Cla-Val Co.

National Labor Relations Board - Board Decisions

Oct 14, 1993

312 N.L.R.B. 1050 (N.L.R.B. 1993)

1050
312 NLRB No. 157
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On March 23, 1993, Administrative Law Judge James M. Ken-
nedy issued the attached decision. The Respondent filed exceptions
and a supporting brief. The General Counsel filed a reply brief.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
Finally, we make the following corrections in App. A of the
judge’s decision. The adjusted workdays available for January 1990
should be 22. The adjusted hours available for December 1989
should be 136. The number of hours absent for April 1990 should
be 4.5. The total number of hours absent should be 65.11. These
corrections do not materially affect the judge’s findings and conclu-
sions.
3 The fact that the General Counsel did not allege the remark as
unlawful under Sec. 8(a)(1) does not preclude its use as evidence of
antiunion animus.
We do not rely on the Respondent’s noncoercive campaign re-
marks against unionization. We also disavow any implication in the
judge’s analysis that it is generally improper for an employer to ask
an employee for suggestions about how to improve productivity or
to ask such questions in a casual conversation.
1 All dates are 1990 unless otherwise noted. In addition to the
docket numbers cited above, the charge in Case 21–CA–27681 was
filed on August 21, and supported the original complaint issued No-
vember 29. By order of September 24, 1992, the Regional Director
dismissed Case 21–CA–27681 in its entirety as well as portions of
Case 21–CA–27859.
2 Respondent has filed a motion to correct the transcript in certain
respects. The motion is unopposed. As it seeks to correct obvious
and mostly self-evident transcription errors, the motion is granted. In
addition the transcript contains other errors of similar import. A
Cla-Val Company and Laborers’ International
Union of North America, Local No. 1184,
AFL–CIO. Cases 21–CA–27747 and 21–CA–
27859
October 14, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issue in this case1 is whether the judge correctly
found that the Respondent violated Section 8(a)(3) and
(1) of the Act by taking several adverse employment
actions against employee Ralph Esparza. The National
Labor Relations Board has considered the decision and
the record in light of the exceptions and briefs and has
decided to affirm the judge’s rulings, findings,2 and
conclusions and to adopt the recommended Order.
We agree with the judge that the Respondent’s ac-
tions against Esparza were motivated by antiunion con-
siderations. In this regard, we note that, with one ex-
ception discussed below, all the elements of a prima
facie case were clearly established. That is, Esparza
engaged in union activities, the Respondent had knowl-
edge of this, and the Respondent took various actions
against Esparza after acquiring such knowledge. Con-
cededly, the element of antiunion animus has not been
established with equal clarity. However, we find that
antiunion animus was established by the following:
1. In giving Esparza a poor evaluation, the Respond-
ent cited Esparza’s ‘‘negative attitude toward manage-
ment.’’ As the judge found, the quoted lanquage was
a euphemism for Esparza’s leadership role in the
Union. This evidence is not only an indicium of the
illegality of the evaluation but also an indicium of the
antiunion animus that underlays other actions taken
against Esparza.
2. In a speech opposing unionization, the Respond-
ent told employees that ‘‘somebody up in Canada
would like to have the work that we have.’’ The judge
found that this remark conveyed to employees the idea
that work would be lost if the employees chose the
Union. The Respondent offered no economic expla-
nation for such a loss of work. See NLRB v. Gissel
Packing Co., 395 U.S. 575, 618–619 (1969). The
judge concluded, and we agree, that the remark dem-
onstrated ‘‘that Respondent was willing to resort to co-
ercion to dissuade employees from voting for union
representation.’’ Since the remark was a coercive one,
it is not protected by Section 8(c) and can be used to
establish antiunion animus.3
In view of the strong prima facie case as to most
elements of an 8(a)(3) violation, the adequate evidence
of antiunion animus, and the falsity and/or pretextual
nature of the Respondent’s defenses, we agree with the
judge’s finding of an 8(a)(3) violation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Cla-Val Company, Perris,
California, it officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Peter Tovar, for the General Counsel.
Michael A. Hood (Paul, Hastings, Janofsky & Walker), of
Los Angeles, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried before me in Los Angeles, California, on October
20, and November 9, 1992, upon a second amended consoli-
dated complaint issued by the Regional Director for Region
21 of the National Labor Relations Board (the Board), on
May 24, 1991. It is based upon charges filed by Laborers
International Union of North America, Local No. 1184,
AFL–CIO (the Union), on November 29, 1990,1 and Decem-
ber 20. It alleges that Cla-Val Company (Respondent) has
committed certain violations of Section 8(a)(3) and (1) of the
National Labor Relations Act (the Act).2
1051CLA-VAL CO.
reader should have no difficulty in deciphering any of them. None
has an impact on the outcome of any issue.
3 Facility Manager Caperon was on sick leave during most of this
time due to a back ailment. In his absence corporate staff in either
Costa Mesa or Newport Beach issued flyers and letters in his name
arguing against the need for union representation. Since Caperon
could not personally attend the company meetings, other plant offi-
cials, such as Mladenoff, were asked to present management’s oppo-
sition during the meetings.
Issues
As modified by the deletion of certain allegations, the op-
erative complaint alleges that Respondent for reasons prohib-
ited by the Act mistreated its employee Ralph Esparza by
issuing him an unfavorable employment evaluation, placing
him on probation, denying him a merit pay increase, giving
him a warning, and suspending him for a week without pay.
Respondent admits the conduct, but denies that it had an un-
lawful purpose.
The parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Both counsel for
the General Counsel and Respondent have filed briefs which
have been carefully considered. Based upon the entire record
of the case, as well as my observation of the witnesses and
their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a California corporation and a division of
Griswold Industries, manufactures hydraulic valves at its fa-
cility in Perris, California, where it annually ships and sells
goods valued in excess of $50,000 to customers outside Cali-
fornia. Accordingly, Respondent admits, and I find, that it is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Pursuant to a petition filed by the Union, a representation
election was conducted by the Board among certain of Re-
spondent’s production and maintenance employees on June
28, 1990. A majority of the voting unit selected the Union
as its collective-bargaining representative and on July 6, the
Regional Director for Region 21 certified the Union as the
9(a) representative of those employees.
