Doughboy Recreational, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1977

229 N.L.R.B. 381 (N.L.R.B. 1977)

DOUGHBOY RECREATIONAL, INC.
Doughboy Recreational, Inc. and Barbara J. Dery.
Case 3 1-CA-6239
April 29, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On February 9, 1977, Administrative Law Judge
Gerald A. Wacknov issued the attached Decision in
this proceeding. Thereafter, the Respondent 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
attached Decision in light of the exceptions and brief
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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Doughboy
Recreational, Inc., Cucamonga, California, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge:
Pursuant to notice, a hearing with respect to this matter
was held before me in Los Angeles, California, on
December 2 and 3, 1976.'
The charge was filed on June 29, by Barbara Dery, an
individual. The complaint, issued on August 13 and
amended at the hearing, alleges violations by Doughboy
Recreational, Inc. (herein called Respondent), of Section
8(aXl) and (3) of the National Labor Relations Act, as
amended (herein called the Act). Respondent's answer,
duly filed, denies the commission of any unfair labor
practices.
Each party was afforded a full opportunity to be heard,
to call, examine and cross-examine witnesses, and to
introduce relevant evidence. Since the close of the hearing,
briefs have been received from the General Counsel and
from Respondent's counsel.
I All dates or time periods herein are within 1976, unless stated to be
otherwise.
229 NLRB No. 65
Upon the entire record, and based on my observation of
the demeanor of the witnesses and my consideration of the
briefs submitted, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation, is engaged in the
manufacture and sale of swimming pools and related
equipment, with its corporate headquarters and one of its
plants (the facility involved herein) being located in
Cucamonga, California. In the course and conduct of its
business operations Respondent annually sells and ships
goods and materials valued in excess of $50,000 directly to
customers located outside the State of California, and has
annual gross revenues in excess of $500,000. Respondent
admits, and I find, that it is an employer engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
1. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Southern California District
Council of Laborers and its affiliated Hod Carriers and
Building Laborers, Local Union No. 783, AFL-CIO,
(herein called the Union), is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are:
I. Whether Respondent, in violation of Section 8(aX I)
of the Act, threatened employees with loss of benefits and
plant closure, interrogated employees concerning their own
union activities and sympathies and those of other
employees, and created the impression of having engaged
in surveillance of employees' union activities.
2. Whether Respondent, in violation of Section 8(aX3)
and (I) of the Act, laid off or discharged employee Barbara
Dery on or about May 28, and has since failed and refused
to reinstate Dery to her former position of employment.
B. The Facts
1. Background facts
Respondent is engaged in the manufacture of portable
above-ground swimming pools and related filters and other
accessories. It operates two plants, one being located in
West Helena, Arkansas, and having an employee comple-
ment, prior to seasonal layoff, of about 100 employees. The
Cucamonga plant has an employee complement, prior to
seasonal layoff, of approximately 40 employees, and is
engaged in the manufacture of filters and filter accessories
for swimming pools. The employees at the West Helena
plant are represented by a labor organization.
381
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 1, the Union filed a petition with the Board
(Case 31-RC-3431) seeking a representation election
among Respondent's Cucamonga plant production and
maintenance employees. The election was held on April 30,
and a majority of the votes was cast against representation
by the Union, the vote being 18 votes in favor of, and 22
votes against, representation. No election objections were
filed and on May 10, the result of the election was certified.
2. The 8(a)(1) violations
Beginning shortly after the filing of the representation
petition on March 1, Dave Nelson, Respondent's president,
conducted approximately 10 employee meetings with the
entire employee complement of the plant apparently in
attendance at each meeting. While many of the meetings
were directed toward the discussion of Respondent's then
existing benefits as embodied in a booklet entitled "Rights,
Work Rules, Regulations, and Information" (herein called
the employee handbook), a copy of which is apparently
given to each employee upon being hired, it is clear that the
meetings were primarily designed to present the employees
with information which would allow them to make an
informed choice in the forthcoming election. According to
employee Barbara Dery, Nelson discussed the Union at
almost every meeting, emphasizing the concept that a
union wasn't needed because of the "one big happy
family" relationship that then existed at the plant.
At one such meeting Dery recalls Nelson stating that
there were three employees working very diligently for the
Union. Dery does not recall whether this remark was asked
by an employee in response to a question. Also, according
to Dery, at the April 9 meeting Nelson explained that
Respondent provided its employees with very good
benefits and that if there was a union the employees would
not receive all the benefits. 2 Additionally, Nelson stated,
according to Dery, "something about the company would
probably go on strike or it would go on strike if the union
[did] 3 get in," and added, "I don't want to move to New
York. Do you?" 4
Employee Patsy Fox, who quit her employment on April
30, testified that at one meeting, perhaps the April 9
meeting, Nelson advised the employees that they were
receiving good benefits and that if the Union came in the
employees would probably not, or may not, get these good
benefits. Additionally, according to Fox, Nelson stated
that, "[T]here possibly could be a strike and something of
that nature and it could wind up the shop could move to
New York," Nelson then emphasizing this statement,
according to Fox, by "holler[ing] pretty loud" and stating,
"I don't want to go to New York. Do you?" Further, Fox
testified that at one of the meetings Nelson said that he
knew the identity of three people who were working very
hard for the Union.
2 At this particular April 9 meeting, according to Dery, Mike Smith, then
personnel manager, distributed to each employee a paper entitled "Certifi-
cation of Employee Benefits paid by Doughboy." One side of the paper, in
the form of a check stub, lists the various benefits and monetary amounts
thereof paid in 1975. The other side contains a facsimile of a check payable
to both the named employee "and family" made out in the amount of the
total 1975 benefits.
:* Certain errors in the transcript are hereby noted and corrected.
Nelson testified that not only did he not conduct the
meeting during which the certification of benefits was
distributed, but, moreover, he did not even attend that
particular meeting. Further, Nelson testified that he never
specifically discussed the document, as this was distributed
and discussed at a meeting conducted by Plant Manager
Tom Braden. However, Nelson admits stating, pursuant to
a question asked by an employee regarding improved
benefits, that he was not at liberty to either increase or
decrease benefits and could not even talk about increasing
benefits. Nelson maintains that he further told the
employees that "If you do elect the Union, then everything
becomes negotiable. However, I think I would fight pretty
hard to keep from negotiating away any of the benefits that
you have because I think they are all good benefits."
