B-P Custom Building Products

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1337 (N.L.R.B. 1980)

B-P CUSTOM BUILDING PRODUCTS 1 7
B-P Custom Building Products, Inc.; and Thomas R.
Peck Mfg.' and Paint Makers and Allied
Trades, Local Union No. 1232, International
Brotherhood of Painters and Allied Trades,
AFL-CIO; and Steel, Paper House, Chemical
Drivers & Helpers, Local No. 578, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America.2 Cases 21-
CA-16865 and 21-RC-15539
August 27, 1980
DECISION, ORDER, AND DIRECTION
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On December 20, 1979, Administrative Law
Judge George Christensen issued the attached De-
cision in this proceeding. Thereafter, Respondents
filed exceptions and a supporting brief, 3 the Gener-
al Counsel filed limited exceptions, and the General
Counsel and the Unions filed briefs in opposition to
Respondents' exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,4 and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
1. Respondents have excepted to the Administra-
tive Law Judge's finding that they are joint em-
ployers. They assert that their joint employer status
was neither alleged in the complaint nor fully liti-
' Herein individually referred to as Respondent B-P and Respondent
Peck. respectively. and collectively referred to as Respondents
2 Herein individually referred to as Paint Makers and Teamsters, re
spectively, and collectively referred to as the Unions or Joint Petitioners
' Respondents' request for oral argument is hereby denied as, in our
opinion, the record in this case, including the exceptions and the briefs.
adequately presents the issues and the positions of the parties
4 Respondents assert that the Administrative Lays Judge's resolutions
of credibility. findings of fact, and conclusions of law are the result of
bias After a careful examination of the entire record, we are satisfied that
this allegation is without merit. There is no basis for finding that bias and
partiality existed merely because the Administrative Law Judge resolved
important factual conflicts in favor of the General Counsel's witnesses
As the Supreme Court stated in N.L.R B. v Pirttsburgh Steamship Compa-
ny. 337 U.S. 656, 659 (1949). [T]otal rejection of an opposed view
cannot of itself impugn the integrity or competence of the trier of fact "
Furthermore, it is the Board's established policy not to overrule an ad-
ministratise law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc.., 91 NLRB 544
(1950). enfd 188 F 2d 362 (3d Cir 1951) We find no basis for reversing
his credibility findings.
In adopting the Administrative Law Judge's conclusion that Respond-
ents violated Sec 8(a)(1) by granting a general wage increase on the day
of the election, we do not rely on his statement that when Respondent
Peck's president. Tom Peck Sr. passed out paychecks to Peck emplo -
ees, he directed their attention to the pay increase shown thereon A
careful review of the record reveals no testimony that Peck. Sr, referred
to the increase in any way
251 NLRB No. 179
gated at the hearing, and that the Administrative
Law Judge's finding is thus contrary to the plead-
ings, evidence, and positions of the parties.
We find merit in Respondents' exception. The
General Counsel did not allege that Respondents
were joint employers in the complaint, and the
Stipulation for Certification Upon Consent Election
lists Respondents as separate employers. Further-
more, the issue was not fully litigated. Although
counsel for the General Counsel elicited testimony
which would go to a joint employer finding, e.g.,
common operations, common supervision, and
common facilities, he explained, after objection by
counsel for Respondents on relevancy grounds.
that the evidence was submitted to show only that
the two companies were so closely intertwined that
a violation of Section 8(a)(1) by one of Respond-
ents would be communicated to the employees of
the other. Based on this explanation, counsel for
Respondents withdrew his objection. Counsel for
the General Counsel states in his brief to the Board
that the joint employer issue is irrelevant to the
General Counsel's case.
We therefore do not adopt the findings of the
Administrative Law Judge that Respondents are
joint employers or that each is responsible for the
unfair labor practices committed by the other.
2. The Administrative Law Judge found that
Terry Hoss of Respondent Peck was a supervisor
within the meaning of the Act and therefore sus-
tained the Union's challenge to his ballot and the
objection to his status as Respondents' observer at
the election. He further found that Respondents
were responsible for his coercive statements and
promises of benefits prior to the July 7, 1978,5
election. While we agree with the Administrative
Law Judge that Hoss' statements are attributable to
Respondent Peck (but not to Respondent B-P in
light of our finding on the joint employer issue)
and that his functioning as Respondents' observer
constituted objectionable conduct, we so find on
the ground that Hoss was an agent of Respondent
Peck and not a supervisor. We shall therefore over-
rule the challenge to his ballot.
At the time of the election, Hoss maintained the
inventory for Respondent Peck and scheduled pro-
duction of particular types of tile mortar and grout
based on his inventory checks. This schedule was
written on a blackboard in the work area, and em-
ployees performed their usual tasks depending on
which product was ordered. Although Hoss sched-
uled shift changes, vacations, and overtime, and au-
thorized sick leave, he did so on a routine basis.
HIoss has never hired, fired, laid off, disciplined, or
s ll dltcs Ihtreil are in Iq 78 IIell C , I IIlC S II ulAl C ld
t1 3 I)31'CISI()NS ()F NAT IONAL LABOR RELATIONS BO()ARD
transferred any employees, and there is no indica-
tion in the record that he had the authority to do
So.
We find that Hoss possessed none of the indicia
of supervisory status set forth in Section 2(11) of
the Act. Although Hoss' duties indicated that he
had more responsibility than many of the employ-
ees, these activities are essentially of a routine
nature reflecting his status as an individual of great-
er skill and experience and do not establish supervi-
sory authority. Maremont Corporation, 239 NLRB
240 (1978). We therefore overrule the challenge to
his ballot, and shall order that it be opened and
counted. ;
However, as stated above, we do hold Respond-
ent Peck responsible for Hoss' coercive statements
and promises of benefits and find that his appoint-
ment as Respondents' observer at the election con-
stituted objectionable conduct sufficient to set aside
the election. 7 We so find because Hoss' enhanced
responsibilities, even though they do not rise to the
level of supervisory, are such that he would be
considered by the employees as an agent of Re-
spondent Peck.
The record reveals that Hoss attended manage-
ment meetings and was referred to by Peck man-
agement personnel as a "supervisor." He also spoke
at two meetings of employees, one at which man-
agement personnel were present, and one which he
handled alone. Thus, although Hoss had none of
the authority vested in supervisory personnel, he
relayed information from management to employ-
ees and had been placed by management in a stra-
tegic position where employees could reasonably
believe he spoke on its behalf. Samuel Liefir and
Harry Ostreicher, a copartnership, d/b/a River
Manor Health Related Facility, 224 NLRB 227, 235
(1976), enfd. 559 F.2d 1204 (2d Cir. 1977). Any
threats, promises of benefit, or other coercive ac-
tivity by Hoss is therefore imputable to Respondent
Peck, and it was improper for him to function as
Respondents' election observer in light of his status
as Respondent Peck's agent."
AMENDED REMEDY
Having found that Respondents engaged in
unfair labor practices and other conduct affecting
i We agree ilh the Administrative Lasw Judge that Richard Velo is
nlt a supervisor. and shall order his ballot opened and counted In the
absence of neceptions thereto, we adopt, pro fbrma. the Adminisiratise
I.as, Judge's recommendation that the challenges to the ballots o Ronald
(iolr. Rose Hogan, Margie Lesvis, Edward Olney, and D)avid Pearce
he overruled We shall also order that their ballots be opened and count-
ed
Sec the section below entitled "Amenrlded Remedy."
M I1 has long been ard policy that observers fir an employer may
.tot he person "clscl identified ith anr employer" Watkins Brica
Comnpov. 1()7 NI.RB 5(X)) 153).
the results of the election, the Administrative Law
Judge recommended that they be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the
Act. Based on his finding that Respondents were
joint employers, he recommended that one Order
be issued for both companies. Because we do not
adopt his finding of joint employer status, we shall
issue separate cease-and-desist orders, and order
that each Respondent post its own notice. In view
of the serious and egregious nature of the viola-
tions found herein, we shall issue a broad order to
remedy the effects thereof. 9
The Administrative Law Judge also recommend-
ed that the election be set aside and that a bargain-
ing order be issued, directing Respondents to rec-
ognize the Unions as joint representatives and bar-
gain with them concerning the rates of pay, wages,
hours, and working conditions of their employees
within the unit. We agree that the election should
be set aside in the event that the Joint Petitioners
did not receive a majority of the valid votes cast,
and that Respondents' unfair labor practices would
be best remedied by the granting of a bargaining
order. However, for the reasons set forth below,
we shall issue a bargaining order in favor of the
Paint Makers alone, should the election be set
aside.
The record reveals that Respondents began a se-
rious antiunion campaign immediately after the
Union began their organizational drive. Respond-
ents' tactics included large employee meetings at
which management officials warned the employees
that they would lose many of their benefits if the
Unions were voted in, particularly their profit-shar-
ing plan. The employees were also told that Re-
spondents would never sign a contract with the
Unions, and would fire any employee who went on
strike in support of a contract. These threats were
reiterated in several private conversations between
management personnel and employees.
Along with the threats outlined above, Respond-
ents presented a rosy picture of new benefits em-
ployees would receive should they reject the
Unions. These promises were given great impact
by Respondents' action in granting a wage increase
just before the election; the raise tactic was particu-
larly effective because the first paychecks reflect-
ing the increase were handed out by Respondent
Peck's president on the morning of the election.
Such activity was designed to dissipate union
support, and we find that it made the holding of a
fair election an unlikely possibility.'0 Respondents
Cf Hicknro lFodds, Inc. 242 NLRH 1357 (1979)
"' Cf Broadmoor I.unber Company. 227 NI.RH 1123 (1977), enfd 578
F 2d 238 (9t1h Cir 1978)
B-P CUSTOM BHUIII)ING PRODUC IS 133I3
engaged in threats of discharge, of loss of benefits,
and of futility of supporting the Unions' campaign
while at the same time graphically demonstrating
via the wage increase and other promises how the
employees would be rewarded if they abandoned
the Unions. The Supreme Court has recognized
that employees are quick to perceive "the sugges-
tion of a fist inside the velvet glove" when such
benefits are bestowed during an election cam-
paign." This type of conduct renders slight the
possibility of erasing its effects and ensuring a fair
election by the use of traditional remedies. We
therefore conclude that, should the revised tally of
ballots result in a defeat for the Joint Petitioners,
employee sentiment once expressed through au-
thorization cards would be better protected by a
bargaining order.
