Electri-Flex Co.

National Labor Relations Board - Board Decisions

Mar 17, 1977

228 N.L.R.B. 847 (N.L.R.B. 1977)

ELECTRI-FLEX COMPANY 847
Electri-Flex Company and District No. 122, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO. Cases 13-CA-14739 and 13-
CA-15036
March 17, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On October 28, 1976, Administrative Law Judge
John M. Dyer issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed cross-exceptions , a brief in support thereof, and
an answering brief to Respondent's exceptions.
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 briefs
and has decided to affirm the rulings , findings,' and
conclusions of the Administrative Law Judge to the
extent consistent herewith.
1. We find no merit in the Respondent's exception
to the Administrative Law Judge's statement that a
major portion of the 8(a)(1) allegations is not specifi-
cally denied. The statement accurately reflects the
fact that the 8(a)(1) allegations attributed to Supervi-
sors Bonner and Bongiovanni were undenied as the
supervisors were not called to testify. We note that
together Bonner and Bongiovanni were responsible
for a significant and varied amount of 8(a)(1)
conduct. Respondent also excepted to the findings
with respect to a number of 8(a)( 1) statements made
by Supervisors Garcia, Caban, Colosi, and Brilz on
the grounds that the Administrative Law Judge based
his findings solely on the absence of specific denials
by these supervisors to the respective allegations. We
I We hereby correct the following inadvertent findings in the Admimstra-
tive Law Judge 's Decision which in no way affect his Decision nor our
adoption thereof: In the last sentence of par. 25 ofsec. II ,C, the words "laid
off" should be replaced by the word "discharged"; in the next-to-last
sentence of par. 6 of sec . II,D,1 the dates "May 22 effective June 2, 1975,"
should be substituted for the date "August 22 "; in the last sentence of par. 3
of sec. II,D,2 the month "June" should be substituted for the month "July";
in par. 3 of sec . II,D,4 the Administrative Law Judge found that Rose was
suspended for 1 day while the record shows , and we find , that he was merely
reprimanded ; in the last sentence of par. 8 of sec. II ,D,4, the name "Capasso"
should be substituted for the name `Brilz" after the words "and that"; and in
par 2 of sec. IV the word "discharged" should be inserted after the words
"making whole all employee."
2 N L.R. B. v. Walton Manufacturing Company & Loganville Pants Co., 369
U.S. 404,408 (1962).
3 We agree with the Respondent that Marano Rivera and Ignacio
Marrero did not testify that around August 5, 1975, Celestino "rino"
Hernandez told them separately that they, Adrian Velez , and William
Negron would be fired if the Union lost the election and if the Union won the
228 NLRB No. 79
do not agree. Viewing the Decision as a whole, it
discloses that the Administrative Law Judge's find-
ings on the excepted 8(a)(1) allegations were not
based solely on the presence or absence of specific
denials by Respondent's witnesses . The Decision
initially credits the General Counsel's witnesses who
testified to the 8(a)(1) allegations . There was, to be
sure, certain testimony by Respondent's witnesses
which conflicted with that of the General Counsel's
witnesses . However, although the Administrative
Law Judge did not make explicit credibility findings
with respect to this conflicting testimony, it is clear
from reading the Decision that the Administrative
Law Judge implicitly resolved this conflict by accept-
ing and relying on the testimony of the General
Counsel's witnesses . Finally, we note that the Admin-
istrative Law Judge's findings were also based on
demeanor.2 In these circumstances , we conclude that
there is no basis to overturn the Administrative Law
Judge's evaluation of credibility based on demeanor
and the record as a whole with respect to the
Administrative Law Judge's findings of independent
8(a)(1) violations .3
2. We agree with the Administrative Law Judge
that Respondent unilaterally instituted and enforced
a written warning notice-discipline system without
first bargaining with the Union in violation of Section
8(a)(5) and (1) of the Act. However, the Administra-
tive Law Judge failed to find additionally that the
warning notice system was implemented in violation
of Section 8(a)(3), despite the fact that the amended
complaint alleged that the system was instituted
because Respondent's employees had engaged in
union and/or protected concerted activity, because
the 8(a)(5) finding afforded the same remedy as that
which would have been appropriate pursuant to an
8(a)(3) finding. The Administrative Law Judge fur-
ther stated that "it would be an exercise in futility and
merely further prolong a long decision to go through
the circumstances of all these warning notices."
Contrary to the Administrative Law Judge, it is not
election they would be transferred to different jobs or pushed out of the
Company one-by-one. In fact, Velez credibly testified that Hernandez made
the statements to him and that Velez then had a conference with Merrero
and Rivera and told them what Hernandez had said . In agreement with the
Administrative Law Judge, we fmd, based on the credited testimony of
employee Adrian Velez , that such statements were made and that Respon-
dent thereby violated Sec . 8(axl).
The Respondent has excepted to certain other credibility findings made
by the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty 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 . Nor do we
find merit in Respondent's contention that because the Administrative Law
Judge credited the General Counsel 's witnesses, his credibility resolutions
are erroneous or attended by bias or prejudice . N.LRB. v. Pittsburgh
Steamship Company, 337 U.S. 656 (1949). Accordingly, we find no basis for
disturbing the Administrative Law Judge 's findings in this case.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary to examine the merits of each individual
warning notice in order to find an 8(a)(3) violation as
the evidence herein is sufficient to show that Respon-
dent instituted the written warning notice-discipline
system because of employees' union activity.
Thus, the Administrative Law Judge stated in his
Decision that:
There are examples which will be detailed
further infra, where this written warning notice
system was used by supervisors in an apparent
effort to build cases against known union sym-
pathizers and where this occurred it violated
Section 8(a)(3) of the Act as well. There are other
incidents which were alleged as being violative of
Section 8(a)(3) and (1) where a warning to an
employee might have been warranted because of
what the employee did. But that is not the
question. The question presented in this case is
whether Respondent, by what it called its amplifi-
cation of a rule and what General Counsel calls its
implementation and enforcement of a brand new
set of rules, violated Section 8(5), (3), and (1) of
the Act.
The fact that the Administrative Law Judge found
certain uses of the warning notices to be illegally
motivated supports a finding that the system was
instituted with the same illegal motivation in viola-
tion of Section 8(a)(3) of the Act. Prior to the
institution of the system and before the employees'
selection of the Union as their exclusive bargaining
representative in an election, Respondent made
threats to numerous employees concerning its inten-
tions if the Union won the election. Thus, it warned
that the Company could make it "rough" on union
sympathizers and that employees could be "hurt" and
"things would be different" if the Union came in.
Almost immediately after the election, in which the
employees overwhelmingly voted in the Union,
Respondent initiated its written warning notice-disci-
pline system. It did not inform employees, however,
that they would be "uniformly" subject to this
system.
Respondent contends that the system was instituted
to assure more accurate recordkeeping because of a
potential "new experience in terms of grievances,
arbitrations and perhaps even NLRB charges."
However, inherent in Respondent's rationale for
adopting the system is the idea that the system would
not have been instituted but for the employees' initial
action in seeking union representation. Indeed, had
more accurate recordkeeping been Respondent's sole
4 Alberts, Inc, 213 NLRB 686 1974); Evans Products Company, 160 NLRB
1822 (1966)
S The Administrative Law Judge did find that Respondent 's use of the
tentatively agreed to probationary period was a subterfuge to allow it to lay
objective, Respondent could have accomplished this
objective without giving out warning notices to
employees and creating a new system of employee
discipline. Rather, Respondent's illegal motive is
revealed in statements made to employees upon
receipt of warning notices and particularly in the
revealing, credited, and undenied testimony concern-
ing the conversation between Supervisors Colosi and
Bonner which was overheard by employee Keith
Uelsmann. During this conversation, Colosi told
Bonner that if the Company could get rid of the
union people and replace them with employees who
would support the Company, they could overthrow
the Union. Bonner replied, "You can't go around and
fire union people; you have to give them warning
slips or the Union will just get them their jobs back."
The fact that all warning notices to employees and
consequent discipline of employees pursuant to the
system after the election may not have been unwar-
ranted does not negate Respondent's illegal motiva-
tion in instituting the system. For if the motivation
was illegal and retaliatory, the effect of the applica-
tion of the system to employees, regardless of whether
their conduct warranted any disciplinary action,
could only have pointed out to employees that
Respondent was attempting to discourage union
adherence.
Respondent further explained the warning slips by
arguing that it was merely refining, adjusting, and
improving the use of procedures previously em-
ployed. We do not agree. The foregoing and the
record as a whole show Respondent made it indelibly
clear to the employees why the changes were being
made. Accordingly, we conclude that the institution
of the system additionally violated Section 8(a)(3)
and (1) of the Act,4 and shall order Respondent to
cease and desist from instituting and imposing a
written warning notice-discipline system because of
employees' union activity.
3. In his Decision, the Administrative Law Judge
failed to find that Respondent unilaterally instituted
two specific tentatively agreed to contract provisions;
namely, a 60-day probationary periods and a call-in
rule. Although the Administrative Law Judge labeled
Respondent's action in instituting the 60-day proba-
tionary period as unilateral action and made findings
of fact with respect to the institution of the call-in
rule, he failed to explicitly find that Respondent's
unilateral action in instituting the two rules violated
Section 8(a)(5) and (1) of the Act. We agree with the
off Ignacio Marrero in violation of Sec. 8(a)(3) and (1) and its application to
six other employees was a part of the subterfuge and thus violated the Sec. 7
rights of the six employees.
ELECTRI-FLEX COMPANY 849
General Counsel that such conduct violated Section
8(a)(5) and (1) of the Act.6
We agree with the Administrative Law Judge that
prior to the institution of the 60-day probationary
period provision on February 5, 1976, Respondent
and the Union agreed to a layoff and seniority list,
without mention or consideration of the 60-day
probationary period. With respect to the call-in rule,
the evidence shows that it was instituted in about
December 1975, and was thereafter applied to
employees by means of the written warning notice-
discipline system. Prior to the application of the
tentatively agreed to call-in rule, and since the
institution of the written warning notice-discipline
system after the election, Respondent had applied a 9
a.m. call-in rule.? Respondent neither informed
employees of the call-in rule prior to its application
by means of the disciplinary system, nor of the 60-day
probationary period prior to its application to Merre-
ro and the other six employees.
