Audiovox West Corp.

National Labor Relations Board - Board Decisions

Jan 25, 1978

234 N.L.R.B. 428 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Audiovox West Corporation and Miscellaneous Ware-
housemen, Drivers and Helpers, Local 986, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Cases 21-
CA-15267, 21-CA-15356, and 21-RC-14800
January 25, 1978
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On September 22, 1977, Administrative Law Judge
Harold A. Kennedy issued the attached Decision in
this proceeding. Thereafter, the Petitioner filed ex-
ceptions and a supporting brief, and the Respondent
filed a 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
briefs 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, Audiovox West
Corporation, Los Angeles, California, its officers,
successors, agents, and assigns, shall take the action
set forth in the said recommended Order.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
DECISION
STATEMENT OF THE CASE
Introduction
HAROLD A. KENNEDY, Administrative Law Judge: This
consolidated proceeding was heard on April 26-28 and
May 17-18, 1977, in Los Angeles, California.
The Respondent is a California corporation engaged in
the wholesaleing and distribution of automotive sound
equipment (i.e., car stereo sets). It has a plant and
warehouse facility at Cerritos, California. The pleadings
establish that the Respondent sells and ships goods outside
I The original charge alleges that the Respondent had violated Sec.
8(aXI), (3), and (5) by (a) unilaterally changing terms and conditions of
employment of employees after the election in Case 21-RC-14800 and (b)
234 NLRB No. 59
of the State of California in excess of $50,000 and that it is
an "employer" engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6) and
(7) of the National Labor Relations Act, as amended.
The Union, Miscellaneous Warehousemen, Drivers and
Helpers, Local 986, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
is a labor organization as defined in Section 2(5) of the Act.
The Union, on August 23, 1976, filed a petition with the
National Labor Relations Board seeking certification as
collective-bargaining representative of the Respondent's
production and maintenance employees. An election was
thereafter held on November 22, 1976, pursuant to direc-
tion of the Regional Director of the Board's Region 21.
There were twenty employees that voted for the Union, 9
against, and 5 votes were challenged. The Respondent filed
objections to the election on the day of the election on two
grounds: (1) The Union had disseminated fraudulent
propaganda "at an improper time" and (2) the Union had
used threats of violence and force in a manner that
interfered with employees' free choice. The Regional Office
indicated initially that a hearing would be held on the
employer's objections but later reversed its position. On
February 10, 1977, the Regional Director issued a decision
overruling the Respondent's objections and certifying the
Union as the collective-bargaining representative of the
Respondent's production and maintenance employees. On
March 24, 1977, the Board, by telegraphic order, granted
the Respondent's "request for review with respect to
Employer's Objection 2." Such order, which states that
"Objection 2 raises substantial issues," remanded the
matter "for hearing on such issues and consolidation with
the pending cases 21-CA-15356 and 21-CA-15267." Certi-
fication of the Union as the collective-bargaining represen-
tative was stayed "pending final disposition of this matter."
Case 21-CA-15267 is based on a charge originally filed
by the Union on November 29, 1976, and amended on
January 7, 1977. The charge, as amended, alleges that the
Respondent violated Section 8(aXl1) by interfering with the
Section 7 rights of its employees.' Case 21-CA-15356 is
based on a charge of the Union filed on January 5, 1977,
alleging that the Respondent violated Section 8(aX)(I) and
(3) by discharging "Edwardo Cruz because of his union
activities on behalf of the charging party."
Principals
There was testimony from and about a number of the
Respondent's officials and employees. Some identifying
information concerning certain ones will assist the reader
to understand this rather complex proceeding, which was
further complicated by the fact that many communicated
only in a foreign language (Spanish or Mandarin Chinese).
Also, some employees were known under different names.
The following persons, all of whom testified, were frequent-
ly referred to during the hearing.
1. James W. Wohlberg, general manager of Audiovox
West Corporation (Audiovox).
by terminating after the election three employees, viz, Felipe (Phillip) E.
Gonzalez, Ruben Montoya, and Hilario Macias.
428
AUDIOVOX WEST CORPORATION
2. David Etheridge, Audiovox production manager and
supervisor.
3. James Gonzalez Palos, Audiovox warehouse manag-
er, who socialized with and supervised many of the
Spanish-speaking Audiovox employees.
4. Edwardo Cruz, usually referred to as Eddie Cruz, an
alleged discriminatee who was employed in the Respon-
dent's "warranty clean-up" department from March 1976,
until he was discharged by the Company on January 4,
1977. (His discharge was delayed because of the General
Counsel's investigation.) Cruz led the Union's drive to
organize the Respondent's employees. He distributed
literature and spoke to employees about joining the Union
before the election was held on November 22, 1976. Cruz
almost always wore dark, "one-way" glasses and carried a
knife. He wore a case for the knife on his belt but
frequently "played" with the knife by opening and closing
it or by throwing it into a box or to the ground. He made
threats upon fellow employees Hector Garcia, Ruben
Montoya, and at least two Chinese workers.