However, we will not order Respondents to bar-
gain with both Unions if the Joint Petitioners did
not receive a majority of the votes cast in the elec-
tion. The authorization cards submitted into evi-
dence do not support such an order. The record re-
veals that the Unions, the Paint Makers and the
Teamsters, undertook an organizational campaign
in April. The Paint Makers handled all of the
direct dealings with the employees. The Paint
Makers business manager conducted an employee
meeting on April 30, and obtained 12 signed au-
thorization cards in favor of the Paint Makers.
Eight other cards, also designating the Paint
Makers, were obtained by Richard Velo, the em-
ployee most active in organizing, between April 30
and May 3. Only Velo signed a Teamsters card.
The Unions petitioned for joint representation on
May 8, supporting their petition with the 21 cards
for a unit of 37 employees.
The Administrative Law Judge recommended a
bargaining order in favor of the Joint Petitioners
based on this card majority. He found that all 21
cards were validly executed,12 and indicated a ma-
jority showing which met the requirements of
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969). We do not agree that a bargaining order
can issue under these circumstances, in favor of the
Joint Petitioners.
There is no evidence in the record that the em-
ployees who executed the Paint Makers cards were
ever informed that the signing of these cards would
constitute authorization for both the Paint Makers
and the Teamsters to act as joint representatives.
The meeting at which most of the employees
signed cards was conducted by representatives of
I N L R B I xhange Parts Co., 376 S 405. 409 (194) See also
roi.er Entrprivci ln, dbl a li.w r Records. 182 NI.RH 382 (1970)), enfd
79 LRRM 2736. 7 LC 12,451 (9th Cir 172)
12 We agree with the Administratle La. . Judge's findings as to the
'alidi; 5 of he ;IuIhoriltil .rls
the Paint Makers and the authorization cards in
evidence unambiguously designate the Paint
Makers as representative without mention of the
Teamsters. Only Richard Velo, the employee re-
sponsible for most of the organizing, gave any indi-
cation of awareness of the joint representation cam-
paign.
In The National Heating Company, 167 NLRB
534, 540 (1967), the Board adopted the decision of
the Administrative Law Judge who found that a
remedial bargaining order cannot issue in favor of
joint petitioners based on authorization cards ex-
ecuted only in favor of either one or the other of
the two unions where there was "no evidence
whatsoever to indicate that the employees were
ever told that the signing of a card for either
Union would also be considered as authorization
for both Unions to act as the joint collective-bar-
gaining agent." The case cited with approval Leroy
Stovesand Motor Company, 127 NLRB 19, 25
(1960), in which the Board adopted an Administra-
tive Law Judge's Decision which stated:
It is elementary Board policy that when two
labor organizations claim to be the bargaining
representatives of the employees in an appro-
priate unit, there must be clear proof that a
majority of the employees in the unit designat-
ed both unions to represent them on a joint
basis. Respondent's employees were never
given this opportunity and protection. It
would be a philosophical non sequitur to con-
tend that they had a knowledgeable choice
when all signed up for one union.
We agree with Respondents that the rule of Na-
tional Heating should apply here,' 3 and therefore
find that a remedial bargaining order cannot issue
in favor of joint petitioners unless there is proof
that a majority of unit employees designated both
unions to represent them on a joint basis. Here, as
stated above, the faces of the cards before us do
not satisfy that standard and there is no evidence
that the employees were told when they signed
11 Counsel for the General Counsel argues that the National Heating
decision was superseded by the Board', decision in Granero-Datun. a
Granerto Company. 203 NL.RB 550 (1973) In that case, the Teamsters and
the Machinists sought to represent two different units ithin in aLuo
motise service department Each union obhtilnd a card malt iIt aong
the employees in the tro separate units, hut the emploces from holh
units later complied with a joint request fromli the tor unionms that Ihes
engage in a recognitional strike The Admlisiratis Lau Judge recom-
mended bargaining orders in fasor iof the itwo ulilos in separate ullnts
Ihe Board agreed that a bargaining order should issue. but was ulls lilig
to fragneitl an automotise serxice depaileniel Irlto ir.o units. It thercollre
ordered the respondent to bargain with hoth ilons as joint repreCsenla-
tlses of a unit composed (If the entire aillmtihti s e sersice department Bie-
cause (if the importance of the hBoards linIt deternillnation and the cxI
-
dence o(f employee support of both uiolns In hat cLIse. Uc Find he ca ise
distingilihahle on its facts
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them that representation was being sought on a
joint basis.14 Indeed, with the sole exception of
Velo, there is no evidence that the employees
knew of the joint campaign until the notices of
election were posted. "[A]lthough an inference
may be drawn that a majority of the employees
were influenced to vote against the Unions because
of [the employer's] unfair labor practices, the infer-
ence is equally warranted that the employees so
voted because they did not desire joint representa-
tion."'5 Therefore, we shall not issue a bargaining
order in favor of the Joint Petitioners.
Accordingly, we shall order that the ballots of
Ronald Golyer, Rose Hogan, Terry Hoss, Margie
Lewis, Edward Olney, David Pearce, and Richard
Velo be opened and counted, and that a revised
tally of ballots issue. If the revised tally shows that
the Joint Petitioners have not obtained a majority,
we shall order Respondents to bargain with the
Paint Makers. We shall make the bargaining order
effective May 3, 1978, the date on which the Paint
Makers acquired authorization cards from a major-
ity of employees in the unit,' 6 and Respondents
embarked on their course of unlawful conduct.1 7
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that:
A. Respondent B-P Custom Building Products,
Inc., Bell, California, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their
and other employees' activities on behalf of Paint
Makers and Allied Trades Local Union No. 1232,
International Brotherhood of Painters and Allied
Trades, AFL-CIO, and Steel, Paper House,
Chemical Drivers & Helpers, Local No. 578, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America.
(b) Threatening its employees with economic
losses and/or benefit withdrawals for supporting
the above labor organizations.
(c) Promising its employees economic benefits
and/or improvements to undermine their support
of the above labor organizations.
'4 Compare Bola Drainage, Inc.. 242 NLRB 728 (1979). wherein the
Hoard applied the N,ational Ifeating rule and held that cards were "effec-
tive fr authorizing joint representation. even though the cards do not
expressly so state," hecause. unlike the situation here, the employees
clearly understood that dual representation was being sought when they
signed the cards
Is National Ileating Co.. 167 N I.R at
54 0
.
" As indicated above, the Paint Makers obtained a valid card majority
of 2( employees out of a unit of 37 employees.
Bi7 caly Energy. Inc.. d/h a Pealcr Run C(al Company, Ohio Division
#1, 228 NlRB 913 (1977)
(d) Threatening its employees that their support
of the above labor organizations was futile since it
never would sign a contract with those organiza-
tions and would terminate any employees who
struck for a contract.
(e) Timing the receipt of a substantial wage in-
crease for the morning of an NLRB-conducted
election to undermine employee support of the
above labor organizations in the election.
(f) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
right to self-organization, to form, join, or assist
unions, to bargain collectively through representa-
tives of their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
2. Take the following action designed to effectu-
ate the purposes of the Act:
(a) If the Regional Director's revised tally of bal-
lots reveals that the Joint Petitioners did not re-
ceive a majority of the votes cast in the July 7,
1978, election, recognize, effective from the date
beginning May 3, 1978, and, upon request, bargain
collectively and in good faith with the Paint
Makers and Allied Trades Local Union No. 1232,
International Brotherhood of Painters and Allied
Trades, AFL-CIO, as the exclusive representative
of all the employees in the appropriate unit, with
respect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an un-
derstanding is reached, embody such understanding
in a signed agreement. The appropriate bargaining
unit is:
All production and maintenance employees,
shipping, receiving and warehouse employees,
truckdrivers and laboratory helpers employed
by the Employers at their facilities located at
6511 and 6505 Salt Lake Avenue, Bell, Califor-
nia; excluding all technical, chemist, profes-
sional employees, office and plant clerical em-
ployees, guards and supervisors as defined in
the Act, as amended.
(b) If the Regional Director certifies that the
Joint Petitioners received a majority of the valid
votes cast in the July 7, 1978, election, post at its
place of business at Bell, California, copies of the
attached notice marked "Appendix A." If the Re-
gional Director's revised tally of ballots reveals
that the Joint Petitioners did not receive a majority
of the valid votes cast in the July 7, 1978, election,
post at its place of business at Bell, California,
copies of the attached notice marked "Appendix
B-P CUSTOM BUILDING PRODUI)CIS 1I41
B."' s Copies of the appropriate notice, on forms
provided by the Regional Director for Region 21,
shall be signed by Respondent's authorized repre-
sentative and posted immediately upon their receipt
and maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure the notices are not altered, defaced, or
covered by other material.
(c) Notify the Regional Director for Region 21,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
B. Respondent Thomas R. Peck Mfg., Bell, Cali-
fornia, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Interrogating its employees concerning their
and other employees' activities on behalf of Paint
Makers and Allied Trades Local Union No. 1232,
International Brotherhood of Painters and Allied
Trades, AFL-CIO, and Steel, Paper House,
Chemical Drivers & Helpers, Local No. 578, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America.
(b) Giving its employees the impression they are
maintaining a surveillance of its employees' activi-
ties on behalf of the above labor organization.
(c) Threatening its employees with economic
losses and/or benefit withdrawals for supporting
the above labor organizations.
(d) Promising its employees economic benefits
and/or improvements and resolution of their com-
plaints or grievances to undermine their support of
the above labor organizations.
(e) Threatening its employees that their support
of the above labor organizations was futile since it
never would sign a contract with those organiza-
tions and would terminate any employee who
struck for a contract.
(f) Timing the receipt of a substantial wage in-
crease for the morning of an NLRB-conducted
election to undermine employee support of the
above labor organizations in the election.
