Bonanza Aluminum Corp.

National Labor Relations Board - Board Decisions

Oct 31, 1990

300 N.L.R.B. 584 (N.L.R.B. 1990)

584
300 NLRB No. 64
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 There were no exceptions to the judge’s recommended dismissal of the al-
leged unfair labor practice in this case. The issues before us concern the
judge’s recommended disposition of the Employer’s Objections 1 through 6
in the representation case.
2 The Respondent Employer has requested oral argument. The request is de-
nied as the record, exceptions, and brief adequately present the issues and the
positions of the parties.
Bonanza Aluminum Corporation and Teamsters,
Chauffeurs, Warehousemen, Industrial and Al-
lied Workers of America, Local 166, Inter-
national Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
AFL–CIO. Cases 31–CA–17638 and 31–RC–
6536
October 31, 1990
DECISION, ORDER, AND CERTIFICATION
OF REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On December 13, 1989, Administrative Law Judge
Michael D. Stevenson issued the attached decision.
The Respondent Employer filed exceptions and a sup-
porting brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief,2 and has
decided to affirm the judge’s rulings, findings, and
conclusions and to adopt the recommended Order.
Although we adopt the judge’s recommendation to
overrule Objection 1 alleging that threats made by
union supporters interfered with the election, we reach
this conclusion for the reasons that follow.
We note initially that the judge treated employee
Jose Romero’s discussion with fellow employee
Crispin Martinez about an employee named Arias as
occurring during the same conversation held a few
days before the April 6, 1989 election, when Romero
chastised Martinez about his failure to support the or-
ganizing campaign. The record shows, however, that
there were actually two separate conversations between
Romero and Martinez. Thus, Martinez testified that it
was in January 1989 that Romero made the remarks
about Arias which the Employer alleged as a threat
interfering with the election. We find it unnecessary to
consider whether those remarks were objectionable be-
cause the Employer has not shown that they were
made during the critical period. Even viewing the Jan-
uary remarks as background, we find that Romero’s re-
marks a few days before the election, in which he told
Martinez ‘‘not to ask questions [at campaign meetings
the Employer conducted], to shut up . . . or else to
accept the consequences,’’ were too vague and ambig-
uous to warrant setting aside the election.
We further conclude that employee Javier Mas-
careno’s preelection threat to discharge employees who
failed to support the Union also did not taint the elec-
tion because the employees could not reasonably have
concluded that Mascareno, as a nonsupervisory em-
ployee, had the means to carry out that threat.
Finally, although we find that Mascareno’s conduct
in telling employee Jeffrey Bourgoine that if
Bourgoine or anyone else tried to stop the Union from
getting in Mascareno would kill them; in then tearing
a procompany button from Bourgoine’s shirt; and in
later simulating the pulling of a trigger while pointing
his index finger toward Bourgoine as though the finger
were the barrel of a gun was serious and not to be
condoned, we nevertheless find in the circumstances
here that the brief incidents involving Mascareno and
Bourgoine were isolated and do not warrant setting
aside the election held in a unit of about 120 eligible
voters. We note Bourgoine’s testimony that he only re-
ported Mascareno’s threats to six eligible voters.
For all these reasons, we adopt the judge’s rec-
ommendation that Objection 1 be overruled.
We further adopt the judge’s recommendation to
overrule Objection 5 which alleged, inter alia, that a
conversation between union observer Jose Bonales and
employee Juan Ambriz at the polling place violated the
rule of Milchem, Inc., 170 NLRB 362 (1968). The
judge found that the testimony of employer observer
Maria Fuentes indicated that the conversation, the sub-
stance of which is unknown, ‘‘lasted about 2 minutes
or so.’’ However, without indicating how he so con-
cluded, the judge found that ‘‘[the conversation] was
much shorter’’ and did not violate Milchem. The Em-
ployer argues in its exceptions that Fuentes at one
point testified that the conversation was ‘‘more than
two, less than five’’ minutes. Nevertheless, we find
that, even accepting the latter version offered by
Fuentes, the conversation between Bonales and Ambriz
was not shown by the Employer, the objecting party,
to be prolonged or sustained within the meaning of the
Milchem rule. See Clothing & Textile Workers v.
NLRB, 815 F.2d 225 (2d Cir. 1987), enfg. sub nom.
Angelica Healthcare Services, 280 NLRB 864 1986),
and NLRB v. U.S.M. Corp., 517 F.2d 971 (6th Cir.
1975), enfg. 209 NLRB 956 (1974); cf. Milchem, Inc.,
supra. Accordingly, we also adopt the judge’s rec-
ommendation that the Employer’s Objection 5 be over-
ruled.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Teamsters, Chauffeurs, Warehouse-
585BONANZA ALUMINUM CORP.
1 All dates refer to 1989 unless otherwise indicated.
2 General Counsel’s unopposed motion to correct the transcript in the par-
ticulars recited at pp. 2–3, fn. 1 of her brief, is granted. In addition,, the tran-
script is corrected to include new pages 31, 31A, 31B, 31C and 31D, sub-
mitted with a September 28 letter of explanation from the court reporter.
3 Employees also voted in the same place in an afternoon session and in
a second plant during the morning hours of April 6. Nothing of relevance to
the present case occurred during the voting at these other times and places.
men, Industrial and Allied Workers of America, Local
166, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL–
CIO, and that it is the exclusive collective-bargaining
representative of the employees in the following appro-
priate unit:
All production and maintenance employees, ship-
ping and receiving employees, warehouse employ-
ees and truckdrivers employed by the Employer at
11711 Pacific Avenue, Fontana, California and
1420 South Bon View Avenue, Ontario, Cali-
fornia.