5. Margarita Cruz was the sister of Eddie Cruz who
gave some help to her brother in his organizing activities.
She was employed by the Respondent as a warehouse
secretary under Jose Palos from November 1975 until
January 5, 1977, when she quit voluntarily.
6. Hector Garcia, also known as Carlos Briones, an
Audiovox employee who witnessed Eddie Cruz threaten
Ruben Montoya and was then threatened himself by Cruz
for being "two-faced." Garcia reported Cruz' threats to
others, including his supervisor, and gave a statement to
Palos and Wohlberg.
7. Hector Martinez, an Audiovox employee who had
been a shipping clerk and a union member before being
promoted to a supervisory status in September 1976. He
was present during the "parking lot incident" and was the
object of obscene insults.
8. Renaldo Mejorado an Audiovox supervisor (assis-
tant warehouse manager) who came to the aid of Martinez
during the parking lot incident and then became the object
of insults and aggression himself.
9. Ruben Montoya was employed in the Respondent's
shipping department from April until November 1976. He
testified that he was told he was fired "because I tried to
steal two radios." Montoya lived with Eddie Cruz, along
with Gerardo Cervantes, for about a month in the fall of
1976. He sought a loan from the Company to attend his
father's funeral, which gave rise to his being called "two-
faced" and a threat by Eddie Cruz. Montoya denied
knowing of any threat or being the object of the name
calling.
10. Hilario Macias was a first cousin of Jose Palos and
an Audiovox employee until he was fired on November 23,
1976. He was a principal involved in the parking lot fracas,
along with Felipe Gonzalez. He was initially listed as an
8(a)(3) discriminatee, along with Ruben Montoya, in the
original charge in Case 21-CA-15267. The General Coun-
sel did not proceed on their behalf, and the charge was
revised so as to delete such discrimination charges.
2 A charge was filed with the General Counsel in connection with
Gonzalez' termination, but its legality is not involved in this proceeding.
II11. Felipe (Phillip) Gonzalez was a brother-in-law of
Jose Palos and employed by the Respondent from August
20, 1975, until he was terminated on November 23, 1976,
after the parking lot fracas for being "disrespectful to two
supervisors." He and Hilario Macias were particularly
active in the parking lot incident.2
12. Gerardo Cervantes, also known as Tony Cervantes,
an Audiovox employee for approximately 1-1/2 years. He
lived with Ruben Montoya and Eddie Cruz for 4 months in
the fall of 1976. He and Cruz gave Montoya the silent
treatment for about 2 weeks for being "a company man,"
but both Montoya and Cruz denied it.
13. Arturo Leija Gomez, employed by the Respondent
from July 1975 until February 16, 1976, when he quit
voluntarily. He spoke to Garcia about a threat of Cruz
upon Garcia but denied on the stand that he knew about it.
14. Elias Navarro, an Audiovox employee who was
present when Garcia, "nervous" and "angry," told Gomez
of Cruz' threat; also present when Cruz and Montoya
made threats against Palos.
15. Edgar Villa, an Audiovox employee and union
supporter of whom at least some of the Chinese workers
were afraid. He testified credibly how Cruz played with his
knife and of Cruz' menacing gestures and threats to the
Chinese workers.
16. Marno Tavarez, employed as a truckdriver by the
Respondent since September 1976. He attended the bowl-
ing alley meeting and then made inquiry of the Company
about the accuracy of information circulated. He also
observed Eddie Cruz "play" with his knife while talking to
Chinese workers on election day.
17. Luis Vojorquez, an Audiovox employee who wit-
nessed the parking lot fracas and the union bowling alley
meeting; testified how Cruz "played" with his knife and
spoke to the Chinese workers.
18. Joseph Chi-Chiung Chiu, an Audiovox technician
who voted in the election. He testified credibly of being
threatened by Cruz ("with a fierce look," always wearing
dark glasses, with a knife, and hitting the palm of his hand
with his fist) several times before the election. Chiu told his
wife of Cruz' threat. He also indicated that another
employee, Edgar Villa, had pressured him to vote for the
Union.
19. Shu-Li Chiu, wife of Joseph Chiu and an Audiovox
employee at the time of the election. She testified credibly
that she and her husband "were quite frightened" of Eddie
Cruz, that he threw an open knife on her work table and
told her to "vote union."
20. Shirley S. Fong, an Audiovox bookkeeper (not
eligible to vote) who testified that Chinese workers were
frightened as a result of threats and being told to "vote
union" by Eddie Cruz and Villa. Her testimony was based
primarily on conversations with Mrs. Chiu's brother, Hsiao
Ling Ho, and his wife, Shih Nan Ho, and Mr. and Mrs.
Chiu.