The alleged discriminatee, Ralph Esparza, was a senior
employee at the Perris plant. He had been hired in June 1984
as a lathe operator and had been regularly promoted. He pro-
gressed to the CNC (computer numerical control) mill de-
partment and had served there as a trainee, an operator, and
finally as a setup man. By 1990, he was among the most ac-
complished employees in that department. Later, after the in-
cidents alleged to be unfair labor practices, he was trans-
ferred to the CNC lathe department. All the jobs he held
were those of a well-skilled machinist. His skills are unques-
tioned. He left Respondent’s employ in early 1992. His de-
parture is not an issue in this case.
From late 1989 through mid-1990, Respondent was under-
going a management changeover. In 1989, the facility plant
manager had been Archie Monson. In September 1989, one
Lee Johnson became, on a contract/consultant basis, the indi-
vidual who actually ran the plant. At the same time, Jess
Caperon was appointed to succeed Monson as facility man-
ager. Although onsite at the same time as Johnson, Caperon
seems to have been a manager-in-waiting. When Johnson’s
contract expired at the end of the year, Caperon assumed full
responsibility for the plant. His assistant manager was Jay
Tuttle.
As part of the changeover process, Johnson and Caperon
also replaced some of the firstline supervisors. In May 1990,
Caperon hired Jose ‘‘Joe’’ Silva as the machine supervisor
for the CNC department machines. He reported directly to
Caperon or, in Caperon’s absence, to Tuttle. According to
Esparza, Silva replaced Russell Davis as his immediate su-
pervisor. Silva had held a similar supervisory job for another
company for over 10 years.
B. Esparza’s Union Activity; Management’s Response
to the Election Drive
Esparza says he was not one of the employees who initi-
ated the organizing drive. Once it was underway, he joined
it having concluded that union representation was appropriate
for the production staff. He says in May he passed out about
six authorization cards, although there is no evidence that
Respondent’s management was aware that he was doing so.
He says he attended five or six meetings in late May which
Respondent conducted designed to dissuade employees from
voting for representation. Two or three were conducted in the
lunchroom in building #2. Others were held in the work
areas.
The first meeting, Esparza says, was in late May or early
June. About 30 employees were in attendance. It was con-
ducted by a supervisor named Ron Mladenoff.3 Other man-
agement personnel who were present included Tuttle and
Silva. Esparza recalls that Mladenoff acknowledged that the
staff was experiencing problems which the Company had not
addressed, saying he did not believe it was necessary for the
employees to go outside the Company to find remedies—that
the Company had provisions for those types of things.
Esparza publicly disagreed with Mladenoff on the point, say-
ing over the years many problems had been brought to man-
agement’s attention, but there were no company provisions
to solve the problems, only provisions to voice one’s opin-
ion.
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Both exhibits are identical except that R. Exh. 3 bears Esparza’s
signature, dated August 1.
He also says there was a great deal of talking between the
employees and the managers and that many people had
something to say about the need for a union. Esparza remem-
bers addressing the group himself saying he didn’t think hav-
ing a union was such a bad thing in light of the fact that
the Company hadn’t been able to solve the problems. He
stated to the group that he felt it was a valid option.
Although Esparza attended other company-called meetings,
he could only remember one other with any detail. That oc-
curred a short time before the June 28 election. Again it was
a large meeting in the lunchroom; about 30 employees were
present as was the managerial staff, including Mladenoff and
Silva but not Caperon. Esparza says Mladenoff continued to
try to discourage employees from voting for union represen-
tation saying at one point, ‘‘Somebody up in Canada would
like to have the work that we have.’’ Mladenoff was not
called as a witness and Esparza’s testimony stands
unrebutted.
In addition to the meetings, several items of literature were
distributed between June 8 and 22. None of these contains
any illegal threats or promises. Nevertheless, they can fairly
be described as hard-boiled, attacking the Union’s com-
petency as well as its dues structure. Respondent also com-
pared the salaries of certain union officials with the amounts
of money actually spent on its membership, pushing the con-
clusion that little of the dues went to benefit the members,
while large sums were applied to the salaries of the officials.
The parties have stipulated that on July 11, the Union noti-
fied Respondent that Esparza would be a member of the
Union’s negotiating team. Pursuant to that appointment,
Esparza attended three negotiation sessions. These seem to
have occurred on August 2, 14, and 29; at least I so infer
from corrections which appear on General Council’s Exhibit
16, a time and attendance record. Respondent’s only rep-
resentative at these meetings was Personnel Director Mike
Carroll. Other negotiating sessions may have been conducted
as well; if so, Esparza did not attend them.
C. Esparza’s Annual Evaluation; Discipline
Esparza’s anniversary, for appraisal purposes, was June 18
of each year. In 1990, some rather curious things occurred.
His supervisor, Silva, who had been hired only 6 weeks ear-
lier, was asked to complete Esparza’s evaluation, despite his
lack of familiarity with Esparza’s circumstances over the past
year. The evaluation form covers such matters as quality of
work, knowledge of the job, initiative, cooperation, personal-
ity traits, judgment, leadership, and the like.
Connected to each blank appraisal form is an annual time
and attendance report provided by the personnel department
which the immediate supervisor is to use in performing the
evaluation. That report is generated by the personnel depart-
ment computer in Costa Mesa/Newport Beach. It supposedly
covers the employee’s attendance record for an entire year.
In Esparza’s case, since the report (R. Exh. 4) was generated
during the month before the evaluation was due, it covered
neither the month of the evaluation (June) nor the month pre-
ceding it (May). Instead, it covered April 1989 to April
1990. This, of course, was a period about which Silva knew
nothing since he had just been hired in May.