Ami Silverman, Esq., for the General Counsel.
Raymond R. Kepner, Esq. and Kenneth D. Sulzer, Esq., of
Los Angeles, California, for the Respondent.
Michael J. Shelley, Esq., of Encino, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at Los Angeles on August 29 and
30, 1989,1 pursuant to a complaint issued by the Regional
Director for the National Labor Relations Board for Region
31 on May 31. In addition, on June 16 the Regional Director
ordered consolidated certain issues arising from a representa-
tion election in Case 31–RC–6536. The complaint, based
upon charges filed on April 18 (original) and on May 25
(first amended) by Teamsters, Chauffeurs, Warehousemen,
Industrial and Allied Workers of America, Local 166, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, AFL–CIO (the Union or Charg-
ing Party), alleges that Bonanza Aluminum Corporation (the
Respondent), has engaged in certain violations of Section
8(a)(1) and (3) of the National Labor Relations Act.
The Union’s representation petition was filed on February
22 and sought a representation election among certain of Re-
spondent’s production and maintenance employees. On April
6 an election was held pursuant to a Stipulated Election
Agreement. On April 13 objections to conduct affecting the
outcome of the election were filed by the Employer. In addi-
tion, it appears from the tally of ballots that one vote was
challenged, and it is not sufficient in number to affect the
outcome of the election.
Issues
(1) Whether Respondent, through its plant manager, Mi-
chael Hall, disciplined employee, Jose Bonales, because
Bonales served as the Union’s election observer, and because
Respondent intended to discourage employees from engaging
in similar activities or other protected concerted activities.
(2) Whether, because of certain neglect of his duties alleg-
edly committed by the Board agent conducting the election,
and because of certain other preelection actions allegedly
taken by supporters of the Union, employee free choice in
the election was not possible and therefore a fair election did
not occur.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and to cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of Gen-
eral Counsel, Charging Party, and Respondent.2
On the entire record of the case, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
Respondent admits that it is a California corporation en-
gaged in the manufacture of extruded aluminum products
with an office and principal place of business located in Fon-
tana, California. It further admits that in the course and con-
duct of its business, it annually sells and ships goods or serv-
ices valued in excess of $50,000 directly to customers lo-
cated outside the State of California. Accordingly it admits,
and I find, that it is an employer engaged in commerce and
in a business affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Teamsters, Chauffeurs,
Warehousemen, Industrial and Allied Workers of America,
Local 166, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, AFL–CIO is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE AND THE
OBJECTIONS TO ELECTION
A. The Facts
1. Background
On April 7, Respondent employee, Jose Bonales, was sus-
pended for 5 days without pay. The ‘‘Corrective/Disciplinary
Notice’’ issued to Bonales recites that the suspension was
imposed
for making a sexually disparaging remark to a female
employee on the morning of 4/6/89. This conduct will
not be tolerated. Any further incidents of this nature
will result in your immediate termination. Effective
4/10/89 and return Tuesday 4/18/89. [G.C. Exh. 2]
The incident for which Bonales was disciplined arose out
of the election on the prior day. Bonales had been assigned
there as an observer for the Union. Employees voted between
the hours of 6 a.m. and 7 a.m. in an area of Respondent’s
plant near the shipping and receiving department.3 This area
was delineated by stacks of aluminum products approxi-
mately 8 feet high, which formed three walls of the voting
586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
area. The fourth wall was the natural wall of the building.
Two openings in the enclosure were designated ‘‘entrance’’
and ‘‘exit.’’
Two witnesses, Jeffrey Bourgoine and Maria Fuentes, both
called by Respondent, prepared rough sketches of the voting
area on the day in question. (R. Exhs. 4, 6). Bourgoine’s
sketch with descriptions in English is reproduced below and
is marked R. Exh. 4.
587BONANZA ALUMINUM CORP.
4 Respondent’s nonsupervisory work force consists of approximately 120
males and 8 females.
5 In making this credibility finding, I place some weight on R. Exhs. 1 and
2. The first is a form submitted by Bonales to the State of California on April
16, as a claim for unemployment benefits. There Bonales wrote as a reason
for leaving his last job ‘‘Lack of Work.’’ Bonales blames this inconcistency
on a clerk who, he said, told him to write down that reason. The second docu-
ment is a form submitted to the California Department of Fair Employment
and Housing on May 23. There Bonales claimed that he was unfairly sus-
pended from work due to his national origin. Both claims were denied by the
state examiners when the true facts were uncovered (R. Exh. 3).
Seated at the table were a second union observer named
Javier Mascareno, an employer observer named Angel Gar-
cia, and a Board agent. Bonales was seated near the voting
booth; about 11 to 12 feet away from him was seated the
second employer observer, Fuentes. The disputed events in-
volved Bonales, Bourgoine, and Fuentes.
Bonales, an employee for Respondent for 7 years with no
prior disciplinary record, testified for the General Counsel
that shortly after 6:30 a.m., after Bourgoine had obtained his
ballot, he rolled it up, placed it near his groin and with his
other hand manipulated the ballot in a sexually provocative
manner. Since this act was allegedly performed while
Bourgoine was facing Bonales, the latter took offense, but
did nothing. Then another employee named Julio told
Bourgoine to leave which he did. Neither Julio nor Garcia
testified. Mascareno was called by the Union in rebuttal, but
did not address this subject.