Although these provisions had been tentatively
agreed to in negotiations between Respondent and
the Union, negotiations had not been completed and
the contract had not been submitted for ratification, a
condition which Union Business Representative
Haderly clearly made a condition precedent to final
agreement on a contract. Further, there was never
any agreement between the parties that particular
contract provisions could be implemented nor was
there any agreement between the parties that contract
provisions would be implemented as soon as they
were tentatively agreed upon.8
In these circumstances, we fmd that Respondent's
institution of the 60-day probationary provision and
the call-in provision without bargaining with the
Union as to the institution of the provisions violated
Section 8(a)(5) of the Act. Accordingly, we shall order
Respondent to cease and desist from implementing
the 60-day probationary provision and call-in provi-
sion and to bargain on request about these matters.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Electri-Flex Company, Roselle, Illinois, its officers,
agents , successors , and assigns , shall:
s Although not specifically alleged in the complaint or amended com-
plaint, the institution of these two tentatively agreed to contract provisions
was fully litigated at the hearing and is in accord with the substance of the
complaint . Further, the counsel for the General Counsel argued that the
institution of the two tentatively agreed to contract provisions violated Sec.
8(aX5) and ( 1) in their brief to the Administrative Law Judge. Ref-Chem
Company, 153 NLRB 488 , fn. 16 (1965), Rocky Mountain Natural Gas
Company, Inc, 140 NLRB 1191 1192 (1963), enfd. as modified 326 F.2d 949
(C.A. 10, 1964).
7 The 9 a.m rule required employees to call in in case of absence or
1. Cease and desist from:
(a) Refusing to bargain collectively in violation of
Section 8(a)(5) and (1) of the Act with District No.
122, International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclusive
representative of its employees by unilaterally initiat-
ing and imposing a warning and disciplinary proce-
dure.
(b) Instituting and imposing a system of written
warning notices and discipline for our employees
because of their union activities.
(c) Unilaterally instituting a 60-day probationary
rule and a call-in rule without notification to and
bargaining with District No. 122, International Asso-
ciation of Machinists and Aerospace Workers, AFL-
CIO.
(d) Transferring, discharging, laying off, or sus-
pending employees because of their known or sus-
pected union sentiments and activities or in further-
ance of the unilaterally imposed warning and disci-
plinary procedure.
(e) Terminating employees because of their giving
information to the National Labor Relations Board.
(f) Interrogating employees about their own union
sentiments and activities and those of other employ-
ees.
(g) Threatening employees with the loss of benefits
or employment or with other reprisals if they support
the Union.
(h) Promising employees benefits for withdrawing
support from the Union.
(i) Threatening employees with reprisals for taking
matters to the Board and promising benefits for
withdrawing charges from the Board.
(j) Creating an impression of surveillance of union
activities of employees and maintaining lists of pro-
and anti-union employees.
(k) In any other matter violating the Section 7 rights
of employees.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Bargain on request about a written warning and
disciplinary procedure, a 60-day probationary rule,
and a call-in rule and if an agreement is reached
embody such agreement in a written document.
(b) Offer reinstatement to their former jobs or, if
such jobs no longer exist, to substantially equivalent
jobs, and make whole all employees transferred,
tardiness by 9 a.m. The rule was "uniformly" applied to employees after the
election by means of the written warning notice-disciplinary system.
Pursuant to the system, for a first offense , an employee would receive a
verbal warning ; for a second offense , an employee would receive a written
warning ; for a third offense, an employee would receive a written warning
and 3-day suspension ; and for a fourth offense, an employee would be
discharged
8 With respect to the 60-day probationary period provision, in particular,
the parties never agreed that it would be applied retroactively.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged, laid off, or suspended under the opera-
tion of the unilaterally imposed warning and disci-
plinary procedure including Adrian Velez, Martin
Ibarra, Tony Capasso, Juan Martin, and Ignacio
Marrero, and to those laid off under the unilaterally
revised and discriminatorily imposed layoff list
including Ignacio Marrero, Teodoro Feliciano, Gil-
bert Espinosa, Juan Santiago, Luciano N. Lopez,
Daniel V . Perez, and Sebastian Gomes and make
them whole in accordance with the recommendations
set forth in "The Remedy" in the Administrative Law
Judge's Decision.
(c) Remove from the personnel or other files of
employees all disciplinary warning letters or memo-
randa issued since August 7, 1975.
(d) Post at its plant in Roselle , Illinois, copies in
both English and Spanish of the attached notice
marked "Appendix."9 Copies of said notice, in both
English and Spanish, on forms provided by the
Regional Director for Region 13, after being duly
signed by Respondent 's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the 8(axl)
allegation concerning Feliciano and Luis Caban and
the allegation concerning bypassing the Union and
soliciting grievances and the 8(aX3) and (1) allegation
concerning Hermenejildo Mendoza be dismissed.
9 In the event that this 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF TIM
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing in which the company and the
General Counsel of the National Labor Relations
Board participated and offered evidence, it has been
found that we violated the Act. We have been
ordered to post this notice and to abide by what we
say in this notice.
WE WILL NOT refuse to bargain collectively with
District No. 122, International Association of
Machinists and Aerospace Workers, AFL-CIO,
as the exclusive bargaining representative of our
employees by unilaterally instituting and impos-
ing warnings and disciplinary procedures for our
employees.
WE WILL NOT institute and impose a system of
written warning notices and discipline for our
employees because of their union activities.
WE WILL NOT unilaterally institute a 60-day
probationary rule and call-in rule without notifi-
cation to and bargaining with District No. 122,
International Association of Machinists and
Aerospace Workers, AFL-CIO.
WE WILL NOT transfer, discharge, lay off, or
suspend employees because of their known or
suspected union sentiments and activities or in
furtherance of the unilaterally imposed warning
and disciplinary procedure.
WE WILL offer Adrian Velez , Martin Ibarra,
Tony Capasso, Ignacio Marrero, Juan Martin,
Teodoro Feliciano, Gilberto Espinosa, Juan San-
tiago, Luciano N. Lopez, Daniel V. Perez, and
Sebastian Gomes , immediate and full reinstate-
ment to their former jobs or, if such jobs no longer
exist, to substantially equivalent ones , and reim-
burse them for the pay they lost as a result of our
action.
WE WILL remove from the personnel or other
files of our employees all disciplinary warning
notices or memoranda issued by us since August
7, 1975, and WE WILL make whole any employees
suspended or terminated under such procedure.
WE WILL NOT question employees about their
union sentiments or activities or those of other
employees.
WE WILL NOT threaten employees with the loss
of benefits or employment or with other reprisals
if they support the Union.
WE WILL NOT promise employees benefits for
withdrawing support from the Union.
WE WILL NOT threaten employees with reprisals
for taking matters to the Board and promise
benefits for withdrawing charges from the Board.
WE WILL NOT create the impression of surveil-
lance of union activities of employees and main-
tain lists of pro- and anti-union employees.
WE WILL NOT discharge employees for giving
information to the National Labor Relations
Board.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed under Section 7 of the Act.
WE WILL on request bargain collectively with
District No. 122, International Association of
ELECTRI-FLEX COMPANY
Machinists and Aerospace Workers, AFL-CIO,
about a written warning and disciplinary proce-
dure, a 60-day probationary rule, and a call-in
rule, and, if an agreement is reached, embody such
agreement in a written document.
ELECTRI-FLEX COMPANY
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: District No.
122, International Association of Machinists and Aero-
space Workers, AFL-CIO, herein called the Union or
IAM, filed charges and amended charges in Cases 13-CA-
14739 and 13-CA-15036 between October 1, 1975, and
March 8, 1976,1 against Electri-Flex Company, herein
called Respondent or the Company, alleging that Respon-
dent violated Section 8(a)(1), (3), and (5) of the Act.2 An
order consolidating cases following issuance of complaints
and amended complaints in these cases was issued by the
Acting Regional Director for Region 13 on March 8. The
complaint in Case 13--CA-14379 was thereafter amended
prior to the hearing and during the hearing of this matter.
In essence, the complaints allege that Respondent com-
mitted numerous violations of Section 8(a)(1) by interrogat-
ing and threatening employees and making promises of
benefit and violated Section 8(a)(5), (3), and (1) by.
instituting a new or different disciplinary system after the
Union won a Board-conducted representation election and
thereafter disciplined, discharged, or laid employees off to
retaliate against them for choosing the Union as their
collective-bargaining representative.
Respondent's answers to, the complaints and amended
complaints admitted the commerce and jurisdictional
allegations, the supervisory status of its foremen and
officers, and that the Union won the representation election
on August 7, and was certified on August 15. Although
originally admitting that Respondent had, around August
8, instituted a system of written warning notices and
discipline and began to enforce it, Respondent later
amended its answer to deny this allegation stating that the
warning and disciplinary systems had been in effect prior to
that time and had only been amplified and made more
consistent around the time of the election . Respondent
denied committing the extensive 8(a)(1) allegations but
admitted the various discharges and transfers of employees,
but denied that such were violative of the Act. It admitted
issuing the written warning notices set forth in the com-
plaint and thereafter amended into the complaint. Respon-
dent denied that it had violated Section 8(aX3) and (5), but
later conceded that some of its supervisors had violated
Section 8(a)(1).
Since a major portion of the 8(aXl) allegations is not
specifically denied, the principal question in the case is
Unless specifically stated otherwise , the events in this case took place
from June 1975 through the early months of 1976.
851
whether Respondent's warning system and its effectuation
and the several discharges , layoffs, and suspensions violat-
ed the Act. On the basis of all the evidence, I have
concluded that Respondent unilaterally established a
system which really had not been in use, and thereby
violated Section 8(aX5) and (1) of the Act. I have also found
that the suspensions , discharges , and layoffs were , with one
exception, violative of the Act.