The evaluation itself is dated June 26 by Silva and June
27 by Caperon. Caperon says he signed it June 26, a day he
thinks he came into the office even though still on injury
leave. In context, this occurred 2 days before the Board-con-
ducted election.
A few days earlier on June 20, Esparza with Silva’s ap-
proval had forwarded a suggestion (G.C. Exh. 25) to cor-
porate headquarters to increase the size of a rough casting
used for a particular part so that it could be more efficiently
machined. The suggestion was adopted 15 days later on July
5.
When Silva filled out Esparza’s form (in evidence twice,
R. Exh. 3 and G.C. Exh. 10)4 he rated Esparza satisfactory
in all but one category. One of the satisfactory ratings, how-
ever, tends to damn him with faint praise. The positive re-
marks include: ‘‘Maintains satisfactory level of quality,’’
‘‘Works satisfactory to the capabilities of set-up,’’ ‘‘Able to
work on his own,’’ and ‘‘Works well with fellow workers
and supervisor.’’ The last is a rating falling under the cat-
egory of ‘‘Cooperation.’’
The remaining two comments fall under ‘‘Personality
Traits’’ and ‘‘Leadership Abilities.’’ Silva rated Esparza’s
personality traits (which supposedly measures courtesy, en-
thusiasm, tact, overall conduct, and attitudes) as unsatisfac-
tory saying, ‘‘Negative attitude toward management.’’ On
leadership abilities, although marked satisfactory (and sup-
posedly rating the employee’s capacity to develop, his ability
to influence the performance of others and his willingness to
assume responsibility), he said, ‘‘Has potential of being a
leader if direction of attitude would change to the positive.’’
Silva then asserted, based on a computer printout, that
Esparza’s absenteeism exceeded 3 percent; that it was 6.27
percent. The initial printout (R. Exh. 4) on its face shows an
absentee rate of 7.8 percent. Silva doubted its accuracy and
discussed it with Tuttle. As a result of that discussion, a sec-
ond printout (R. Exh. 7) was run on June 22. As a result the
rate was reduced to 6.27 percent. That exhibit covers a pe-
riod from June 18, 1989, to June 17, 1990, a somewhat later
period than Respondent’s Exhibit 4. Although a note written
on it asserts that an adjustment had been made for a worker’s
compensation-related absence, even the 6.27-percent absence
rate is subject to severe doubt.
In addition to discussing Esparza with Tuttle, Silva also
believes he consulted with Caperon about Esparza but he did
not describe that consultation. Because Silva regarded
Esparza as having exceeded the 3-percent absence rate, he
thought Esparza, under the company manual, had rendered
himself ineligible for the merit pay increase which was nor-
mally connected to a satisfactory annual appraisal. Accord-
ingly, he recommended at the bottom of the form that the
merit pay increase be denied.
It is true that any employee who exceeds the 3-percent ab-
sence rate becomes subject to the employee attendance rule
as set forth in the Griswold Industries Employee Handbook.
The rule itself is not very tightly drawn and leaves room for
disagreement over its application. It certainly does not, as
Silva seemed to believe, automatically disqualify one from
the merit pay increase; instead such a deficiency is to be
taken into account with other factors before such a decision
is made. I quote the rule:
1053CLA-VAL CO.
Attendance
Griswold Industries must meet production require-
ments to satisfy our customers. You can do your part
by maintaining an acceptable attendance record. The
Company defines absence of more than 3% a calendar
year as unacceptable. Any absence or tardiness becomes
a part of your personnel record and, if excessive, will
become a factor when wage increases and promotions
are considered.
[Portion relating to newly hired probationary em-
ployees omitted].
As an employee, you will be disciplined in accord-
ance with the attendance regulations. Judgment will be
exercised regarding unusual circumstances and your
past record. The following causes for an employee’s ab-
sence will not be considered in the application of the
attendance policy:
1. Authorized jury duty.
2. Vacations and holidays.
3. Authorized absence due to industrial injury.
4. Company requested leave of absence due to lack
of work.
5. Any authorized and approved leave of absence.
6. Death in the immediate family. [Definition of im-
mediate family omitted].
When your attendance becomes unsatisfactory, the
following steps will be taken:
1. A verbal warning will be given.
2. Continued unsatisfactory attendance will cause a
written warning to be issued. This written warning will
become a part of your personnel record for a period of
one (1) year. Written warnings will be removed from
your personnel record when your attendance is satisfac-
tory for a period of one (1) year.
3. Any additional unsatisfactory attendance after a
written warning could result in suspension without pay
or dismissal.
The Company depends on you to do your part in
producing quality products on time. This can only be
achieved when you are here at your assigned times to
perform your duties. Your job is important! Your de-
pendability is one of the highest attributes and assets
you can provide your Company.
In any event, Silva concluded his review by writing in the
comments section of Esparza’s evaluation:
Due to your excessive absenteeism of 6.27% your at-
tendance will be reviewed every 60 days until it im-
proves. If it continues at a [sic] unsatisfactory rate fur-
ther action will be taken. Affective [sic] 7–16–90.
As can be seen from the rule, a verbal warning is the first
step in the disciplinary procedure. Silva did not take that
step, but went straight to a probationary procedure instead.
Caperon says on August 1, he told Esparza that the remark
was to be considered ‘‘a warning for you to improve your
time and attendance.’’ Although in writing it is unclear
whether this is warning referred to in the handbook. Such
warnings are usually given on a separate form used for that
purpose. Whether or not either Silva or Caperon followed the
handbook, it is unclear when the matter was actually brought
to Esparza’s attention.
Silva testified that he has no recollection of actually pre-
senting the completed evaluation form to Esparza, nor, he
says, did he ever discuss it with Esparza. Thus, according to
him, he never advised Esparza that he was being placed on
a 60-day attendance probation.
Esparza’s recollection is a little different. He says Silva
spoke with him about the evaluation sometime in mid-July,
some 4 weeks after it was due and 3 weeks after Silva had
filled it out. He says he read it over and concluded that the
evaluation portion was contradictory and he didn’t feel com-
pelled to sign it.