429
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Significant Preelection Incidents
The following events occurred during the week or so
before the election held on Monday, November 22, 1976:
A. The bowling alley meeting: On Tuesday, November
16, approximately a week before the election, the Union
held a meeting at the Pioneer Bowling Alley which was
attended by a number of the Respondent's employees. 3
Three union officials were present. One of the officials who
spoke in English and then Spanish began his speech by
saying: "Unfortunately, in the beginning ... there were a
few deaths but. . . that the union had gotten stronger." He
went on to refer to himself as a "mean son-of-a-bitch" and
indicated that he would try to get everything he could for
the employees. The official, Rudy Heredia, was present
during a part of the hearing but was not called as a witness.
One employee, Marno Tavarez, testified that he was
"frightened" and that the employees "just kind of sat
there." Another employee, Edgar Villa, observed that he
"opted to remain quiet." Copies of certain Audiovox
documents were distributed at the bowling alley meeting.
One of the documents circulated contained a schedule
listing the names of Audiovox salesmen. The schedule
appeared under an Audiovox letterhead and purported to
give the amount of commissions each salesman had
earned.4 The question of whether Audiovox plants in other
cities, including New York, were unionized was raised and
discussed at the bowling alley meeting.
B. The Wohlberg speech: On Thursday, November 18,
General Manager Wohlberg called a meeting of the unit
employees together to contradict statements reportedly
circulated and made at the bowling alley meeting. Mr.
Wohlberg denied specifically that one of the Respondent's
salesmen had received $134,000, contrary to what had been
reportedly stated at the bowling alley meeting. Shortly after
Wohlberg's speech, David Etheridge asked Eddie Cruz if
he had any questions. Cruz said he did not.
C. The parking lot incident: On Friday, November 19,
1976, 10 or 12 of the Respondent's employees gathered
after work to drink beer on the company parking lot. The
beer was furnished by the Respondent. Several employees
were identified as being present: Eddie Cruz, Hilario
Macias, Felipe Gonzalez, Arturo Leija Gomez, Tony
Gerardo Cervantes, Miguel Ibarra, Ruben Montoya, Rafa-
el Pasqual, and Luis Vojorquez. Supervisors Hector Marti-
nez and Renaldo Mejorado were also present. There came
a time when employees in the group encircled Martinez,
who had been a union member but only recently promoted
to a supervisory position. Some of the employees began to
shout insulting and obscene names at Martinez, making
3 Employee Villa testified that there were 21 employees at the bowling
alley meeting.
4 The schedule had been offered into evidence in a separate Board
hearing. Employee Marno Tavarez presented one of the Audiovox docu-
ments circulated at the bowling alley meeting to his supervisor, Jose Palos,
and asked whether the information circulated was true or not. Palos turned
the document over to Wohlberg.
& The record also shows that Macias and Ruben Montoya had com-
plained that Martinez had not distributed work fairly. Montoya had
expressed a desire earlier on November 19 to meet and fight Martinez.
Martinez testified, however, that he treated all employees alike.
6 Gonzalez and Macias were discharged by the Respondent after the
karking lot incident. As has been previously noted, charges were filed on
behalf of both employees against the Respondent but were later withdrawn.
reference to him as being "two-faced." Another supervisor,
Renaldo Mejorado, then entered the circle of employees to
stand with Martinez. Macias, who had been involved in the
name-calling, urged Gonzalez to hit Mejorado. Obscenities
were then directed against Mejorado. Mejorado responded
in kind to the insults, and soon it became necessary to
restrain Macias and Gonzalez as well as Mejorado. Macias
and Gonzalez were charging Mejorado, who was "just
going to defend himself." Tempers cooled somewhat, and
Macias went to his car. Gonzalez and Cervantes joined
him, and Mejorado followed to inquire why he had been
attacked. It was explained to Mejorado that Macias'
complaint was really against Martinez because he had
turned against the Union in favor of the Company.5
Mejorado was told, however, that he should not be
"butting in." In the meantime Gonzalez had gone to his
pickup truck and picked up a beer bottle. Holding the
bottle by the neck, he slipped up behind Mejorado.
Mejorado saw Gonzalez with the bottle, however, and
turned to face him. There was a standoff. Eventually the
fracas ended, and the employees left, the two supervisors
leaving last. Martinez, undoubtedly aware that he was the
main object of the confrontation, was afraid and spent that
night and the following one away from his apartment.6
D. Other threats of violence: (1) Against the Chinese:
Eddie Cruz came up to Audiovox technician Joseph Chi-
Chiung Chiu, who speaks Mandarin Chinese but virtually
no English, several times before the election and told Chiu
to "vote union, vote union." Cruz, who does not speak
Chinese, was able to make it clear to Chiu nevertheless that
he must help "elect the labor union's representatives" or he
would be out of a job. According to Chiu, Eddie Cruz came
very close to him "and manifested his fist"' with a "fierce
look on his face." 7 Mr. Chiu said this frightened him,
adding that the fact that he "carried a knife with him, of
course, augmented my fear." 8
Joseph Chiu informed his wife, Shu-Li Chiu, about being
"told to vote union in a threatening manner." Mrs. Chiu,
who worked in the Audiovox repair section, became "quite
frightened" and "very fearful" of Eddie Cruz, especially
after he threw an open knife on her work table. It was a
brief moment, she said. Cruz told her to "vote union, vote
union," and "then he picked up the knife from the table
and he left." Mrs. Chiu, who, like her husband, does not
speak English, later told her younger brother, Hsiao Ling
I The appearance of Eddie Cruz, who almost always had a knife and
wore dark, one-way glasses, has been previously noted. The record indicates
Cruz would frequently pound his right fist into the palm of his left hand.