Nelson then told the employees that an attempt by the
Union to take away benefits could possibly result in a
strike because "You should keep all the benefits you have."
At one meeting someone asked the question, "Gee,
Dave, if you get a union, are you going to get fired?"
Nelson replied that he hoped not, and added, "but if I
don't have a happy family out here, they might move me to
New York and I sure don't want to live in New York."5
Tom Braden, plant manager, testified that he, not
Nelson, conducted the meeting during which the certifica-
tion of benefits was distributed to each employee and that
Nelson was not present. Braden further testified that at a
meeting late in the campaign one employee asked Nelson
whether he (Nelson) would be fired if the Union won the
election; Nelson said no, and made a statement which
implied that should his boss ask him to move to New York,
he wouldn't want to move.
During the course of a group meeting held several days
prior to the election, Nelson recalls an employee asking,
"Who supports this Union anyway?" Nelson replied that
he probably had a good idea of the names of some of the
people, and that at least 30 percent of the employees must
have wanted an election, but that there would be no
preferential treatment for anyone who supports Respon-
dent and no discriminatory treatment for anyone who
supports the Union. According to Braden, Nelson said he
had a pretty good idea of the identity of two or three
employees who supported the Union, and certainly the
Union had to have the signatures of 30 percent of the
employees in order to have the election.
Several weeks prior to the election Smith called Fox into
his office and asked her how the union meeting went,
which had apparently been held the previous night. Fox
replied that Smith should ask someone who knows, and
Smith stated, "It really doesn't matter because we have a
list of everyone that was there." Smith had asked similar
questions to Fox, in passing, on other occasions, and on
4 The statement regarding moving to New York was in reference to the
fact that Respondent's parent company, named the Lomart Company,
maintains a plant in New York which has the capability of producing the
products manufactured at Respondent's Cucamonga plant. In addition,
Nelson testified that the West Helena plant, and a plant apparently
belonging to another subsidiary of the Lomart Company, located in
Maquoketa, Iowa, could perform the said work.
I This statement is not alleged as a violation of Sec. 8(a)(1) of the Act.
382
DOUGHBOY RECREATIONAL, INC.
that day, according to Fox, was also asking similar
questions of other employees. 6 Smith denies that he ever
asked Fox anything regarding the Union.
Apparently sometime around the first part of March,
Smith called employee James N. Clay into his office and
asked Clay a series of questions; namely, why the Union
was needed, who had complaints, and what Respondent
was doing wrong. Smith showed Clay a list of all
Respondent's employees, named them individually, and
asked whether each named employee attended the union
meetings. Clay named about 18 or 20 employees who
attended the union meetings, including the names of
Barbara Dery and Patsy Fox. Smith, in a friendly manner,
asked why these people felt they had grievances against
Respondent and why they felt union representation was
necessary. Clay mentioned Cherrell Pierce, a leadlady, as
one of the reasons for the employees' discontent and stated
that the complaints varied. Clay's impression was that
Smith wanted this information in order to discuss the
matters with the named employees, rather than for the
purpose of retaliating against them for attending union
meetings. Smith, who had then been personnel manager for
Respondent for only about 30 days, testified that as a result
of the unrest which he believed had resulted in the
organizing campaign, he invited Clay into the office the
first week of March to discuss the various complaints and
problems of employees with the intent of identifying and
correcting the problems. Smith admits asking Clay to
identify the grievances or complaints of each employee, but
denies asking Clay who attended the union meetings.
Smith testified that he had no similar conversations with
other employees, and, as noted above, denies the conversa-
tion with Fox.
Around the end of March, Smith recalls attending a
supervisors' meeting conducted by Nelson, who explained,
using an NLRB publication as a guide, both Respondent's
rights and employees' rights during the course of an
organizational campaign. Nelson explained what conduct
of Respondent was prohibited, said he would not tolerate
any breach of the provisions of the NLRB rules, and that
Respondent's managers and supervisors were to follow
them and not engage in prohibited conduct.
According to Dery, on the day prior to the election,
Braden, who had that day been discussing the Union with
other employees, approached Dery and asked her why she
felt a union was needed. Apparently Vern Rueter, her
supervisor, was also present. Dery replied in a very direct
manner that seniority and job security were of primary
importance to her, and that her husband worked in a union
shop and she would not want her young sons to work in a
nonunion shop. She then asked Braden to clarify an
apparent discrepancy explaining that Nelson had said at
most of the group meetings that if a union got in employees
would not be required to join, while certain unnamed
union representatives had stated that union membership
would be mandatory. Braden asked if Dery was willing to
talk to someone about this and Dery replied affirmatively.
F Smith and Fox were not friendly at the time, and considerable
animosity existed between the two apparently because of personal matters
unrelated to Respondent's operations.
I Fox testified that during her employment with Respondent, but not
Shortly thereafter Dery was paged on the loudspeaker and
was told to come to Nelson's office. A call was placed by
Braden to the Board's Regional Office, and, with Dery
listening on an extension, Braden posed the question to a
Board agent, who replied that the matter of union security
was a subject for negotiation should the Union win the
election. Thereupon, Dery asked either Nelson or Braden if
she could go out into the plant and tell employee Rosemary
Rodriguez, and apparently other employees, about the
conversation. She was given permission to do so. That
night Dery attended a union meeting.
Braden denies that he initiated the above-related conver-
sation with Dery by questioning Dery regarding the Union.
Rather, he maintains that Dery asked for a clarification of
the union-security matter, which prompted the ensuing
phone conversation, after which Dery asked whether she
could go into the plant and tell the other employees about
the conversation. Rueter, who was present during the
initial conversation, corroborates Braden's testimony, and
states that he and Braden were touring the plant for work-
related purposes when Dery approached them and posed
the question regarding union security. Rueter, who left
before the conversation concluded, had no further involve-
ment in the matter.
Dery testified that about 9 o'clock the next morning, the
day of the election, Nelson passed Dery on the stairway as
she was going to the dining area, and stated, "And you
didn't even tell the people." Dery replied, "Dave, I did.
That was my first question at the meeting last night." Later
that afternoon Dery was called to be an observer for the
Union at the election. As she walked into the polling area,
Nelson said, "That was a wasted telephone call." Dery
didn't respond.