Silva tried to persuade him that it wasn’t all negative, that
he was rated satisfactory with respect to cooperating with his
supervisor, but agreed that the two factors could be regarded
as contradictory. With respect to Esparza’s leadership poten-
tial, Esparza recalls Silva saying he had the potential of
being a leader if he changed his attitude from negative to
positive. He said Esparza was ‘‘opinionated and influential
with regards to the other employees, that they listened to
[him] and the things that [he] said, and that [he] was viewed
as having a negative attitude towards management, and . . .
[he] always seemed to be on a soapbox.’’ Esparza replied
that all he was doing was expressing his opinion; that he
didn’t know there was a law against doing that. He says
Silva responded that there was no such law and repeated
Esparza seemed always to be out on a soapbox with a nega-
tive attitude towards management.
The discussion turned to the attendance matter. Esparza
asked him to explain how the Company had determined the
6.27-percent absence rate, because Esparza didn’t believe it
was accurate. He was, for example, aware that the 2 weeks
he had been off in March and April due to an industrial in-
jury might have been wrongfully included in the calculation.
He was most upset over the denial of the merit pay increase.
Esparza says Silva agreed to look into it.
Nonetheless, Esparza declined to sign the form. He does
not recall any specific discussion regarding the 60-day proba-
tion. Curiously, given the dates, the probation had already
begun or was about to begin. Why does Silva say he had not
discussed the evaluation at all with Esparza and why does
Esparza corroborate Silva at least with regard to the lack of
discussion over the probation? That imposition of limits
should have been a large portion of the discussion. Why
didn’t it happen?
Silva also explained that the reason he determined Esparza
had a negative attitude toward management was because
Esparza had responded skeptically when Silva had asked him
for his ideas about machine relocation. Esparza had opined
that the whole thing would come to nothing as had many
other ideas which had been begun and abandoned by the pre-
ceding management team. Caperon gave similar testimony. It
is clear, however, that Esparza was not alone in that re-
sponse; other employees answered similarly. Furthermore,
before the evaluation was written, no supervisor or manager
had ever told Esparza that his attitude toward management
needed to be improved. And, neither Caperon nor Silva ade-
quately explained why such a response actually demonstrates
a bad attitude. More likely it demonstrates that Esparza, a
rank-and-file employee, had never given the matter any pre-
vious thought and had not considered the matter with any
care.
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Silva was rehired about a year later in the same capacity.
6 Those two tardies are recorded for July 16 and 23. It appears that
Respondent also uses job timecards to record the time spent on par-
ticular jobs. When Esparza learned that his attendance was in ques-
tion he asked for and received copies of two job timecards covering
those 2 days. One shows him logging on a specific job shortly be-
fore the 6 a.m. start time and the other doing the same at 6 a.m.
Caperon is unimpressed saying they could have been tampered with.
Frankly, given the fact that the time and attendance computer shows
only 36 seconds difference, I fail to understand why there is any
claim that he was late on those days.
To a large extent the matter is not really an hourly em-
ployee’s concern; it is a management affair dealing with the
production floor’s system design which would ultimately be
resolved by management, probably after careful study. I find
it curious that Esparza, a machinist, albeit a skilled and expe-
rienced one, has been held to account for something clearly
outside the scope of his daily job. Even if the inquiry is ap-
propriate, it seems to be more of an issue of Esparza’s mana-
gerial potential than one of his attitude toward management.
Sometime in late July, Silva learned he was to be laid off
effective August 3. He actually left the factory several days
earlier, having been given permission to take the time to look
for other work.5
On August 1, Caperon appears to have picked up where
Silva had seemingly left off. He sounds as if he was under
the impression that Silva had not discussed the appraisal with
Esparza at all, so he called Esparza in to discuss it. Caperon
believes August 1 is the first time the evaluation was shown
to Esparza. He says at some point he had gotten the appraisal
which Silva had drawn (certainly he had signed it in late
June). Caperon testified he does not recall whether or not he
discussed with Esparza any previous conversation Esparza
may have had with Silva about the evaluation. It seems like-
ly, therefore that he did not; Esparza, who didn’t remember
the conversation, was probably operating under the belief, if
anything, that Caperon was following up where Silva had left
off—having reviewed the accuracy of the absence records.
However, at this point it is clear that no one had per-
formed an audit of the April-to-April attendance records, nor
had anyone even looked into it per Silva’s apparent promise
to do so. Nonetheless, according to Caperon, he presented
Silva’s evaluation to Esparza on August 1, since Silva was
no longer at the plant. He says he told Esparza the merit pay
had been denied due to his attendance (in fact it had earlier
been denied on June 26 or 27 even though Esparza hadn’t
been informed); that he was being warned about his attend-
ance; and that he was being placed on a 60-day probationary
basis as Silva had outlined.
Caperon remembers Esparza arguing over the accuracy of
the 6.27-percent absence rate and says he later asked person-
nel to verify it. His testimony on what he learned from per-
sonnel doesn’t really address what the actual truth was. He
accepted counsel’s leading assertion that the records were
marked ‘‘appropriately.’’ Frankly, I am unable to understand
that answer. Does it mean that the underlying records had
been checked and were in fact accurate, or does it mean that
the conclusionary paperwork appeared to be in order no mat-
ter what the underlying facts were?
Esparza has little, if any, recollection of an August 1 dis-
cussion of his evaluation with Caperon. He had been operat-
ing under the belief that he had refused to sign the evaluation
and seemed surprised upon seeing his August 1 signature on
Respondent’s Exhibit 3. He, of course, had not signed his
own copy (G.C. Exh. 10). Nor, on either document had he
made any contentions of his own, although the form does
contain an ‘‘employee’s comments’’ space.