Another gesture he used was to draw his right hand across his throat. Joseph
Chiu said he took the letter to mean not "that he would kill me ... but ...
that I would be without ajob."
8 Edgar Villa, a union supporter called to testify for the Respondent, said
he saw Cruz talk to and use threatening gestures to Chinese workers. There
was testimony that the Chinese workers were also afraid of Villa, referring to
him as "Lao-Chien-Pao," meaning a wicked person. Chiu testified that Villa
also threatened him to vote for the Union.
430
AUDIOVOX WEST CORPORATION
Ho and his wife, Shih Nan Ho, who also worked at
Audiovox,9 about their fear and learned that they, too, had
received "similar threats." 10
On the day of the election, November 22, Eddie Cruz
stood in line to vote "talking to the Chinese" and
"pounding the side of his leg with his knife."
(2) Against Garcia (and Montoya): On Friday, November
26, 1976, the day after Thanksgiving and 4 days after the
election, Hector Garcia reported that he was "still afraid"
and that "I've got to tell somebody." Garcia explained that
he had voted for the Union because he had been told 4
days before the election by Eddie Cruz, in the presence of
Gonzalez and Cervantes, that "if I didn't vote for the union
I was going to get a knife in my belly." According to Palos,
"during that time ... it seemed to me like everybody was
scared." That same Friday evening, Palos went to Garcia's
home, accompanied by Audiovox Manager Wohlberg and
his secretary, Sherry Hellman, and obtained a notarized
statement (in Spanish) from Garcia concerning threats
made by Cruz on Garcia as well as on Ruben Montoya."
Garcia testified himself about the threats Cruz had made
on him and Montoya. Cruz' threat on Montoya came first.
Garcia testified that Cruz had learned that Montoya had
sought money from the Company through his supervisor,
Jose Palos.x2 Garcia testified as follows about an encounter
he observed between Cruz and Montoya:
Eddie told him that he was a two-faced; that he had
seen him talking on several occasions with Jose and
that if he affirmed this that he was going to knife him.
And Montoya just moved his head. He turned and left.
Cruz made a similar threat the next day against Garcia,
with whom he had once been friendly. Cruz first called
Garcia a "hypocrite." Cruz continued, according to Gar-
cia, as follows:
He then told me I was a two-faced; told me I was
taking information to the company, and he told me that
he had already told Montoya that the same thing that
had happened to him was going to happen to me; that
he was going to knife me ....
Garcia was angered at first but then said he "got scared" as
"I have two children and a wife." Garcia related the threats
and his fear to coworkers Arturo Leija Gomez and Elia
Navarro and then to Supervisor Palos.'3
9 At the time of the hearing Mrs. Ho was no longer working for the
Respondent.
10 The Hos, who did not testify, were apparently more concerned about
threats of Edgar Villa. Mrs. Shirley Fong, a bookkeeper for the Respondent,
testified that she learned of the threats to the Chius from the Hos. Mrs. Fong
said Joseph Chiu told her in December 1976, when she contacted him, that
"I was really unwilling to tell you about all this because I have a child and a
family and I was afraid."
Li Montoya, an unreliable witness, testified that he did not know of any
threats by Cruz. Gonzalez also testified unconvincingly that he did not
know of Cruz' threats.
12 Montoya had asked for a loan of $300 because his father, who had
lived in South America, had died. Palos spoke to Wohlberg about the loan,
but Wohlberg refused the loan on the basis "it might be considered an
unfair labor practice to do something for one particular employee and not
for others."
13 Gomez testified, in an unbelievable manner, that he was unaware of
any threats by Cruz.
Garcia's fear continued well after the election. Fellow
employees indicated to him that they thought he had voted
against the Union, possibly because he was "in charge of
taking the mail to the office." He moved his family from his
home temporarily and advised his wife "during those days
not to open the door to anyone." He testified that the
windows in the building "below and above my home were
shot at" during this period, although he had "no proof" as
to who was responsible for it.
Discussion
A. Objection to the Election
Under decisions of the Board, the election held on
November 22, 1976, must be set aside if there existed at
that time "a general atmosphere of. . . confusion and fear
of reprisal" for failing to vote for or against the Union.
Steak House Meat Company, Inc., 206 NLRB 28 (1973).'4
The burden is on the party who seeks to overturn the
election. Also, the objectionable acts are to be viewed
"cumulatively" and not "standing alone." Home Town
Foods, Inc. d/b/a Foremost Dairies of the South v. N.LR B.,
379 F.2d 241, 243 (C.A. 5, 1967). Further, it is not
necessary to attribute the objectionable acts to any party,
and the results of the election are not controlling. Central
Photocolor Company, Incorporated, 195 NLRB 839 (1972);
Diamond State Poultry Co., Inc., 107 NLRB 3 (1953). It is
sufficient if the threats are directed at only one employee.