(g) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their right to self-organization, to form, join, or
assist unions, to bargain collectively through repre-
sentatives of their own choosing, and to engage in
other concerted activities for the purpose of collec-
'" In the event that this Order i enforced hby a Judgment of a United
Stlates Court of Appeals. the words n the notice reading Posted by
Order of the National Labor Relations Board" shall read "Posled Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
tive bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following action designed to effectu-
ate the purposes of the Act:
(a) If the Regional Director's revised tally of bal-
lots reveals that the Joint Petitioners did not re-
ceive a majority of the votes cast in the July 7,
1978, election, recognize, effective from the date
beginning May 3, 1978, and, upon request, bargain
collectively and in good faith with the Paint
Makers and Allied Trades Local Union No. 1232.
International Brotherhood of Painters and Allied
Trades, AFL-CIO, as the exclusive representative
of all the employees in the appropriate unit, with
respect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an un-
derstanding is reached, embody such understanding
in a signed agreement. The appropriate bargaining
unit is:
All production and maintenance employees,
shipping, receiving and warehouse employees,
truckdrivers and laboratory helpers employed
by the Employers at their facilities located at
6511 and 6505 Salt Lake Avenue, Bell, Califor-
nia; excluding all technical, chemist, profes-
sional employees, office and plant clerical em-
ployees, guards and supervisors as defined in
the Act, as amended.
(b) If the Regional Director certifies that the
Joint Petitioners received a majority of the valid
votes cast in the July 7, 1978, election, post at its
place of business at Bell, California, copies of the
attached notice marked "Appendix C." If the Re-
gional Director's revised tally of ballots reveals
that the Joint Petitioners did not receive a majority
of the valid votes cast in the July 7, 1978, election,
post at its place of business at Bell, California,
copies of the attached notice marked "Appendix
D.1"9 Copies of the appropriate notice, on forms
provided by the Regional Director for Region 21,
shall be signed by Respondent's authorized repre-
sentative and posted immediately upon their receipt
and maintained for 60 consecutive days thereafter,
in conspicuous places, including all places w ,here
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure the notices are not altered, defaced, or cov-
ered by other material.
(c) Notify the Regional Director for Region 21,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
Seet' fn 18, upra
1342 DECISIONS OF NATIONAL LABOR REI.AIONS H()ARD
DIRECTION
It is hereby directed that the Regional Director
for Region 21, pursuant to the Rules and Regula-
tions of the National Labor Relations Board, Series
8, as amended, shall open and count the seven chal-
lenged ballots of Ronald Golyer, Rose Hogan,
Terry Hoss, Margie Lewis, Edward Olney, David
Pearce, and Richard Velo, and prepare and cause
to be served on the parties a revised tally of bal-
lots, including therein the count of said ballots. If,
according to the revised tally of ballots, the Joint
Petitioners have received a majority of the valid
votes cast in the election, the Regional Director is
directed to certify Paint Makers and Allied Trades
Local Union No. 1232, International Brotherhood
of Painters and Allied Trades, AFL-CIO, and
Steel, Paper House, Chemical Drivers & Helpers,
Local No. 578, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the joint exclusive bargaining agent
for the employees in the appropriate unit.
In the event that the revised tally of ballots
shows that the Joint Petitioners have not received
a majority of the valid ballots cast, the Regional
Director shall set aside the election results, dismiss
the petition, and vacate the proceedings.
APPENDIX A
NOTICE To EMP'LOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT interrogate you concerning
your and other employees' activities on behalf
of Paint Makers and Allied Trades Local
Union No. 1232, International Brotherhood of
Painters and Allied Trades, AFL-CIO, and/or
Steel, Paper House, Chemical Drivers & Help-
ers, Local No. 578, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America.
WE WILL NOT threaten you with economic
losses and/or benefit withdrawals for support-
ing the above labor organizations.3WE WILL
NOT promise you economic benefits and/or im-
provements to undermine your support of the
above labor organizations.
WE WILL NOT threaten you with the futility
of your support of the above labor organiza-
tions by telling you we will never sign a con-
tract with the above labor organizations and
will terminate any of you who strike to secure
such a contract.
WE WILL NOT time your receipt of a sub-
stantial wage increase to undermine your sup-
port of te above labor organizations.
WE WII.L. NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your right to self-organization, to form, join,
or assist unions, to bargain collectively
through representatives of your own choosing,
and to engage in other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection, or to refrain from
any and all such activities.
B-P CUSTOM BUII.DING PRODUCTS,
INC.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT interrogate you concerning
your and other employees' activities on behalf
of Paint Makers and Allied Trades Local
Union No. 1232, International Brotherhood of
Painters and Allied Trades, AFL-CIO, and/or
Steel, Paper House, Chemical Drivers & Help-
ers, Local No. 578, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America.
WE WILL NOT threaten you with economic
losses and/or benefit withdrawals for support-
ing the above labor organizations.
WE WILL NOT promise you economic bene-
fits and/or improvements to undermine your
support of the above labor organizations.
WE WILL NOT threaten you with the futility
of your support of the above labor organiza-
tions by telling you we will never sign a con-
tract with the above labor organizations and
will terminate any of you who strike to secure
such a contract.
WE WILL NOT time your receipt of a sub-
stantial wage increase to undermine your sup-
port of the above labor organizations.
B-P CUSTOM BUILDING PR()I)UCTS 1343
WE WillI. NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your right to self-organization, to form. join.
or assist unions, to bargain collectively
through representatives of your own choosing,
and to engage in other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection, or to refrain from
any and all such activities.
WE WILL recognize, effective from the date
beginning May 3, 1978, and, upon request, bar-
gain collectively and in good faith with the
Paint Makers and Allied Trades, Local Union
No. 1232, International Brotherhood of Paint-
ers and Allied Trades, AFL-CIO, as the ex-
clusive representative of all the employees in
the appropriate unit, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The appropriate bargaining
unit is:
All production and maintenance employees,
shipping, receiving and warehouse employ-
ees, truckdrivers and laboratory helpers em-
ployed by B-P Custom Building Products,
Inc., and Thomas R. Peck Mfg., at the facil-
ities located at 6511 and 6505 Salt Lake
Avenue, Bell, California; excluding all tech-
nical, chemist, professional employees, office
and plant clerical employees, guards and su-
pervisors as defined in the Act, as amended.
B-P CUSTroM BUILDING PRODUCTS,
INC.
APPENDIX C
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT interrogate you concerning
your and other employees' activities on behalf
of Paint Makers and Allied Trades Local
Union No. 1232, International Brotherhood of
Painters and Allied Trades, AFL-CIO, and/or
Steel, Paper House, Chemical Drivers & Help-
ers, Local No. 578, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America.
WE WILL NOT give you the impression rwe
are maintaining a surveillance of your activi-
ties on behalf of the above labor organizations.
WI: WVLIL. NOT threaten you with economic
losses and/or benefit withdrawals for support-
ing the above labor organizations.
WI Wi.lL NOT promise you economic bene-
fits and/or improvements and resolution of
your complaints or grievances to undermine
your support of the above labor organizations.
WE WILL NOT threaten you with the futility
of your support of the above labor organiza-
tions by telling you we will never sign a con-
tract with the above labor organizations and
will terminate any of you who strike to secure
such a contract.
WE WII.L NOT time your receipt of a sub-
stantial wage increase to undermine your sup-
port of the above labor organizations.
WE WILL. NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your right to self-organization, to form, join,
or assist unions, to bargain collectively
through representatives of your own choosing,
and to engage in other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection, or to refrain from
any and all such activities.
THOMAS R. PCK MFG.
APPENDIX D
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL. NOT interrogate you concerning
your and other employees' activities on behalf
of Paint Makers and Allied Trades Local
Union No. 1232, International Brotherhood of
Painters and Allied Trades, AFL-CIO, and/or
Steel, Paper House, Chemical Drivers & Help-
ers, Local No. 578, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America.
1344 DECISIONS OF NATIONAL LABOR RELATIONS BO()ARI)
WE WILL. NOT give you the impression we
are maintaining a surveillance of your activi-
ties on behalf of the above labor organizations.
We will not threaten you with economic
losses and/or benefit withdrawals for support-
ing the above labor organizations.
WE WILL NOT promise you economic bene-
fits and/or improvements and resolution of
your complaints or grievances to undermine
your support of the above labor organizations.
WE WILL NOT threaten you with the futility
of your support of the above labor organiza-
tions by telling you we will never sign a con-
tract with the above labor organizations and
will terminate any of you who strike to secure
such a contract.
WE WILL NOT time your receipt of a sub-
stantial wage increase to undermine your sup-
port of the above labor organizations.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your right to self-organization, to form, join,
or assist unions, to bargain collectively
through representatives of your own choosing,
and to engage in other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection, or to refrain from
any and all such activities.
WE WILL recognize, effective from the date
beginning May 3, 1978, and, upon request, bar-
gain collectively and in good faith with the
Paint Makers and Allied Trades, Local Union
No. 1232, International Brotherhood of Paint-
ers and Allied Trades, AFL-CIO, as the ex-
clusive representative of all the employees in
the appropriate unit, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The appropriate bargaining
unit is:
All production and maintenance employees,
shipping, receiving and warehouse employ-
ees, truckdrivers and laboratory helpers em-
ployed by B-P Custom Building Products,
Inc., and Thomas R. Peck Mfg., at the facil-
ities located at 6511 and 6505 Salt Lake
Avenue, Bell, California; excluding all tech-
nical, chemist, professional employees, office
and plant clerical employees, guards and su-
pervisors as defined in the Act, as amended.
THOMAS R. PECK MFG.