Bourgoine and Fuentes testified in direct contradiction to
Bonales. First, Bourgoine flatly denied performing the act
described by Bonales. The former had worked for Respond-
ent for 2-1/2 years as a dye repairman. In the 2-month elec-
tion campaign, Bourgoine had been a member of the faction
opposed to the Union. After completing his ballot, Bourgoine
emerged from the booth, where, Bonales allegedly asked him
if he wanted ‘‘panochas.’’ (Translated as ‘‘pussy.’’)
Bourgoine first asked Fuentes what Bonales had said, then
repeated his question to Bonales, who asked, ‘‘Do you like
pussy—her pussy?’’ Bonales then made a gesture pointing
toward Fuentes with the two index fingers together and the
two thumbs together which apparently was intended to rep-
resent the vagina and was understood by Bourgoine and
Fuentes in that way. Then according to Bourgoine, he depos-
ited his ballot and walked out of the voting area shaking his
head.
Generally speaking, Fuentes supported Bourgoine’s ac-
count of the incident. Employed as a packer for 3 years be-
fore the incident, Fuentes testified that Bonales was looking
directly at her when he said to Bourgoine in a voice loud
enough for her to hear, ‘‘Jeff, like panochas.’’ She described
the gesture that Bonales made, again while looking directly
at her.
Fuentes was the only female in the voting area at the
time.4 She made no complaint to the Board agent because
she assumed he had heard the remark and was disturbed at
his lack of action. She supported Bourgoine in his denial of
having performed the gesture described by Bonales. In the
course of her testimony, Fuentes was uncomfortable with and
embarrassed by that part of her testimony dealing with a de-
scription of what Bonales had said and done. Although she
was generally acquainted with the slang term, ‘‘panochas,’’
she felt it had been directed toward her and this had never
happened before. I found her to be a credible witness.
I also find that Bonales made the remark and gesture as
described by Bourgoine and Fuentes. I am much less certain
that they were directed towards Fuentes, although her inter-
pretation of them as personal insults was not unreasonable.
In making this credibility determination, I am guided by the
fact that General Counsel produced no witnesses to corrobo-
rate Bonales’ account of the incident, even though other vot-
ers as well as observers were present. I also draw inferences
from Bonales’ statements to the investigating plant manager,
as described below. And I note that Fuentes made a prompt
complaint of the incident to plant manager, Mike Hall, who
testified for Respondent. Finally, I can’t believe that
Bourgoine made the gesture described by Bonales, when
Fuentes was seated about 12 feet away and would have been
just as offended by it, if it had occurred, as she was by what
Bonales had said and done.5
2. Michael Hall’s investigation of the incident
Shortly after the 7 a.m. voting had ended, Fuentes reported
the incident described above to Michael Hall, plant manager.
After receiving Fuentes’ account with the use of an inter-
preter, Hall interviewed Bourgoine, who corroborated
Fuentes. In lieu of written statements made out on company
forms, both Fuentes and Bourgoine gave formal declarations
to Respondent’s attorneys who were present at the time due
to the election. Hall also questioned Mascareno, who said he
didn’t see or hear anything. Finally, Hall conferred with the
former factory manager to see if any precedent existed for
this type of complaint, but there was none.
By the time Hall had finished his investigation, it was
midafternoon and Bonales had left for the day. The following
morning, Hall sent for Bonales. At first Bonales, who speaks
some English, said he didn’t need an interpreter. After Hall
advised him that a complaint of sexual harassment had been
lodged against him, Bonales requested an interpreter and one
was immediately provided. When the charge was repeated in
Spanish, Bonales said he didn’t hear anything, say anything,
or do anything. Bonales never requested the name of the
complaining witness and when asked for a written statement,
he refused to provide one. Before he left the office, Bonales
was told by Hall that Fuentes had made the complaint.
After completing his interview of Bonales, Hall called the
company president in Florida to seek advice on how to han-
dle the matter. Thereafter, Hall decided that he believed
Fuentes and Bourgoine and disbelieved Bonales. In deciding
how next to proceed, Hall consulted Respondent’s super-
visors’ manual, which reads in pertinent part (G.C. Exh. 3):
1.7 EMPLOYEE STANDARDS OF CONDUCT
The Company seeks to provide for each of its em-
ployees a safe and orderly workplace where the accept-
able performance of Company business can be con-
ducted. The Employee Standards of Conduct that follow
are intended to assure this working environment and are
not presented here with the intent to form any contrac-
tual basis between the Company and its employees for
the procedures to be followed concerning standards vio-
lations; nor is this list intended here to be all inclusive.
If and as infractions occur, employees will be given the
opportunity to discuss questionable conduct with Com-
588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pany management, though the Company reserves the
right to terminate any employment without prior
issuance of either verbal or written warnings or dia-
logue when employee misconduct is of such a nature
that termination is in the best interest of the Company.
1.7.1 MAJOR INFRACTIONS
J. Harassment toward any employee or employee
candidate for reasons of race, color, religion, national
origin, sex, sexual preference, age, handicap, veteran
status, citizenship, marital status, pregnancy or medical
condition, or any other protected status.
1.5 HARASSMENT
Harassment of any form directed toward race, color,
religion, national origin, sex, sexual orientation, age,
citizenship, or handicap will not be tolerated in the
workplace. Similarly, unwelcome sexual advances, re-
quests for sexual favors, or other verbal or physical
conduct of a sexual nature, where there is an attempt
to make submission to such conduct a term or condition
of an individual’s employment; or where the submis-
sion of or rejection of such conduct is used as a basis
for employment-related decisions; or where such con-
duct has the purpose or effect of substantially inter-
fering with an individual’s working environment, will
not be tolerated. The supervisor or manager will
promptly investigate all claims of harassment and will
insure that appropriate action is taken. The disposition
of this investigation will then be communicated to the
reporting employee.