Steak House Meat Co., supra.
It is clear in the case at bar that the election was held in
something less than "the laboratory conditions" specified
by the Board. Sonoco of Puerto Rico, Inc., 210 NLRB 493
(1974); Home Town Foods, Inc., supra. The "unfortunate
... few deaths" reference, if this had been the only
incident, would probably not have any significance. But
there were other incidents. When they are considered
together, the conclusion is inescapable that an atmosphere
of fear and reprisal did exist, and that it interfered with "a
free and untrammeled choice of representatives." Poinsett
Lumber and Manufacturing Company, 116 NLRB 1732
(1956). There was the Friday afternoon fracas on the
company parking lot just before the election. The message
was clear that day; an employee known to be against the
Union was subject to physical attack or a threat of one.
Having a supervisory's status afforded no protection,
especially if he had once been a union member. But the
aggravated conduct of Eddie Cruz, more than anything,
14 Quoting the Court in Electronic Conyponents Corporation of North
Carolina v. N.L R.B., 546 F.2d 1088 (C.A. 4, 1976):
The Board's test for whether an atmosphere of fear and coercion
exists is whether:
the election was held in a general atmosphere of
confusion, violence, and threats of violence, such as might
reasonably be expected to generate anxiety and fear of reprisal,
to render impossible a rational uncoerced expression of choice
as to bargaining representation. It is not material that fear and
disorder may have been created by individual employees or
non-employees and that their conduct cannot probatively be
attributed either to the Employer or to the Union. The
significant fact is that such conditions existed and that a free
election was thereby rendered impossible." AI Long, Inc., 173
NLRB 447, 448 (1968).
431
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operated to create an atmosphere of fear and coercion. His
threats alone, which were known to many working in the
Audiovox plant, were sufficient to invalidate the election.
Garcia, a credible witness, was afraid not to vote for the
Union. Both Joseph Chiu and his wife, Shu-Li Chiu, were
clearly intimidated by Cruz, who had used his knife and
menacing gestures in urging them to "vote union." The
Chius were also fearful of Villa as apparently were Mr. and
Mrs. Ho.'5
B. The Alleged Unfair Labor Practices
1. The discharge of Eddie Cruz
Audiovox Manager Wohlberg, whose testimony was
persuasive and therefore fully credited, testified that he
discharged Cruz "for making threats of physical harm to
Chinese and Mexican employees." The evidence of record
establishes that Cruz did intimidate his coworkers, and this
was the reason for his discharge. There is no probative
evidence that he was terminated because of union or other
concerted activity protected by the Act. Therefore, para-
graph 7 of the General Counsel's consolidated and amend-
ed complaint will be dismissed.
Contrary to the argument of the General Counsel,
N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21 (1964),
involving the discharge of two employees in the mistaken
belief that they had threatened to dynamite the employer's
property in connection with the solicitation of union
memberships, has no application to the instant matter. The
Court in that case held, in effect, that an employer would
be in violation of the Act if he were to discharge an
employee "for misconduct arising out of a protected
activity, despite the employer's good faith, when it is shown
that the misconduct never occurred." In the case at bar, the
discharged employee was in fact engaged in serious
misconduct, in no way protected by the Act (Gulf Container
Corporation, 161 NLRB 734 (1966)), and this was the sole
reason for his discharge.
The General Counsel attacks the credibility of Garcia,
who testified about Cruz' threats upon him. The evidence,
however, is convincing that Cruz did threaten Garcia as
well as others. The failure of Cruz and Montoya to fully
support Garcia's testimony is of no consequence. Both
Cruz and Montoya, who had lived together and were
normally close friends, were unreliable witnesses. Both
denied, unpersuasively, the fact that Cruz and Cervantes
had refused to speak to Montoya for a period while all
three lived together because Cruz and Cervantes thought
Montoya, who had solicited a loan from the Respondent,
was a "company man." Neither Cruz nor Montoya claimed
that he could even recall any threats by Cruz upon
15 I have no doubt that Montoya was also intimidated by Eddie Cruz,
even though he denied knowing of any threat by Cruz.
I disagree with the union counsel's assertion that the "instant proceeding
consists solely of mere gestures depicting unity or power to the people."