The parties were afforded full opportunity to appear, to
examine and cross-examine witnesses , and to argue orally
at the hearing in this matter held in Chicago, Illinois, on
April 13-16 and 20-23, and May 10-14, 1976. General
Counsel and Respondent filed extensive careful briefs
which have been fully considered.
On the entire record in this case , including the exhibits
and the testimony offered and on my evaluation of the
reliability of the witnesses based on both the evidence and
their demeanor, I make the following:
FINDINGS OF FACT
1. COMMERCE FINDINGS AND UNION STATUS
Electri-Flex Company is an Illinois corporation engaged
in manufacturing flexible electrical conduit , with its princi-
pal office and place of business in Roselle, Illinois, where,
during the past year, it purchased and received goods and
materials directly from points outside the State of Illinois
which were valued in excess of $50,000.
Respondent admits, and I find , that it is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
Respondent admits, and I find, that the Union herein is a
labor organization within the meaning of Section 2(5) of the
Act.
U. THE UNFAIR LABOR PRACTICES
A. Background and Facts
The Company stated in a cover sheet on a document
given to its employees, that it was "the second largest
producer of flexible, liquid-tight conduit in the world" and
that it had been in business for 20 years at its Roselle plant.
The Company slits the raw steel into proper size and then
produces its product by coiling narrow strips of galvanized
steel into a flexible tube which is then covered by extruding
polyvinyl chloride over the flexible tube. This conduit is
used in the machine-tool construction and maintenance
industries where there is a need for moisture-proof, water-
proof, and oil-tight electrical cable.
The Company is owned and operated by the Kinander
family, with West Kinander, the president of the corpora-
tion; his brother, Bruce, the vice president; and their father,
the chairman of the board. In June 1975, Respondent had a
total complement of approximately 70 employees with
about three-fourths of them Spanish-speaking employees of
Puerto Rican and Mexican extraction. Some of the employ-
ees speak only Spanish and a number of the supervisors'
principal language is Spanish, so that some of the employ-
2 An allegation of an 8(aX4) violation was added during the hearing in
this matter.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees and the supervisors needed the services of an interpreter
to testify.
The supervisory setup in 1975 under the Kinanders
consisted of Mario Colosi, the manufacturing manager with
some five departments under him , and Larry Bonner as
superintendent over the extruding and shipping depart-
ments . Reporting to Bonner were Bob Bily, foreman in
extruding, and Celestino "Tino" Hernandez, the foreman
of the shipping department . Reporting to Colosi were Luis
Caban, foreman of the square lock department; Greg
"Poncho" Bongiovanni , foreman of the interlock depart-
ment ; Enrique Garcia , foreman of the slitting department;
Ed Brilz, foreman of the toolroom; and Casmir "Casey"
Stawinski , foreman of the maintenance department. In
addition to the day shift , there was also a small night shift
under Foreman Marvin Detrick.
On its managerial staff the Company had Dean Guidi, its
in-plant purchasing agent, who on occasion signed warning
slips, and Plant Engineer Ducette . Under the foremen were
a number of "setup" men who were charged with repairing
and maintenance of the various pieces of machinery and
they would sometimes fill in for absent foremen and
instruct employees in the use of machines or safety
equipment and sign warning slips. There were between 6
and 10 "setup men" prior to the August election and they
had authority from Respondent to warn employees about
any derelictions they observed. This practice was stopped
after the election.
In January 1976, Respondent offered Larry Bonner a job
in the office where he would not have contact with the
employees. Bruce Kinander testified that the job was
offered to Bonner because the job happened to be open and
because Bonner continued to have animosity toward the
Union and the outcome of the election and continued to
interrogate employees concerning the Union. Kinander
stated he felt it was best to remove Bonner from direct
supervision of the bargaining unit people and union
members. At that point Colosi became plant superinten-
dent in charge of all seven plant departments . It is noted
that Bonner was not produced to testify by Respondent and
there was no explanation offered for his nonproduction,
and, consequently, there was no denial of the numerous
allegations of Section 8(axl) attributed to him. Similarly,
Foreman Greg Bongiovanni did not testify for Respondent
and there was no explanation for his nonproduction as a
witness and the allegations of Section 8(axl) concerning
Bongiovanni are therefore undenied.
When some employee sentiment concerning organizing a
union began in June 1975 , employees Ignacio Marrero and
Mariano Rivera went to the offices of the Union to discuss
organizing a union at Respondent. Business Representative
Haderly talked to them and contacted Union Representa-
tive Parker who assisted them in organizing and set up a
second meeting for Friday, June 13. At this meeting Parker
met with Rivera, Marrero, and employee Teofilo Lopez and
discussed what was necessary to organize a union and
explained about procedures of filling out union authoriza-
tion cards. Rivera, Marrero, and Lopez signed cards and
were given cards to distribute to other employees. They said
the employees were fearful of losing their jobs and would
not admit organizing a union if they were asked, although
Parker advised them that would be their best defense.
Parker then advised them to tell the employees to deny any
knowledge of the Union if they were asked by Respondent.
The Union held a meeting on June 21 which some 40 or
more Spanish-speaking employees attended. After listening
to speeches concerning the Union, a number of the
employees signed authorization cards. On June 26, the
Union filed a representation petition with the Regional
Board Office and, on July 9, a Stipulation for Consent
Election was signed setting the election for August 7. The
Union won the election 44-11 with the certification issuing
on August 15, and the first negotiation meeting taking place
on September 26. As of the time of the hearing in this
matter the parties had not agreed on a contract.
B. The 8(a)(1) Violations
It was noted above that neither Larry Bonner nor Greg
Bongiovanni appeared at the hearing or testified and as a
consequence the 8(axl) allegations against them are
undenied and, there appearing to be no reason to discredit
those who testified that these statements were made, I fmd
that they occurred as they are listed below. I find that by
Supervisors Bongiovanni and Bonner making these state-
ments Respondent violated Section 8(ax 1) of the Act.
1. Around August 6, Bongiovanni interrogated Rivera
by asking him who was going to vote for the Union.
2. Around July 31, Bongiovanni told Eleazor Hernan-
dez that the Union was no good, would not bring him any
benefits, that anyone who signed a union card would be
fired, and that if he knew that Hernandez signed a card he
would fire him.
3. Around August 7, Bongiovanni told Wilfredo Rosa
that if the Union won things would be harder and, even
though Rosa could not vote, he would have to be with the
Union.
4. Around August 6, Bongiovanni told Rivera that he
knew who was voting for the Union.
5. Around August 11, Bongiovanni told Daniel Kwas-
niewski that things were going to get tough now that the
Union had been voted in.
6. Larry Bonner on two occasions, at the end of June
and the beginning of July, asked James Carlson if he had
heard anything about the Union.
7. Around July 7, Larry Bonner, with Mario Colosi
present, asked Nelson Acevedo if he was talking about the
Union. Acevedo denied that he had been doing so.
8. Around July 10, Bonner, with Colosi present, asked
Adrian Velez if he knew something about the Union.
9. Around July 13, Bonner asked Velez if he had signed
a union card and who else had signed cards.
10. Around July 7, Bonner asked Hermanjildo Mendo-
za if he knew anything about the Union.
11. Around July 24, Bonner asked Mendoza if he was
still against the Union and whether Carlson had given
Mendoza a union card.
12. Around August 8, Bonner asked Mendoza why he
had voted for the Union.
13. Around July 17, Bonner asked Perez if he liked the
Union.
14. Around July 17, Bonner asked Negron Acevedo if
he was in the Union.
ELECTRI-FLEX COMPANY 853
15. On four or five occasions in July, Bonner asked
Dick Rose if he were interested in the Union and if he knew
who was involved or who was trying to bring in the Union.
16. Around August 8, Bonner asked Rose if he was part
of the Union.
17. Around July 31, Bonner asked William Negron and
again, around August 14, asked Negron and Marrero who
had brought the Union into the plant.
18. On three or four occasions in July, Bonner asked
Teofilo Lopez how he would vote and, around August 14,
asked him how he had voted.
19. Around July 17, Bonner asked Rivera how he was
doing with the Union.
20. Around August 21, Bonner asked Rivera who had
voted for the Union.
21. Twice on September 4, Bonner asked Marrero, who
was with William Negron, who brought in the Union.
22. Around July 17, Bonner told Rivera that the Union
would hurt the employees and they would lose their
benefits.
23. Around August 3 and 7, Bonner told Velez it would
be better for him to vote for the Company.
24. Around August 3, Bonner told Velez that he had a
list of how the employees would vote.
25. Around August 28, Bonner told Nelson Acevedo
that he knew that he was not with the Company.
26. On August 8, Bonner told Rivera that there were
going to be changes made because the Union had won the
election.
27. Around August 12, Bonner told Velez that he did
not worry about the Union because the Company had a
way to resolve the problem. (See 32.(f), infra.)
28. On August 8, Bonner told Mendoza that Colosi
would be worse than he had been because the Union had
won the election.
29. On August 8, Bonner told Rose that things were
going to be different now that the Union had been voted in.
30. On August 8, Bonner told Rose that if he knew who
voted for the Union he would take good care of them and
put them in management.
31. Foreman Enrique Garcia testified that Martin
Ibarra on one occasion asked his opinion of the Union but
that he did not give it. He did not specifically deny Ibarra's
credited testimony that, around July 31, he had asked
Ibarra whether Ibarra was attending union meetings.
Garcia did not recall the occasion testified to by Juan
Munoz that during July Garcia had told Munoz that it
would not be good for him to vote for the Union because
the Union would not give them raises until after a year had
gone by and the men were working hard.
There being no denial of these statements, I find that
Respondent through Garcia violated Section 8(a)(1) by
interrogating Ibarra as to whether he was attending union
meetings and threatened Munoz by stating that it would
not be good for him to vote for the Union because he would
not get raises for a long period of time.