Patsy Fox quit her employment on April 30, the day of
the election, and phoned Nelson the following Monday to
explain that she would not be returning to work. She told
Nelson that she could no longer take the abuse of her
leadlady, Cherrell Pierce, and that Nelson should talk with
employees to discover the trouble or problems created by
Pierce, specifically suggesting that he talk with Dery and
apparently also mentioning the names of several other
employees. Nelson replied, according to Fox, that he didn't
trust Dery because he had arranged a phone call for Dery's
benefit and Dery didn't relate the answer to employees.
Fox replied that Nelson was incorrect, and that Dery
attended the union meeting the night before and did advise
those present of the information she had received during
the phone conversation. Nelson then asked Fox if she had
a union meeting at her house, to which question Fox
replied no; he asked whether Fox thought a union was
needed and Fox said yes. Nelson said that he was sorry to
lose Fox, that she was a good worker, but that he could not
discharge leadlady Pierce. ?
Nelson testified that he made no effort to discover
whether Dery communicated the substance of the phone
conversation to the employees, and did not pass Dery on
the steps the next day or have a conversation with her until
during the above-related phone conversation, she had been offered a
leadlady job, apparently to remove her from Pierce's area. Fox refused to
accept the job, however.
383
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about 2 p.m., when Nelson learned, a few minutes prior to
the election, that Dery was going to be the observer for the
Union. At that point, during the preelection conference,
Nelson testified that he said to Dery, "Gosh, I guess we
wasted a phone call." 8 Nelson testified that he did have a
phone conversation with Fox on the Monday following the
Friday election. Fox stated, according to Nelson, that
because of the Union losing the election she could no
longer work for the Company, and Nelson replied that the
fact the Union lost the election did not mean she had to
resign. Thereupon, Fox replied that she could not get along
with the leadlady and Nelson then suggested that Fox
could be given ajob somewhere else in the plant. Fox again
replied no, stated that she could not work for the
Company, and proceeded to give Nelson the names of
various employees, including that of Dery, suggesting that
he talk with them about the difficulty of having to work
under the leadlady. Nelson replied that in this situation,
involving personality conflicts, he didn't know whose word
to take, and that since he couldn't rely on anyone being
objective, he just didn't want to get involved. Nelson denies
that he mentioned the phone call incident involving Dery,
and further testified that Fox stated, "I am sure Mike
Smith has told you that I am having union meetings at my
house, but I didn't." Nelson replied that Smith never told
him that, and asked, "Do you really believe we need a
union?" Fox replied, "Yes, I do," and the conversation
concluded with Nelson stating that he was sorry that Fox
was quitting.
On Monday, May 3, at a group meeting, Nelson advised
the employees that, although they had rejected the Union,
there were no winners or losers; that the vote was very
close, thus indicating that Respondent was doing some-
thing wrong; that he had been taught a lesson; and that
there would be no preferential treatment for those who did
not support the Union, and no discrimination against those
who were in favor of the Union. Nelson invited the
employees to express their views and suggest solutions to
the problems that existed at the plant.
3. The discharge of Barbara Dery
Dery was first employed by Respondent in May 1974
and worked in the production area assembling filter parts
and performing some packing duties.9 She was laid off in
May 1975 as a result of seasonal layoff, recalled to work in
August 1975, and again laid off shortly thereafter. In
September 1975 Dery received a phone call from a
secretary in the front office informing her that she was
again being recalled and instructing her to report to the
customer service department. Dery had not previously
signed a bid sheet for a job in this department, and was
later told by Tom Braden, plant manager, that he had
8 Braden also recalls Nelson making this remark.
9 The record does not indicate where these particular packing duties were
performed.
'o Upon returning to work as an inspector Dery received a 10-cent-per-
hour raise after 30 days, and an additional 30-cent-per-hour raise shortly
thereafter.
I For purposes of clarity, the larger area is hereinafter referred to as
"packing," the remaining area as "quality control," and both areas,
collectively, as packing/quality control.
12 Respondent places crucial significance on its contention that quality
recommended her for the position. John Gregg was Dery's
supervisor for an unspecified time, and Gregg required
each employee to record, on a posted sheet of paper, the
number of hours spent performing inspection work or
customer service work during each day. Dery was classified
as an inspector. She considered the customer service job to
be a promotion, stating that she received more payO° and
that the working conditions or the nature of the work was
more to her liking.
A fenced-off area of approximately 1,200 square feet is
located at one end of Respondent's facility. Approximately
900 square feet of this fenced-off area is variously referred
to as the customer service area, customer service depart-
ment, and/or packing area. The remaining portion of
approximately 300 square feet, located near the receiving
door, is variously called the quality control department or,
again, the customer service area or department, and/or
simply quality control. tI There is no posted sign identifying
the two respective areas, and the only physical demarcation
between the two areas is a row of storage racks, which
apparently does not extend the entire length or breadth of
the fenced-in area, there being frequent movement of
employees between the two areas.?2
There are two classifications of employees, namely,
inspectors and customer service attendants, whose duties
are material to an understanding of the respective positions
of the parties. The inspectors, when they are inspecting,
perform two primary functions (I) receiving inspection, the
inspection of incoming supplies, parts, and materials for
use in the production process, and (2) line inspection,
which work involves inspecting the various items produced
or assembled on the subassembly filter lines, and also
inspecting the final product, this inspection work being
called "main line" inspection. Main line inspection work
consists of visually inspecting the finished filters, which
have been assembled from the various components,
indicating that the filters have been inspected by stamping
them with an inspection stamp prior to their being sealed,
recording the serial numbers on warranty cards, and
apparently maintaining a list of these serial numbers for
warranty work purposes. Both subassembly line inspection
work and main line inspection work consists of visual
inspection, as noted, and is performed in the production
area of the plant; the receiving inspection work apparently
requires the use of special tools and the reading of
blueprints, in order to ascertain whether the incoming
supplies and materials meet specifications.13 Such work is
performed in the quality control area.
In the packing area the primary work is that of filling
customers' orders by obtaining the ordered merchandise
from the storage racks and packing the items in prepara-
tion for shipment. It is also necessary for those employees
who happen to be working in the packing area to come
control is a separate department. General Counsel maintains that quality
control is not a separate department, but is merely a subdivision of the
customer service department.
