Diamond Manufacturing Corp.

National Labor Relations Board - Board Decisions

Aug 30, 1972

198 N.L.R.B. 1141 (N.L.R.B. 1972)

DIAMOND MANUFACTURING CORP. 1141
Diamond Manufacturing Corp . and Local 485, Inter-
national Union of Electrical, Radio and Machine
Workers of America, AFL-CIO. Cases
29-CA-2303 and 29-RC- 1621
August 30, 1972
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On March 22, 1972, Trial Examiner Melvin J.
Welles issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Trial Examiner: Case 29-CA-2303 is
before me pursuant to charges filed on March 8, 1971, and
amended April 6, 1971, and a complaint issued May 12,
1971, alleging violations of Section 8(a)(1) and (3) of the
Act. In its answer Respondent denied that it engaged in
any unfair labor practices. In Case 29-RC-1621, an
election was conducted on February 10, 1971, pursuant to
a petition filed November 17, 1970, and a Decision and
Direction of Election issued January 8, 1971. The election
results showed that the Union did not receive a majority of
the votes cast, based on a revised tally of ballots. On
February 17, 1971, the Petitioner filed timely objections to
the conduct of the election, and on May 12, 1971, the
Regional Director determined that the objections should
be consolidated with Case 29-CA-3303 for purposes of
hearing, ruling, and decision by a Trial Examiner on the
issues raised by the complaint and the objections. A
hearing was held before me in Brooklyn, New York, on
January 17 and 18, 1972, at which all parties participated.
Respondent thereafter submitted a brief to me.
h-)Upon the entire record in the case and from my
observations of the witnesses, I make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT; LABOR ORGANIZATION
INVOLVED
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the complaint be dismissed in its entirety.
IT IS FURTHER ORDERED that the objections to
conduct affecting the results of the election held in
Case 29-RC-1621 on February 10, 1971, be, and
they hereby are, overruled.
CERTIFICATION OF RESULTS OF
ELECTION
IT IS HEREBY CERTIFIED that a majority of the valid
ballots has not been cast for Local 48 , International
Union of Electrical, Radio and Machine Workers of
America , AFL-CIO , and that said labor organiza-
tion is not the exclusive bargaining representative of
all employees in the unit herein involved within the
meaning of Section 9(a) of the National Labor
Relations Act, as amended.
Respondent, a New York corporation, is engaged in the
manufacture, sale, and distribution of aluminum products
and related products, with its principal office and place of
business in the County of Queens, city and State of New
York, where it is admittedly engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. The Union
is a labor organization within the meaning of Section 2(5)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES; THE
OBJECTIONS
A. The Issues
The complaint, as amended at the hearing, alleges that
Respondent violated Section 8(a)(1) by threatening to
employees that it would close down its business, and with
other reprisals, if they became or remained members of the
Union, or gave assistance or support to it, and Section
8(a)(1) and (3) by the discharge of employee George
Sherman on February 12, 1971; and the layoff of employee
Juan Lozada on February 26, 1971. The sole remaining
objection to the election involved at this stage is the alleged
threat to close the plant by Respondent's President
Hochuli.
198 NLRB No. 166
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Alleged 8(a)(1) Violations
The two General Counsel witnesses, Sherman and
Lozada, testified with respect to a speech given to
employees in November or December 1970,1 by Respon-
dent's President Hochuli.
Sherman's testimony about the speech follows:
A. Mr. Hochuli introduced himself and he
introduced the other members of the staff. He directed
his attention to most of the workers and he said that he
was always very nice to them and offered help to them
when they need it and that he didn't know why they
had to look toward the union. He said there was a
union before and that had come down and gave him a
great deal of trouble and they even threatened one of
the people that worked there. I don't recall the party's
name.
Q. Did Mr. Hochuli mention the party' s name?
A. No, I don't recall. He also said that if the people
would vote for the union the way business was he
couldn't keep the business going and that he never had
a union and he doesn't want a umon. He said that there
will never be a union anyplace.
Lozada's testimony about the speech follows:
He said that he had never had a union at the
factory and he never was going to have one, and that he
was going to send us to study so that we could get
better benefits."
Lozada, who did not understand much English, and
testified through his interpreter, impressed me as a truthful
witness. As noted, he did not testify that Hochuli said
anything about closing the plant. Hochuli denied any such
statement, and other employees, as well as Supervisor
Palmer similarly denied any such statement having been
made. As against this, the General Counsel offers the
testimony of Sherman, quoted in full above, that Hochuli
said "If the people would vote for the union the way the
business was, he couldn't keep the business going, and that
he never had a union, and he doesn't want a union. .. .
that there will never be a union anyplace." Based on his
demeanor, and also on inconsistencies in his testimony
mentioned below in connection with the alleged 8(a)(3)
violation with respect to him, I do not credit Sherman's
testimony. I find, accordingly, that Respondent did not
threaten to close the plant if the Union got in, and shall
dismiss this allegation of the complaint. As the sole
remaining objection to the election is this alleged threat, I
shall, of course, recommend that the objections be
overruled.
C. The Alleged 8(a)(3) Violations
1. George Sherman
George Sherman was first employed by the Respondent
in the latter part of 1968. He left and then returned early in
1969. His duties were essentially those of a shipping clerk
during the period of his later employment, which ended
February 12, 1970.
According to Sherman himself, the extent of his union
1 The date of the speech was sharply disputed Respondent 's witnesses
placed it about November l l This difference would be critical if his speech
contained threats , for November I1 would place it before the Union filed its
petition , and hence , it could not constitute a basis for setting aside the