32. Foreman Luis Caban testified that he did not recall
any conversations he had concerning the Union before the
election . Caban did not deny having any such conversa-
tions . There being no specific denial of the testimony
concerning statements made by Caban and there being no
reason to doubt the credibility of the witnesses testifying as
to what he said, I fmd that , by the following statements and
questions of Caban, Respondent violated Section 8(a)(1) of
the Act: (a) Around the end of June, Caban asked Juan
Munoz if he attended any union meetings and which other
employees were attending those meetings ; (b) around July
17, Caban told William Negron that anyone who signed a
union card would be fired one by one; (c) around July 24,
Caban told Teofilo Lopez that the Company would call the
Immigration & Naturalization Service because some of the
employees who were Mexican citizens were in favor of the
Union; (d) around July 24, Caban told Munoz that if the
Company lost the election Marrero and Velez would be the
first to go and then the others would follow; (e) around July
31, Caban told Juan Martin that if the Union lost the
election all of them would be fired; (f) around August 6,
Caban told Adrian Velez that if the Union lost the election
everyone would be fired, that the employees would be
transferred or pushed out one by one, and that the
Company had a good way to resolve the union problem;
and (g) around the beginning of July, Caban told Munoz
that he knew Munoz and Ibarra attended union meetings
because he had been told so by another employee.
33. Caban did not deny that around August 11 he told
Velez not to worry about the election results because they
,had a good way to resolve the problem. This threat of
retaliation for union support violates Section 8(a)(l) of the
Act and I so find and conclude. (See 32.(f), supra.)
34. Caban did not deny, although talking around the
point, that around August 21 he told William Negron that
the Company was going to do something to put the Union
out. This threat against the employees' bargaining represen-
tative violates Section 8(a)(1) of the Act and I so find and
conclude.
35. I do not fmd an 8(a)(1) violation in regard to
Caban's supposed statement to Aurecilio Feliciano, be-
cause the complaint allegation places this event in October,
some 2 months after the election and, if the remarks
occurred as Feliciano testified, it would certainly have had
to have been some time prior to the election, some 2 months
earlier. This allegation is therefore dismissed.
36. Mario Colosi did not deny the following items of
interrogation and there being no reason to doubt the
credibility of the witnesses who testified to them, I find that
Respondent violated Section 8(axl) of the Act by the
following remarks of Colosi: (a) In early July, Colosi asked
James Carlson if he had heard about the Union; (b) around
July 13, Colosi asked Adrian Velez if it was true that he had
signed a union card and who else had signed union cards;
(c) around July 30, with Bonner present , Colosi asked
Flores if he knew anything about the Union; (d) on four or
five occasions in July, Colosi asked Dick Rose if he were
interested in the Union and who was trying to bring the
Union in; and (e) around August 8, Colosi asked Rose if he
knew who the I 1 people were who voted against the Union
and if he were one of them.
37. Colosi did not deny that around July 17 he told
Rivera that the Union would hurt the employees, and
around July 24 told Velez that the Union was no good, that
the employees would lose their profit sharing, and that he
should tell the other employees not to vote for the Union
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because he (Colosi) was the boss and could not do so. I find
that these statements are threats violative of Section 8(axl)
and that by Colosi making these undenied statements
Respondent violated Section 8(axl) of the Act.
38. Dick Rose testified that on four or five occasions in
July Colosi told him that things would change if the Union
came in and the employees would lose all of their benefits.
Colosi denied making these statements to Rose . However,
these statements are of the same genre that Colosi made to
Lopez and that other supervisors made to other employees
and are part of a pattern of violative remarks . As will be
detailed further, Colosi was not completely truthful in his
testimony and I do not believe his denial of Rose's
testimony . Therefore, I find that Respondent violated
Section 8(a)(1) by these threats of changes made to Rose by
Colosi.
39. Mariano Rivera testified that in February 1976, he
was given a 3-day layoff and protested to Colosi stating he
should be paid for those 3 days . Colosi said he would not do
so. When Rivera insisted , Colosi said, "Well, Mario, I'm
sorry, you can do whatever you want . I'm your friend but
for your own good , you had better not take it to the labor
board ." Colosi testified that he never said anything to
Rivera about the labor board.
As stated above, and as will be shown further below,
Colosi was not a completely credible witness . Rivera was a
union leader and known as such by Respondent. This
statement is in line with other statements by Colosi and
other Respondent supervisors and I find no reason not to
credit Rivera . I therefore find that the statement was made
and that it constitutes a violation of Section 8(axl) by
Respondent . Similar statements were made to Velez and
Rosa and the testimony concerning them will be considered
with the testimony concerning Velez' transfer and Rosa's
layoff, infra
40. James Carlson , who had been employed in the
toolroom , testified that toward the end of June and again in
early and mid-July, Supervisor Ed Brilz asked if he had
heard about the Union , whether he knew who was bringing
it in, how he would vote , and whether he went to union
meetings . Brilz did not specifically deny asking Carlson
these questions , but said in answer to a general question
that he never asked the employees who was responsible for
bringing in the Union . This reply is not a denial of
Carlson 's testimony . There appearing no reason to discredit
Carlson and his testimony being undenied , I find and
conclude that Respondent through Brilz' questions to
Carlson violated Section 8(a)(l) of the Act.
41. Daniel Kwasniewski testified that around July 7 and
14 Supervisor Brilz asked how he felt about the Union.
There is no denial of this interrogation, and there being no
reason to discredit Kwasniewski, I find that Respondent
through Brilz' questioning of Kwasniewski violated Section
8(axl) of the Act.
42. Dick Rose testified that in mid-July Supervisor Brilz
asked him who was bringing in the Union , who was
involved in the Union and what Rose thought about the
Union . There is no specific denial of Rose's testimony but
only Brilz' general answer that he never asked who was
responsible for bringing in the Union and this at most
would cover only one part of Rose's testimony . As may be
seen, supra, this same type of question was being asked by
numerous other supervisors so that there is a pattern of
interrogation by Respondent. Further, the related questions
are not denied by Brilz and finding no reason to discredit
Rose, I conclude and find that Brilz did ask the questions as
Rose testified and that thereby Respondent violated
Section 8(a)(1) of the Act.
43. Capasso testified that around July 10 Supervisor
Brilz asked if he had heard about the Union and what he
thought about it, and around July 17 Brilz told Capasso
that he wanted to know who favored the Union and a few
days later asked Capasso if Carlson and Rose were for the
Union . Brilz' general denials do not touch this testimony
and since the testimony is undenied and I have no reason to
discredit Capasso that these events occurred as he testified,
I conclude and find that Respondent through Brilz violated
Section 8(axl) of the Act by these inquiries.
44. Keith Uelsmann testified that beginning in mid-July
and running up to the election, Brilz asked him how he felt
about the Union, if his feelings had changed about the
Union, and if he had decided how to vote. Brilz testified
that he and Uelsmann talked about the Union and that
Uelsmann asked him questions and he told Uelsmann to
make up his own mind. Brilz' testimony is not a denial of
Uelsmann's testimony and it being undenied and there
appearing no reason to discredit Uelsmann, I conclude and
find that Respondent through Brilz violated Section 8(a)(1)
of the Act by his interrogations of Uelsmann.
45. James Carlson testified that around July 10 Brilz
told him he would go by the book and make it rough on
those trying to bring in the Union, and a few days later said
that the Union would hurt the employees at the Company.
There is no specific denial of these statements and I
conclude and find that Respondent through Brilz violated
the Act by threatening to make things harder on the union
supporters and by telling Carlson that the Union would
hurt the employees if it was installed at the Company.
46. Dick Rose testified that in a conversation where
Brilz asked who was involved in the Union that Brilz also
said he would like to make an example of the employees
who were trying to bring the Union in. There is no specific
denial of this testimony and finding no reason to discredit
Rose I conclude and find that Respondent by Brilz violated
Section 8(a)(l) of the Act by inquiring who the prounion
employees were and by threatening to make an example of
them.
47. Dick Rose testified that around July 31 Brilz told
him that if the Union came in things would be different and
the employees would lose all of their fringe benefits.
Although Brilz stated that he never threatened that employ-
ees would lose their benefits if they voted for the Union,
there is no specific denial of Rose's testimony. Here again
the statements appear to be part of a pattern used by many
of Respondent's supervisors and I conclude and find that
the statements were made by Brilz and that thereby
Respondent violated Section 8(a)(1) of the Act.
48. Keith Uelsmann testified that around mid-July
Supervisor Brilz told him that if the Union came in, profit
sharing would go down the drain, working conditions
would be tightened up, there would be no more overtime,
and other changes would take place. Again around the end
ELECTRI-FLEX COMPANY
of July, Brilz told him if the Union came in there would be
changes in the break system and just prior to the election
Brilz said there would be changes in the employer-employ-
ee relationship and that employees would be watched.
There is no specific denial of this testimony by Brilz and
again it is similar to that indulged in by most of Respon-
dent's supervisors. I conclude and fmd that it occurred as
Uelsmann testified and that Respondent thereby violated
Section 8(a)(1) of the Act.
49. Capasso testified that around the end of July, Brilz
told him that he had a book of rules and regulations and
would make things rough on the union supporters. There is
no specific denial of this testimony and I conclude it
occurred as Capasso stated and that Respondent thereby
violated Section 8(a)(1) of the Act.
50. James Carlson testified that near the beginning of
July Brilz told him that he had a list of the people who were
bringing in the Union. There is no specific denial of this
testimony and I conclude and fmd that it occurred and that
thereby Respondent violated Section 8(a)(1) by creating an
impression that it knew who the union supporters were and
was surveilling their activities and maintaining a list of
prounion employees.
51. Rose testified that on August 8, the day after the
election , Brilz said there would be changes in the hours and
the breaktimes and since the Union had won the election it
would be a different ball game and they were on opposite
sides. Rose told Brilz that Bruce Kinander had told him the
day before that there would be no changes until the
Company saw what the Union wanted. Brilz later stated
there would be no changes. Keith Uelsmann testified that
on that same date Brilz told him the very same things.