13 The record does not indicate the extent to which incoming materials
must be checked against the blueprints. Nor does the record show who
repairs returned or defective filters and parts or where, if at all, such work is
performed. However, it would appear that work necessitating the reading of
blueprints constitutes only a minimal portion of the work of customer
service attendants, and that most of this particular work is performed by an
inspector, John Baca.
384
DOUGHBOY RECREATIONAL, INC.
around to the quality control side of the storage racks in
order to obtain certain parts, apparently for shipping, and
to work in the quality control area where they receive
incoming returned merchandise, perform the necessary
paperwork, and move the merchandise into the packing
area, apparently returning it to the storage bins located on
the packing area side.14
While employees who work in packing/quality control
are classified either as inspectors or customer service
attendants these classifications appear to be no more than
a very superficial description of the particular employee's
work, as the stated policy and practice has been to assign
inspector and packing work on an indiscriminate basis to
both inspectors and customer service attendants. Dery's
unrebutted testimony in this respect is quite significant.
Thus Dery testified that Rueter, supervisor over the
packing/quality control area, "wanted everyone back there
to do everything." Dery testified that she alternated
between working as a floor inspector and working in the
packing area, each job occupying 50 percent of her time,
some entire days or even weeks being spent in performing
one function or the other, and some days or, apparently,
weeks being spent in alternating between the two. While
her work as a floor inspector did not require the ability to
read blueprints, she was at one time being taught to do so
by her leadman, John Baca, also classified as an inspector,
who spends most of his time inspecting incoming materials,
such work apparently necessitating the reading of blue-
prints and the use of precision tools.
Respondent's manufacturing operations are somewhat
seasonal due to the nature of the product. About April or
May of each year Respondent ceases its "main line"
operation, involving the assembly of the final filter
product, but apparently continues, throughout the year, its
paint line and subassembly manufacturing operations,' 5 in
addition to its shipping, receiving, and related operations.
The 1976 seasonal layoffs occurred on May 28.16
Nelson testified that on May 13 he told the employees
that he was sorry to have to inform them of a general
layoff, that he didn't know exactly which departments
would be affected but everyone should consider that it was
going to affect every department; that bid sheets were
going to be posted and everyone, including "temporary"
employees, should sign the bid sheets if they were
interested in working during the layoff. As a result, bid
sheets were posted in the following categories: customer
service attendant, production spray painter-plater, stripper
room attendant, and stockroom attendant. Braden corro-
borates Nelson's testimony, adding that Nelson stated that
everyone including temporary and probationary employees
should sign the bid sheets.' 7
14 There is no record evidence that any inspection functions are
performed in the packing area, or that employees working in the packing
area have occasion to utilize blueprints or precision tools in their work.
Rather, it appears that all such work of this nature is performed in the
quality control area. However, there is a paucity of record evidence in this
regard.
15 The record does not provide details of the nature of production
operations remaining subsequent to the seasonal layoff.
is The parties stipulated that Respondent's need to lay off a large group
of employees in late May was caused by legitimate business reasons;
Dery's testimony is quite different. She maintains that a
meeting was held during the week of the layoff, on May 25
or 26, that Nelson explained there would be a big layoff
which would affect only employees in those departments
that were or would be posted, and that he was sorry to have
to advise the employees of the layoff. Nelson, according to
Dery, went on to say that if an employee received two
checks at the time of the layoff, one check apparently
including accrued vacation pay, the employee was thereby
laid off.
On May 25 the following was posted:
MEMORANDUM
May 25, 1976
TO: All Plant Employees
FROM: Tom Braden
SUBJECT: Production Layoff
I regret to inform you that there will be a layoff at the
end of the work shift Friday, May 28, 1976. The
following areas will be affected:
All filter production areas
Welding shop
The personnel affected in the above areas who are
eligible to bid to be transferred to other areas according
to the provisions of the Employee Handbook, (Section
V, B, 1, c) should indicate their preference on the
attached sheet prior to the close of the work shift
Thursday, May 27, 1976.
I wish to take this opportunity to thank all of you for
your support during this very difficult year. The things
we have learned will do much to insure our success next
season.
The "attached sheet," to which the above memorandum
refers, was posted adjacent to the memorandum, and states
as follows: 18
The following areas are open to bid by eligible
employees who are affected by the layoff. Those
wishing to be considered, please indicate by signing
below.
Below the above-quoted language appear columns entitled
"paint line," "shipping department," and "receiving de-
partment." Many employees, all of whom were then
working in either the filter production areas or in the
welding shop 19 signed the bid sheet for jobs in the posted
classifications. 2 0
namely, the seasonal nature of Respondent's production business "and not
by anti-union or any other improper reasons."
1r Apparently, prior to May 28, Respondent employed both temporary
and probationary employees.
'8 General Counsel's brief is incorrect in stating that this particular bid
sheet was posted on May 13.
19 With the exception of employee Jim Clay who was a forklift driver in
shipping.
20 1 find that the bid sheet was posted as a result of the March 25 meeting
by Nelson and that Nelson said nothing regarding a potential layoff in any
(Continued)
385
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rueter, supervisor over packing/quality control, main-
tains that around mid-May Braden informed him of the
general layoff. Upon being told by Braden that main line
production was going to shut down, Rueter testified that he
immediately reached the conclusion that he would have to
simultaneously lay off one inspector, because of the
diminution in the work to be inspected. Rueter maintains
that he did not consult with anyone in arriving at the
immediate conclusion that Dery would be laid off, as the
only other inspector, Baca, was a leadman, and had higher
qualifications and more seniority than Dery. Thereupon,
Rueter testified that he notified the personnel department
that Dery would be laid off, and instructed personnel to
prepare the necessary paperwork.
Emerson, a probationary employee who was hired on
April 13 to work in production and who thereafter,
pursuant to bidding for the posted customer service
attendant job, was awarded the job, became classified as a
customer service attendant on May 17, less than 2 weeks
prior to Dery's discharge. Torres, according to Dery's
uncontradicted testimony, "liked doing nothing but pack-
ing and he swore he would never go out on the floor and
inspect. That was just his way. .... He had an inspector
stamp. So he was qualified to inspect, too, but there was no
way he would . . . just in customer service he would do
inspecting back there." 21 Herrin also had an inspector's
stamp, and performed, as did Dery, both inspection and
packing work on an alternating basis. 22 Emerson, prior to
May 28, was learning how to pack and performed mostly
packing work, but also performed some inspection work;
and Rueter testified that after Dery's discharge Emerson
performed floor inspection work.