DECISION
SIATEMENTI OF HE CASE
GEORGE CHRISTENSEtN, Administrative Law Judge:
On February 13, 14, 15, 16, 27 and 28, 1979, I conducted
a hearing at Los Angeles, California, to try issues raised
against B-P Custom Building Products, Inc., and Thomas
R. Peck Mfg.' by Paint Makers and Allied Trades Local
Union No. 1232, International Brotherhood of Painters
and Allied Trades, AFL-CIO, and Steel, Paper House,
Chemical Drivers & Helpers, Local No. 578, Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America,2 in a complaint issued on Octo-
ber 13, 1978, 3 and amended on November 22,4 concern-
ing the Unions' July 10 objections to a July 7 election
and challenges to ballots cast therein and the Companies'
objections and challenges thereto. On October 31 the Re-
gional Director for Region 21 issued a report and order
dismissing a portion of the Unions' election objections
and consolidating the issues raised by the balance of the
objections, the challenges, and the amended complaint
for purposes of hearing and resolution.
The Union challenged ballots cast by Margie Lewis
and David Pearce on the ground they were part of the
families of members of management and more closely
allied with management than employees within the
voting unit; ballots cast by Ronald Golyer, Rose Hogan,
Terry Hoss, and Edward Olney on the ground they were
supervisors; and objected that Hoss as a supervisor im-
properly functioned as the Companies' election observer.
The Companies challenged the ballot cast by Richard
Velo on the ground he was a supervisor and improperly
functioned as the Unions' election observer.5
The balance of the Unions' election objections and the
complaint allege the Companies violated Section 8(a)(1)
of the National Labor Relations Act, as amended, dissi-
pated the Unions' majority representative status within
an appropriate unit of the Companies' employees prior to
the election and prevented a fair election by:
I. Interrogating employees concerning their and other
employees' union membership, activities, and sympathies.
2. Giving employees the impression the Companies
were maintaining a surveillance of their union activities.
3. Soliciting grievances from employees and implying
they would be rectified to encourage employee with-
drawal of support from the Unions.
4. Promising employees wage increases and benefit im-
provements to encourage their withdrawal of support
from the Unions.
5. Promising employees favorable treatment in the
future (after the election) to encourage their withdrawal
of support from the Unions.
Hereafter called BP, Peck, and the Companies (jointly).
Hereafter called the Painters, the Teamsters, and the Unions (jointly)
: Read 1978 after all further date references omitting the year
4 Based on a charge filed by the Unions on July 11 and amended on
July 17.
The Companies also contend the election as tainted by Veel's
active solicitation or union authorization cards and his union ad\ocacy
preceding the election.
B-P CUSTOM BUILDING PRODUCTS 1345
6. Threatening employees with loss, reduction, or
denial of wage increases and benefits if they voted for
representation by the Unions at the election.
7. Threatening employees with the futility of support-
ing the Unions at the election by stating the Companies
would not execute a contract with the Unions in the
event the employees voted for representation by them.
8. Threatening employees with discharge in the event
they went on strike in support of the Unions' contract
demands.
9. Threatening employees with reprisals for supporting
the Unions.
10. Granting a general wage increase the morning of
the election and an added paid holiday shortly before the
election to encourage employees to withdraw their sup-
port from the Unions at the election.
The Companies denied the commission of the acts set
out in I through 9 above, contended the wage increase
and paid holiday set out in 10 were granted in accord-
ance with past practice, disputed the complaint allegation
that the Unions represented a majority of the employees
within the unit prior to the election, opposed the Gener-
al Counsel's request for a bargaining order as unwarrant-
ed, contended no relief could be afforded the Unions on
the ground they were improperly joined as joint petition-
ers, and contended the General Counsel failed to estab-
lish they were joint employers of the unit employees.
The issues before me are whether:
1. BP and Peck were properly designated as joint re-
spondents or employers.
2. Lewis and Pearce were allied with management
rather than the voting unit.
3. Ronald Golyer, Rose Hogan, Hoss, Olney, and Velo
were supervisors.
4. A majority of the employees within the voting unit
designated the Unions as their exclusive representative
for the purpose of bargaining with the Companies con-
cerning their rates of pay, wages, hours, and working
conditions prior to the election.
5. The Company by its supervisors and/or agents com-
mitted the acts set out in I through 9 above.
6. The grant of a general wage increase the day of the
election and an added paid holiday a few days before the
election and any of the acts set out in I through 9 above,
if found, violated the Act and prevented a fair election.
7. A bargaining order is warranted.
8. The Companies may be required to bargain jointly
with the Unions.
The parties appeared by counsel at the hearing and
were afforded full opportunity to produce evidence, ex-
amine and cross-examine witnesses, argue, and file briefs.
Briefs have been received from the General Counsel, the
Unions, and the Companies.
Based upon my review of the entire record, observa-
tion of the witnesses, perusal of the briefs and research, I
enter the following:
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find
BP and Peck at times material were California corpora-
tions engaged in the manufacture of tile mortar and
grout at facilities located at 6505 and 6511 Salt Lake
Avenue, Bell, California; BP and Peck each annually
purchased and received goods and products valued in
excess of $50,000 directly from suppliers located outside
of California; each is an employer engaged in commerce
in a business affecting commerce, and the Unions are
labor organizations within the meaning of Section 2 of
the Act.
II. THE CAMPAIGN, STATUS OF THE PARTIES, BALIOT
CHALLENGES, UNIT, UNION REPRESENTATIVE
STATUS, UNFAIR LABOR PRACTICES, AND ELECTION
MISCONDUCT
A. The Organizational Campaign and Election
The Unions commenced an organizational campaign
among the Companies' employees in April and between
April 30 and May 3 secured the signatures of 21 employ-
ees to cards authorizing the Unions to act as their repre-
sentative for the purpose of bargaining collectively with
the Companies concerning their rates of pay, wages,
hours, and working conditions.
On May 8 the Unions jointly petitioned the Regional
Office for certification as the representative of a majority
of the Companies' employees within a unit consisting of
all production and maintenance employees, shipping, re-
ceiving and warehouse employees and truckdrivers, ex-
cluding all technical, quality control, laboratory, profes-
sional, office and plant employees, guards and supervi-
sors as defined in the Act, employed at the Companies'
Bell, California, facilities.6
On May 26 the Unions as Joint Petitioners and the
Companies as Joint Employers executed a stipulation for
an election to be conducted on the Companies' premises
on July 7 among the following employees of the Compa-
nies:
All production and maintenance employees, ship-
ping, receiving and warehouse employees, truck-
drivers and laboratory helpers employed by the
Employers at their facilities located at 6511 and
6505 Salt Lake Avenue, Bell, California; excluding
all technical, chemist, professional employees, office
and plant clerical employees, guards and supervisors
as defined in the Act, as amended.
On July 7 the Companies submitted a list of 37 em-
ployees purportedly within the voting unit. The persons
named on the list were:
Michael Alacron
David Amaro
Frank Balandran
Eleanora Baraga
Pablo Cabrera
Frank Candelario
Peter Flores
Kay Golyer
Ronald Golyer
Rose Hogan
Terry Hoss
Diamantina Lara
Margie Lewis
Jesus Linares
Edward Olney
Rigoberto Ortega
David Pearce
Manuel Perez
' Supported h the 21 authorlzatllon card,

1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carlos Gomez Jesus Puga
Rafael Gonzales Javier Ramirez
David Gutierrez Jesse Ramirez
Burl Hendley Maris Ramos
Dorothy Hendley Eric Rodriguez
Leonor Hernandez Siufua Siufua
Javier Hernandez Faalu Togiai
Joe Hernandez Caren Szerdelyi
Jose P. Hernandez Richard Velo
Federico Venegas
On February 13, 1979, the parties stipulated Don
Scharnell and Falanika Siufua were on the payroll for
the period ending May 3 and Michael Alacron and
Carlos Gomez were not. Employee notices posted in the
plant prior to the election announced the employees eli-
gible to vote in the election would have the opportunity
of voting for or against representation by the Unions as
Joint Petitioners. Of the 37 who voted in the election, 13
voted for representation by the Unions, 16 voted against
representation by the Unions, 7 ballots were challenged
(those of Ronald Golyer, Rose Hogan, Terry Hoss,
Margie Lewis, Edward Olney, David Pearce, and Rich-
ard Velo), and I ballot was declared void.
Richard Velo acted as the Unions' election observer;
Terry Hoss and Caren Szerdelyi acted as the Companies'
election observers.
B. The Status of the Companies and the Unions
The Companies contend for the purposes of this pro-
ceeding they cannot be classified or considered as joint
employers of the unit employees, nor can they be re-
quired to recognize and bargain with the Unions as joint
representatives of those employees.
The contention is somewhat belated; the Unions joint-
ly petitioned for certification as the joint representative
of the unit consisting of employees of both BP and Peck
as joint employers in May, and the Companies not only
offered no objection at that time, they jointly stipulated
with a representative of the Joint Petitioners to the ap-
propriateness of the single unit, prepared a list of em-
ployees eligible to participate in the election without dis-
tinguishing which employees thereon were employed by
BP and which were employed by Peck, they raised no
timely objections to their inclusion as joint employers in
the representation proceeding nor the Unions' status as
petitioners for joint certification as the exclusive repre-
sentative of their employees, they conceded the appro-
priateness of a unit consisting of employees of both com-
panies in their answer to the complaint, and they at no
time prior to the hearing sought to sever either BP or
Peck from the proceeding or request separate treatment.
It is further clear the employees were informed by the
election notices posted in the plant prior to the election
the Unions were seeking to act as their joint bargaining
representative and at no time objected thereto.
Even were this insufficient, evidence was developed in
the course of the proceeding that BP and Peck occupy
and utilize common facilities and manufacture common
products, their supervisors issue instructions and orders
to employees of both companies, employees from time to
time have performed work for one company while on
the payroll of the other, etc.
On the basis of the foregoing, I find and conclude for
purposes of this proceeding that BP and Peck may and
shall be treated as joint employers of their employees
within the unit set out heretofore and the Unions as
would-be joint representatives of those employees.
C. The Ballot Challenges
1. Lewis and Pearce
The Unions challenged the ballots cast by Lewis and
Pearce on the ground those two employees, while em-
ployed in jobs within the stipulated voting unit, never-
theless should not be included on the ground they were
part of the families of management officials and therefore
more closely allied with management than the employees
within the unit.