Respondent asked Brilz whether on the day after the
election he had talked to Uelsmann about the results of the
election and Brilz said no. This is not a denial of the
testimony of Uelsmann or Rose. I conclude that there being
no reason to discredit Uelsmann and Rose in this regard,
that Brilz made the statements , and that thereby Respon-
dent violated Section 8(a)(1) of the Act by threatening
reprisals to the employees for their support of the Union.
Further corroborating this type of 8(a)(1) conduct was
the testimony of Marrero who was not at work on August 8
but went in to pick up his paycheck and spoke with Juan
Martin and Martin Ibarra who asked him what had
happened saying that Supervisors Bongiovanni and Caban
would not let the employees go to the bathroom or the
cafeteria except at break. When they complained about it,
both Caban and Bongiovanni said they could not go and
the Union agreed with them that this was the new rule.
Marrero told the employees that there was no contract and
that nothing like that should be occurring.
52. Capaso testified that around August 7, Brilz told
him that the Company would take care of those who voted
for the Company by placing them in management where
they would not be hurt. There is no denial of this testimony
and I conclude and find that Respondent violated Section
8(a)(l) of the Act by Brilz' statement that antiunion
supporters would be rewarded.
53. Adrian Velez, Mariano Rivera, and Ignacio Marre-
ro each testified that around August 5, Foreman Celestino
"Tino" Hernandez told them separately that the three of
855
them and William Negron would be fired if the Union lost
the election and if the Union won the election they would
be transferred to different jobs or pushed out of the
Company one by one. Velez also testified that around
August 11, "Tino" Hernandez told him the Company did
not worry about losing the election because it would make
changes and push the people out one by one. This latter
statement was just about the same as that made by Larry
Bonner to Mariano Rivera right after the election and
similar to other Bonner statements . It is noted that
Hernandez was then under Bonner and there was no denial
that Bonner made such statements.
"Tiro" Hernandez testified that he never started a
conversation with any of his employees concerning the
Union and only answered questions. He stated that he had
many conversations with Velez about work and Velez at
one time asked him his opinion about the Union and that
he replied it was no good. I do not credit Hernandez'
denials of the above testimony and find and conclude that
by those statements Respondent violated Section 8(a)(1) of
the Act.
C. The Warning Notices
Respondent , in its answer and first amended answer to
the complaint in Case 13-CA-14739, admitted that it
commenced the use of warning notices around August 8,
1975, but stated that the warning system was merely an
improvement over what it had done in the past. In its
second amended answer to this complaint, Respondent for
the first time denied that it had commenced use of the
warning notices immediately after the election . Respondent
thereafter, and in its brief, took the position that for years it
had used written warning notices in enforcement of its rules
and regulations but that verbal warnings had been heavily
used and its discipline system had been inconsistent.
Respondent's counsel asserted that after the filing of the
representation petition, it surveyed Respondent's disciplin-
ary procedures and advised Respondent to use a consistent
disciplinary system of a progressive nature beginning with
verbal warnings and going to written warnings , suspen-
sions, and finally discharges for appropriate situations.
Company Vice President Bruce Kinander said he passed
such instructions on to the supervisors and believed he did
that about a month before the election. Mario Colosi, who
supervised most of the employees through other supervi-
sors, was evasive in his answers as to when any such more
consistent program was initiated, and said that it may have
been before the election and may have been afterwards. As
to when he had a meeting for the foremen to start this
uniform procedure, Colosi said that it may have been
before and may have been after the election.
Supervisor Brilz was much more definite. He stated it was
after the election that Colosi told all the supervisors that the
Company and the Company's lawyers had said that there
would have to be better bookkeeping in the disciplinary
area and they would have to give out written warning
notices whereas before they had been giving employees
verbal warnings.
In seeking to demonstrate Respondent was merely
enlarging the number of written warning notices given and
that this was not a new or different disciplinary system,
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent introduced its exhibits 9(a) through (n), which
according to counsel were being offered as "an illustration
of prior use of a particular form here at issue for a variety of
reasons." Asked whether the word illustration meant that
the proffered exhibits were merely a sampling of the written
warning forms in prior use , counsel replied that from a
search of Respondent's files that these were all the written
warning slips that were on file as having been issued from
1972 up to the August 7 election. Of the 14 warning slips
one was a duplicate of another reducing the number to 13.
Of the 13 warnings issued 9 were to notify employees of
safety violations with 4 of these 9 issued by Supervisor
Garcia in a 1-1/2-month period to one employee for
stopping a machine with his foot. Three of the safety
violation warning forms were issued by a supervisor no
longer with the Company, Earl Shields, for employees not
using safety glasses. One of the nine safety warning forms
was issued by Bongiovanni to an employee in February
1975 for not wearing safety gloves and the remaining safety
warning was issued in 1974 for nonuse of safety glasses.
Of the remaining four written warning slips , two were
issued in 1973 by Larry Bonner . One was for "poor
attitude" and the other gave an employee a day off for
repeated lateness. The third was issued by Mario Colosi in
December 1974 because an employee had not been careful
and the last one was issued in February 1975, by Bongio-
vanni giving an employee 3 days off for not obeying his
foreman. Most of the warning notices regarding safety were
issued between March and May 1974.
The issuance of written warning notices after the election
commenced almost immediately and grew swiftly in vol-
ume. Beginning with a written warning notice to Martin
Ibarra on August 11, 1975, and running through March
1976, Respondent issued 147 written warning notices.
One of the earlier written warnings was given by
Foreman Ed Brilz on August 11, to Keith Uelsmann, who
testified that Brilz said he had to give him the ticket because
he did not have his safety shoes on and the Company had to
give these out now because they had to protect themselves
and watch themselves because there was a union there now.
Prior to giving Uelsmann the ticket, Brilz mentioned to
Uelsmann that he did not have this safety shoes on and
Uelsmann replied that he had forgotten them and would go
home at lunchtime and get them. Brilz returned before
noon and gave Uelsmann the written warning . Uelsmann
testified without contradiction that there had been other
times prior to the election when he had not worn safety
shoes; the supervisors had known about it and had not said
or done anything about it.
Uelsmann further testified that around October 1, while
in the cafeteria with Larry Bonner and Mario Colosi, he
heard Colosi tell Bonner that, if they could get rid of the
union people and get enough people in there that were for
the Company, they would overthrow the Union. Bonner
replied that you just could not go around firing the union
people, you had to give them warning slips or the Union
would get them their jobs back. Again this testimony was
undenied.
There are a number of other instances where employees
were given warning tickets and protested that they had
never received anything like that before and the supervisor
would remark that now that the Union was in it was
necessary to give them these written warnings.
Ignacio Marrero said that, after looking for his supervisor
and not fording him, he left his partner in charge of his
machine and went to Bruce Kinander's office to speak to
him. Kinander not being there, he returned to his machine,
being gone only a couple of minutes. When he got back his
supervisor gave him a written warning ticket for having left
his job unattended. Marrero complained that he had left
the job before and never received a warning and the
supervisor replied that this was the way it would be.
After receiving two warning notices Marrero, one of the
three elected union committeemen (William Negron and
Dick Rose), called Union Business Representative Haderly
and said he was afraid the Company was setting him up to
discharge him. Haderly called Bruce Kinander and a
meeting was set for September 18. Haderly, Union Agent
Menendez, and Marrero met Kinander and raised ques-
tions about the warning notices and in particular those
given to Marrero. According to Haderly and Menendez,
Kinander told them that the warning notices were to be
used only to straighten out the employees and when
Haderly asked if they were to be used for any disciplinary
or discharge purposes Kinander said no. At that point
Haderly agreed that if all they would be used for was to
straighten out employees he had no objections to them.
Kinander testified that he explained to Haderly that the
warning notices were justified and it was merely a continua-
tion of the warning system they had used before and that
they were not singling out Marrero. He said that he told
Haderly the warnings were given uniformly to employees
for safety infractions and where disobedience or tardiness
occurred and they were not meant to harass people.
Kinander said he explained that the Company had handled
things in the past with verbal warnings and then gave
written warnings after several verbal warnings and that in
the instances involved they were either of a repetitive
nature or of such a degree that necessitated a written
warning notice. Kinander claimed that in effect he was
telling Haderly Respondent had a progressive disciplinary
system and that Haderly agreed that progressive discipline
was the proper approach and that they should continue it.
Kinander did admit he told Haderly the tickets were to call
the attention of the employees to their deficiencies but
denied telling Haderly that they were not to be used for
disciplinary purposes.
In regard to what occurred at this meeting, I have to
credit Haderly and Menendez that Kinander said these
warning slips were not to be used for disciplinary purposes.
Haderly here was concerned because one of his three
committeemen had received a number of warning notices.
If Haderly had understood or Kinander had said that these
warning notices were steps in a disciplinary system leading
to discharge, Haderly would have been upset and inquiring
as to the steps and what Respondent planned to do.
Certainly Haderly would have protested these slips being
issued to a union committeeman where the offenses, if any,
seemed to be trivial and where the warning notices had not
been given in this manner in the past. Thereafter when
warning notices continued and suspensions and other
discipline were imposed as a part of the issuance of the
ELECTRI-FLEX COMPANY 857
warning notices , the Union did not acquiesce in this use of
the warning notices and protested such use by their
statements to the Company and by filing charges concern-
ing them with the Board.
There was no agreement between the Company and the
Union on what the Company called its progressive disci-
plinary system . In fact during negotiation sessions when the
term progressive discipline was mentioned, Haderly asked
Company Attorney Burlage for a definition. When Burlage
replied that by that he meant a system of verbal then
written warnings with suspensions and finally discharge
with arbitrators decisions as the yardstick, Haderly replied
that was too ambiguous and that to actually install a
progressive disciplinary system they would have to negoti-
ate and come to an agreement on it . The only item in this
line which was negotiated to a tentative agreement con-
cerned employees calling in.
Respondent insisted that it had a rule which required
employees to call by 9 a.m. if they were going to be absent.
While such appears in the English-language version of
Respondent 's rules, the Spanish-language version gives no
time limit but merely says employees should call in. This is
why there were protests by the Spanish-speaking employees
concerning warnings to them about not calling by 9 a.m.
