CPD Industries, Inc.

National Labor Relations Board - Board Decisions

Oct 6, 1976

226 N.L.R.B. 271 (N.L.R.B. 1976)

CPD INDUSTRIES, INC.
CPD Industries , Inc. and International Brotherhood of
Electrical Workers, AFL-CIO-CLC, Local 2254.
Case 21-CA-13915
October 6, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On May 26, 1976, Administrative Law Judge Her-
man Corenman issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
limited exceptions, the Respondent filed exceptions,
and both parties submitted supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended .Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, CPD Industries, Inc.,
Santa Ana, California, its officers, agents, successors,
and assigns, shall take'the action set forth in the said
recommended Order, except that the attached notice
is substituted for that of the Administrative Law
Judge.2
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
2 Based on the Administrative Law Judge's recommended Order, par
1(b), it is apparent that the recommended "Notice to Employees" omitted
any reference to Respondent's-"threatening to close the plant or import
work from overseas for the purpose of discouraging employees from engag-
ing in union activity or support."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportu-
nity to present their evidence , the National Labor
271
Relations Board has found that we violated the law
and has ordered us to post this notice and we intend
to carry out the Order of the Board and abide by the
following:
WE WILL NOT ask you anything about your
union activities, or the union activities of your
fellow employees, or solicit you to report to us
on the union activity of your fellow employees.
WE-WILL NOT threaten--you with discharge, lay-
off, or other punishment, or threaten to close the
plant or import work from overseas for the pur-
pose of discouraging employees from engaging
in activities in behalf of International Brother-
hood- of Electrical Workers, AFL-CIO-CLC,
Local 2254, or any other labor organization.
WE WILL NOT announce and grant wage in-
creases or threaten to withdraw profit-sharing
plans or other employee benefit plans for the
purpose of inducing you to reject a union or
abandon union. activity.
WE WILL NOT discourage membership in or ac-
tivities on behalf of International Brotherhood
of Electrical Workers, AFL-CIO-CLC, Local
2254, or in any other labor organization, by dis-
charging employees, or in any other manner dis-
criminating in regard to hire or tenure of em-
ployment or any terms or condition of
employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your rights guaranteed in the National Labor
Relations Act, which are as follows:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a represen-
tative of your own choosing
To act together for collective- bargaining or
other mutual aid or protection
To refuse to do any or all of these things,
Since it has been found that we unlawfully
discharged William Buck, Mark Tepner, and
James Crowe, WE WILL offer them back their reg-
ular jobs or, if such jobs no longer exist, WE WILL
give them substantially equivalent jobs; and WE
WILL pay them for the earnings they lost because
of the discrimination against them, plus 6-per-
cent interest.
All our employees are free to remain or refrain
from becoming or remaining members of a labor or-
ganization.
CPD INDUSTRIES, INC.
226 NLRB No. 35
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
HERMAN CORENMAN, Administrative Law Judge: This
case was heard before me in Santa Ana, California, on
February 10 and 11, 1976. The complaint, which was
amended at the hearing, was issued on November 20, 1975,
pursuant to a first amended charge filed on September 30,
1975, by International Brotherhood of Electrical Workers,
AFL-CIO-CLC, Local 2254, herein called the Union. The
complaint alleges 8(a)(1) and (3) violations in connection
with Respondent's, CPD Industries, Inc., discharge of four
employees and 8(a)(1) violations in connection with vari-
ous acts of the Respondent; to wit: announcing and grant-
ing wage increases to employees to persuade them to aban-
don their support of the Union; interrogating employees
concerning union activities; `threatening to discharge or
take reprisal against employees who engage in union activi-
ties; threatening to close the plant because of employees'
union activity or support; and soliciting employees to en-
gage in surveillance of the union activities of fellow em-
ployees. The Respondent's answer denies that it engaged in
the unfair labor practices alleged in the complaint.
All parties were afforded full opportunity to appear, to
introduce evidence, to examine and cross-examine witness-
es, to argue orally on the record, and to file briefs. Briefs
filed by the General Counsel and counsel for the Respon-
dent have been carefully considered.