Garcia and both of the Chius, all credible witnesses, testified persuasively of
their fear. This is not a case involving "a number of 'heated statements'
which showed a clash of personalities," such as was involved in American
Wholesalers, Inc., 218 NLRB 292 (1975). Nor is the instant matter like Price
Brothers Company, 211 NLRB 822 (1974), involving an alleged threat
against an employee's life based on "hearsay testimony twice removed."
x' Cruz denied, unconvincingly, that he had ever had a knife when
talking with the Chinese or that he ever pounded a fist into the palm of his
Montoya. Both testified that they were unaware that Cruz
had ever brandished his knife or ever made any use of it
except to open a box on company business. Such testimony
of these two witnesses was not credible.' 6
Cervantes, a union supporter and friend of Cruz, called
by the General Counsel, was a credible witness on most
matters, but his testimony did not impeach Garcia, not-
withstanding his testimony to the effect that he was
unaware that Cruz had threatened to stab an employee
referred to as being "two-faced" or "hypocritical." The
testimony of Cervantes, with whom Cruz and Montoya
had lived for approximately 4 months, effectively discredit-
ed much of the testimony of Cruz and Montoya. Cervantes
testified convincingly as to how he and Cruz had "got
mad" at Montoya and refused to speak to him for about 2
weeks because he was "two-faced" and "a company man."
Montoya's and Cruz' claimed ignorance of such silent
treatment was not credible to me. Cervantes also gave the
lie to the denial by Cruz and Montoya that Cruz did not
exhibit his open knife or throw it into boxes or into trash.
Garcia's testimony was credible and required no corro-
boration.' 7 The supposed "lack of corroboration" by
certain other employees is not considered significant in
view of their testimony. Elias Navarro, a credible witness,
did corroborate Garcia's testimony to the effect that he was
afraid after being threatened by Cruz. Arturo Leija Gomez,
although present with Navarro at the time, testified
unpersuasively for the General Counsel that he did not
hear Garcia say he had been threatened. Macias, who was
fired by the Company along with Montoya, did testify that
he was unaware that Garcia (known to him only as Carlos
Briones) claimed he had been threatened, but then he was
not a credible witness. Macias also claimed to be unaware
that Cruz ever threw his knife or even talked to the
Chinese.
The General Counsel's suggestion that the record does
not support a basis for finding that Cruz in fact used
threats against the Chinese is surprising in view of the
convincing evidence that he did. I reject the General
Counsel's argument that suggests that the Chinese did not
really know who Eddie Cruz was or who was intimidating
them (which obviously also included Edgar Villa) to "vote
union."
The timing of Cruz' discharge does not point to an
unlawful motivation. The Respondent advised the Region-
al Office that Cruz was being kept on the payroll simply
because of the Regional Office's investigation. Under-
standably, the Respondent did discharge Cruz, and for
good reason, when the Regional Office made it clear that it
was the Respondent's decision to make, and there was no
reason to bring further action on him. The Respondent was
other hand in front of them. He even denied hearing that there had been
reports that he had threatened Garcia and Lthe Chinese. Such denials were
simply not credible. He did testify credibly that he shook his fist in front of a
Chinese with the exhortation. "Right On." One witness testified that Cruz
had threatened "sooner or later ... to get Jose Palos." Montoya, who was
discharged because he was thought to have been stealing and was obviously
hostile to the Company, was capable of threats himself. Two or three days
after he had been terminated he threatened to get a gun and "shoot Jose
Palos and Martinez because ... Martinez was two faced."
T Tlhe General Counsel contends that Garcia departed from his sworn
affidavit when testifying, but there was no significant deviation that reflects
on his credibility.
432
AUDIOVOX WEST CORPORATION
not required to make any further investigation of Cruz'
misconduct or issue any warning to him. Serious miscon-
duct on Cruz' part had occurred, and the Respondent was
fully justified in terminating him for that reason.
2. The alleged unlawful statements
Paragraphs 8-11 of the amended and consolidated
complaint alleges that the Respondent violated Section
8(a)(1) of the Act through interrogation of employees about
their union activities and sympathies, by promising benefits
to discourage their support for the Union, and by making
threats of discharges, layoffs, bribery, and a more restric-
tive job transfer policy to discourage support of the Union.
These acts were attributed to General Manager James
Wohlberg, Production Manager David Etheridge, and
Warehouse Manager Jose Palos.
It is to be noted that an employer seeking to inform his
employees of the unfavorable effect of unionization must
be careful not to convey an atmosphere of fear by
suggesting that the selection of the Union may be futile. As
the Supreme Court said in N.LR.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575 (1964):
As stated elsewhere, an employer is free only to tell
"what he reasonably believes will be the likely econom-
ic consequences of unionization that are outside his
control," and not "threats of economic reprisal to be
taken solely on his own volition." [N.LR.B. v. River
Togs, Inc., 382 F.2d 198, 202 (C.A. 2, 1967).]
But an employer's messages of this kind are to be evaluated
in their "total context" and not in isolation. See Arch
Beverage Corporation, 140 NLRB 1385 (1963). Interference
with employee's protected rights can, of course, be "accom-
plished through allurement rather than coercion," (Western
Cartridge Company v. N.LR.B., 138 F.2d 240 (1943)), so
the grant of a benefit or promise of one during an election
campaign may be unlawful if calculated to influence
employees to withdraw their support of a union. Further,
interrogation by an employer is unlawful when it is
coercive in the light of the surrounding circumstances-
considering "the time, place, personnel involved, informa-
tion sought, and the employer's known preference."