No evidence was produced to support the challenge to
Lewis' ballot; I therefore granted the Companies' motion
(following the General Counsel's and the Unions' presen-
tation of direct testimony) that the challenge to Lewis'
ballot be rejected. I therefore reiterate that finding and
recommendation at this time, find the Unions failed to
support their challenges to Lewis' ballot with evidence,
and recommend the challenge to her ballot be rejected.
While evidence was introduced that Pearce is related
to a management official, no evidence was adduced this
caused any special treatment of Pearce nor that he func-
tioned other than as a rank-and-file employee in a job
within the voting unit. I therefore granted the Compa-
nies' motion (following the close of the General Coun-
sel's and the Union's presentation of direct testimony)
that the challenge to Pearce's ballot be rejected. I find
the Unions failed to support their challenge to Pearce's
ballot by evidence he was allied with management rather
than the unit employees and recommend the challenge to
his ballot be rejected.
Two employee witnesses testified to the job functions
of Ronald Golyer-Siufua Siufua and Jose Hernandez.
Ronald Golyer was not called to testify. Siufua's and
Hernandez' mutually corroborative and undisputed testi-
mony established, and I find, at times material that
Ronald Golyer was a leadman; he did not interview or
hire new employees in the department (they were inter-
viewed and hired by Tom Peck, Jr., an admitted supervi-
sor, and acquainted with their job duties by Dale Hogan,
an admitted supervisor); he did not discharge, suspend,
or administer discipline to the employees in the depart-
ment; he did not process requests for vacation dates or
time off (they were referred to Dale Hogan); he did not
process requests for wage increases by employees in the
department (they were brought to Dale Hogan); he,
along with Dale Hogan, Conrad Fimbres, an admitted
supervisor, and Maria Ramos, a laboratory employee
within the unit, trained new employees in the operation
of the machines in the department and handling of the
formulas used in their operation; he brought orders and
formulas from the laboratory to the department for pro-
duction and operated forklifts and the machines in the
B-P CUSTOM BUILDING PRODUCTS 1347
department along with the other employees within the
department.
On the basis of the foregoing, I find and conclude
Ronald Golyer was a working leadman within the de-
partment and not a supervisor within the meaning of the
Act. I therefore recommend the challenge to his ballot
be rejected.
2. Rose Hogan
Rose Hogan was not called to testify; four employees,
however, 7 gave mutually corroborative and undisputed
testimony, which I credit, that she was the leadperson
over the female employees in the small package section
of BP's powder department; checked inventory and or-
dered supplies as and when needed for production within
her section; repaired or requested repair of any malfunc-
tioning machines in her section; directed the work of the
employees in her section to maintain the flow of produc-
tion; coordinated the work of her section with other sec-
tions and departments of both BP and Peck; and did not
interview, hire, discharge, or discipline employees, nor
grant requests for time off (these were referred to Dale
Hogan, an admitted supervisor).
I find the foregoing evidence failed to establish Rose
Hogan was other than a leadperson in her section and
department and failed to establish she was a supervisor
within the meaning of the Act; I therefore recommend
the challenge to her ballot be rejected.
3. Terry Hoss
Hoss was not called to testify. Four employees' gave
mutually corroborative and undisputed testimony, which
I credit, that in the period immediately preceding the
election Hoss worked for Peck; that he directed the
work of the leadmen in the two sections of the Peck op-
erations (the automatic machines section and the manual
machines section); that he maintained a running inven-
tory of materials for both BP and Peck; ordered and re-
ordered materials for both companies as needed or antici-
pated; assembled materials for use in the production
process; scheduled production for both Peck sections;
scheduled work assignments within each section and
from time to time made changes therein, attended man-
agement meetings with admitted Supervisors Tom Peck,
Sr., Tom Peck, Jr., Michael Hilek, Conrad Fimbres,
Dale Hogan, and challenged Supervisor Edward Olney;
granted, without prior check with anyone, employee re-
quests for time off, shift changes, vacation dates, etc.; au-
thorized overtime; was recognized by Peck employees as
a supervisor and referred to as a supervisor by Peck, Sr.,
and Peck, Jr.; called and conducted meetings of Peck
employees within the voting unit; issued a warning about
poor job performance and gave consideration to an em-
ployee grievance; and did not interview, hire, discharge,
transfer or lay off any employees.
On the basis of the foregoing, I find and conclude
Hoss exercised sufficient independent judgment on behalf
of the Companies in matters of work assignment, direc-
T David Amaro. Jose P Hernandez, Rigoherto Ortega. and Richard
Velo
' Michael Alacron. D)avid Arnaro. Pahblo Cabrera. and Richard Velo
tion of employees, and control of their work perform-
ance to be classified as a supervisor within the meaning
of Section 2 of the Act. I therefore recommend the chal-
lenge to his ballot be sustained.
4. Edward Olney
Olney did not testify. The one employee who testified
about Olney's job duties, Richard Velo, testified he was
assigned to work in the shipping room over a time
period substantially predating the election; that Olney
wore a uniform containing the label, "foreman"; that
Olney was in charge of the shipping room, was generally
recognized and considered by the employees and man-
agement as the "shipping foreman"; that he filled orders
and assigned others to fill orders; that he attended
monthly management meetings with the two Pecks,
Bilek, Fimbres, and Dale Hogan; that he told another
shipping department employee in Velo's presence he in-
tended to recommend the employee for a wage increase
but changed his mind; that he informed other employees
when overtime work was available and asked them if
they wanted to work the overtime; and that Olney con-
ceded he was a foreman before a Board agent when
Velo challenged his ballot at the election. Velo also testi-
fied Olney informed him a shipping department employ-
ee was hired and another was fired on his recommenda-
tion, though Velo conceded he did not see or hear Olney
recommend either the hiring or firing or who accom-
plished same.
Even crediting the Velo testimony recited above, I
find it insufficient to support a finding that Olney was a
supervisor within the meaning of Section 2 of the Act; I
therefore recommend the challenge to his ballot be re-
jected.
5. Richard Velo
All parties base their contentions concerning Velo's
status primarily on Velo's testimony. Any added testimo-
ny concerning his job duties by other witnesses (David
Amaro, Pablo Cabrera, and Tom Peck, Jr.) only added
substance and corroboration to Velo's testimony.
Based upon that testimony, I find Velo was hired by
Peck in about June 1975 and advanced rapidly in pay
and responsibility until, by April 1977, he was the lead
machine operator in the manual machine operation of
Peck. At that time Hoss was the lead machine operator
in the automatic machine operation at Peck. Both Velo
and Hoss received the same rate of pay. In April 1977,
Velo began working primarily as a shipping clerk at BP
with Olney, though he continued on the Peck payroll at
the same rate of pay he received as a leadman. In No-
vember 1977, then BP President Michael Bilek suggested
his pay should be reduced about $1 per hour to corre-
spond with his job duties, Peck created a second shift
and assigned Velo and David Amaro to it, as Peck
manual machine operators. The second shift was discon-
tinued in February 1978 and Velo and Amaro were as-
signed miscellaneous maintenance duties, including clean-
ing and scrubbing warehouse walls, pouring cement,
painting, transferring fixtures, etc. Velo and Amaro con-
tinued on this assignment until April 1978. when a new
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
machine, which had been expected, arrived and was in-
stalled. At that time Velo and Amaro were transferred to
the day shift in the manual machine operations at Peck,
with Velo and Cabrera (who replaced Velo as leadman
when he went to shipping in April 1977), splitting the
leadman assignment in the manual machine operations
and David Gutierrez continuing to function as leadman
in the automatic machine section (he replaced Hoss), and
all three leadmen and the balance of the machine opera-
tors receiving work assignments from Hoss (and Peck,
Jr.). In June 1978 Velo and Amaro were again trans-
ferred to the night shift as machine operators and were
working there at the time of the hearing (in November
1978).
It is undisputed Velo effectively recommended the
hire of three employees and the discharge of one and
recommended wage increases, but it is equally undisput-
ed the last of these actions occurred in 1977 prior to
Velo's assignment to shipping room, maintenance, and
subsequent work; it is also true other unit employees ef-
fectively recommended new hires. It is also undisputed
Velo had a key to the plant, but so did other unit em-
ployees. It is unquestionable Velo trained new employ-
ees, but so did other unit employees.
On the basis of the foregoing, I find and conclude
during a period substantially preceding the election that
Velo was not functioning as a supervisor within the
meaning of the Act. I therefore recommend the chal-
lenge to his ballot be rejected.
D. The Unit
The complaint alleged, the answer admitted, the par-
ties stipulated in their agreement for consent election,
and I find the following in a unit appropriate for collec-
tive-bargaining purposes within the meaning of Section
9(b) of the Act:
All production and maintenance employees, ship-
ping, receiving and warehouse employees, truck-
drivers and laboratory helpers employed by the
Employers at their facilities located at 6511 and
6505 Salt Lake Avenue, Bell, California; excluding
all technical, chemist, professional employees, office
and plant clerical employees, guards and supervisors
as defined in the Act, as amended.
E. The Unions' Representative Status Within the Unit
As noted heretofore, the Unions supported their May
8 petition for certification with 21 cards executed by em-
ployees within the above unit. Those cards were signed
between April 30 and May 3 by David Amaro, Frank
Balandran, Eleanora Baraga, Pablo Cabrera, Frank Can-
delario, Peter Flores, Rafael Gonzales, Leonor Hernan-
dez, Javier Hernandez, Joe or Jose A. Hernandez, Jose
P. Hernandez, Diamantina Lara, Jesus Linares, Rigo-
berto Ortega, Javier Ramirez, Jesse Ramirez, Eric Rodri-
guez, Falanika Siufua, Siufua Siufua, Faalu Togiai, and
Richard Velo. The balance (15) of the unit-namely,
Kay Golyer, Ronald Golyer, David Gutierrez, Burl
Hendley, Dorothy Hendley, Rose Hogan, Margie Lewis,
Edward Olney, David Pearce, Manuel Perez, Jesus
Puga, Maria Ramos, Don Scharnell, Caren Szerdelyi,
and Federico Venegas-did not execute cards.