Upon the entire record and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The complaint alleges and the answer admits that the
Respondent is engaged in the business of manufacturing
citizen band antennas, with its principal place of business
at Santa Ana, California; and in the normal course and
conduct of its business operations, Respondent annually
purchases and receives goods and products valued in ex-
cess of $50,000 directly from suppliers located outside the
State of California. I find that the Respondent has been at
all times material herein an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
In. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent manufactures citizen band radio antennas.
Its business has grown rapidly in the past 3 years. In July 1,
1975,1 it moved its manufacturing facility to larger quarters
in Santa Ana. Because of the shortage of floor space, it
operated two shifts previous to its move on July 1. After
the move, it combined all its operations into one shift. At
the time of the move, -Respondent employed approximately
60 employees.
In March, with the increase in the employee comple-
ment, the Respondent selected five employees to act as
leadmen in their respective production departments.
The leadmen were under the direct supervision of John
Marchiorlatti, Respondent's vice president and plant man-
ager, who in turn was responsible to Charles Dillow, Re-
spondent's president.
B. Union Activity and the Course of Events
The record shows that in March employees-began to dis-
cuss among themselves the desirability of having a union in
the plant. In May, after the discharge of Ted Hofstetter, a
union organizational meeting was arranged by Arthur Or-
tiz, president of the Union, at the union office. Attending
this union organizational meeting were William Buck,
Mark Tepner, James Crowe, Leonard Ortiz, the Kramp
brothers, and several other of Respondent's employees.
Union President Arthur Ortiz explained what was neces-
sary to start a union, and authorization cards were passed
out. Subsequently, several union meetings were held at the
union offices in Santa Ana.
Theodore Hofstetter, who began working for Respon-
dent on April 3, noted shortly after his employment that
employees were discussing the desirability of union repre-
sentation. Hofstetter, who was opposed to the idea of a
union, sometime in April approached Plant Manager Mar-
chiorlatti and told him that unless conditions changed in
the relationship between the Respondent and the employ-
ees the Respondent was going to have a union problem on
its hands. Marchiorlatti inquired if Hofstetter knew who
was behind it; Hofstetter told him Bill Buck and Leonard
Ortiz.
On April 24, Charles Dillow, Respondent's president,
conducted a meeting of all the employees in the plant to
report to them progress on a new insurance plan being
offered to the employees. Maas, the insurance broker, was
present, and he explained the insurance policy to the em-
ployees and passed out insurance enrollment cards. After
Maas had completed what he had to say, Leadman Wil-
liam Buck stood up and made a formal apology to employ-
ee Tom Talon for accusing him of telling Respondent
about the union organizing plans being discussed by the
International Brotherhood of Electrical Workers, AFL-
Local 2254, herein called the Union, is a labor 1 All dates hereinafter referrred to occurred in 1975 unless otherwise stat-
organization within the meaning of Section 2(5) of the Act. ed
CPD INDUSTRIES, INC.
employees.' When Buck made this apology to Tom Talon,
Dillow in surprise and astonishment, and in anger, let the
assembled employees know that he would not tolerate a
union in the plant. Buck's recollection, which I credit, of
what Dillow told the group is as follows:
Dillow spun around and he yelled, "Do you guys real-
ly want a union in the shop? I want to know how
many people want a union in the shop."
Of course nobody said anything or raised their hand
or anything. And he said, "I'll tell you what you are
going to get if you get a union; you are going to pay
half your paycheck for dues, and I am not going to
have a union in the shop. If it comes right down to it,
I am going to close the place down and import my
parts from overseas." He said that there were plenty of
people overseas just dying to make his parts, but he
made an American product and he wanted it made in
the U.S.A.
Buck testified that he then left while the meeting was still
in progress.