Although this manual had not been distributed to employees,
Respondent did have posted various official notices in
English and Spanish stating that ‘‘Equal Employment Oppor-
tunity is the Law,’’ with a text explaining the policy (R.
Exhs. 9, 10).
Finally, Hall decided that Bonales deserved appropriate
punishment for his transgression. About 2:30 p.m. on April
7, Hall called Bonales and an interpreter into an office and
told Bonales that he would be suspended for 5 days. To this
Bonales responded that Hall should do what he had to do.
3. Other alleged instances of sexual harassment in
Respondent’s plant
As her second witness, General Counsel called Anita
Reyes, employed by Respondent for 4 years as a packer. On
May 5, she provided to Hall a written complaint which reads
as follows (G.C. Exh. 4):
Employee or Location of Occurrence: Packing Depart-
ment
Date of Occurrence: 5-5-89
Time: 11:45 to 12:00
Description: I was putting the plastic wrap on the bun-
dle and I felt someones [sic] hand touched me on my
bottom and I turned around and it was Jeff Bourgoine
and he said I’m sorry to me but there was enough
room for him not to touch me at all. Also when I was
filling out my report he came to me and started to say
bad words at me so I started to tell him too.
Completed by:
/s/Anita Reyes
/s/M. Hall
Department Manager
Reyes testified to this incident consistent with her written
complaint. After it occurred, she promptly reported it to Hall,
who began an investigation.
Before Hall talked to Bourgoine about the matter,
Bourgoine learned of Reyes’ complaint from another super-
visor. Bourgoine then left his work station to confront Reyes
and to ask her why she was lying. Reyes told Bourgoine to
‘‘shut up’’ and ‘‘get the fuck’’ out of there.
Later Bourgoine told Hall and testified at hearing that he
had touched Reyes on the way to the men’s room, but that
it was an accident which occurred in a narrow passage as
Reyes was backing up. His written account of the incident
reads as follows (R. Exh. 5):
Employee or Location of Occurrence: Shipping
Date of Occurrence: 5-5-89 Time: 1:00
Witness(es): None
Description: I was walking to the restroom. Anita was
stepping back. My arm bumped her butt. I said I was
sorry. I used the restroom and left.
Completed by:
/s/ Jeffrey Bourgoine
/s/ M. L. Hall
Department Manager
Hall visited the passage where the incident occurred and
found that its width varied at different times from about 3
feet to 10 feet, depending on material being worked on and
stored there. Both Reyes and Bourgoine had clean records
with no prior discipline nor conflict with each other or with
other employees. Hall concluded the incident was accidental
and since Bourgoine had already apologized, also concluded
that no further action was warranted. Hall offered to relocate
Reyes to another area in the plant, but she declined to be
moved. On rebuttal, Reyes was called back to testify that
while she didn’t observe Bourgoine at the time in question,
she felt his palm on her buttocks leading her to believe his
actions were intentional.
On August 12, Reyes was involved in a second incident
with another employee named Jose Chadez, a leadman on the
paint line, who did not testify in this case. Again Reyes sub-
mitted to Hall a written incident report which reads as fol-
lows (G.C. Exh. 5):
Employee or Location of Occurrence: Anita Reyes
Packing
Date of Occurrence: 8-12-89 Time: 10:25
Witness(es): Jorge Yanez & Margarito Escalante
Description: Jose Chadez made a bodlied [sic] advance-
ment towards me. And I turned around and told him
never to do this to me and all he said to me was to
shut up shut up and I told him that he could lose his
589BONANZA ALUMINUM CORP.
6 Wright Line, 251 NLRB 1083 (1984), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983).
job and he said to me that he did not care to go and
tell any body. So I told Jose Perez that I needed to
talk to him and he said after lunch so we talked after
lunch and I told him what Jose Chadez did to me and
he said that he was going to talk to Jose Chadez so
when he called Jose Chadez to come over were Jose
Perez and I were Chadez said no you come over here
and finally he came over. And Jose Perez ask him if
he did anything to me and Chadez said no and that
he could get better asses excuse me but that was what
Chadez said. He also said that I was only looking for
problems. And I told Jose Perez that I whated [sic]
for Mike to know about this and it seem to me that
Jose Perz [sic] did not what [sic] Mike to know about
this incident so I told Jose Perez that I was going to
talk to Mike Hall and he said go ahead so I did.
Also Margarito was hearing everything I was telling
Chadez when it happen he also heard when Chadez said
I didn’t care go ahead and tell anybody.
/s/ M. L. Hall
Department Manager
In her testimony, Reyes was again generally consistent
with her written report and provided additional details of
how Chadez had approached her from the back and made a
thrusting motion forward.
In the statement, Reyes stated that two witnesses knew
what happened, and both were interviewed by Hall.
Escalante denied knowledge of the incident, but Yanez cor-
roborated Reyes’ account. Then Hall talked to Chadez who
denied any contact with Reyes, but did not deny the gesture.
After reviewing the evidence, Hall decided to and did in fact
suspend Chadez for 5 days. During the 2-month campaign
preceding the election of April 6, Chadez had been a sup-
porter of the employer.
During his investigations of both incidents involving
Reyes, Hall told Bourgoine and Chadez in separate conversa-
tions that Respondent was opposed to sexual harassment of
any type and that such conduct would not be tolerated.