Twelve of the cards were executed by unit employees
at a meeting conducted by the Unions at Sambo's Res-
taurant in Los Angeles on April 30. The meeting oc-
curred after Velo contacted the business manager of the
Painters, Nick Bronzovic, and stated that a substantial
number of the Companies' employees desired union rep-
resentation and requested a meeting. Bronzovic brought
Ray Ramirez (a Painters' trustee) along with him to the
meeting after learning from Velo a number of the Com-
panies' employees were more fluent in Spanish than Eng-
lish. Ramirez was fluent in both languages. Approximete-
ly 15 employees of the Companies within the unit attend-
ed the meeting.
After Bronzovic was introduced (by Velo), he ex-
plained that if a majority of the Companies' employees
expressed their desire for union representation, he would
seek to negotiate a contract with their employers cover-
ing their wages, rates of pay, hours and working condi-
tions; stated the wage rates, paid holidays, vacation, pen-
sion, health and welfare, and other benefits contained in
contracts with other employers in the industry; and
stated that if a majority of the Companies' employees
chose union representation, they would seek a contract
with the Companies containing similar wage rates and
benefits.9 Bronzovic then answered questions concerning
the identity of the insurance carrier providing the
Unions' members with hospital, surgical, and pension
coverage and other questions raised by the employees.
After all questions were resolved, Bronzovic held up a
blank authorization card, explained the various boxes on
the card, read what the cards authorized the Unions to
do for the employees, explained what the language
meant, and requested that the employees fill out, sign,
date, and return the cards. Ramirez repeated Bronzovic's
statements to the employees in Spanish.
Amaro, Cabrera, Candelario, Flores, Gonzalez, Javier
Hernandez, Jose or Jose A. Hernandez, Jose P. Hernan-
dez, Ortega, Javier Ramirez, Rodriguez, and Velo filled
in, signed, dated, and returned cards. Togiai accepted a
blank card, took it with her when she left the meeting,
filled it out, dated and signed it at home and returned it
to the Unions.
Amaro, Jose P. Hernandez, Ortega, Javier Ramirez,
and Velo testified they filled out, signed, dated, and re-
turned cards to Bronzovic at the meeting and fully un-
derstood they were authorizing the Unions to represent
them for the purpose of bargaining collectively with the
Companies concerning their rates of pay, wages, hours,
and working conditions and the Companies did not chal-
lenge the validity of that designation. I find and con-
clude, on the basis of the foregoing, those five employees
designated the Unions as their collective-bargaining rep-
resentative on April 30.
While Cabrera testified that he filled out, signed,
dated, and returned a card to Velo at the meeting, the
Companies contend his card was invalid on the ground
he testified he did not read the card before signing it and
W hich represented a subslanlial increase oxer he employees' current
wage rates and benefits
H-P CUSTOM BUILDING PRODUCTS 1349
was told by Velo the card was to secure an election at
the plant. Subsequent to his testimony on direct examina-
tion by counsel for the Companies, however, Cabrera
stated he meant he did not recall whether he read the
card before filling it in, dating and signing it, not that he
did not read it; he also testified he recalled Bronzovic
addressing the meeting but not all that he said; he did
not recall whether Ramirez spoke or not and, if so, what
he said. Velo testified he never mentioned an election to
Cabrera. Cabrera was a nervous and uncertain witness
with a very vague recollection of what transpired; I find,
on the basis of the testimony of Bronzovic, Ramirez,
Velo, and other employees, the purpose of the cards was
clearly explained to Cabrera at the meeting, he under-
stood the language on the card before he signed it, and I
credit Velo's testimony he did not tell Cabrera his signa-
ture on the card was for the purpose of securing an elec-
tion (finding, instead, it was clearly explained to all pres-
ent that the cards would be utilized, inter alia, to support
a petition for an election, which they were).
I therefore find and conclude that on April 30 Cabrera
authorized the Unions to represent him for the purpose
of bargaining collectively with his employer concerning
his rates of pay, wages, hours, and working conditions.
Bronzovic testified that Gonzales and Rodriguez filled
in, dated, and signed cards in his presence at the meeting
and gave them to him; Velo testified Candelerio and
Flores (as well as Cabrera) filled in, dated, and signed
cards in his presence and gave them to him for remission
to Bronzovic. The Comparies did not challenge the au-
thenticity of the signatures of the four employees, but
contend the cards are invalid on the ground the four em-
ployees did not appear at the hearing and testify to the
circumstsnces surrounding their signatures thereto.' I
find the Companies' contention lacks merit. The board
has long held that cards may be authenticated by other
than the signatory'' and the Kane case is inapplicable. 12
I therefore find and conclude that on April 3013 Can-
delario, Flores, Gonzales, and Rodriguez authorized the
Unions to represent them for the purpose of bargaining
collectively with the Companies concerning their wages,
etc.
Togiai testified she attended the April 30 meeting, ac-
cepted an authorization card, took it home, filled it in,
dated and signed it, and turned it over to the Unions.
o1 Citing N.L.R.B. v. Randall P Kane, Inc., d/b/a the Catalyst. 581
F.2d 215 (9th Cir. 1978).
It McEwen Manufacturing Company and Washington Industries, Inc.
172 NLRB 990 (1968); Tweel Importing Co.., 219 NLRB 666 (1975).
12 In the Kane case five employees testified that the union representa-
tive who solicited and secured their signatures to authorization cards told
them the cards were for an election and the parties stipulated that 11
other employees, if called to testify. would testify in the same fashion as
those five The court felt the record was too ambiguous to permit count-
ing the II cards in determining the union's representative status. Here. on
the contrary. it was established that Cabrera, Candelario. Flores. Gon-
zales, and Rodriguez filled in, dated, signed. and turned over cards to
Velo and Bronzovic after a detailed explanation of the meaning of the
cards was made both in English and Spanish, and after the: were afford-
ed an opportunity to read the cards before signing them
13 Bronzosic testified without contradiction that Gonzales incorrectly
dated his card April 29. but he advised Gonzales not to change the date.
since it did not matter Bronzos ic's estimony was undisputed and is
credited
The Companies contend her card is invalid because
she testified Bronzovic stated at the April 30 meeting
those who signed cards would not be required to pay ini-
tiation fees.
Bronzovic, Velo, and Amaro all testified there was no
mention of union initiation fees at the April 30 meeting;
that in response to a May flyer put out by opponents to
union organization stating the employees would have to
pay exorbitant initiation fees if they supported union rep-
resentation, Bronzovic in a subsequent meeting stated that
none of the employees in the unit prior to the Unions' se-
curing recognition and a contract would be required to
pay union initiation fees.
I credit the Bronzovic-Velo-Amaro testimony. Bronzo-
vic is an experienced organizer with many campaigns
behind him, and keeps abreast of all developments in the
laws applying to election campaigns. The testimony of
Bronzovic, Velo, and Amaro was direct and convincing:
Togiai's was not. 4
I therefore find and conclude that on or about April
30 Togiai designated the Unions as her representative for
the purpose of bargaining collectively with the Compa-
nies concerning her wages, etc.
Javier Hernandez testified (through an interpreter) that
he attended the April 30 meeting, accepted, filled in,
dated, signed, and returned an authorization card to
Bronzovic there. While responding to questions ad-
dressed to him by the Companies' counsel on direct ex-
amination, he testified no explanation of the card was
made in Spanish prior to his execution of it; on cross-ex-
amination he conceded there was a Spanish explanation,
but that it was his understanding of that explanation the
card was only to discover the number of employees at
the plant and their wage rates. He testified that both Ra-
mirez and Velo stated in Spanish that employees who
signed the cards would not have to pay union initiation
fees. He also testified that he understood the cards would
be kept confidential and expressed anger over the Com-
panies' learning that he had signed a card.
Javier Hernandez' brother, Jose or Joe A. Hernandez,
testified without an interpreter. He testified that he acted
as his brother's interpreter in the prehearing interview
conducted by the Companies' attorney with Javier. He
also testified that he accepted, filled in, dated, signed,
and turned in an authorization card at the April 30 meet-
ing, that he did not read the card before signing it, that
he also thought the purpose of the card was to discover
the number of the Companies' employees and their wage
rates and that Bronzovic stated employees who signed
the cards would not have to pay union initiation fees.
Jose or Joe A. Hernandez conceded he took the floor
to express his belief that the employees needed union
representation and to urge other employees to support
the union campaign to achieve such representation; at a
later date he also expressed to Velo his fear he and Velo
would lose their jobs if the union campaign failed.
Findings have been entered above concerning Bronzo-
vic's explanation of the cards; Ramirez, Velo, Amaro
i' Togiai was unsure at arious points of her testimony concerning
what Bronzovlc said and when he said it, and stated he attended several
meetings
-
1350 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
(and Jose P. Hernandez) gave mutually corroborative
testimony that Ramirez repeated Bronzovic's explanation
in Spanish to the assembled employees. Findings also
have been entered above that neither ronzovic nor Ra-
mirez mentioned initiation fees at that meeting.
I find, on the basis of the foregoing, that both Javier
and Jose or Joe A. Hernandez understood that the pur-
pose of the cards they signed was to authorize their rep-
resentation for collective-bargaining purposes and do not
credit their testimony to the contrary; I therefore find
and conclude that on April 30 Javier and Jose or Joe A.
Hernandez designated the Unions as their collective-bar-
gaining representative.
Velo and Siufua gave mutually corroborative testimo-
ny that following the April 30 meeting Velo appeared at
the Siufua home, told both Siufua and his wife, Talanika
Siufua, he was soliciting all the Companies' employees
within the unit to authorize the Unions to represent them
for collective-bargaining purposes, explained the proce-
dures for securing such representation and what he
hoped they would gain therefrom, and persuaded them
to fill in, date, sign, and return to him cards so author-
izing. The Companies did not challenge the authenticity
or validity of Siufua's authorization.
Based on testimony by Falanika Siufua that her hus-
band told her they would not have to pay a union entry
fee if they signed cards, the Companies challenged the
validity of Falanika's card. Falanika also testified she
read the card before she signed it and understood it was
for the purpose of joining the Union and that she wasn't
sure whether her husband meant all employees would
not have to pay an entry fee or only card signers. Her
husband and Velo both denied Velo mentioned initiation
fees on April 30, Siufua denied he mentioned any fee to
her on April 30, and Siufua confirmed Bronzovic's testi-
mony that the first time he heard any mention of the
waiver of initiation fees was at a later union meeting.