At the end of the putative 60-day period, according to
Caperon, he asked for a time and attendance record covering
Esparza for the probation period. General Counsel’s Exhibit
16, generated on September 25, is the document. Among
other things, this is the period during which Esparza served
2-1/2 days as a union negotiator. Those days were physically
stricken from the sheet by marker pen and seem to have been
removed from the calculation. Nonetheless, his activity on
behalf of the Union is noted squarely on the document.
In addition, there is the question of what 60-day period
was actually granted Esparza. General Counsel’s Exhibit 16
begins with July 16, and ends September 24. The period was
to have begun on July 16, and Esparza says the evaluation
was shown to him around that time, but there is no evidence
that Silva discussed the probation period then. In fact, if the
absence records were in error, the probation might have been
reconsidered. It is unlikely, therefore, that the probation had
actually begun on July 16. By the time Caperon began deal-
ing with it on August 1, an additional 2 weeks had passed.
Was Caperon really putting Esparza on a retroactive proba-
tion period? That seems quite odd if its purpose was to give
Esparza the opportunity to improve. A retroactive period
would not accomplish the purpose.
General Counsel’s Exhibit 16 covers 71 days, 20 of which
are weekends. If the probation was workdays, that means
only 51 days were covered, assuming the 16 retroactive days
should be included. If they were included erroneously, then
Esparza was only given 39 workdays (assuming an August
1 start). If Caperon intended to begin the period on July 16
(ineffectual though that might be) why did he use a 71-day
period? If the 60-day period was intended to be calendar
days beginning August 1, why are 3 tardies in mid-July in-
cluded in the 10 to which Caperon points?
The printout highlights, in pink shading, 10 tardies, 1 left
work sick, and 1 leave early. Caperon showed this document,
as highlighted, to Esparza on August 1. Three of the tardies
occurred during the retroactive period before Caperon even
had his discussion with Esparza on August 1. Two of those
three are for lateness of 1/100th of an hour, or 36 seconds.6
He was not even docked for those. The third is for 8/100ths
of an hour or 4 minutes and 48 seconds.
1055CLA-VAL CO.
7 Arnold did not testify.
The remainder occurred after August 1. Again, one is for
being 36 seconds late. Another is for 4/100th of an hour, less
than 2-1/2 minutes. Neither was serious enough to warrant
a pay dock.
It is true that on 2 days he was nearly an hour late and
on 1 day he left about an hour and a half early. The others
were tardies of about 4 minutes.
As a result of his review of the September 25 attendance
printout, Caperon directed Mladenoff to prepare and give
Esparza a written warning. It was prepared on September 27
and given to Esparza the following day. It states:
On your last evaluation you were given a warning
about your job attendance and you were told that your
job attendance would be evaluated every 60 days . . .
This has been done and we find that your habitual tar-
diness and absence periodically is still keeping your
time and attendance in an unsatisfactory level.
Esparza responded by writing on the form: ‘‘I will im-
prove my time of arrival.’’
On October 5, Esparza was 10 or 15 minutes late to work.
He had called to say he would be late (such a call does not
excuse the lateness but does assist the supervisor in making
work assignments). Caperon testified that Esparza was later
asked for an explanation. Caperon at first uncertainly said he
was the one who asked Esparza, then thought it was
Mladenoff; finally he settled on Esparza’s new supervisor,
Ron Arnold.7 Caperon’s testimony here is obviously second
hand. Anyway, he testified Esparza, instead of explaining his
tardiness, evaded, saying, ‘‘It’s no big deal. What are you
worried about?’’ Esparza denies saying that or anything like
it at that time. Caperon says he regarded that response as
demonstrating a bad attitude. Accordingly, he decided that a
suspension would impress Esparza that the Company was se-
rious about getting his cooperation. He says he chose suspen-
sion over discharge because he considered Esparza a valu-
able employee.
Esparza testified that Mladenoff called him to his office in
the afternoon on October 5, and gave him the written suspen-
sion notice. He says Mladenoff told him only, ‘‘You’re not
getting it . . . this thing about your time and attendance . . .
therefore, you’re being suspended.’’ Mladenoff gave him a
written suspension form which stated:
Description of Unsatisfactory Performance: Tardi-
ness, late to work on 10/05/90. Ralph, this suspension
notice is being issued because of your failure to comply
with your last warning on tardiness and absence. Effec-
tive October 8, 1990, you are suspended from work
until October 12, 1990, without pay. Failure to correct
this habit from now on will result in your immediate
termination!
Esparza asked Mladenoff if he could see Caperon to clar-
ify some of the instances of tardiness and absenteeism which
they had been citing. He did not testify that he actually fol-
lowed up his request to discuss the matter further with
Caperon. Esparza also denied telling Mladenoff that the tardy
‘‘was no big deal’’ or anything like that. After being shown
his prehearing affidavit he admitted he told Mladenoff during
the suspension conversation, ‘‘I was only late.’’ That, of
course, does not repudiate his denial that he had said such
a thing earlier, at the time of his tardy arrival.
I note that Mladenoff had already prepared the written
form prior to his meeting with Esparza. That demonstrates
Mladenoff and Caperon had already made the decision to
suspend him. As Esparza’s supervisor, Ron Arnold, has not
testified, there is no firsthand evidence in the record regard-
ing what remark, if any, Esparza actually made upon his ar-
rival. The only acceptable evidence is his denial that he
made such a remark at that time. What, then, triggered
Caperon’s decision, the lateness or the supposed flip answer?
Caperon says it was the answer. Yet, there is no evidence
that anything approaching a glib answer was given until after
the decision to suspend Esparza had been made. That is an
odd sequence to be sure. It forces me to conclude that it was
the tardy itself, not Esparza’s sidestepping the explanation,
which triggered the decision to suspend him.
D. Esparza’s Attendance Record
Respondent contends, pointing to Respondent’s Exhibit 7,
that Esparza’s absence rate far exceeded the 3-percent ac-
ceptable rate established by the handbook. A cursory review
of the absence records, particularly Respondent’s Exhibit 4,
which totally misclassified Esparza’s absence for industrial
injury as unexcused and misses an entire pay period (that
ending August 20, 1989), made me skeptical of Respondent’s
records. Accordingly, using a combination of Respondent’s
Exhibits 4 and 7, I have reconstructed what actually hap-
pened. See Appendix A attached hereto. Before discussing
my findings, I make several observations.