Rueter's testimony regarding the nature of the work
performed by those employees classified as inspectors and
those employees classified as customer service attendants is
highly illuminating:
Q. (By the General Counsel) Do you recall if
employees in the customer service department have
inspection stamps?
A. No, not all of them.
Q. Some of them do?
A. Some of them do, yes.
Q. That's customer service and not quality control?
A. Well, that's right. It's customer service.
Q. Does that mean that customer service atten-
dants do some inspection?
A. That's correct.
Q. As of May 28, in that area and before, did the
inspectors do packing?
A. Yes.
Q. Did the customer service attendants do pack-
ing?
departments other than the posted departments, namely, "all filter
production areas" and "welding shop." I further find that the bid sheets
posted on or about May 13 were posted, and removed, prior to the
announcement of the layoff.
21 Dery is apparently referring to Torres' performing receiving inspection
work in the quality control area, the entire packing/quality control area
often being called customer service.
22 The record does not indicate the percentage of time Herrin spent
performing each function.
23 The record does not show the nature of the duties of public relations
manager.
A. Yes.
Q. Isn't it true that the inspectors and customer
service attendants at that time were pretty much the
same as far as what they did?
A. Well, yes and no. Some of them did pretty much
the same and some of them didn't.
* * *
Q. (By General Counsel) Do you recall the term
"visual inspector"?
A. Yes, sir.
Q. Did you have employees working for you that
were visual inspectors?
A. Yes.
Q. As of.. . May 28, 1976 who were your visual
inspectors?
A. Barbara Dery.
Q. You had no other visual inspectors other than
Barbara Dery as of May 28, 1976?
A. Well, not in the classification. I had other people
doing visual inspection work. [Emphasis supplied.]
Q. Who were they?
A. Mike Herrin would be one and Torres could
have been one.
Q. But Herrin was one?
A. Yes. Emerson could have been one.
Q. Was Mike Herrin an inspector or a customer
service attendant?
A. Customer service.
Q. But he did inspecting?
A. Yes.
As previously noted, the parties disagree on whether
there is a department called quality control and a separate
department called customer service, as Respondent main-
tains, or whether quality control is merely a subdivision of
the customer service department, as General Counsel
maintains. The testimony of Rueter is again very illuminat-
ing on this point. Thus, Rueter testified that since the date
of his being hired until a "few months" prior to the hearing
herein he was "customer service and Public Relations
Manager." His duties were changed 3 or 4 months prior to
the hearing to his current position of "quality control
manager, customer relations manager, and sole coordina-
tor for the paint operation .... " Thus, it seems clear that
although Rueter supervised quality control he did so as
customer service supervisor and, perhaps, public relations
manager 23 and not as quality control manager, thus further
indicating that, at least until well beyond the date of Dery's
discharge, quality control was a subdivision of customer
service rather than a separate department. 24
24 Dery consistently testified throughout the hearing that quality control
was a part of customer service. However, at one point during the cross-
examination of Dery, the following colloquy occurred:
Q. (By Respondent's counsel) My question is: Isn't it true that the
job classification inspector is part of the quality control department?
A. (By Dery) That's part of the quality control department, yes.
Q. Isn't it true that the job classification inspector-that job
classification is not part of the customer service department? The
386
DOUGHBOY RECREATIONAL, INC.
On the day of the layoff Dery worked as main line
inspector until about 2:30 p.m., at which time main line
production ceased and 13 of the 23 production employees
were laid off. Thereupon, Baca instructed Dery to work the
remainder of the day in customer service. Baca, after
receiving a phone call, assembled the employees in
packing/quality control; namely Emerson, Herrin, Torres,
and Dery. Baca said "I am going to lose some of my
people. That's Barbara [Dery], Mike [Herrin] . . . and
Terry Huggans." 25 Baca further stated, "Please don't say
anything when you go out . . . I was told not to tell you
people . . . [but] . .. I am telling you." Thereupon Dery
left, receiving two paychecks, but not including her
vacation pay which she received at a considerably later
date.
The parties stipulated that there was no necessity to
reduce the number of customer service attendants as a
result of the general production layoff. Thus, Herrin was
not laid off as a result of the general layoff, but rather the
layoff was utilized as a vehicle for dismissing Herrin
because of his alleged inability to perform certain work,
and Respondent's desire to upgrade the caliber of employ-
ees. 26 Respondent, allegedly, about 2 weeks prior to the
May 28 layoff, had hired a new employee, J. Stevenson, to
the classification of customer service attendant, and
Stevenson began working in this position on June 1, the
first workday following the layoff.
It is admitted that Dery was a competent employee, and
Respondent does not maintain that her layoff was
occasioned by lack of qualifications, as was Herrin's layoff.
While the bid sheet posted on May 13 for the job of
customer service attendant contains the requirement "must
be able to read blueprints," and while Dery had not yet
been trained to read blueprints, it is clear that this inability
would not have precluded Dery from obtaining the
customer service attendant job, had she bid on it.27 This
was clearly brought out in General Counsel's cross-exami-
nation of Rueter, as follows:
Q. (By General Counsel) What was the reason you
did not select Barbara Dery for the customer service
attendant job rather than Jan Emerson?
A. She didn't bid on it.
Q. Was there another reason?
A. No. Couldn't have been any.
Further, when Braden was asked why Emerson, a
probationary employee, was retained while Dery was laid
off, he referred to a particular section of the employee
handbook, which states: "The right to hire, assign work,
classification is not part of customer service?
A. Right.
While Respondent's counsel places crucial significance on this testimony,
and characterizes it as a critical admission, I find that, at least during the
period of Dery's employment, there was no separate quality control
department but rather quality control was a subdivision of the customer
service department. Dery readily admits a distinction between quality
control work and customer service work, detailed above, and the record is
clear that she performed both jobs on an equal basis. While her response to
the above question appears to indirectly admit that quality control is a
separate and distinct department. it is apparent that Dery was merely
attempting to reiterate that quality control work and customer service work
involve different duties. Dery credibly testified that she considered the job
lay off, demote, transfer, discharge for cause, and maintain
discipline, is the sole responsibility of the Company
provided that employees shall not be discriminated
against." Thus, Braden did not maintain that Dery lacked
the qualifications for the job.
The employees' handbook contains the following rele-
vant provisions:
Regulations Pertaining to the Right to Bid.