I credit the testimony of Siufua and Velo where it dif-
fers from that of Falanika Siufua, and find and conclude
both Falanika and Siufua authorized the Unions to act as
their collective-bargaining representative on April 30.
Velo testified he contacted Jesse Ramirez at work the
next day (May 1), explained the desirability of union rep-
resentation to Ramirez, explained the meaning and pur-
pose of the card to him, and persuaded Ramirez to fill in,
date, sign, and return a card to him authorizing the
Unions to represent him for collective-bargaining pur-
poses. Velo testified he also secured, signed, dated, and
filled in cards from Frank Balandran and Eleanora
Berage that evening at their homes, after a similar expla-
nation, and a signed, dated and filled in card from Jesus
Linares after a similar explanation at work on May 3.
Ramirez, Balandran, Baraga, and Linares did not testify.
The Companies did not question the authenticity of
the signatures of the four but challenged the validity of
the cards on the grounds the four employees did not tes-
tify to the circumstances surrounding their execution of
the four cards.
I have rejected the Companies' position (based on the
Kane decision, supra) in my earlier discussion of the va-
lidity of the Candelario, Flores, Gonzales, and Rodriguez
cards, and repeat that rejection and the reasons therefor
here. I therefore find and conclude that on May I and 3
Jesse Ramirez, Balandran, Baraga, and Linares author-
ized the Unions to represent them for collective-bargain-
ing purposes.
Velo also testified he visited Diamantina Lara at her
home the evening of May I and persuaded her to fill in,
date, sign, and return to him a card authorizing the
Unions to represent her for collective-bargaining pur-
poses after explaining what he hoped to accomplish
through such representation and that signing the card
would authorize the Unions to seek to accomplish those
goals. The Companies challenged the validity of Lara's
authorization on the basis of testimony by her under
cross-examination that Velo told her he wanted her
signed card only to show she worked at the Company.
Both Velo and Lara agreed their discussion lasted ap-
proximately 30 minutes and that she expressed the fear
that signing the card might mean her being fired. The
card, clearly filled out in its entirety by Lara, required
that she fill out the name and address of her employer
above the language authorizing the Union to represent
her, then her signature below the authorization language,
followed by her phone number, address, date, job classi-
fication, and wage rate. I find her admitted filling out of
the card, after a 25-minute discussion of the pros and
cons of union representation and an expressed fear of re-
taliation, support a finding that Lara understood the card
and its meaning before she signed it and so find and con-
clude.
I therefore find and conclpde Velo's testimony should
be credited over any contradiction with that of Lara,
and that on May I Lara authorized the Unions to act as
her collective-bargaining representative.
Velo secured a card from Leonor Hernandez, the wife
of Javier Hernandez and sister-in-law of Jose or Joe A.
Hernandez, on May 3 at a lunch stand near the Compa-
nies' plant during the lunch break. Javier and Leonor
Hernandez and Velo gave mutually corroborative testi-
mony that Leonor met Javier and Velo at the lunch
stand by prearrangement for the purpose of securing
Leonor's execution of a union authorization card, that
Velo filled in the name of Leonor's employer, the Em-
ployer's address and her job classification and she filled
in the balance of the spaces on the card designated for
her signature, home address, telephone number, date and
her wage rate. Velo testified he told her the card was a
union representation card, both she and her husband
knew what it was (Javier executed a card at the first
April 30 union meeting) and both had expressed a favor-
able interest in union representation. Leonor, under
direct interrogation by the Companies' counsel, first
stated that neither Velo nor her husband read or ex-
plained the card to her, then stated Velo told her the
card was only to show her wage rate and excuse her
from paying union initiation fees, then stated her husband
told her the latter. She also testified Velo told her the
card was confidential and only the Government would
see it, that she drove her husband to the April 30 meet-
ing (which Javier first denied, then later corroborated, in
his testimony) and was opposed to her husband support-
ing the Unions.
I-P' CSIl t)M13 BIILDING PRODUiCTS 1351
I credit Velo's testimony. wvhich as direct anld con-
vincing, and find Leonor and Javier's testimonyv \sas col-
ored by fear of retribution on the Companies' learning
they had signed cards. I therefore find and conclude that
on Ma 3 Leonor Hernandez authorized the Unions to
represent her for collective-bargaining purposes.
On the basis of the foregoing, I find that. by May 3. 21
employees, a majority of the 37 employees in the bar-
gaining unit, authorized the Unions to represent them for
the purpose of bargaining collectively with the Compa-
nies concerning their rates of pay, wages, hours, and
working conditions.
F. The Alleged Unfair Labor Practices and Election
Misconduct
As noted above, by May 3 the Unions had secured
signed authorization cards from a majority of the Com-
panies' unit employees and filed their petition for certifi-
cation on May 8. The bulk of those employees (25-30)
were on the BP payroll, with a smaller number (9-10) on
the Peck payroll.
Management was not long in reacting. In early May
and again in mid-May, Thomas Peck, Jr., ' told unit em-
ployee Amaro that the employees would lose their
profit-sharing benefits if the Unions came in and during
the same period told Velo that if the Unions came in the
employees would lose both their profit-sharing and pen-
sion benefits.
Peck, Jr., Conrad Fimbres, 16 and Dale Hogan all re-
peated that comment in the course of a May meeting
called by Hoss of all the Peck employees within the unit.
Both Dale Hogan and Fimbres of BP addressed the
meeting, along with Peck, Jr., and Hoss of Peck. The
meeting began with the distribution to the unit employ-
ees of their paychecks and statements showing the em-
ployer contributions to their pofit-sharing accounts.
Peck, Jr., directed the employees to open their envelopes
and read the documents; he then stated they could see
the Company had been generous to them, but he was
sure they knew profit-sharing would stop if the Unions
came in. Fimbres then stated since the question of unions
had arisen, he wanted the employees to know the Unions
were mafia-connected, attendance at their meetings were
compulsory, they charged exorbitant dues, and echoed
Peck, Jr.'s statement that the profit-sharing they were
seeing would cease if the Unions came in. Dale Hogan
then stated he and Rose Ann Hogan had $17,000 to their
credit in the profit-sharing plan and would hate to lose
it, but they all would if the Unions came in. Peck, Jr.,
also stated the doors of Thomas Peck, Sr., and Michael
Bilek' 7 were always open to resolve employee problems,
but if the Unions came in that practice would cease and
the employees would have to seek solutions to their
problems by contacting the Unions. In the course of the
meeting Hoss commented that if the Unions came in the
practice of employing more than one member of a family
would cease.
Is An admitted supervisor
's An admitted supervisor and head of BP's laboratory department.
'7 Presidents respectively of Peck and BP (Bilek as also vice presi-
dent o, Peck) and admitted uperisors
Approximately a week later Hoss conducted another
meeting of the Peck unit employees. In the course of
that meeting Ioss stated the Companies ould never
sign a contract with the Unions, the employees would
have to strike and, when they did, they would be re-
placed. and management. if necessary, would operate
their machines: that Peck, Sr., had advised him the em-
ployees would be taken care of if they voted against the
Unions, and if the BP employees voted for union repre-
sentation, they would receive better benefits than any
that the Unions were able to achieve for the BP employ-
ees.
As the election date drew close, in two conversations
Peck, Jr., told Velo that the Companies had turned the
votes around and the Unions were not going to win the
election: that management was aware Velo started the
Unions' campaign and could fire him if they could find a
good reason; management was upset with Velo and was
placing him on the night shift, and if the Peck employees
remained loyal to Velo and brought the Unions in, they
would lose their piecework earnings; and that he was
making things hard for himself.
Dale Hogan at about the same time asked BP employ-
ee Ortega if he had any contact with the Unions and
asked BP employee Jose P. Hernandez what he thought
about the Unions; shortly before the election Hogan
called Ortega into his office, explained how much the
Company contributed to the profit-sharing program,
stated if the Unions won the election the employees
would only receive one wage increase each year (instead
of the current practice of two increases per annum), and
stated the employees were going to receive a 50-cent,
mid-year increase that year instead of the usual 25-cent
increase.
In the week before the election (scheduled for July 7),
Peck, Jr., reiterated to Amaro his previous statement that
the employees would lose benefits if the Unions came in
and the Unions would be unable to match them: later, he
also told Amaro that Velo informed management of :he
identities of the Unions' supporters and thereby showed
he could not be 4rusted by the employees.
Just prior to the July 7 election, Peck, Sr., personally
distributed paychecks to the unit employees on the Peck
payroll, which he never had done before, and directed
their attention to the pay increase shown thereon. On
contacting Velo and Amaro, he repeated the often-stated
litany that if the Unions came in the employees would
lose their profit-sharing and pension benefits; and in con-
tacting Alacron, he stated that if Alacron had any prob-
lems to come and see him, that union representation was
not necessary.
Prior to voting on July 7, Peck, Jr., asked Amaro
what Velo's motives were for attempting to bring the
Unions in, asked Amaro how much support the Unions
had among the employees' and told Amaro that if he
supported the Company he would not have to continue
working on the machines and would make more money.
Prior to the voting, Fimbres approached unit employ-
ees Jose P. Hernandez and Javier Hernandez (both unit
MY Apparently in the belief separate elections would he conducted
among he Peck and BP employees
1352 DECISIONS OF NATIONAL LABO)R RELATIONS B()ARD
employees on the BP payroll), repeated the constant re-
frain that the employees would lose their profit-sharing
benefits if the Unions won the election, reminded Javier
he had done many favors for him in the past, and told
them "things" would improve if they supported the
Company in the election. Fimbres also contacted Ala-
cron about the same time and repeated the profit-sharing
refrain. 9
BP's President Bilek conducted a meeting of unit em-
ployees on the BP payroll in June similar to the one con-
ducted by Peck, Jr., among the unit employees on the
Peck payroll in May. He distributed reports of the com-
pany contributions to the employees' profit-sharing ac-
counts.