The Union and the Company did reach tentative agree-
ment on employees calling in within 4 hours of their
starting time and if they did not do so then for the first
infraction they were warned with more serious discipline to
be meted out for further infractions of this rule over a set
period of time. As a part of the contract this agreement was
tentative to ratification of the whole agreement. No
announcement of this tentative agreement was made to the
employees either by the Union or the Company or that such
a rule was in effect. Apparently from the testimony of
supervisors the Company instructed them to go by such a
rule even though there was no final agreement.
There are examples which will be detailed further, infra,
where this written warning notice system was used by
supervisors in an apparent effort to build cases against
known union sympathizers and where this occurred it
violated Section 8(a)(3) of the Act as well. There are other
incidents which were alleged as being violative of Section
8(aX3) and (1) where a warning to an employee might have
been warranted because of what the employee did. But that
is not the question. The question presented in this case is
whether Respondent by what it called its amplification of a
rule, and what General Counsel calls the implementation
and enforcement of a brand new set of rules, violated
Section 8(5), (3), and (1) of the Act.
It seems clear from the paucity of the written warning
notices prior to the union election and the large number of
written warning notices issued in the 6 or 7 months
thereafter, that Respondent was not implementing an old
disciplinary system but was structuring a brand new system
which it put in both to protect itself, where it meted out
discipline, and to harass some of the union supporters.
While the latter may not have been intended by Kinander,
this was certainly the message that came down through
Colosi and Bonner as was amply illustrated by Colosi and
Bonner's conversation about the use of warning notices
cited above.
Certainly there were no negotiations with the Union
concerning the advent of this written warning notice-
disciplinary system and Respondent does not claim that
there was. Viewed as it must be from the facts , this was a
new system that was initiated by Respondent , effective
when the Union won the election on August 8. Certainly
the Union did not agree with the institution of this system
as it continued to protest it both to the Company and by
filing charges alleging it as violative of the Act.
Considering first the 8(aX5) and (1) aspect of the
allegations , it seems clear that under Board law Respondent
violated Section 8(a)(5) and ( 1) by unilaterally beginning
and imposing this disciplinary system at a time when the
Union had just become the collective-bargaining agent of
Respondent 's employees . In Murphy Diesel Company, 184
NLRB 757 (1970), the Board found that the posting of plant
rules with disciplinary penalties attached clearly affected
conditions of employment and were mandatory subjects of
collective bargaining . Although there had been some plant
rules before they had been loose and lax and this tightening
up of the system amounted to a new system of rules.
Although there the company claimed that the union had
waived its rights in regard to the rules where there had been
prior contracts , the Board found that there was no waiver
and that respondent made "material, substantial, and
significant changes" in its rules and practices which
affected all of its employees and that doing so without
bargaining with the union violated Section 8(a)(5) and (1)
of the Act.
The Board reiterated this rule in Amoco Chemicals
Corporation, 211 NLRB 618 (1974). Amoco is closer to the
instant case because there respondent began issuing written
disciplinary letters to its employees immediately following
the election where it had more or less abandoned such a
system a year previously . The company claimed it was
merely resuming a prior irregularly enforced policy. The
Board held that implementing such a system where it had
been in disuse for a period of time, and where only a few
such notices had previously been issued, amounted to an
innovation and constituted a significant change in the
employees' working conditions and that beginning such a
system without bargaining with the union constituted a
violation of Section 8(aX5) and (1) of the Act. The Board's
decision was upheld by the United States Court of Appeals
for the fifth Circuit, 529 F.2d 427 (1976).
Rust Craft Broadcasting of New York, Inc., 225 NLRB 327
(1977), did not involve a "material , substantial, and a
significant change" and is therefore inapposite.
On the basis of the evidence herein and on the basis of the
Board's findings in similar circumstances , I conclude and
find that Respondent violated Section 8 (aX5) and (1) of the
Act by instituting and enforcing its disciplinary system on
and after August 8 , 1975, and I will recommend that such
system be rescinded and all written warning notices issued
thereunder and any discipline meted out pursuant thereto,
be rescinded and any employees affected thereby be made
whole by Respondent.
This finding has particular reference to employee Wilfre-
do Rosa . Rosa was given a series of warning notices
regarding his productivity . After an economic layoff when
he returned he was placed in a different department and
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told that he would be given a certain amount of time to pick
up on the work. He was given less than that amount and
received additional warning notices . The night supervisor,
Detrick , said that he had fired a number of other people
and that there had not been one the Union could bring
back because he had fired them for a good reason. Very
shortly after that Rosa was laid off.
After being discharged he returned to the plant to pick up
his paycheck, saw Bongiovanni and Colosi , and asked if
they could do him a favor . He was seeking another job and
wanted them to back up his statement that he had quit.
Colosi asked since Rosa wanted a favor what sort of a favor
could he return and mentioned that Rosa had a case in
court (a charge before the NLRB ) and if he took the case
out of court he could do a favor for him because he was
really fired . Rosa replied that he really was not fired
properly because he had only been given 3-1 /2 days to
work on the machine and it was a completely different
machine . Colosi disputed that saying the only thing
different was the way the coil came out of the drum. Again
Rosa complained that he did not have time enough to learn
to run the machine properly and had been improperly
discharged . Colosi replied that he knew how to run the
machine . Colosi finally said that to show Rosa that he was
not a bad guy if somebody called about Rosa he would tell
them that Rosa was laid off and was a good worker.
Rosa had previously been a satisfactory worker as
Bongiovanni told him . Here , he was given a short time to
pick up on work after he had been laid off for more than a
month and any supposed lack of production was not
documented by Respondent's records . Here, Respondent
relied on its previous warnings to Rosa to build a case
against him and to lay him off as Night Supervisor Detrick
had stated.
The treatment of Ignacio Marrero provides another
example of the use of the warning notices . As noted above,
Marrero had received several warning notices by early
September and felt that Respondent sought to get rid of
him. This led to Haderly's meeting with Kinander about the
notices . In late September , Marrero had the flu and did not
report for work one morning . He was awakened by a
telephone call from a fellow employee , Mike Messina, who
said he had not called in and had later been told he was
discharged for failure to call in. Marrero , as the union
committeeman, called Supervisor Bily and started to talk to
him about Messina and Bily said Messina was fired and
since Marrero did not call in he was fired too. Marrero
protested that he did not know of any 9 a.m. call-in rule,
had the flu, and had fallen asleep finally early in the
morning and had not been able to get up and telephone the
Company that he was going to be out.
Marrero then contacted Union Business Agent Haderly
who called Bruce Kinander and discussed the situation
with him . Kinander said he would check into it and called
Haderly back and Haderly relayed the message to Marrero
that since Messina had a good record they were only going
to suspend him for 1 day but that since Marrero did not
have a good record he was receiving a 3-day suspension.
The "record" refers to the written warning notices the
individuals had received.
General Counsel adduced evidence concerning a number
of the written warnings contending that they all showed
animus to the Union and as such violated Section 8 (aX3) of
the Act as well. Certainly some of the examples did so
demonstrate . Yet other examples were ambiguous or
indicated that possibly the employees ' actions were not
proper-
I conclude that since I am ordering the entire system
rescinded because its innovation and enforcement violated
Section 8(a)(5) and ( 1) of the Act and since all employees
who received notices will have them physically removed
from their personnel files and will be made whole if they
were suspended, laid off, or discharged as a result of the
notices, that it would be an exercise in futility and merely
further prolong a long decision to go through the circum-
stances of all these warning notices . The remedy here is
sufficient to answer any remaining questions.
D. The Individual 8(a)(3) Allegations
1. Martin Ibarra started with Respondent in March
1974 and by October of that year had been promoted to a
"setup man" and worked at that job in several departments,
starting on the night shift and then moving to the day shift.
As a "setup man" he did some of the paper work , writing
down production reports and turning in such . In August
1975 he was working under Supervisor Luis Caban as a
setup man . On the morning of the election he and several
other employees and several union agents were outside
Respondent's building distributing handbills to the people
coming to work. According to the Union , the distributors
arrived outside the plant around 6:30 a .m., and remained
there until the employees had to go in to work. Ibarra
testified that as he was distributing handbills Luis Caban
passed by some 4 or 5 feet away but nothing was said
between them . When Ibarra went in to work that morning
he gathered his handtools and was near the timeclock
waiting for Caban to tell him where to start work. Caban
came up to him and told him to put away his tools because
he would not be working any more as a setup man because
he was for the Union, as Mario Colosi had told Caban.
Ibarra was transferred to another department as a machine
operator and was not permitted to continue as a setup man
even though he had been one for 8 months and had been
complimented by Colosi on being a good mechanic. While
Ibarra suffered no immediate loss of pay as a direct result of
that transfer the pay of setup men is usually higher than
that of machine operators and if he had continued as a
setup man his pay probably would have increased.
Immediately after transferring to, the- other department
Jessie Garcia who was the setup man , came by and gave
him a warning notice for not wearing safety gloves and said
that Mario Colosi had seen Ibarra without the gloves and
told him (Garcia) that Ibarra was for the Union . Ibarra
protested the warning notice stating that they had not given
him safety gloves to wear . The warning notice was not
rescinded but he was given gloves shortly thereafter.
On the following day, after the Union had won the
election, Luis Caban told him that by order of the Union all
employees would now have to ask the foreman for
permission if they wanted to go to the washroom or to the
cafeteria . Three days later Ibarra was called to the office
ELECTRI-FLEX COMPANY 859
where Mario Colosi gave him a written warning notice
which had written on it "second warning for this man" and
told him that someone had told Colosi that Ibarra was not
using the clutch on the machine . Ibarra denied it saying
that he was using the clutch.