B. Analysis and Conclusions
1. Preliminary statement of applicable law
In Star Tribune, 295 NLRB 543, 548 (1989), the Board
clearly stated its position with respect to discrimination in
the workplace:
The elimination of actual or suspected sexual dis-
crimination is a mandatory subject of bargaining . . . .
In Emporium Capwell Co. v. Western Addition Com-
munity Organization, 420 U.S. 50, 66 (1975), the Su-
preme Court stated that ‘‘national labor policy em-
bodies the principles of nondiscrimination as a matter
of highest priority [citing Alexander v. Gardner-Denver
Co., 415 U.S. 36, 47 (1974), and it is a commonplace
that we must construe the [National Labor Relations
Act] in light of the broad national labor policy of which
it is a part.’’ . . . In Westinghouse Electric Corp., 239
NLRB 106 (1978), enfd. as modified sub nom. Elec-
trical Workers IUE, 648 F.2d 18 (D.C. Cir. 1980), the
Board observed that the Court’s statement in Emporium
that ‘‘[the] elimination of discrimination and its
vestiges is an appropriate subject of bargaining’’ was a
reaffirmation of the Board’s holding that ‘‘the elimi-
nation of race or sex discrimination practices is a prop-
er subject of bargaining.’’ [Footnote omitted.]
Although the above statement of law occurred in the context
of a refusal-to-bargain case, it nevertheless constitutes a fit-
ting and proper introduction to my analysis in the instant
case.
I turn next to the Wright Line6 analysis: The test for cau-
sation for cases alleging violations of Section 8(a)(3) of the
Act is as follows: First, General Counsel must make a prima
facie showing, sufficient to support the inference that pro-
tected conduct was a motivating factor in the employer’s de-
cision. Once this is established, the burden shifts to the em-
ployer to demonstrate that the same action would have taken
place even in the absence of protected conduct. Jamar Coal
Co., 293 NLRB 1009 (1989).
I fully agree with the General Counsel’s brief, page 5, that
Bonales was engaged in protected concerted activity while
serving as an election observer for the Union, Pierre’s Vend-
ing Co., 274 NLRB 1219, 1221 (1985), and that Respondent
was aware of his activities. However, because I find no evi-
dence of animus by Respondent or its agent Hall, and for
other reasons as well, I find that General Counsel has failed
to prove a prima facie case. In the alternative, if General
Counsel did prove a prima facie case, Respondent proved by
a preponderance that it would have taken the disciplinary ac-
tion against Bonales even in the absence of the protected ac-
tivity.
2. Did the misconduct occur?
In the facts section of this Decision, I credited Fuentes and
Bourgoine and discredited Bonales. Bonales’ motivation and
intent in making the statements are not in issue. However
that he made the remarks at the time and place in question,
in the presence of a female coworker whom he knew or
should have known was likely to take offense and reasonably
interpret the remarks as directed to her, all indicate to me
that Bonales could properly be subject to discipline without
violating the Act.
As part of her theory, the General Counsel contends that
Hall conducted an inadequate investigation. In Hickory Creek
Nursing Home, 295 NLRB 1144, 1159 (1989), the adminis-
trative law judge, quoting from Firestone Textile Co., 203
NLRB 89, 95 (1973) noted:
The Board has consistently held that an employer’s
failure to conduct a full and fair investigation of an em-
ployee’s alleged misconduct is evidence of discrimina-
tory intent, especially when viewed in light of the em-
ployer’s union hostility. [Citations omitted.]
In the instant case, there is no evidence showing union hos-
tility or an inadequate investigation. Hall gave Bonales an
opportunity to give his side of the dispute, but other than de-
nying that he did anything wrong, Bonales declined to pro-
vide additional details. Hall also interviewed Mascareno who
denied knowledge of the incident.
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 In deciding on a proper disposition of this case, I note that Hall relied in
part on the ‘‘Employee Policy Manual’’ (G.C. Exh. 3), which had never been
distributed to employees. See Herman Bros., Inc. v. NLRB, 658 F.2d 201,
209–210 (3d Cir. 1981). However, in the absence of credible evidence tending
to show Respondent’s unlawful motive, and with a serious infraction com-
mitted by Bonales, I conclude that Bonales and other employees knew that
conduct like that in issue here would be subject to disciplinary action.
The General Counsel makes much of certain alleged dis-
crepancies elicited in testimony. These are recounted in her
brief with lawyer-like thoroughness. That Hall did not at-
tempt to interview all possible witnesses to the incident does
not raise an inference of unlawful conduct. Under the cir-
cumstances, I find Hall’s investigation was entirely adequate.
Compare Hickory Creek Nursing Home, supra, 295 NLRB at
1159, 1160. I also find that Hall had a good-faith belief that
Bonales committed the infraction.
The General Counsel also contends that the 5-day suspen-
sion was unduly harsh and therefore suggestive of an unlaw-
ful motive. In support of her contention, the General Counsel
cites the case of Consumers Power Co., 282 NLRB 130, 132
(1986). There, an employee was terminated for a relatively
minor offense. The instant case was not a minor offense and
was not a termination. Rather, the use of the language here
and the gesture directed to or in the presence of Fuentes con-
stituted a direct verbal assault based on Fuentes’ gender. It
is important to note that no evidence was presented to show
that the use of said language or gestures was common in the
plant or that Fuentes herself had used such language or ges-
tures. In fact, before Bonales, the factory had never experi-
enced this type of conduct and Hall felt that a 5-day suspen-
sion was appropriate. I cannot find it was inappropriate or
unduly harsh. Cf. Texberry Container Corp., 217 NLRB 58
(1975); compare Postal Service, 250 NLRB 4 (1980).