Jose P. Hernandez and Ortega testified that Bilek ad-
vised the employees they would lose their profit-sharing
benefits if the Unions came in; that he would never sign
a contract with the Unions; that if the employees went
on strike to secure a contract, he would fire and replace
them; and that he would secure a court order permitting
such replacements and nonstrikers who wished to work
to cross any picket line.
Bilek testified he read a paragraph contained in the
summary plan description of the profit-sharing plan and
the pension plan distributed to employees which stated:
If you become a member of a Union and are cov-
ered under their plan, you will automatically cease
to be a participant in your company's plan, but your
account will continue to receive gains and losses
and continue to vest.
Bilek stated he made the statement that he was unsure
what effect a union contract would have on profit-shar-
ing, but it would be unlawful for the Company to make
contributions to profit-sharing if it did not make a profit;
he denied stating he never would sign a contract with
the Unions and would fire any strikers, stating he said if
a majority of the employees voted for union representa-
tion, the Company would have to negotiate with the
Union and hopefully reach agreement; but, if no agree-
ment was reached, a strike was possible; and, in the
event it occurred, the Company would try to secure per-
manent replacements for the strikers and continue to op-
erate.
Bilek also testified that both BP and Peck management
were familiar with the Painters 1976-79 industry agree-
ment, since they had absorbed a company (Willis Moore)
under contract with the Painters, and that the agreement
in question contained provisions for one increase per
annum over the life of the agreement.
I credit Bilek's testimony to the effect that he read the
pension and profit-sharing plan provision set out above
and further credit his testimony that he advised the em-
ployees that if they went on strike the Company would
operate during the strike by hiring permanent replace-
ments for the strikers. But I also credit the testimony of
19 The foregoing findings are based on the undisputed and in man);
cases mutually corroborative testimony of unit employees Alacron,
Amaro, Jose P. Hernandez, Ortega. and Velo. While Peck, Jr, testified,
he did not refute any of the testimony of the above employees concern-
ing his statements and conduct. Peck. Sr., Fimbres. Dale Hogan, and
Hoss did not testify.
Jose P. Hernandez and Ortega that Bilek said employees
would cease to participate (receive credit for company
contributions) in the plan if the Unions came in, that
Bilek stated he never would sign a contract with the
Unions, and that Bilek said in the event they went on
strike for a contract, the Company would terminate their
employment, hire permanent replacements for the strik-
ers, and secure a court injunction permitting the replace-
ments and nonstriking employees' access to the plant.
I have not entered any findings concerning statements
allegedly violative of the Act and affecting the election
made by Rose Hogan, inasmuch as I have entered find-
ings that the evidence failed to establish she was a super-
visor at the time she made those alleged statements; I
therefore recommend those portions of the complaint
and election objections based upon Rose Hogan's alleged
misconduct be dismissed.
The Companies contend Peck, Sr., Peck, Jr., Bilek,
Dale Hogan, and Hoss merely exercised their right of
free speech under Section 8(c) of the Act in making the
statements set out above and neither violated the Act nor
interfered with the employees' exercise of their voting
franchise.
While Bilek did not violate the Act or unlawfully in-
terfere with the employees' right to cast an uncoerced
ballot by reading the applicable provision of the Compa-
nies' pension and profit-sharing plans and stating the
Companies would continue operating by hiring perma-
nent strike replacements and securing a court injunction
to assure those replacements (and any nonstrikers')
access to the plant, the Board has long held that interro-
gations of employees concerning their and other employ-
ees' union activities, making statements which give em-
ployees the impression that their employer is maintaining
a surveillance of their union activities, actually or im-
pliedly threatening economic losses or benefit withdraw-
als in the event employees support union representation,
actually or impliedly promising employees economic
benefits or improvements if they refrain or withdraw
from supporting union representation, actually or im-
pliedly promising to directly consider and rectify any
complaints or grievances employees have without re-
course to union representation, threatening employees
with the futility of their support of the Unions by threat-
ening never to sign a contract with the Unions and ter-
minating any strikers who strike for a contract, all con-
stitute violations of Section 8(a)( ) of the Act and unlaw-
ful interference in the employees' right to cast a free and
uncoerced ballot in an election.
I therefore find and conclude that between May 3 and
July 7 the statements attributed to Peck, Sr., Peck, Jr.,
Bilek, Fimbres, Dale Hogan, and Hoss recited above
constituted (I) interrogations of employees concerning
their and other employees' union activities, statements
giving employees the impression that the Companies
were maintaining a surveillance of their union activities,
(2) threats of economic losses or benefit withdrawals for
supporting the Unions, promises of economic benefits
and resolution of their complaints to encourage employ-
ees to refrain or withdraw their support from the
Unions, and (3) threats that their support of the Unions
B-P CUSTOM BUILI)ING PRODUCTS 1353
would be futile: and by such statements the Companies
violated Section 8(a)(1) of the Act and interfered in the
employees' right to cast a free and uncoerced ballot in
the election.
The General Counsel and the Unions also allege the
Companies violated Section 8(a)(1) of the Act and un-
lawfully interfered in the election by granting the em-
ployees July 5, a Friday, as a paid holiday (along with
Thursday, July 4).
The evidence established that since January 1, 1976.
whenever a normal paid holiday (Thanksgiving, Christ-
mas, etc.) fell on a Tuesday or a Thursday, the Compa-
nies granted the day preceding in the former case and
the day following in the latter case as an additional paid
holiday. Following that established policy, the Compa-
nies granted Friday, July 5, as an additional paid holiday.
On the basis of the foregoing, I find and conclude the
Company followed an established practice and did not
violate the Act nor unlawfully interfere with the election
by granting the employees July 5 as an additional paid
holiday, and I recommend that those portions of the
complaint and election objections so alleging be dis-
missed.
It is also alleged the Companies violated the Act and
unlawfully interfered with the election by granting a
general wage increase to all unit employees timed for re-
ceipt just before voting on July 7. As noted before, Peck,
Sr., took the unusual step of personally distributing pay-
checks showing the increases to all employees in the
morning prior to their casting their ballots in the elec-
tion.
While the record establishes the Company has fol-
lowed the practice of adjusting its employees' wages
twice a year, at the beginning and mid-year, it does not
establish that the mid-year increase is normally granted
so its first receipt occurs on July 7.20 I find the Compa-
nies timed the July 1978 increase to influence the em-
ployees to refrain or withdraw from supporting the
Unions and not simply to continue a regular past prac-
tice, and thus violated Section 8(a)(1) of the Act and in-
terfered with the employees' exercise of a free choice in
the balloting.
CONCUSIONS OF- LAW
1. At times pertinent the Companies were employers
engaged in commerce in a business affecting commerce
and the Unions were labor organizations within the
meaning of Section 2 of the Act.
2. The Companies were properly joined as Joint Em-
ployers in both this and the representation proceeding
before the Board and the Unions were properly joined in
both proceedings as Joint Petitioners.
3. Peck, Sr., Peck, Jr., Hilek, Fimbres, Dale Hogan,
and Hoss were supervisors and agents of the Companies
acting on their behalf at times pertinent and Ronald
Golyer, Rose Hogan, Olney, and Velo were not.
4. Lewis and Pearce were not employees w.hose inter-
ests were allied with management at times pertinent.
20 In, the previous year. the mid-ear ncrease a, granted tn July 21
5. The following unit at pertinent times was appropri-
ate for collective-bargaining purposes within the meaning
of Section 9 of the Act:
All production and maintenance employees, ship-
ping, receiving and warehouse employees, truck-
drivers and laboratory helpers employed by the
Employers at their facilities located at 6511 and
6505 Salt Lake Avenue, Bell, California; excluding
all technical, chemist, professional employees, office
and plant clerical employees, guards and supervisors
as defined in the Act, as amended.
6. Velo properly functioned as the Unions' election ob-
server and Hoss improperly functioned as the Compa-
nies' election observer at the July 7 election.
7. Ronald Golyer, Rose Hogan, Olney, Velo, Lewis,
and Pearce were entitled to cast ballots at the July 7
election and Dale Hogan and Hoss were not.
8. Since May 3 the Unions have represented a majority
of the Companies' employees within the above-specified
unit.
9. Between May 3 and July 7 the Companies by Peck,
Sr., Peck, Jr., Bilek, Dale Hogan, and Hoss violated Sec-
tion 8(a)(1) of the Act and prevented a free and fair elec-
tion on July 7 by interrogating unit employees concern-
ing their and other employees' union activities, by giving
unit employees the impression the Companies were main-
taining a surveillance of their union activities, by threat-
ening unit employees with economic losses and benefit
withdrawals if they supported the Unions, by promising
unit employees economic benefits and resolution of their
complaints or grievances for withholding or withdraw-
ing their support from the Unions, by threatening em-
ployees their support of the Unions would be futile since
they never would sign a contract and would terminate
(or permanently replace) any employees who went on
strike for a contract, and by timing a wage increase for
receipt prior to the July 7 balloting.
10. The Companies did not violate the Act nor inter-
fere unlawfully in the election by granting July 3 as an
additional paid holiday.
11. The aforesaid unfair labor practices and election in-
terferences affected commerce as defined in the Act.
THE REMEDY
Having found that the Companies engaged in unfair
labor practices, I shall recommend that the Companies
be directed to cease and desist therefrom and take affirm-
ative action designed to effectuate the purposes of the
Act.
Having found by numerous, serious unfair labor prac-
tices the Companies undermined the Unions' majority
representative status among the unit employees and pre-
vented a free and fair election both by those practices
and its assignment of a supervisor to act as its election
observer, I shall recommend the election be set aside and
the Companies directed to recognize the Unions and bar-
gain with them concerning the rates of pay, wages, hours
1354 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
and working conditions of their employees within the [Recommended Order omitted from publication.]
unit.2 1
21 I filld this to he one of thlose .acs"s marked bh less perasive prar- strength and impede the cletioi process" N L.R. I (.lt '! Pa('Aomg
tices which ni)nlelheless still have a tenency to underminie majoril ., ( bo'. 395 UI S. 575 (1469)