About 2 weeks later Garcia gave him another warning
notice stating that he had a bad attitude and was making
poor production and told him that Colosi had said Ibarra
was not making production . Ibarra had never been told
about production prior to that time. About a week later
Ibarra was given another warning notice stating his
production was bad and giving him 3 days off. Garcia gave
him the ticket saying that Colosi had sent it to him. Ibarra
protested that the machines had been out of order the
previous day and they had not taken into account the
length of time they were not running . In late September,
Ibarra was given another warning ticket which stated that
he had been noticed talking to another employee on several
occasions and doing nothing when he could have been
working. A warning notice with the same message was
given to Juan Martin . Garcia told Ibarra he was giving him
the ticket because Colosi from his office had seen them
talking too much . Ibarra said he had only asked Martin to
watch his machine while he went to the washroom. Ibarra
had never had any prior reprimands for talking and as far
as we know there were no rules against talking in the plant.
In late November Ibarra was given a warning notice by
Garcia who said Colosi had told him to give Ibarra the
ticket because Colosi had seen Ibarra not wearing gloves
when he put material on the machine . Ibarra explained it
was almost impossible to thread the machine without
taking the gloves off. He testified that Garcia had seen him
without gloves doing the same thing on a number of
occasions and nothing had been said . Ibarra continued to
receive warning notices thereafter , most of them inspired by
Colosi.
Respondent attempted to show that Ibarra was merely a
learner and had never been a "setup man." During Ibarra's
cross-examination there was testimony and written evi-
dence that he had received a 25-cent raise in October 1974
with a notation that he was a setup man and again in
February 1975 he received another 25-cent raise with the
same notation . Even after he had been transferred for
supposedly not doing his job he received another 25-cent
raise on August 22. These were individual raises.
Caban stated he normally arrived at Respondent 's plant
between 7 and 7:30 a.m. and presumed he did so on the
morning of the election . He said he saw no one outside the
plant that morning . Ibarra had been working for him about
2 weeks and Caban said Ibarra was not a "setup man" and
that he had become unhappy with Ibarra's work and had
talked to Colosi about transferring him. Colosi said that
Caban had complained about Ibarra's work a few days
prior to the election and thought that Caban had done so a
couple of times, the last time being when he transferred
Ibarra on the morning of the election.
Caban contradicted himself on a number of occasions
concerning Ibarra and others and generally showed his
testimony was not credible. Caban denied that Ibarra told
him he was going to the Labor Board , yet on an absence
report for Ibarra signed by Caban this reason is given for
Ibarra's absence . Caban said he did not remember that
Ibarra had ever been a setup man before the 2 weeks Ibarra
worked for him. The pay change slips showed that Ibarra
had been a setup man for some 8 months previously and
indeed the payroll change notice for Ibarra dated 10/ 14/74
was signed by Caban and showed Ibarra was the "setup
man" and under remarks said that he was excellent in that
position. This graphically demonstrates Caban's unreliabil-
ity. Caban testified that he gave out written warning notices
in 1974, but as Respondent's Exhibit 9 shows none of the 13
written warning notices for the years 1972 through August
1975 had Caban's signature.
Caban was evasive in his testimony but finally did admit
that he talked to Colosi about transferring Ibarra on August
7. Indeed, when shown the payroll change slip with Martin
Ibarra's name on it, Caban said it was true if that was the
same man. Counsel for Respondent said there was no
question that it was.
In the face of this testimony there is no question but that
Ibarra was a setup man and was transferred from that
position to a machine operator because he had been seen at
least by Caban and probably also by Colosi distributing
union handbills on the morning of the election . The transfer
was an attempt to downgrade Ibarra and to inhibit his
future with Respondent . I conclude and find that this
action was violative of Section 8(a)(1) and (3) of the Act
and will recommend that Ibarra be returned to the status of
"setup man" and be made whole for any loss he suffered
due to Respondent 's discrimination against him.
2. Adrian Velez began with Respondent in February
1975 and in May was promoted to "setup man" from
machine operator by Colosi, who told him at the time that
he was a good worker and had a good future with the
Company. While at work, Velez broke his fmger on June 12
and was transferred to the night shift on June 16 by Colosi,
saying that he could work nights helping the "setup men"
and help train new employees and that when his finger
healed he would be transferred back to the day shift.
On July 16 Supervisor Bonner told Velez that someone
had said he had signed a union card and asked if it were
true. Velez admitted it. Later that same day Colosi asked
Velez whether it was true that he had signed a union card
and again Velez admitted it. Colosi said he could not
believe it because Velez had had a good future with
Respondent. Later that same day Velez was called into
Colosi's office where Colosi in Bonner 's presence told him
that he could no longer be a "setup man" and that they
were transferring him to the extruding department where he
would be a packer on the day shift. In its records
Respondent referred to Velez as a "setup man" although
Bonner and Colosi said that he was a trainee.
Concerning the transfers Colosi said he transferred Velez
to the night shift because he could not work whatsoever
with his fmger and at the time of that transfer (June 16) he
had no knowledge of Velez' union sentiment. Colosi did not
deny knowing Velez' sentiments at the time of the July 16
transfer. The transfer on July 16 was purportedly for the
reason that Velez could do light work and had not been
doing his assigned work on the night shift. Respondent also
claimed that Velez had been released by the doctor and that
the finger had healed properly and he should be doing some
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work. However, Respondent neglects that Velez reinjured
his forger, and conveniently neglects that Colosi had
authorized a 25-cent-per-hour raise for Velez on July 26.
A better insight into this July 16 transfer was offered by
the testimony of Keith Uelsmann that, prior to the election
while in the toolroom, he heard Bonner tell Bily to try to get
rid of Adrian Velez, that Velez' finger had not healed right
and he had not had proper medical attention . Bily replied
that there was no reason to get rid of him because Velez was
a good worker. Bongiovanni spoke up and said put him in
my department and I will get rid of him. Colosi said that he
would get rid of him, and that he wanted to be rid of him
before the Union came in, that afterwards they would never
get rid of him . There is no specific denial of this testimony
by any of the supervisors involved.
Bily attempted to get Velez to package the reels. Bily
testified that he felt Velez could do the job with one hand
and said he showed him it could be done. How a person
could put a metal band around a coil and secure it with one
hand strains the imagination . Further somewhat in contra-
diction to this Bily stated that packing cartons which
involves the reels requires two hands.
On the basis of all the testimony I conclude and ford that
the transfer of Velez on July 16 was for the purpose of
punishing and discouraging Velez for his union sentiments
and an attempt to get rid of him prior to the union election.
I conclude and ford that this July 16 transfer of Velez was
violative of Section 8(axl) and (3) of the Act and will
recommend appropriate remedial action.
3. In January Respondent arranged a meeting with the
Union at the office of a Federal mediator and stated that
the economic situation was such as to necessitate the layoff
of some 30 employees . A layoff list of some 30 employees
was presented by the Company to the Union at the
company office shortly thereafter and it was based accord-
ing to the Company on the seniority dates of the employees
with those with the lowest seniority being laid off. Since two
employees had in the interim resigned , the Union and the
Company agreed to trim the layoff list to 28 . Included in
the list with a seniority date of April 4, 1975, was Ignacio
Marrero, one of the three union committeemen in the plant.
When Marrero saw this date, he protested that his seniority
date should be October 29, 1974, and produced a letter of
recommendation from the Company establishing that as his
seniority date . Marrero had worked for Respondent from
latter October through the first part of December 1974.
Respondent got Marrero 's personnel file and on checking
its contents the Company and the Union agreed that the
correct date for Marrero's seniority should be October 29,
1974. Marrero was then excluded from the layoff list and
because of this error the Company got the personnel folders
of the other employees on the layoff list so that they could
be checked. Some eight changes were made as a result of
this procedure . Respondent said that it would prepare a
revised layoff list from the seniority dates and wished to
review all the personnel files and prepare an updated
correct seniority list. About 5 days later the revised layoff
list was presented to the Union . Marrero was not on the
layoff list and continued to work.
About a week later Respondent advised the Union that
they had discovered other mistakes in the seniority dates
and arranged a meeting for February 5. At this meeting
Colosi informed the Union that the corrections they were
making for the revised layoff list were based on what was
"agreed to at the bargaining table," which meant to the
Company that it was granting a seniority date only where
the employee had completed a 60-day probationary period.
Respondent had never had a 60-day probationary period
but in the negotiations between the Union and the
Company there was tentative agreement on a 60-day
probationary period, but no agreement that items tentative-
ly agreed to were to immediately go into effect or to be
retroactive . The Company announced that it was revising
the seniority list and dropping Marrero's seniority date to
April 1975, because he had not completed a probationary
period the previous year which resulted in laying him off
and recalling the most senior person on the layoff list.
Respondent also announced that employees on the layoff
list who had never completed a 60-day probationary period
would not be recalled . These actions were taken over the
Union's protest and when the Union said it would file
charges the Company told it to do so.
Bruce Kinander was asked about the 60 -day probation-
ary period and whether it was mentioned in any of the
meetings concerning layoff. Kinander was uncertain and
finally said that it was mentioned . He then did not recall
whether attorney Burlage or himself had said it but stated
that it had been discussed during the prior negotiations.
Pressed further, Kinander said that he did not mention it
and was not sure whether it was brought up by the Union or
the Company. He retreated further and stated that he did
not remember whether it was brought up at the time the list
was given to the Union or not. Finally he said that nothing
about it was brought up when the Union was first given the
layoff list nor during the second meeting.
Colosi testified that they had revised the seniority list and
after revising it again brought it to attorney Burlage and it
was only after consultation with Burlage that they went
through the probationary period idea. During further
examination Colosi was extremely vague as to when, if at
any time during the meeting concerning layoff, the 60-day
probationary period was mentioned. He attempted to
indicate that it was , by saying that they were going
according to the contract. But when pressed as to whether
those words were used in any of those meetings he agreed
they were not. Colosi's disingenuousness was further
demonstrated by his statement that he took the word of the
Union that the probationary time had been served. The
Union had never mentioned probationary period and had
no thought whatsoever of introducing probationary period
retroactively. Colosi further stated that the people whom he
determined had not served a 60-day probationary period
were never recalled and these individuals were never
informed why they were not recalled to Respondent but
that only the Union was informed of the reason for the
nonrecalls. Separation notices were made out for these six
individuals about 1 month later, but it is not known
whether they ever received them.