A new employee on probation is not eligible to apply
for a new position due to the lack of seniority.
$ * *
TRAINING
A. Objective
1. It is the desire of the Company to upgrade and
promote employees whenever possible and in situations
where the Company is satisfied that the employees have
the basic qualifications, background, experience, and
motivation, the Company will commence to train
employees who are not 100 percent qualified to perform
the job for which they will be trained.
B. Criteria
1. In the selection of those employees for training,
the following factors will be analyzed and considered
but not necessarily in the order listed below:
a. Mechanical aptitude for the job to be performed
after training. The factor is determined with
recognized aptitude tests.
b. Past experience and/or formalized vocational
training.
c. Success on present job or previous jobs within the
Company.
d. Motivation or general attitude on present job. It is
the desire of the Company to train employees
who are genuinely interested in the job for which
they are being trained.
e. Desire of the employee to pursue a certain line of
job progression within the Company. Obviously,
it would be undesirable to train an employee to
be a machine operator if he has expressed interest
in being a welder. Normally, an employee will do
his best work on a job he enjoys performing.
f. Seniority with the plant.
of inspector to be part of customer service, and the record evidence supports
this fact, which I find.
25 Huggans' status is not clear in the record. Although he was classified
as a production assembler, he had been working in packing/quality control
on a regular basis for several weeks. As he had been laid off earlier in the
day on May 28, he was not present during Baca's meeting with the
remaining employees.
26 The record does not show when the decision was made to dismiss or
lay off Herrin.
27 Dery testified that she did not bid on the job because she was already
working in customer service, performing that particular work. Her testimony
in this regard is as follows: "Well, I had senionty in that department already
and I was working in that department. So it didn't make any sense for me to
sign a bid sheet for that department."
387
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dery, having more seniority than any employee affected
by the May 28 general layoff, was sent a recall letter on
August 27 offering her the position of general assembler in
the production department, and requesting that she report
for work on September 1. Dery replied by letter of August
31, stating that she could not accept the job, as "[I ]t would
be a much lower level job than that of Inspector and would
be inferior to my qualifications." Dery further stated that,
"[I ]f you have an opening in Customer Service, then I will
accept a position." Respondent replied by letter dated
September 1, stating, inter alia, that only production jobs
were then available and that should Dery return to work
and should an opening arise in the customer service area
for which she is qualified, she would be accorded normal
bidding rights; further, Dery's original reporting time was
extended to September 7. Dery did not reply to this letter,
nor did she report to work. Respondent also, at a later date,
recalled employee Rosemary Rodriguez, an apparently
known union adherent and the daughter-in-law of an
official of the Union, who had been laid off sometime after
Dery.
D. Analysis and Conclusions
1. The 8(a)(1) violations
I do not find that Respondent threatened employees at a
group meeting with loss of benefits and closure of the
Cucamonga plant if the Union were to win the election, as
alleged in the amended complaint. General Counsel's
evidence falls far short of the necessary preponderance of
evidence necessary to support this particular allegation.
The testimony of both Dery and Fox is quite imprecise on
this point, being couched in language which at its face
indicates only a clouded, somewhat inconsistent, recollec-
tion of Nelson's remarks to the assembled employees.
Indeed, there is considerable evidence that Nelson did not
conduct, or even attend, the group meeting during which
he is alleged to have made the unlawful remarks. More-
over, under the circumstances, the possible loss of unspeci-
fied benefits, and the possibility of a strike perhaps
necessitating the work to be performed elsewhere, which,
according to the employees' testimony, is essentially the
substance of what Nelson said, appears to be within the
bounds of permissible expressions of opinion regarding the
possible consequences of unionization. See F. Strauss &
Son, Inc., 200 NLRB 812, 818 (1972); Chicopee Manufactur-
ing Corporation, 107 NLRB 106 (1953); Bilton Insulation,
Inc., 129 NLRB 1296, 1297 (1961), enfd. 297 F.2d 141
(C.A. 4, 1961). Cf. Russell Stover Candies, Inc., 221 NLRB
441, 442-443 (1975); Components, Inc., 197 NLRB 163
(1972).
I find that the incidents involving Smith's interrogation
of employees Clay and Fox occurred as credibly testified to
by the said employees, and I do not credit Smith's denial of
his conversation with Fox, or Smith's denial that he
interrogated Clay regarding the identity of employees who
attended union meetings. Likewise, I credit Dery's account
of the conversation initiated by Braden, who, I find,
approached Dery and unlawfully inquired why she felt a
union was needed. Regardless of the casual or friendly
nature of the conversation between Smith and Clay which
occurred early in March, no justification exists for Smith's
conduct in systematically querying Clay, in the confines of
Smith's office, regarding the union activity of each
employee. Such conduct is violative of Section 8(a)(1) of
the Act even though Clay may not have actually felt
coerced thereby. Heckethorn Manufacturing Co., 208
NLRB 302, 304 (1974); Components, Inc., supra at 169;
Quality Transport Inc., 211 NLRB 198, 204 (1974), enfd.
511 F.2d 1190 (C.A. 5, 1975).
Likewise, Smith's later interrogation of Fox, again in
Smith's office, cannot be considered an isolated or
innocuous occurrence. Fox's reluctance to directly answer
Smith's query, thus prompting Smith to exclaim that her
answer didn't matter because Respondent possessed a list
of every employee who attended the meeting, establishes
the coercive, rather than merely casual, nature of the
conversation. I thus find that the interrogation of Fox by
Smith is also violative of Section 8(a)(1) of the Act. Cf.
Pepsi-Cola Bottling Co. of Los Angeles, 211 NLRB 870,
871-872 (1974).
It is quite clear that Respondent also unlawfully created
the impression of engaging in surveillance of employees'
union activity, proof of such allegation being established
by Smith's aforementioned statement to Fox that he had a
list of employees who attended the union meeting. Coca-
Cola Bottling Company of Blytheville, 210 NLRB 706, 710
(1974); Reichhold Chemicals, Inc., 187 NLRB 989, 990
(1971). Under these circumstances, it is apparent that
Nelson's remarks at a group meeting that he knew the
identity of three employees who were working very
diligently for the Union, and Nelson's remarks to Dery on
two separate occasions, both occurring on April 30,
regarding his belief that Dery did not report the phone
conversation to other employees, likewise created the
impression of continuing surveillance of employees' union
activity. Cf. Cook United, Inc., d/b/a Cook's Discount Store,
208 NLRB 134 (1974); La-Z-Boy South, Inc., 212 NLRB
295 (1974).