activity was his attendance at a single union meeting about
Christmas time of 1970. He testified that he "took a very
passive attitude toward the-Union," and added that he had
nothing to do with the union campaign other than
attending that meeting, that he did not take cards around
to have people sign them, and indeed, although he was
given a card, he never got around to mailing it in. He did
not solicit other people to join the Union, and did not even
vote for the Union in the election.
Sherman was discharged the afternoon of February 12,
1971. An incident that occurred that morning constitutes
the sole basis for the General Counsel's allegation that
Respondent violated Section 8(a)(3) by discharging Sher-
man. According to Sherman, two employees, Velazquez
and Fonseca , were sitting at a table as Sherman came to
work that morning, and while he was walking past them
going to the timeclock. Velazquez yelled out "We are going
to make George the shop steward," and Fonseca then said
"That would be a very good thing." Again, according to
Sherman , Willie Palmer, a supervisor , was sitting inside an
enclosed office, which had a glass door closed at the time
these remarks were made . Sherman testified that you could
hear remarks made outside the office, even when sitting
there with the door closed, and that when the remark was
made , Palmer looked at Sherman and smiled . Palmer
denied hearing any such statements made to Sherman on
the morning in question, or at any other time, and testified
that "With all the machines going and all the speakers
going, you really can't hear too much, except for the
machines," that if somebody shouted "you could hear the
shout, but I do not think you can make out what they are
saying."
This does not essentially present a credibility issue, in
that Sherman could hardly testify whether Palmer actually
heard the remark or not, only whether the circumstances
were such that he could. Although no testimony was
presented to contradict Sherman's testimony with respect
to the remarks made by Velazquez and Fonseca, neither
was any testimony presented to corroborate it. In view of
the fact that Sherman, by his own admission, attended only
one union meeting, and was not in any other way active in
the Union, it seems highly unlikely that such a statement
would have been made, or if it were made that it was made
in a serious vein. Furthermore, the General Counsel
adduced no testimony to support Sherman's opinion that a
shouted statement could be heard in the office with the
door closed.
I am constrained accordingly to accept Palmer's testimo-
ny that he did not hear any such statement made and that
he could not, with the machines in the plant running, have
heard such a statement even if it had been made. As this
incident constitutes the sole basis for the General Counsel's
contention that Sherman was discriminatorily discharged, I
find that the General Counsel has failed to prove an
affirmative case. In any event, I found the testimony of
Hochuli with respect to the circumstances surrounding
Sherman's discharge, to the effect that he had received a
election . As I am recommending dismissal of the 8 (a)(I) allegation of the
complaint, I find it unnecessary to resolve the question as to which date the
speech occurred.
DIAMOND MANUFACTURING CORP. 1143
number of complaints about Sherman's work from
Supervisor Palmer and that there were complaints made by
customers with respect to incorrect shipments , credible and
convincing. As mentioned previously, Sherman contradict-
ed himself a number of times during his examination. He
further exhibited a truculent and uncooperative attitude in
answering questions posed by Respondent's counsel.
Although he at first testified that nothing was said to him
during his termination interview about any complaints
having been made about him for mistakes that he had
made, he finally admitted on cross-examination that
Hochuli did tell him that he had been getting complaints
about mistakes made by Sherman. Furthermore, as
indicated above , the extent of Sherman 's union activity,
based on its own testimony , was so minimal that it is
difficult to believe Respondent would discharge him even
assuming that it knew exactly what he had done-attend a
single union meeting . For all these reasons , I find that
Respondent did not violate Section 8 (a)(3) and ( 1) of the
Act by discharging George Sherman.
2. Juan Lozada
button off; he took it off when Velazquez, who had given
him the button, told all of the employees to do so.
The General Counsel would have me infer that either
President Hochuli or one of his supervisors "in all
probability observed the wearing of the button," and that
Lozada's layoff was for union activity rather than an
economic layoff . I must reject the General Counsel's
contention in this respect . The extent of Lozada's overt
union activities which could have been (and probably
were) observed by Respondent's president or one of his
officials , was to wear the button for the half hour as
described above , along with 9 or 10 other employees.
However this activity took place almost 3 months before
the layoff of February 26. In the absence of any activity
shown by Respondent to have constituted restraint or
coercion of the employees in violation of the Act, and,
indeed, in the absence of any overt hostility of any sort
shown on this record , I do not find a sufficient basis for
drawing the inference that the General Counsel would
have me draw. Accordingly, I do not find that Respondent
violated Section 8(a)(1) or (3) of the Act by laying off Juan
Lozada.
Lozada worked for Respondent on several occasions in
1969 and 1970 . Although the record is not too clear, he
apparently began working for Respondent a second time
somewhere about the middle of 1970 , being ultimately laid
off on February 26, 1971. Lozada signed a union card
toward the beginning of the Union 's organizational drive,
in November 1970. He also attended three union meetings
after working hours. Sometime either late in November or
early in December , Lozada , along with about 9 or 10 other
employees of Respondent , wore a union button on the left
side of his shirt for about a half hour while working at the
Company. Nobody from the Company told him to take the
CONCLUSION OF LAW
Respondent has not engaged in the unfair labor practices
alleged in the complaint.
Upon the foregoing findings of fact , conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.
I also recommend that the objections to the election be
overruled.