Finally, I reject the General Counsel’s argument that
Bonales was treated disparately. As noted in the Facts sec-
tion, Reyes reported two other instances of sexual harass-
ment. Hall found the complaint against Bourgoine to be un-
founded, and the complaint against Chadez, a company sup-
porter in the election campaign, to be valid. Chadez was
given a 5-day suspension just like Bonales. I find no evi-
dence of disparate treatment. Compare Fern Terrace Lodge,
297 NLRB 8, 9 (1989).
In summary, I find that when Fuentes complained to Hall
about Bonales’ conduct, Hall was required by law to inves-
tigate the charge, and where the allegation was found to be
valid to take reasonable measures to punish the offender to
deter others from similar conduct. See Arnold v. City of Sem-
inole, 614 F. Supp. 853, 869 (D.C.Okla. 1985). In the exer-
cise of a business judgment which was not tainted by
Bonales’ activities as an election observer, Hall decided that
Bonales should be suspended for 5 days. I find no violation
of the Act, Florsheim Shoe Store Co., 279 NLRB 950 (1986)
and I will recommend to the Board that this case be dis-
missed.7
2. The objections
Before turning to the specific objections, I note the stand-
ard by which the objections are to be judged.
‘‘[B]allots cast under the safeguards provided by Board
procedure [presumptively] reflect the true desires of the par-
ticipating employees.’’ NLRB v. Zelrich Co., 344 F.2d 1011,
1015 (5th Cir. 1965). Thus, the burden of proof on parties
seeking to have a Board-supervised election set aside is a
‘‘heavy one.’’ Harlan #4 Coal Co. v. NLRB, 490 F.2d 117,
120 (6th Cir. 1974), cert. denied, 416 U.S. 986 (1974); see
also NLRB v. First Union Management, 777 F.2d 330, 336
(6th Cir. 1985) (per curiam). This burden is not met by proof
of misconduct, but ‘‘[r]ather, specific evidence is required,
showing not only that unlawful acts occurred, but also that
they interfered with the employees’ exercise of free choice
to such an extent that they materially affected the results of
the election.’’ NLRB v. Bostik Div., USM Corp., 517 F.2d
971, 975 (6th Cir. 1975) (quoting NLRB v. White Knight
Mfg. Co., 474 F.2d 1064, 1067 (5th Cir. 1973)).
With the above standard in mind I turn to the six objec-
tions filed by the Employer.
a. Objection 1
‘‘Union supporters made death threats, threats of physical
harm, and threats of job loss, such that employee free choice
in the election was not possible.’’
According to Bourgoine, on April 4, about 10 a.m., he and
Mascareno were discussing the approaching union election in
the dye shop, when Mascareno stated in a loud voice that if
Bourgoine or anyone else tried to stop the Union from get-
ting in, he would kill the ‘‘motherfucker.’’ Bourgoine de-
scribed the demeanor of Mascareno as ‘‘serious.’’ To this
statement, Bourgoine responded that if anything happened to
him or his family he’d deal with it. Then Mascareno alleg-
edly tore a procompany button from Bourgoine’s shirt. Later
that same day while both men were working, Mascareno al-
legedly made a gesture of pointing his index finger toward
Bourgoine as though it were a barrel of a gun. With another
finger Mascareno simulated the pulling of a trigger. Then
Mascareno placed his index finger toward his mouth and ex-
haled air as though he were blowing gunsmoke away.
In rebuttal, Mascareno denied making the statements and
gestures to Bourgoine. I don’t believe him and find the inci-
dent happened just as Bourgoine testified. Later that day,
Bourgoine reported the incident to a supervisor named Gil-
bert who has since left the company and to Plant Manager
Hall. Neither considered the matter serious enough to take
any action or even to request a written incident report from
Bourgoine, although Hall advised Bourgoine to stay away
from Mascareno.
In addition to reporting the incident to supervisors,
Bourgoine also reported it to six coworkers. Crispin Mar-
tinez, the only one of the six to testify, responded to the re-
port by stating, apparently in a joking way, ‘‘don’t worry,
they also wanted to kill me, and that would make two.’’ (Tr.
299).
Martinez also testified to a conversation with Jose Ro-
mero, who like Mascareno, was a leader of the prounion fac-
tion. A few days before the election and a day or so after
a preelection meeting held by the employer, Romero asked
Martinez why he was no longer supporting the union. Mar-
tinez had asked certain questions at the meeting and Romero
told him not to ask future questions and just shut up, or ac-
cept the consequences. Romero also referred to another com-
pany supporter named Arias and stated he knew where Arias
lived. Like Bourgoine, Martinez told four other coworkers
about Romero’s remarks. A coworker named Garcia re-
sponded to this information by telling Martinez ‘‘Don’t pay
attention to him. He’s crazy.’’ (Tr. 298).
591BONANZA ALUMINUM CORP.
8 The language difficulties between the mostly Spanish-speaking employees
and Bourgoine render widespsread dissemination by the latter even less likely.
About 3 weeks before the election, after a preelection
company meeting, Fuentes was part of a group of about 10
persons seated in the lunchroom. Mascareno said ‘‘if the
Union loses, they will all fuck their mothers and lose their
jobs.’’ Another time Mascareno told Fuentes and others that
when the Union won, he would have the power to fire em-
ployees opposed to the Union. Again Mascareno denied mak-
ing these statements and again, I don’t believe him.
In evaluating this evidence, I note that ‘‘generally, a union
is not responsible for the acts of an employee, unless the em-
ployee is an agent of the Union.’’ Kitchen Fresh, Inc. v.