Even though Fox had quit the employment of Respon-
dent, the record establishes a continuing nexus between
Fox and Respondent's employees, as a result of Fox's
involvement in the then recent union organizational
activity, her expressed interest in the problems of Respon-
dent's employees vis-a-vis Leadlady Pierce, and her appar-
ent friendly and continuing relationship with employee
Dery. Under the circumstances, I find that Nelson's
interrogation of Fox, whom I credit, regarding whether a
union meeting had been held at her home, and Nelson's
statement to Fox that he mistrusted Dery because she did
not report the substance of the phone conversation to
employees, are part of a pattern of interference with
employees' organizational rights, and therefore constitute
further violations of Section 8(a)(l) of the Act, similar to
those found above. Chesterfield Chrome Co., 203 NLRB 36
(1973).
2. The 8(a)(3) violation
In mid-May Rueter was made aware of the impending
general production layoff. Rueter claims that he immedi-
ately knew that Dery, an inspector, would be affected as a
result of the decline in floor inspection work, and
388
DOUGHBOY RECREATIONAL, INC.
instructed personnel to prepare the necessary paperwork to
effectuate her layoff. At this very time there was posted a
bid sheet for the position of customer service attendant, the
work being identical, except for work requiring blueprint
reading, to that which Dery had been performing, under
the same supervisor (Rueter), in the same area of the plant
(packing/quality control), and with the same employees,
who likewise performed inspection work. There is no doubt
that Dery, a senior nonprobationary employee with 2
years' experience, was qualified to perform this work and
that her lack of ability to read blueprints did not preclude
her from receiving the position. Even if Dery would have
required training to read the necessary blueprints, it was
Respondent's written policy and "desire" to provide that
very training under the extensive training provisions of the
employee handbook set forth above, which need not be
reiterated here. Yet, despite the fact that Rueter supervised
only five employees, including Dery, and was very
favorably impressed with Dery's work performance, and
despite the fact that he not only harbored no animosity
toward Dery but was on amicable terms with her, Rueter
did not suggest that she bid on the posted customer service
attendant job in order to preclude her layoff, or even advise
her of the impending layoff. Indeed, all other employees
who were affected by the general layoff were given prior
notification that their department would be affected by the
layoff.28
Rather than advising Dery of her alleged impending
layoff in order that she could bid on the customer service
job, Respondent awarded the job to Emerson, a probation-
ary employee with no prior experience in inspection or
customer service work, contrary to the above-specified
employee handbook proscription that probationary em-
ployees may not bid on a new position. Moreover, a new
employee, Stevenson, was hired for the position of
customer service attendant, and Stevenson began work the
first workday following Dery's layoff. There being not one
but two customer service attendant positions open, the
positions being filled by a probationary employee, contrary
to Respondent's written policy, and by a new hire, and
further, there being no reasonable basis for failing to allow
Dery to continue to perform substantially the same work
she had been performing, necessitating only, perhaps, a
perfunctory change in job classification, it is apparent that
28 As found above, the announced layoff was only to affect the filter
production and welding departments, and not the customer service
department. The employee handbook states that a "senionty employee"
who is laid off may elect to accept a transfer to a job held by the least senior
employee in a classification that (she) is qualified to perform. Despite the
somewhat ambiguous language, the record clearly shows that this procedure
is initiated by Respondent pursuant to bid sheets being posted, and has
never been invoked by an employee, in the exercise of bidding or bumping
rights, absent a bid sheet being posted. There being no bid sheets posted at
the time fo Dery's layoff, it is clear that she was given no opportunity to bid
into anotherjob upon being informed of her layoff.
29 Dery was the only nonproduction employee laid off on May 28,
allegedly as a result of the general production layoff, one paint department
employee and one customer service attendant having been laid off for
reasons other than lack of work. I find it highly unlikely, under the
circumstances, Rueter alone made the decision to effectuate Dery's layoff
without consultation with higher management officials. Indeed the record
shows that Rueter had no such autonomy with regard to the hiring or
placement of employees. Emerson having been awarded the position of
Dery's layoff was motivated by considerations other than
simply a reduction in force, as argued by Respondent.2 9
In the circumstances of this case, the motive advanced by
Respondent being untenable, it is appropriate to apply the
rationale of the court in Shattuck Denn Mining Corporation
v. N.LR.B.:30
Nor is the trier of fact ... required to be any more naif
than is a judge. If he finds the stated motive for a
discharge is false, he certainly can infer that there is
another motive. More than that, he can infer that the
motive is one that the employer desires to conceal-an
unlawful motive-at least where . . . the surrounding
facts tend to reinforce that inference ....
Prior to the election herein, Respondent unlawfully
attempted to ascertain the identity of those employees
active on the Union's behalf, and engaged in an extensive
preelection campaign. Not only did Dery's union activity
consist of attending each of the union meetings, but she
very candidly emphasized her favorable feelings toward the
Union, when, upon being unlawfully interrogated by
Braden, she stated the reasons why she believed a union
was needed and further said that her husband worked in a
union shop and she also wanted her young sons to work in
a union shop. During the representation election on April
30, Dery acted as the only union observer, and even after
the Union lost the election Nelson continued to inquire
whether an employee, Fox, had a union meeting at her
home, and stated to Fox that he did not trust Dery because
he believed that she did not relay particular information to
the employees concerning union matters.31 Further, it
appears that Nelson felt he would be held personally
accountable by Respondent's parent corporation for failing
to maintain a "happy family," believing that he might be
transferred to New York and, at one point, "holler[ing]
pretty loud" that he didn't want to go to New York.32
Given the unpersuasive reason for Dery's layoff or
discharge advanced by Respondent, when juxtaposed with
the nature and extent of Dery's union activity, and
Respondent's mistrust of Dery as a result thereof, related
above, I find that Dery's layoff was motivated by her union
activities and sympathies and therefore is violative of
Section 8(a)3) and (1) of the Act.3 3 Cantor Bros., Inc., 209
NLRB 433 (1974); Armcor Industries, Inc., 217 NLRB 358
customer service attendant pursuant to Smith's recommendation or
direction.
30 362 F.2d 466, 470 (C.A. 9, 1966).