First, it should be noted that Respondent’s Exhibit 4 is
what the personnel department gave Silva. Although it is a
one-page document, it actually covers 13 months rather than
12 as an annual appraisal might be expected to do. It begins
with April 1989 and includes April 1990. It tracks 2-week
pay periods, not daily logs. As is common, it utilizes pay pe-
riods which end on specific dates, alternating Sundays in this
instance. It is somewhat difficult to follow, but the -1, and
-2, following the dates refer to the first and second week of
each pay period and does reflect days of the week, Monday
through Friday. One can, by using a calendar, determine
what day of the month is reflected by each entry. On each
day of absence a code appears: V for vacation, H for holi-
day, F for floating holiday, P for paid absence (usually used
for sick leave), and A for unexcused absence. Tardies and
leave-earlies are shown by the amount of time missed (using
the 100-minute hour).
Respondent’s Exhibit 7 is a much lengthier document. It
is more of a time record and covers an entire year, day by
day. Generated later than Respondent’s Exhibit 4, it covers
June 18, 1989, to June 17, 1990. It contains excused absence
columns and shows log-in and log-out times, placed by the
employee; if those require correction, the correction is
shown. It also shows the amount of paid time earned that
day, both straight time and overtime. Unpaid absences are
shown only by a ‘‘no-entry’’ for the date.
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 I have also made a similar calculation for the June 18, 1989, to
June 17, 1990 period of R. Exh. 7. It is less certain, for between
April and June 1990, there are some corrected entries which have
no clear explanation. Even there, however, the percentage absence
rate is far below the 6.27 ascribed rate. It was 3.8 percent. I do not
consider it both because it is not the period originally leveled and
because of the uncertainty connected to corrected entries.
Even though the two documents are for somewhat dif-
ferent time periods, they overlap to a great degree. Accord-
ingly, they can be used to cross-check each other.
Because the personnel department chose to send Silva Re-
spondent’s Exhibit 4 to use in his annual evaluation of
Esparza, I have determined that an accurate version of that
same time period is the one which Silva should have been
given. It is true that one could use other periods, and Silva
eventually was given Respondent’s Exhibit 7. He, however,
never checked its accuracy, nor was it up to him to do so
or even to concern himself with the fact that it was for a dif-
ferent period. Had Respondent done it right, it would have
used an accurate version of Respondent’s Exhibit 4. Accord-
ingly, I have used that same time period, including the fact
that it covers 13 instead of 12 months.
As can be seen from appendix A, Esparza’s rate of ab-
sence for the 13-month period is 3.1 percent, only slightly
above the 3-percent handbook target, but far less than the
6.27 percent he was charged with. If one 8-hour absence
whose correctness is in question is deleted, the rate falls
below the 3-percent target.8
E. Other Employees’ Evaluations and Absence
Percentage
The parties have stipulated in evidence the personnel eval-
uations of several other employees, including Carl Hansen,
Gary Boone, and Steve Thorne. The first two were offered
by the General Counsel and the last by Respondent.
Hansen, like Esparza is a senior employee with excellent
skills and experience. His 1991 evaluation shows that his at-
tendance printout also showed an absence rate of over 3 per-
cent. His supervisor noted that the computer rate was erro-
neous, saying: ‘‘Attendance report is incorrect in the coding
of absence.’’ He was denied a merit increase only because
he was already at the top of the payscale for his job.
Boone’s evaluation was performed in February 1990. He
is shown to have had an enthusiastic attitude toward his work
and was rated satisfactory or better in all categories. Yet he,
like Esparza, had an absence rate of over 3 percent. His su-
pervisor recommended him for a raise anyway saying: ‘‘Gary
has improved his attendance over the last 3 month[s].’’ The
recommendation was followed.
In October 1989, Thorne received an annual appraisal. He
was also rated satisfactory or better on all categories. His ab-
sence rate was over 3 percent, too. His supervisor rec-
ommended no merit increase, but said he was going to work
with the employee on the problem. There is no evidence re-
garding his actual percentage of absence, only that it was
over 3 percent.
IV. ANALYSIS AND CONCLUSIONS
The General Counsel has easily proven four of the five
elements required to prove a violation of Section 8(a)(3) and
(1) of the Act. Those sections, of course, prohibit an em-
ployer from affecting the hire and tenure of an employee be-
cause of his or her union activities. First, there is no question
that Esparza was deeply involved with the Union and that
Respondent had actual knowledge of Esparza’s union sym-
pathies and activities. He had spoken in favor of unionization
at one of the early company meetings, clearly stating a posi-
tion contrary to the official opposition voiced by the Com-
pany. Furthermore, it was done in the face of Respondent’s
spokesman Mladenoff. Shortly thereafter, on July 11, notice
of Esparza’s appointment to the Union’s negotiating team
was transmitted to the Company.
I note here that in the annual evaluation, his supervisor
had said, adopted by Facility Manager Caperon, that Esparza
had the potential of being a leader if his attitude would
change from negative to positive; that other employees lis-
tened to what he had to say. If other employees were listen-
ing to what he had to say about the Union, it follows rather
easily that management was not pleased with the direction
Esparza’s leadership capability was taking them. Manage-
ment would not have regarded him as being on a soapbox
if it wasn’t taking notice of his commentary.
And, by giving him the sort of evaluation it did, Caperon
and Silva undermined Esparza’s tenure with Respondent. If
one is performing well, and doing the job for which one is
hired, and yet the employer rates the employee more poorly
than he deserves, then his hire and tenure has been affected.
That is even more true when it comes to denying the em-
ployee a pay increase. That is money out of the employee’s
pocket; money to which his work level has entitled him. The
timing, in the midst, not only of the Board election cam-
paign, but afterwards when Esparza was selected to the
Union’s negotiating committee, warrants the conclusion that
the two are connected.