Other employees' who were present and heard Dillow's
angry speech corroborate Buck's version in substance and
add other remarks which I find were also made in the
course of Dillow's speech. Among other things, Dillow told
the assembled employees that he had been planning a prof-
it-sharing plan but would have to discard those plans now;
that before he let a union in, he would close the plant down
and import the parts from the Philippines, Japan, or Mexi-
co; he would have "wet-backs" to make the parts; if he
found out which employees were behind the Union, they
were going out the door. According to Buck's testimony, at
some point in the course of Dillow's speech, Hofstetter
stepped forward and said he wanted to say something, and
he said he thought they didn't need a union; he thought
there was a gap in communications between employees
andmanagement, and if they just got together and talked
and'settled our differences they wouldn't need a Union .3
2 A day or so prior to the April 24 insurance meeting, Buck approached
Marchiorlatti during a lunch break to- learn what Marchiorlatti personally
felt about a union, and also to fmd out who, if anyone, had talked to
Marchiorlatti about a union, as there was talk circulating through the shop
to that effect. Buck asked Marchiorlatti what he thought about a union in
the shop Marchiorlatti replied that he didntt think it was needed, the shop
was too small. He also said that Dillow would not go for it-that Dillow
would close up shop before he would let a union in his shop-that Dillow
had been fighting unions for years and there was just no way he would go
for it. Buck asked who it was who had told Marchiorlatti about the Union
and ventured the opinion it was Tom Talon. At this point, Marchiorlatti
told Buck that it wasn't Tom Talon, it was Ted Hofstetter. I find that
Marchiorlatti's remarks to Buck violated Sec 8(a)(1) of the Act
3 Dillow testified he was quite shocked to learn of union activity among
the employees, and admitted that he expressed his opposition to the Union
He testified he told the employees that with a union he would not be able to
compete effectively in the market, that he was working to get the employees
the benefits of a larger company and he was shocked that his efforts seemed
to be unheeded; and that,he would have to stop his efforts on the employ-
ees' behalf at that point if'the Union intervened. In view of the overwhelm-
ing testimony to the contrary, including Respondent's own witness, insur-
ance broker Maas , I do not credit Dillow's testimony that in the course of
his April 24 speech he did not say, in effect, that he would fold up and get
his parts from overseas ' or other countries, or his denial that he told the
employees, in effect, that if they did not work for him he would not work for
them, or that he would shut the doors if the Union came in. Nor do I credit
Dillow's denial that he said anything about firing employees who brought
273
I find that Dillow's April 24 speech to the assembled
employees containing threats to close the shop and to dis-
charge union supporters, and to have parts made overseas,
coerced and restrained employees in the exercise of their
Section 7 rights and thereby violated Section 8(a)(1) of the
Act. Oahu Refuse Collection Co., Inc., 212 NLRB 224
(1974); Plastic Composites Corp., 210 NLRB 728, 730-731
(1974).
C. The Discharge of Ted Hofstetter
It is not in dispute that Dillow was a harsh taskmaster
and expected that his employees give their best efforts to
the job at hand . This fact is made manifest in the testimony
of Bill Buck , a dischargee , who testified that in a talk he
had with Plant Manager Marchiorlatti on the day preced-
ing the general meeting of April 24 he told Marchiorlatti
that he personally was interested in the Union for the fact
of job security because Dillow "was kind of infamous for
getting upset and flying off the handle and screaming at
people and firing people." 4
I have taken note of this proclivity of the Respondent to
discharge employees in connection with my consideration
of the discharges of Hofstetter , as well as the three other
employees whom the General Counsel 's complaint alleges
were discharged in violation of the Act.
Hofstetter was hired on April 3, worked as a probation-
ary employee during the 6-week probationary period, and
was terminated on May 19. Hofstetter testified that Plant
Manager John Marchiorlatti called him into his office and
told him that Dillow had been watching him and had told
Marchiorlatti that Hofstetter was slacking off and that he
should be let go; that it wasn't his decision.
Marchiorlatti testified that in firing Hofstetter he told
him that he had been keeping an eye on him and had
warned him about talking ; it was disrupting his work; he
had heard from Dillow himself that he had warned Hof-
stetter about talking and had also heard from Rick Young,
Hofstetter 's leadman, that he had warned him for talking,
and Hofstetter wasn't doing very well and they were going
ahead and let him go. Marchiorlatti testified further that
Hofstetter said that he had to admit the last couple of days
he hadn't been feeling very good and had not been working
very well, to which Marchiorlatti replied it was more like
the last couple of weeks and told him they were letting him
go, at which point Hofstetter arose and said , "Okay,
thanks," and shook Marchiorlatti's hand and walked out.
On cross-examination , Hofstetter admitted that his lead-
man talked to him about his talking , that Marchiorlatti
may have also , and that Dillow also had warned him about
his talking.
