours, and other terms and conditions of
employment; and that, if an understanding is reached,
embody same in a signed agreement. On this posture, it is
recommended that the representation petition be
dismissed and the proceeding vacated.
which can be worked out at the compliance stage.
15 The record discloses that Sorg, Prairie, and several badge
wearers are no longer in the employ of Respondent
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The unfair labor practices committed by Respondent
involve a pretextual discharge, harassment of union
adherents, and conduct in derogation of the principles of
good-faith collective bargaining. The inference is
warranted that Respondent maintains an attitude of
opposition to the purposes of the Act with respect to the
protection of employee rights in general . It will
accordingly be recommended that Respondent cease and
desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Arbco Electronics, Inc., is an employer within the
meaning of Section 2(2) of the Act.
2. International Union, United Automobile, Aerospace
& Agricultural Implement Workers of America,
UAW-AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminating with respect to the hire and tenure
of employment of Ileen Vaughan, the wage rates of Alice
Sorg and Judith Prairie, and the overtime hours awarded
union badge wearers, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3) of the
Act.
4. All production and maintenance employees of
Respondent, including shipping and receiving employees,
truckdrivers, chemists, photographers, and regular part-
time employees, but excluding office clerical and
professional employees, guards and supervisors,
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
5. International Union, United Automobile, Aerospace
& Agricultural Implement Workers of America,
UAW AFL-CIO, has been since September 28, 1965, and
now is, the exclusive representative of the employees in
the above-described appropriate unit within the meaning
of Section 9(a) of the Act.
6. By refusing on and after September 30, 1965, to
recognize and bargain with the above-named labor
organization , Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) of the Act.
7. By the foregoing conduct and by threatening
employees with economic reprisals for unionization,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7)of the Act.
9. Respondent has not otherwise engaged in unfair
labor practices.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law , it is recommended that Respondent,
Arbco Electronics , Inc., Van Nuys, California, its officers,
agents, successors, and assigns , shall:
1. Cease and desist from:
1h In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
(a) Discouraging membership in International Union,
United Automobile, Aerospace & Agricultural Implement
Workers of America, UAW-AFL-CIO, or in any other
labor organization of its employees , by discharging
employees or by discriminating in any other manner in
regard to hire or tenure of employment or any term or
condition thereof.
(b) Threatening employees with reprisals in the event of
unionization , or in any other manner interfering with,
restraining , or coercing employees in the excerise of their
right to self-organization , to form labor organizations, to
join or assist the above named or any other labor or-
ganization, to bargain collectively through representatives
of their own choosing and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection and to refrain from any or all such
activities , except to the extent such right may be affected
by an agreement requiring membership in a labor
organization as a condition of employment, as authorized
in Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer to Ileen Vaughan immediate and full
reinstatement to her former or substantially equivalent
position , without prejudice to her seniority or other rights
and privileges.
(b) Make whole Ileen Vaughan , Alice Sorg , Judith
Prairie, and designated union badge wearers for any loss
of earnings suffered by reason of the discrimination
against them , in the manner provided above in the section
entitled "The Remedy."
(c) Upon request , bargain collectively with
International Union , United Automobile , Aerospace &
Agricultural Implement Workers of America,
UAW-AFL-CIO, as the exclusive representative of its
employees in the above -described appropriate unit with
respect to rates of pay, wages , hours of work , or other
terms and conditions of employment, and, if an
understanding is reached , embody such understanding in
a signed agreement.
(d) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records,
timecards , personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(e) Post at its plant at Van Nuys , California, copies of
the attached notice marked "Appendix ." 16 Copies of said
notice, to be furnished by the Regional Director for
Region 31, after being duly signed by Respondent
representative , shall be posted by it immediately upon
receipt thereof, and be maintained for 60 consecutive days
thereafter , in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered , defaced , or covered by
any other material.
(f) Notify the Regional Director for Region 31, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith. 17
be substituted for the words "a Decision and Order "
I1 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read: "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
ARBCO ELECTRONICS, INC. 769
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL recognize and bargain collectively with
International Union, United Automobile, Aerospace
& Agricultural Implement Workers of America,
UAW-AFL-CIO, as the exclusive representative of
our production and maintenance employees,
including shipping and receiving employees,
truckdrivers, chemists, photographers, and regular
part-time employees, but excluding office clerical and
professional employees, guards and supervisors, with
respect to rates of pay, wages, hours of work, or other
terms and conditions of employment and, if an
understanding is reached, embody such
understanding in a signed agreement.
WE WILL offer Ileen Vaughan immediate and full
reinstatement to her former or substantially
equivalent position , without prejudice to seniority or
other rights and privileges.
WE WILL make whole Ileen Vaughan, Alice Sorg,
Judith Prairie, and union badge wearers for any loss
of pay or overtime suffered by reason of our
discrimination against them.
WE WILL NOT threaten employees with reprisals in
the event of unionization, or in any other manner
interfere with, restrain, or coerce our employees in
the exercise of their right to self- organization , to form
labor organizations, to join or assist International
Union, United Automobile, Aerospace & Agricultural
Implement Workers of America, UAW-AFL-CIO, or
any other labor organization, to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, and to refrain from any or all such
activities, except to the extent that such right may be
affected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above named or any other labor organization.
ARBCO ELECTRONICS, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board' s Regional Office, 10th Floor,
Bartlett Building , 215 West Seventh Street, Los Angeles,
California 90014, Telephone 213-688-5850.