The fifth element is union animus. The evidence here is
more subtle. Yet, there is some traditional evidence of that.
Mladenoff’s undenied remark that there were employees in
Canada who would like to do the work is evidence that Re-
spondent was willing to resort to coercion to dissuade em-
ployees from voting for union representation. In addition,
even some of its lawful speech, as evidenced by the
preelection flyers, suggests that it wanted to play hardball on
the issue. While that may not be direct evidence of animus,
it nonetheless demonstrates a lack of ready acceptance of the
collective-bargaining rights enjoyed by employees.
More important than those factors, however, is its lack of
honesty in dealing with Esparza. I find that its assertion that
he had a bad attitude toward management is based on vir-
tually false grounds. If they wanted him to give them ideas
about how to better lay out the production floor, casual con-
versations were not the way to get him to do it. Moreover,
since that was not part of his job, to evaluate him on that
perceived shortcoming is entirely unfair. He is not an effi-
ciency expert; he is a machinist. He should be evaluated as
such, but was not.
1057CLA-VAL CO.
9 I do not find that the so-called warning in July 1989 over
Esparza’s supposed failure to protect his long hair from the machin-
ery to be anything serious. Once warned he took steps to guard
against the hazard. His choice of a device other than a hair net and
his declination to cut his hair are hardly indicative of a bad attitude.
And, the contention that he was not cooperative with man-
agement, coming within a week of his having made a valu-
able suggestion to increase the bulk of a raw casting, dis-
credits the verity of the remark. In fact, Esparza’s suggestion
is evidence of his enthusiasm and good attitude toward the
success of the Company. Management approved his sugges-
tion a week after Silva and Caperon signed the appraisal.
This treatment is inconsistent at best and dishonest at worst;
on August 1, Caperon had the opportunity to take into ac-
count, but did not.
Finally, the analysis afforded Esparza in the absenteeism
matter was shabby treatment indeed. I think it is fair to say
that no one took the time to determine what the actual truth
was because the 6.27-percent rate was a good blind to hide
behind. Except for Silva, who doubted the first printout and
went to Tuttle about it, not one person in management or
personnel cared enough to be certain the absences were prop-
erly coded. A year later, in the Hansen evaluation, someone
was alert enough to recognize there were problems with the
coding. In Hansen’s case they recognized it despite the fact
that no merit raise was at stake. In Esparza’s, it was. Didn’t
anyone recognize the problem earlier than it did with Han-
sen? Or was it simply that they didn’t want to know, because
then they couldn’t use it as credibly?
I do not want to minimize the importance of absenteeism.
And I think that Esparza has demonstrated that he pushes the
limits of the 3-percent rule. He could stand some improve-
ment in this area. Nonetheless, his actual rate of 3.1 percent
is within the range of acceptability as evidenced by the fact
that Boone got a merit raise with a similar rate only 4
months earlier. Certainly Silva’s remark that the raise was
denied because the rate exceeded the amount ‘‘allowed by
company policy’’ overstated the rule. The rule, of course,
only says that the absence rate is a factor to be considered
while weighing the appropriate action to be taken. The rate
itself is not an automatic disqualifier. Clearly papering
Esparza’s personnel file and exaggerating a legitimate short-
coming can be seen as a camouflage masking the real mo-
tive—to defang a perceived effective union-leaning employee
with leadership potential.
It is certainly curious that Respondent never counseled
Esparza over either the ‘‘attitude’’ problem or the absentee-
ism prior to the evaluation. That it was exaggerating his
shortcomings and was creating evidence is quite clear. The
odd treatment of his probation period is proof of that. It tried
to hold Esparza to a probation period about which it hadn’t
even notified him until August 1, yet which had begun 2
weeks earlier. Furthermore, when it came time to review the
probationary period, it charged him with three tardies of 36
seconds, two of which are countered by evidence demonstrat-
ing punctuality. That is very petty treatment. If that were not
enough, Caperon added, after making the decision to suspend
Esparza, that the reason for the suspension was not the tardi-
ness per se, but Esparza’s attitude toward it. Why did he gild
this lily? The answer is obvious—to make Esparza look
much worse than he really was, thereby concealing the real
motive.
All of this reveals that Respondent was treating Esparza
differently than it would have had he not openly supported
the Union. Such a demonstration is evidence of union ani-
mus. I therefore conclude that the General Counsel has estab-
lished a prima facie case as alleged in the complaint. The
negative evaluation, the denial of the pay increase, the proba-
tion, the warning, and the suspension are all based on flimsy,
and at least partly false, evidence. Such evidence suggests an
entirely different motive.
Respondent’s defense is principally that the evidence was
a fair and accurate portrayal of Esparza’s work history over
the year.9 As we have seen, however, his treatment not fair
or evenhanded. I am not even much impressed by the argu-
ment that even if the absenteeism report was in error, that
supervision was entitled to rely upon it. Even Silva doubted
it in the beginning, before he ever showed it to Esparza.
Then, from the first time he saw it, Esparza regularly ques-
tioned its accuracy. He did so with Silva, he did so with
Caperon on August 1, and he did so with Mladenoff when
he was suspended. Yet nobody checked it.
In this circumstance, for Respondent to prevail, it must
show that this treatment of Esparza would have occurred
even absent his union activity. See Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). Respondent’s defense fails in this re-
gard for the very evidence upon which it must rely is actu-
ally evidence of animus. Had it not papered Esparza’s per-
sonnel evaluation and had it not relied on obviously inac-
curate time records, it may well have met that burden. It has
not.
Accordingly, I find that the General Counsel’s case stands
unrebutted and have no hesitation in finding an 8(a)(3) and
(1) violation as alleged and entering an appropriate remedial
order.
THE REMEDY
Having found Respondent to have engaged in certain vio-
lations of Section 8(a)(3) and (1) of the Act, I shall rec-
ommend that it be ordered to cease and desist therefrom and
to take certain affirmative action designed to effectuate the
policies of the Act.