Struksnes Construction Co., Inc., 165 NLRB 1062 (1967).
See also Blue Flash Express, Inc., 109 NLRB 591 (1954).
Looking at the record in the light of controlling cases, it
is apparent that neither James Wohlberg nor David
Etheridge made any unlawful statements to the Respon-
dent's employees. The allegations of paragraphs 8, 9, and
I will therefore be dismissed.
Shortly after the election, Wohlberg met with Garcia
after the latter had reported to Jose Palos, his supervisor,
that he had been threatened by Eddie Cruz. Garcia agreed
"s Par. 9 of the amended complaint alleges that Palos participated with
Wohlberg in an unlawful interrogation in an employer's home, but the
record does not show that the questioning of Garcia by anyone was in any
way coercive or illegal.
's Felipe Gonzalez testified that he heard Palos say that some employees
would be let go "whether the union got in or didn't."
20 There is no evidence that Palos promised an increase in hours or
threatened a more restrictive job transfer policy in order to frustrate
unionization of the Audiovox plant. The allegations of par. I 0(c) is repetitive
to the questioning voluntarily, it being clear that Garcia
knew that he was free to speak or not without fear of any
reprisal. The contact was brief, noncoercive, and limited to
the subject of the Respondent's objections to the election, a
matter the Respondent had a right to investigate. See
Paymaster Oil Mill Co., a Division of Anderson, Clayton &
Co., Inc., 181 NLRB 396 (1970), and cases cited therein.
Wohlberg also met with Tavarez after the latter ap-
proached his supervisor, Jose Palos, about the accuracy of
certain Audiovox documents (salesmen's earnings) disse-
minated at the Union's bowling alley meeting. Tavarez
spoke "no more than five or 10 minutes" about the incident
in a voluntary manner to Wohlberg, who of course had the
right to investigate this matter as well. Paymaster Mill Co.,
supra.18 Shortly thereafter Wohlberg addressed the Re-
spondent's employees at a gathering in an effort to correct
what he considered to be misrepresentations about the
Company. His comments were in no way illegal.
David Etheridge asked Eddie Cruz, with whom he had
been friendly, at the conclusion of Wohlberg's remarks if
he had any questions. Cruz replied that he had none to ask.
Etheridge's question was in no way coercive or unlawful.
Cruz himself characterized the statement as "just a ques-
tion" and not an "interrogation."
According to Margarita Cruz, Jose Palos, her supervisor
while working at Audiovox, told her and her assistant that
the "company can buy off the union and still fire who they
want." Palos denied saying the Company would bribe the
Union if it became the employees' bargaining representa-
tive but conceded that he gave Miss Cruz and others an
article which obviously carried the message that the
Teamsters had been, or could be, compromised by employ-
ers. Miss Cruz appeared unfriendly toward the Company,
whose employ she had left prior to the hearing, but her
testimony was credible. The distinction Palos sought to
make was too subtle. It seems clear that Palos sought to
convey a message that the Union would not fairly represent
Audiovox employees if selected to be their bargaining
agent. Such representation by Palos operated to discourage
support of the Union and was unlawful. Also, Palos did not
deny promising to help Miss Cruz get a raise if she were to
vote against the Union as she had claimed in her testimo-
ny. Nor did Palos deny her statement that he told her that
there would be layoffs "if the union came in." 19 Finally, it
was not disputed that Palos asked Miss Cruz what she
knew about the Union and whether she represented it.
Thus, the allegations of subparagraphs (a), (b)-to the
extent it alleges a threat of layoffs--10(d), and 10(f) of
paragraph 10 of the amended and consolidated complaint
were sustained by the evidence.
The other allegations of paragraph 10 must be dis-
missed.20 It is true that Palos did not dispute employee
testimony to the effect that he had inquired about union
of 10(b) and merged with the similar allegation contained in 10(b). Par.