Marchiorlatti testified that the decision to terminate was
his own but that he did consult Dillow beforehand. He
testified that he observed Hofstetter talking too much
"once or twice," and he verbally warned him on one occa-
the Union in Marchiorlatti testified that he heard dust the first part of
Dillow's speech-he missed the rest because he was talking to Tom Talon at
the time
4It is also noted that on September 30, 1975, the Union filed a charge that
the Respondent discharged 12 employees , including the 4 employees named
in the complaint herein
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion less than a week before Hofstetter's termination. In
this connection, Marchiorlatti testified that after he warned
Hofstetter he went to his leadman and told him to "watch
Ted, he seems to be talking quite a bit and disturbing the
guys,"_ and "--Rick [the leadman] told me that he had al-
ready'•warned him." Marchiorlatti testified further that
while Hofstetter was talking he was disturbing other em-
ployees and he was not doing his job; he was not getting
enough product out.'
Marchiorlatti testified that he spoke to Dillow about his
intention to discharge Hofstetter the day before his termi-
nation. At that time, Marchiorlatti testified, he told Dillow
that he had been noticing Hofstetter, that he wasn't work-
ing very well; and then Dillow told him that he too had
warned Hofstetter about "talking too much and not doing
his job." Marchiorlatti testified further that on the follow-
ing day he noticed that Hofstetter "was up to the same old
thing; talking'and not doing his job, and walking around
some."
While the record shows that Hofstetter was against the
Union, a fact which was well known' to the Respondent'
the General Counsel nevertheless contends that the Re-
spondent terminated Hofstetter in the belief that he was in
fact a union leader. To support this conclusion, the Gener-
al Counsel, among other things, points to the testimony of
Robert Kramp, a former employee, who testified that with-
in the hour afterHofstetter was terminated he approached
Marchiorlatti on the job and asked him why Hofstetter had
been fired, and Marchiorlatti replied that "Chuck [Dillow]
thinks that Ted, had something to do with the Union." Op-
posed to Kramp's testimony is that of Marchiorlatti who
denied that he had ever had any conversation with Kramp
concerning the termination of Hofstetter and denied that
he ever told Kramp, or anyone else, that Hofstetter had
something to do with the Union. Moreover, Dillow credi-
bly testified that he never told Marchiorlatti that he
thought Hofstetter was a troublemaker or an instigator of
the Union. The truthfulness of Kramp's testimony is fur-
ther impugned by the fact that in a previous affidavit given
to a Board agent he could not identify the employee he
talked about with Marchiorlatti. Bearing in mind
Hofstetter's well-known attitude against a union and his
conduct in alerting management to the threat of unionism
and informing management with the names of the union
leaders, I am disposed to credit Dillow's testimony that he
never told Marchiorlatti that Hofstetter was a troublemak-
er or instigator of the Union and to credit Marchiorlatti's
testimony that he never told Kramp or anyone else that
Hofstetter had something to do with the Union. It follows
5 Marchiorlatti testified that employees could talk, but not to where it
would disturb their work
6 Thus, in April, as is recited earlier in this Decision, Hofstetter alerted
Marchiorlatti that the Respondent had a union problem on its hands and
that Will Buck and Leonard Ortiz were behind the union drive Also, in the
course of Dillow's antiunion speech to the employees on April 24, Hofstetter
interrupted to venture his opinion that "we didn't need a union " Addition-
ally, Marchiorlatti testified credibly that he did not consider Hofstetter to
be a union leader, or in favor of the Union, and Dillow testified credibly
that he felt very strongly that Hofstetter was not active in the Union, basing
this feeling on reported conversations between Marchiorlatti and Hofstetter
that were conveyed to him by Marchiorlatti after the April 24 insurance
meeting
therefore that I do not credit Kramp's testimony that Mar-
chiorlatti told him' that Dillow thought that Hofstetter had
something to do with the Union.
To further support his contention, the General Counsel
also points to the testimony of Buck that a day or two after
Hofstetter's termination he attended a meeting of leadmen
with Dillow and Marchiorlatti. Buck testified that Dillow
made a "pep talk" with the encouraging news that a lot of
new orders were coming in and production was picking up.