The affirmative action shall include an order requiring Re-
spondent to revise Ralph Esparza’s 1990 annual evaluation to
accurately reflect his cooperative attitude toward and his
willingness to work with management, to properly reflect his
absence rate, and to recommend that he be granted the merit
pay increase to which he would have been entitled absent the
discrimination against him. In addition, Respondent shall be
ordered to grant that increase effective June 26, 1990, and
make him whole for any loss of earnings and other benefits
which he suffered as a result of that discrimination, including
losses resulting from his suspension from work without pay
on October 5, 1990, plus interest as computed in Ogle Pro-
tection Service, 183 NLRB 682 (1970).
1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Beginning on June 26, 1990, Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discriminating against its
employee Ralph Esparza with respect to his hire and tenure:
(a) By intentionally giving him a misleading, partially
false and negative annual evaluation, recommending dis-
cipline, and placing him on probation.
(b) By denying him a merit pay increase.
(c) By giving him a warning on September 28, 1990.
(d) By suspending him for a week without pay on October
5, 1990.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, Cla-Val Company, Perris, California, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Violating Section 8(a)(3) and (1) of the Act by dis-
criminating against its employees with respect to their hire
and tenure because they have engaged in or are engaging in
activities for and on behalf of Laborers International Union
of North America, Local No. 1184, AFL–CIO by
—intentionally giving employees misleading, false and
negative annual evaluations, and subsequently using that
record to recommend their discipline.
—denying them merit pay increases.
—giving them probation or warnings.
—suspending them without pay.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
llllll
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. l02.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Revise Ralph Esparza’s 1990 annual evaluation to ac-
curately reflect his cooperative attitude toward and his will-
ingness to work with management, to properly reflect his ab-
sence rate and to recommend that he be granted the merit
pay increase to which he would have been entitled absent the
discrimination against him.
(b) Grant Esparza the merit pay increase he should have
received on June 26, 1990, and make him whole for any loss
of earnings and other benefits which he suffered from that
date, including losses resulting from his suspension from
work without pay on October 5, 1990, plus interest.
(c) Remove from its files any reference to the unlawful
discipline of Esparza and notify him in writing that this has
been done and that the discipline will not be used against
him in any way.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its plant in Perris, California, signed copies of
the attached notice marked ‘‘Appendix B.’’11 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 21, after being signed by Respondent’s authorized rep-
resentative, shall be posted by Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
llllll
11If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
APPENDIX A
Esparza Absence Record
Date
Total Avail-
able Work-
days
Days Ex-
cused
Adjusted
Workdays
Available
Adjusted Hours
Available
Number of Hours
Absent Percentage Absence
1989
April 20 6 14 112 -0-
May 23 3 20 160 .03
June 22 3 19 152 -0-
July 21 3 18 144 -0-
August 23 1 22 176 1 28.00
September 21 2 19 152 1.00
October 22 0 22 176 9.55
November 22 2 20 160 8.78
December 21 4 17 120 -0-
1059CLA-VAL CO.
APPENDIX A—Continued
Esparza Absence Record
Date
Total Avail-
able Work-
days
Days Ex-
cused
Adjusted
Workdays
Available
Adjusted Hours
Available
Number of Hours
Absent Percentage Absence
1990
January 23 1 20 176 8.00
February 20 0 20 160 325.25
March 22 7 15 120 -0-
12 mo. Subtotal 1824 60.61 43.3
April 520 8.5 11.5 92 -0-
13 mo. Total 1916 60.61 3.1
It should be noted that the ‘‘Days Excused’’ column includes the following pursuant to the employee handbook, G.C. Exh. 4: vacations;
holidays (both scheduled and floating); absence due to industrial injury; and paid absences. The handbook in unclear on whether the last is
to be counted as excused for the purpose of computing the absence rate. However, in two places R. Exh. 4 excludes them. I have therefore
followed that model.
1 R. Exh. 7 shows an 8-hour absence on August 14; that absence is not confirmed by R. Exh. 4. In the latter exhibit the pay period ending
August 20 is missing entirely. Although the records do not match, the 8 hours have been included for the purpose of this chart. See fn. 4 for an
adjusted total if this 8 hours is deleted from the absence column.
2 R. Exh. 4 shows Esparza to have been absent on August 22. R. Exh. 7 shows he worked 8 regular hours and 1 hour overtime that day. Ac-
cordingly, the entry on R. Exh. 4 is deemed inaccurate.
3 This figure includes a .25-hour lateness per R. Exh. 4 although R. Exh. 7 shows only a .13-hour tardy.
4 If the indecisive 8 hours absence of August 14 is removed from the calculation this total and the 13-month total become 2.8 percent and
2.7 percent respectively.
5 April 30 not included as considered in May pay period #1.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discriminate against our employees with re-
spect to their hire and tenure because they have engaged in
or are engaging in activities for and on behalf of Laborers
International Union of North America, Local No. 1184,
AFL–CIO by
—intentionally giving our employees misleading, false and
negative annual evaluations, and then using that record to
justify disciplining them.
—denying them deserved merit pay increases.
giving them undeserved warnings and probation.
—suspending them without pay.
WE WILL NOT in any like or related manner restrain or co-
erce our employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL revise Ralph Esparza’s 1990 annual evaluation
to accurately reflect his cooperative attitude toward and his
willingness to work with management, to properly reflect his
absence rate, and to recommend that he be granted the merit
pay increase to which he would have been entitled absent our
discrimination against him.
WE WILL grant Esparza the merit pay increase he should
have received on June 26, 1990, and make him whole for
any loss of earnings and other benefits which he suffered
from that date, including losses resulting from his suspension
from work without pay on October 5, 1990, plus interest.
WE WILL remove from our files any reference to the un-
lawful discipline of Esparza, and notify him in writing that
this has been done and that the discipline will not be used
against him in any way.
CLA-VAL COMPANY