31 Apparently Nelson was preoccupied and annoyed by Dery's involve-
ment in the phone incident, as evidenced by Nelson's various remarks in this
regard to both Dery and Fox.
32 Nelson's conduct does not appear to be consistent with his contention
that he made the remark casually or merely in jest.
33 The fact that an employer does not lay off all union adherents or that
an employer may even recall a number of union adherents, does not
preclude a finding of discrimination against some union adherents. Shedd-
Brown Mfg. Co., 102 NLRB 742, 764 (1953); 103 NLRB 905 (1953): Santa
Fe Drilling Cornpany, 171 NLRB 161, 188. fn. 56 (1968), and cases cited
therein; Luhr Jensen & Sons, Inc., 177 NLRB 475, fn. 17 (1967); Broyhill
Company, 210 NLRB 288, 296 (1974); Franklin Homes, Inc., 187 NLRB 389.
394 fn. 9 (1970), enfd. 461 F.2d 847 (C.A. 5, 1972). Further, the fact that
Dery was recalled by Respondent after the filing of a charge by Dery and
the issuance of complaint, is not compelling proof of lack of discriminatory
(Continued)
389
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1975); Pacific Southwest Airlines, 201 NLRB 647, 655
(1973).
Having discriminatorily laid off or discharged Dery,
Respondent is under an obligation to offer her reinstate-
ment to her former job as inspector, or, if such job no
longer exists, to a substantially equivalent job, namely, the
job of customer service attendant, which I have found to be
substantially similar to the job of inspector. Respondent,
by its recall letters to Dery, dated August 27 and
September 1, did not offer Dery the position of either
inspector or customer service attendant, but rather offered
her the job of general assembler, which job Dery refused
because of its less desirable nature and somewhat lower
pay scale. I therefore find that Respondent's offer was
legally insufficient and did not constitute a valid offer of
reinstatement. Virginia Stage Lines, Inc., 182 NLRB 717
(1970); Armcor Industries, Inc., supra; Kut-Kwick Corpora-
tion, 176 NLRB 635, 651 (1969) and cases cited therein at
fn. 61; Information Control Corporation, 196 NLRB 504,
508-509 (1972).
CONCLUSIONS OF LAW
I. Doughboy Recreational, Inc., is an employer en-
gaged in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Southern California District Council of Laborers and
its affiliated Hod Carriers and Building Laborers, Local
Union No. 783, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By interrogating employees concerning their union
activities and sympathies and the union activities and
sympathies of other employees, and by creating the
impression of engaging in surveillance of employees' union
activities, I find that Respondent has violated Section
8(a)(l) of the Act.
4. By laying off or discharging employee Barbara J.
Dery on May 28, 1976, 1 find that Respondent has
discriminated in regard to hire or tenure of employment or
any term or condition of employment to discourage
membership in a labor organization in violation of Section
8(a)(3) and (1) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and that it take certain
affirmative action to effectuate the policies of the Act.
Respondent will be required to offer Barbara J. Dery
reinstatement to her former position or, if that position no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges,
dismissing, if necessary, anyone who may have been hired
to perform the work which she had been performing.
Additionally, Respondent will be ordered to make Barbara
motive given the circumstances surrounding Dery's discharge in the first
instance.
34 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings. conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
J. Dery whole for any loss of earnings she may have
suffered by reason of her unlawful layoff or discharge, with
backpay to be computed on a quarterly basis, making
deduction for interim earnings, and with interest to be paid
at the rate of 6 percent per annum. F. W. Woolworth
Company, 90 NLRB 289 (1950); Isis Plumbing & Heating
Co., 138 NLRB 716 (1962), enforcement denied on
different grounds 322 F.2d 913 (C.A. 9, 1963).
Upon the foregoing findings of fact, and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 3 4
The Respondent, Doughboy Recreational, Inc., Cuca-
monga, California, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union
activities and sympathies, and the union membership and
sympathies of other employees.
(b) Creating the impression of engaging in surveillance of
employees' union activities.
(c) Laying off, discharging, or otherwise discriminating
against employees with regard to hire or tenure of
employment or any term or condition of employment for
engaging in activities on behalf of a labor organization or
for otherwise engaging in activity protected by Section 7 of
the Act.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Barbara J. Dery immediate and full reinstate-
ment to her former or substantially equivalent position of
employment, dismissing, if necessary, anyone who may
have been hired or retained to perform the work that she
had been performing, without prejudice to her seniority or
other rights and privileges, and make her whole for any loss
of pay she may have suffered as a result of the discrimina-
tion against her in the manner set forth above in the section
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents all payroll and other records necessary
to determine the backpay entitlements and reinstatement
rights set forth in the section of this Decision entitled "The
Remedy."
(c) Post at its Cucamonga, California, facility copies of
the attached notice marked "Appendix."35 Copies of said
notice, on forms provided by the Regional Director for
Region 31, after being duly signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
35 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, 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."
390
DOUGHBOY RECREATIONAL, INC.
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
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 all parties had an opportunity to
present evidence and state their positions, the National
Labor Relations Board has found that we have violated the
National Labor Relations Act and has ordered us to post
this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist unions
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for purposes of
collective bargaining or other mutual aid or
protection
To refrain from any or all such activities,
except to the extent that the employees' bargain-
ing representative and an employer have a
collective-bargaining agreement which imposes a
lawful requirement that employees become union
members.
WE WILL NOT interrogate employees concerning their
own activities on behalf of, or sympathy toward, any
labor organization, or concerning the union activities or
sympathies of other employees.
WE WILL NOT create among our employees the
impression that we are engaging in surveillance of their
union activities.
WE WILL NOT lay off, discharge, or otherwise
discriminate against employees for engaging in activi-
ties on behalf of Southern California District Council
of Laborers and its affiliated Hod Carriers and
Building Laborers, Local Union No. 783, AFL-CIO, or
any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed by Section 7 of the National Labor
Relations Act.
WE WILL offer Barbara J. Dery immediate and full
reinstatement to her former or substantially equivalent
position, dismissing, if necessary, anyone who may
have been hired or retained to perform the work which
she had been performing, without prejudice to her
seniority or other rights and privileges, and we will
make her whole for any loss of pay she may have
suffered as a result of the unlawful discrimination
against her.
DOUGHBOY RECREATIONAL,
INC.
391