Buck testified further that Dillow told the leadmen "that
things were really picking up, that the Company was really
going places, and he kind of leaned forward and said that
we were all company men now and he wanted us to keep
our ears to the ground for any loud noises. And he leaned
forward and said, `You-know what I mean'--,we just got rid
of one trouble maker and we don't want anymore road-
blocks in front of us." Buck testified that as he walked out
of this meeting he asked Marchiorlatti "if what Chuck [Dil-
low] meant by a roadblock and trouble maker, was Ted
Hofstetter, and he said, yes." Buck testified further that he
told Marchiorlatti that that was ridiculous-as Ted (Hof-
stetter) was, the one who came up and told him about the
Union in the first place. Buck testified further that Mar-
chiorlatti then told him "that Chuck [Dillow] seemed to
think that he [Hofstetter] was the main instigator and trou-
ble maker, and there was just nothing that could be done
about it."
Marchiorlatti, in contradiction of Buck's testimony con-
cerning this leadmen's meeting, testified that he did not
recall such a meeting where there, was conversation about a
"roadblock" or an "instigator." Marchiorlatti denied that
he had a conversation with Buck following a leadmen's
meeting where Buck talked to him and asked if Dillow
meant Hofstetter during the course of the meeting.
Aside from the fact previously alluded to in this Deci-
sion, namely, that management was fully aware that Hof-
stetter was antiunion and an informer against the union
leaders, and from my opinion, in view of Respondent's
hostility to unionism, that Respondent would be more like-
ly to retain rather than discharge Hofstetter, and in the
absence of any concrete evidence that Respondent's man-
agement was aware of or suspected that Hofstetter, was a
union activist, I am inclined to place a different interpreta-
tion on Dillow's remarks made at the leadmen's meeting,
as testified'to by Buck, concerning having `just got rid of
one trouble maker, 'and we don't want any more road-
blocks in front of us." It must be pointed out that Dillow
was giving a pep talk to his leadmen, stressing production
efficiency, and such terms as "trouble, maker" and "road-
block" in the context of the pep talk could very well have
had reference to the conduct of Hofstetter in interfering
with production by his conduct for which he was terminat-
ed. Dillow conceded that something similar to the term
"roadblock" might have been' said in the course of one of
the leadmen meetings where he talked to them about the
Company and its growth and what Dillow felt that "we had
to do to meet that growth and to be able to produce our
products to fill the needs that were out there."
In summary concerning Hofstetter's discharge, I am of
the opinion that the General Counsel has not satisfied his
burden of proof necessary to establish that the Respondent
CPD INDUSTRIES , INC. 275
discharged Hofstetter because they believed he was a
union activist. To the `contrary, the evidence establishes
that Hofstetter was discharged'for cause. It also establishes
that the Respondent's managerial representatives, namely
Dillow and Marchiorlatti, were fully aware of Hofstetter's
antiunion feelings and, in view of the Respondent's marked
hostility to unionism, it defies commonsense to conclude
that the Respondent terminated Hofstetter because they
believed him to be a union activist. I would therefore find
that Hofstetter's discharge did not violate any provisions of
the Act.
D. The Discharge of William Buck
Buck was hired by the Respondent on November 22,
1974, and, together with Mark Tepner and James Crowe,
other alleged discriminatees, was discharged on August 11.
Buck was hired as an assembler trainee. In March he was
promoted-to leadman in the metal fab department. He re-
mained a leadman till his discharge. When Buck was pro-
moted to leadman, his pay was increased from $2.75 to $3
per hour. There were three employees in the department in
which Buck served as`leadman. Buck testified credibly con-
cerning his duties and responsibilities as follows:-
As leadman in my department, at the .start of the
day I would tell which man which machine they were
to run until the next' break-I would try to switch the
men around, so they would have a variety of work and
wouldn't get bored.
Priorities and work assignments were determined by
Chuck Dillow, John Marchiorlatti and Danny War-
ren.
Concerning my function of training men in my de-
partment, I was this most experienced man in my de-
partment. About 90 percent of my time was devoted
to production work, 10 percent of my time as lead-
man.
I had no authority to hire or fire, no authority to
discipline, just yell at them; no, authority to suspend or
lay off. John Marchiorlatti