10(e), to the extent it refers to a promise of promotions, is repetitive of lO(a)
and, therefore, merged with the latter. Pars. 10(i) and 10(j) are also similar
and repetitive of 10(a). Par. 10(i) apparently challenges the loan Montoya
sought from the Company when his father died. The loan was not promised,
according to the credible testimony of Palos, and was in fact refused. The
charges contained in subpars. (b), to the extent it refers to a threat of a more
restrictive job transfer policy, (c), (e), (g), (h), (i), and (j) will therefore be
dismissed. Notwithstanding the dismissal of the allegations contained in
(Continued)
433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sympathies of certain employees (including Mejorado,
Arturo Leija Gomez, and Montoya) while meeting with
them socially at Mejorado's house or on the way there and
of certain other employees (including Cervantes, Villa,
Macias, Gonzalez, and Modesto Palos) on another social
occasion in his own home. But, as has been noted, Palos'
questioning must be evaluated in light of all the surround-
ing circumstances. His comments were made while socializ-
ing with friends and relatives, 21 away from the Audiovox
plant. It is clear that Palos, who had said himself that "this
company needs ... a union," was not seeking to find out
who was for the Union so he could inform the Company
with respect to the organizing activity. It is apparent that
the employees did not regard his questioning as coercive
and, although ill-advised, it was not illegal. According to
Cervantes, a credible witness, Palos "tried to help us, you
know," adding that he did not say "like he fire somebody,
or nothing like that." Gonzalez testified that after telling
Palos that he was "for the union," Palos replied: "All right,
each one does whatever is convenient for himself." The
questioning did not occur in a background involving an
employer hostile to any unionization. But the most signifi-
cant thing about Palos' questioning, apparently initiatcd
entirely on his own, was that his position in the manage-
ment hierarchy of Audiovox was such that his questions
always remained essentially innocuous. 22
Based on the foregoing, and the entire record, I make the
following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By threatening layoffs if the Union were selected as
the collective-bargaining representative for its employees,
by representing that the Union could be bribed or bought
off, by interrogating with respect to employee's union
sympathies and activities, and by promising assistance in
obtaining a pay increase or promotion for an employee for
voting against the Union, the Respondent deprived em-
ployees of their statutory rights in violation of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent did not engage in other conduct
violative of the Act as alleged.
said subpars. (c), (e)--to to the extent it refers to a promise of promotions-
(h), (i), and (j), my recommended Order will include prohibitions which will
effectively cover the challenged practices because of my findings with
respect to subpars. (a), (b), and (f) of par. 10.
ii Gonzalez is a brother-in-law of Palos, and Macias is his first cousin.
Gonzalez testified that he was once asked in his own home by Palos about
the Union and told that those "with the company . . . would progress."
Macias said Palos had indicated that the Union was "no good." But both
Gonzalez and Macias felt free to express themselves in discussing the issue.
Only Montoya, an unpersuasive witness, claimed that he told Palos that he
was "for the company, because I didn't want to lose their friendship."
Gomez, another unpersuasive witness, claimed Palos said he "could give us
bonuses" and inquired "who had started the whole union things." But, as
has been noted, my recommended Order will effectively prohibit interroga-
tion of employees because of my finding with respect to par. 10(f).
THE REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain action
designed to effectuate the policies of the Act.
The Objection in Case 21-RC-14800
It was established that threats of violence and force
interfered with the employees' free choice in the election
held on November 22, 1976. I therefore recommend that
Objection 2 be sustained, and that a second election be
directed.
Upon the foregoing findings of fact, and conclusions of
law, and upon the entire record and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 23
The Respondent, Audiovox West Corporation, Los
Angeles, California, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union membership and activities.
(b) Threatening its employees with layoffs or other
reprisals should they join, support, or otherwise engage in
activities on behalf of Miscellaneous Warehousemen,
Drivers and Helpers, Local 986, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization.
(c) Representing that it will bribe or buy off the above-
named Union, or any other labor organization, for the
purpose of defeating or undermining such organization.
(d) Promising or offering wage increases, promotions, or
other benefits should they refrain from joining, supporting,
or otherwise engaging in activities on behalf of the above-
named Union or any other labor organization.
(e) In any like or related manner interfering with,
restraining, or coercing 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 purposes and policies of the
Act:
(a) Post at its Cerritos, California, plant copies of the
attached notice marked "Appendix." 24 Copies of said
notice, on forms provided by the Regional Director for
Region 21, after being duly signed by the Company's
22 Compare Florida Steel Corporation, 224 NLRB 45 (1976), involving
unlawful interrogation by a "close friend" who "was a member of
management who had considerable influence over. . .employment status."
See also Quernetco, Inc., 223 NLRB 470 (1976), where a shipping manager
interrogated an employee over a "friendly" beer but threatened him with the
possible loss of his job.
2s 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.
24 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
434
AUDIOVOX WEST CORPORATION
authorized representative, shall be posted by it 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 the Company to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of unlawful
conduct not specifically found herein to be violative of the
Act be dismissed.
IT IS ALSO ORDERED that, in Case 21-RC-14800, Objec-
tion 2 be sustained, and that the election be set aside and
the case be remanded to the Regional Director for Region
21 for the purpose of conducting a new election at such
time that he deems the circumstances permit a free choice
of a bargaining representative.
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 coercively interrogate employees con-
cerning their union membership or activities.
WE WILL NOT threaten our employees with layoffs or
otherwise threaten them with reprisals if they join,
support, or otherwise engage in activities on behalf of
Miscellaneous Warehousemen, Drivers and Helpers,
Local 986, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization.
WE WILL NOT represent that we will bribe or buy off
the above-named Union, or any other labor organiza-
tion, for the purpose of defeating or undermining a
labor organization.
WE WILL NOT promise or offer our employees wage
increases, promotions, or other benefits should they
refrain from joining or supporting the above-named
Union, or any other labor organization.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights
guaranteed them in Section 7 of the National Labor
Relations Act.
AUDIovox WEST
CORPORATION
435