NLRB, 716 F.2d 351, 355 (6th Cir. 1983). The conduct of
prounion employees will only be attributed to a union where
the union has ‘‘instigated, authorized, solicited, ratified, con-
doned or adopted’’ the conduct. Id. Under the standards de-
scribed above, there is no evidence to show the Union was
responsible for Mascareno or Romero’s conduct.
This finding does not end the inquiry. The alleged objec-
tionable conduct must be considered next under the standard
for third party conduct. In Picoma Industries, 296 NLRB 498
(1989), the Board described this standard as set forth in
Westwood Horizons Hotel, 270 NLRB 802, 803 (1984),
‘‘whether the misconduct was so aggravated as to create a
general atmosphere of fear and reprisal rendering a free elec-
tion impossible.’’
Applying this standard to the instant case, I note that both
Bourgoine and Martinez testified they were fearful and con-
cerned after the threats from Mascareno. Martinez was pri-
marily concerned that his former friends, the in-house union
leaders were not talking to him any more. (Tr. 321). In any
event, the ‘‘subjective reactions of employees to threats are
irrelevant to the question of whether there was, in fact, ob-
jectionable conduct.’’ Picoma Industries, supra at 499, citing
Emerson Electric Co., 247 NLRB 1365, 1370 (1980), enfd.
649 F.2d 589 (8th Cir. 1981). Rather, the Board in Picoma
Industries states, ‘‘the test is based on an objective stand-
ard.’’ Ibid.
On an objective basis, I find that the statements of
Mascareno and Romero did not combine to make a free elec-
tion impossible. See NLRB v. Griffith Oldsmobile, 455 F.2d
867, 870 (8th Cir. 1972), quoting Manning, Maxwell &
Moore v. NLRB, 324 F.2d 857, 858 (5th Cir. 1963). See also
S. Lichtenberg & Co., 296 NLRB 1302 fn. 3 (1989). The
threats such as they were, were directed solely to specific in-
dividuals who opposed the Union. See Duralam, Inc., 284
NLRB 1419 (1987). Moreover neither Mascareno nor Ro-
mero was known to be violent. Rather, Mascareno was
known to be an excitable individual given to exaggerations.
I also note the breadth of dissemination involved between
8–12 individuals. This should be considered in the context of
relevant election figures: of approximately 120 eligible vot-
ers, 110 cast ballots, of which 63 were cast for the Union,
46 were cast against the Union, and 1 was challenged (G.C.
Exh. 1h). Accordingly, the breadth of dissemination is not
significant,8 the threats did not make a free election impos-
sible and the vote was not close. Compare Picoma Industries,
supra, 296 NLRB at 500.
As to Mascareno’s threats of job loss after the Union won
the election, I find that threats of job loss for not supporting
the Union, made by one rank-and-file employee to another,
are not objectionable and that such statements can be readily
evaluated by employees as being beyond the control of the
Union. Duralam, Inc., supra 284 NLRB 1419 fn. 2 (citations
omitted).
For all the reasons stated above, I will recommend that
Objection 1 be overruled.
b. Objection 2
‘‘The Board Agent stationed the Union’s observer within
18 inches of the voting booth such that the Union’s observer
could see into the voting booth while the employees were
voting.’’
The voting booth had a curtain which apparently did not
fully cover the booth; on both sides, uncovered space of ap-
proximately 1 inch existed. The employee voting had his or
her back to the observers, as did Bonales as he sat close to
the booth. While there is evidence that Bonales lifted the
curtain to show employees where to vote, there is no credible
evidence that he lifted the curtain while an employee was
still in the booth. Accordingly, I find no evidence that either
Bonales or Fuentes, or anyone else could see into the voting
booth to observe an employee voting. Compare Imperial
Reed & Rattan Furniture Co., 118 NLRB 911 (1957). I find
this objection completely unsupported by the evidence and
will recommend that it be overruled.
c. Objection 3
‘‘During the morning voting session one of the Union’s
observers made a sexually derogatory remark and gesture to
a female company observer and a voter in the presence of
other voters—the Board agent did not admonish the Union’s
observer, indicating to the voters present, among other
things, the Board would not prevent the Union observers
from intimidating voters.’’
Because the facts surrounding this objection have been ex-
tensively recited above, lengthy additional discussion is not
warranted. I have found that Bonales committed the acts of
which he was accused. I also found he was duly punished
by the Employer for his conduct. To conclude that Bonales’
isolated behavior somehow rendered the entire election void
simply does not follow. The number of persons waiting to
vote at the time in question was never established with preci-
sion. Outside of the principals who actually testified, those
who witnessed Bonales’ conduct if any, were never estab-
lished at all. For example, Mascareno was present at the time
but said he saw nothing. Moreover, many voters cast their
ballots at other times or places. Finally if other voters did
see and hear Bonales, they would have to be influenced in
their voting, as measured by an objective standard. But even
company supporter Bourgoine didn’t know why Bonales was
present at the time and place in question (Tr. 165). Further,
the incident occurred after Bourgoine cast his ballot. It is not
likely that any other employee who may have witnessed
Bonales’ behavior knew more than Bourgoine about why
Bonales was there. Accordingly, I cannot conclude that any
such voters would have been influenced by Bonales’ acts. As
to the Board agent failing to admonish Bonales, I note the
Board agent did not testify. There is no credible evidence to
establish that he was aware of Bonales’ conduct. Fuentes did
not complain to him at the time. Even if the Board agent was
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 In any event, wearing of such apparel does not constitute interference with
an election. Colfor, Inc., 242 NLRB 465 (1979).
aware, but did nothing, his conduct and judgment could be
questioned, but there would be no reason to void the elec-
tion.
I find this objection lacking in merit and will recommend
that it be overruled.
d. Objection 4
‘‘The Board Agent stationed the Union’s observer at the
entrance to the voting area such that the Union observer was
the only person visible to voters waiting in line to vote. This
conveyed the impression that the Union was in charge of the
election.’’
On election day, Bonales was permitted by the Board
agent over the Employer’s objection to wear a union T-shirt
and hat. No specific postelection objections were ever filed
over this matter.9 Notwithstanding how Bonales was dressed
as Bourgoine entered the voting area to cast his ballot, the
latter was asked if he knew ‘‘that Bonales was the union ob-
server?’’; Answer, No. Did Bourgoine have any impression
that Bonales ‘‘was somehow in charge of the [election] proc-
ess because of where he [Bonales] was seated?’’ Answer,
No. Bourgoine knew only that Bonales was performing the
neutral role of traffic cop—that ‘‘he was directing people in
and pointing towards the ballots.’’ In sum, Bourgoine did not
know why Bonales was there (Tr. 164–165).
Employer witness Martinez testified that when he entered
the voting area, he knew the Union was in charge of the
election. His conclusion is not only unsupported by the facts
of this case, and reasonable inferences flowing therefrom, but
his conclusion is unsupported by his own testimony
(Tr. 305–306):
Q. How do you know that? [Union was in charge of
election.]
A. Because the Company had told us.
Q. What did the Company tell you?
A. That the vote had to be secret.
Q. And how did that indicate to you that the Union
was in charge of the election.
A. Because—I don’t remember.
In sum, the Employer’s own witness, Bourgoine, denies
the gist of the objection. Another witness, Martinez, is un-
able to explain his conclusion in any meaningful way. More
importantly, no other credible evidence tends to show that in
the 1-hour morning voting session, any employee could rea-
sonably have concluded the Union was in charge of the elec-
tion. Accordingly, I will recommend to the Board that the
objection be overruled.
e. Objection 5
‘‘The Board agent allowed the Union’s observer who was
sitting at the entrance to the polling site to converse improp-
erly with voters and to intimidate voters who were waiting
to vote.’’
Bonales had a conversation with an employee named Juan
Ambriz as the latter was waiting to vote. According to
Fuentes, the conversation lasted about 2 minutes or so, but
I find that it was much shorter. Ambriz did not testify and
the subject of the conversation is not known. The Employer
contends (Br. 29), that the conversation in question violates
the rule of Michem, Inc., 170 NLRB 362 (1968), where the
Board held that ‘‘the final minutes before an employee casts
his vote should be his own, as free from interference as pos-
sible.’’ I find that the conversation was not prolonged or sus-
tained within the meaning of the Board’s Michem rule. I also
find in the absence of evidence to the contrary, that the con-
versation was innocuous and did not involve electioneering.
Resins, Solvents & Varnishes Corp., 227 NLRB 959 (1977);
see also Princeton Refinery, 244 NLRB 1 (1979). In addi-
tion, I find that to the extent that Bonales may have violated
the Board’s election rule by this brief single conversation,
said conduct was harmless error and could not be said to
have affected the outcome of the election.
The Michem rule was designed to prevent last-minute elec-
tioneering in the immediate vicinity of the polls. Princeton
Refinery, supra, 244 NLRB 1, 2. Therefore it is questionable
whether Bonales’ conversation with Ambriz should be con-
sidered together with his sexually derogatory comment dis-
cussed above, which clearly was not electioneering. In any
event, even when all are considered together, I arrive at the
same conclusion. The Employer has simply not provided suf-
ficient evidence to prove that a new election is warranted.
Therefore, I will recommend that Objection 5 be overruled.
f. Objection 6
‘‘The Board Agent allowed the Union’s observer to call
out to employees in the plant and to summon them into the
voting area.’’
I find that from time to time, Bonales did call to employ-
ees to come into the voting area to vote. In addition, on one
occasion he and Fuentes together went to a department in the
factory to summon voters. While the Board agent was remiss
in permitting Bonales to behave as alleged, the Board has
held that such conduct is not grounds for a new election. See
Amalgamated Industrial Union Local 76B, 246 NLRB 727
fn. 2 (1979); San Francisco Sausage Co., 291 NLRB 384 fn.
1 (1988). Accordingly, I will recommend that this last objec-
tion also be overruled.
CONCLUSIONS OF LAW
1. Respondent Bonanza Aluminum Corporation is an em-
ployer within the meaning of Section 2(2) of the Act, en-
gaged in commerce and in an industry affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union, Teamsters, Chauffeurs, Warehousemen, In-
dustrial and Allied Workers of America, Local 166, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, AFL–CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor prac-
tices alleged in the complaint.
4. Since April 6, the Union has been the exclusive rep-
resentative of Respondent’s employees by virtue of Section
9(a) of the Act. (R. Exh. 7).
5. The appropriate unit is:
All production and maintenance employees, shipping
and receiving employees, warehouse employees and
truckdrivers employed by the Employer at its facilities
in Fontana and Ontario, California, excluding all office
593BONANZA ALUMINUM CORP.
10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
clerical employees, professional employees, guards and
supervisors as defined in the Act.
On the basis of these findings of fact and conclusions of
law and on the entire record in this proceeding, I issue the
following recommended10
ORDER
IT IS ORDERED that the complaint be dismissed in its en-
tirety, and that each and every objection be overruled and
that Case 31–RC–6536 be severed and remanded to the Re-
gional Director for Region 31 for certification of representa-
tive.