Respondent's dredging up the use of a probationary
period and using it retroactively in this context to lay off
one of the Union 's committeemen is in keeping with
Respondent's use of the contract proposals where it felt it
ELECTRI-FLEX COMPANY 861
was to its best advantage to do so and disregarding those
sections which it did not want to put into effect. I would
agree that Respondent sought to avoid complications with
the Union by laying employees off in accordance with
seniority but its determination to get to Marrero and lay
him off demonstrates its desire to disrupt the Union and rid
itself of as many aggressive union employees as it could.
Certainly where Respondent and the Union had agreed on
the system of layoff as they had done at the two meetings
and there was no disagreement and no mention of a
retroactive probationary period it is a breach of that
agreement , and a demonstration of bad faith, to announce
a "mistake" and revamp the whole procedure by bringing
in an unconsidered item. That this was contrary to the
understanding of both the Union and Respondent at the
earlier meetings is shown by the Union's reaction to this
unilateral restructuring of the layoff. Rights which the
employees had at, the time of layoff by the use of the agreed-
to seniority layoff were abrogated unilaterally by Respon-
dent's actions.
I conclude and fmd that Respondent's use of the
tentatively agreed-to probationary period, in this instance,
was a subterfuge to allow it to lay off Ignacio Marrero and I
conclude and find that Respondent thereby violated
Section 8(axl) and (3) of the Act.
Additionally, as Respondent admitted that it laid off
others and did not call them back because they had not
served the "probationary period" and since this is undenied
and was brought out in full during this hearing, I find that
the use which Respondent made of the "probationary
period" also violated the Section 7 rights of these other six
employees , and that Respondent's refusal to recall them
violated Section 8(a)(l) of the Act. The six who were not
recalled are : Teodoro Feliciano, Gilberto Espinosa, Juan
Santiago, Luciano N. Lopez, Daniel V. Perez, and Sebas-
tian Gomes.
I will recommend that Respondent restore Marrero to the
position which he would have held had he not been laid off
by Respondent and further that Respondent offer reinstate-
ment to the above-named six employees whom it refused to
recall, making them whole for any losses that they have
suffered.
4. Tony Capasso was a toolroom machinist who worked
for Foreman Brilz from February 1975 to his discharge.
Capasso had been questioned by Brilz about his knowledge
of the Union in July and whether Carlson and Rose were
for the Union. Near the end of July, Brilz told Capasso that
he had a book of rules and regulations and would make
things rough on union supporters. Around the time of the
election Brilz told Capasso that the Company would take
care of those who voted for the Company by putting them
in management where they would not be hurt.
On Tuesday or Wednesday, October 21 or 22, Capasso
said that Brilz was in a bad mood and asked Brilz what was
wrong. Brilz replied it was because people from the Labor
Board had come out and he knew that Capasso had
something to do with the complaint. Capasso told Brilz he
was only doing what he thought was right, and Brilz replied
that he could have Capasso's job in a week if he wanted it.
On Monday, October 27, Brilz talked to Capasso and
Rose about not wearing their safety shoes. Capasso said he
had left them home and Rose said that his were locked in
the trunk of his car and he did not have the key. Capasso
asked Brilz if he wanted him to go home and get them and
Brilz said no , but came back several hours later and gave
both Rose and Capasso warning notices including a 3-day
suspension for Capasso and I day off for Rose. Rose
testified that at lunchtime he removed the back seat of his
car and was able to get into the trunk and get his safety
shoes and as he came back in the plant Brilz and Capasso
were standing outside the toolroom door talking in loud
voices but he did not hear what they were saying.
Around noon Capasso saw Brilz and complained they
were not treating anybody right handing out those yellow
tickets and he was getting a 3-day suspension while Rose
was only getting 1 day off. Capasso testified he told Brilz
that some day someone was going to take one of those
yellow warning tickets and shove it down Brilz' throat. Brilz
said he would like to see it happen and Capasso replied that
one day it would happen . Brilz asked if Capasso was going
to do anything about it and Capasso said that sooner or
later somebody was going to take Brilz out in the parking
lot. He testified that Brilz asked why Capasso was not doing
anything about it and he replied that he would not do
anything on company property but if Brilz wanted to go off
company property it would be different.
Capasso left the plant and the next day, October 28, came
back to pick up one of his toolboxes. He testified that Brilz
asked if he could look inside the toolbox and he said sure,
but that Brilz did not do so. On the morning of October 29
he called the plant to fmd out when he should return to
work and Colosi told him not to do so because he had been
fired. When Capasso asked why, Colosi said for not letting
Brilz look in his toolbox. He told Colosi that he asked Brilz
if he wanted to look in the box and Brilz said it was all right.
Capasso went to the plant and met with Brilz, Bonner,
and Colosi and Union Committeeman Dick Rose and
asked why he was being discharged . Colosi said he was
discharged because he would not let Foreman Brilz look in
his toolbox. Capasso said he had asked Brilz if he wanted to
look in it and Brilz said it was all right. Brilz said that a box
of drill bits were out and he thought Capasso had taken it.
Capasso told Brilz he had given the box of drill bits to
another employee and named him . Colosi asked if that were
true and Capasso offered to prove it and he and Brilz went
into the plant and the other employee confirmed that
Capasso had given him the box of drill bits. They returned
to Colosi's office and Brilz said that the other employee had
the box of drill bits. Capasso then asked Colosi if he could
be reinstated. Colosi said no, he was being discharged for
threatening Brilz. Capasso protested that he had made no
threat to Brilz. Colosi said he would believe his foreman
before he would believe Capasso and was sick and tired of
the employees making complaints and the Company was
going to run it the way they thought, union or no union, and
if they did not like it to have the Union take it to court.
After some further words Capasso was given a discharge
slip stating that he was discharged for threatening bodily
injury to Brilz and that such threats had been witnessed by
Dick Rose.
As noted above Rose said that he never heard any
threats . In the meeting Brilz stated that Rose had witnessed
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it and Rose replied to Brilz that he had heard Brilz and
Capasso talking in loud voices , but did not hear what they
were saying to one another.
Brilz testified that Capasso had his safety shoes there but
refused to put them on and that Capasso and Rose were
being insubordinate in refusing to wear them . I do not
credit Brilz' testimony that Capasso had his safety shoes
there at the plant in Brilz' view. If Capasso had, he certainly
would have put them on at that time as Brilz allowed Rose
to do . Brilz also stated Capasso refused to let him look in
the toolbox the first time and that Brilz specifically
threatened him with meeting him in the parking lot after
work.
Colosi testified that Brilz told him Capasso had threat-
ened to fight with him in the parking lot and he and Bonner
went with Brilz to the parking lot to see if Capaso would
attempt to carry out his threat but Capasso was nowhere
around . He said that the following day Capasso called and
said he would like to have a leave of absence because things
were a little hot down there and he told Capasso he was
discharging him for threatening his foreman . Colosi said
that Capasso came to the plant a few minutes later and in a
meeting he told Capasso he was discharged for threatening
Brilz. Colosi did recall something about a toolbox but said
that Capasso refused to let Brilz look in his toolbox, but
denied that he said anything to Capasso about it.
In this situation I credit the testimony of Capasso that he
walked the thin line about not specifically threatening to do
bodily harm to Brilz. Brilz may have taken it as a direct
threat but I do not believe from the context that Capasso
indicated that he was going to carry out the threat.
Weighing on this credibility question is the undenied 8(axl)
statements of Brilz to Capasso including the prior interro-
gations and most specifically the event of the previous week
where Brilz told Capasso he was angry because the Labor
Board had come out there and he knew Capasso had
something to do with it, and threatened that he could have
his job within a week . The heavier suspension given to
Capasso over Rose with no explanation for the disparity
lends credence to Brilz' threat.
The discharge events did not occur as Colosi testified,
there being 2 days between the "threat" and the discharge
and with Capasso coming to the plant on the intervening
day to pick up a toolbox and talking to Brilz and nothing
being done on that occasion . If Colosi had considered the
"threat" serious, he would have done something about it
when it occurred and not 2 days later . Brilz and Rose
corroborated that Capasso was accused of taking company
drill bits and that Capasso proved that did not occur. It is
only after this reason for discharge was punctured that
Respondent fell back to the "threat ." Even there, both Brilz
and Capasso said there was no animosity between them,
and Brilz never recommended any disciplinary action for
this "threat."
On the basis of this resolution of the facts, I conclude and
find that Respondent violated Section 8(aX3) and (1) of the
Act by its discharge of Tony Capasso.
Further based on this resolution of the facts, I find that
Respondent violated Section 8(a)(4) and (1) of the Act by
its discharge of Tony Capasso.
5. Juan Martin was one of Respondent 's senior employ-
ees having been employed since February 1971. Martin
signed an authorization card and attended union meetings
and on one occasion Colosi accused Martin and others of
talking about the Union . When they denied it he said that
the Puerto Ricans and Mexicans were stupid because so
many of them wanted a union . Colosi then gave them a
"Rockefeller gesture" saying what he meant and that was
what should be done to the Union.
Colosi testified that he assumed the production floor
employees were for the Union and this would have included
Martin. Martin also helped distribute union handbills on
the day of the election and would have been seen by a
number of Respondent's supervisors . Caban's denial of
seeing anyone outside that morning is specifically disbe-
lieved and Caban was Martin's supervisor.
On January 28 employee Auricilio Feliciano , a mainte-
nance man , received Martin's help in emptying a barrel of
scrap near his machine . Later Feliciano returned and again
sought Martin's help in emptying a trash barrel . Martin
refused, saying that he was too busy and for Feliciano to go
to his foreman and get somebody else to help him.
Feliciano's foreman , Stawinski , was incensed that Martin
refused to help and reported it to Plant Superintendent
Colosi who called Feliciano , Martin, Stawinski , Caban, and
the union committee into his office . Colosi took the position
that since the barrels were too heavy for one man to lift, it
was the duty of the employees to help the maintenance men
lift the barrels and Martin was instructed to help Feliciano
when he sought help . Everyone was then sent back to work.
Martin and Feliciano were walking in an aisle which at
one point was partially blocked by a lift truck and trash
gondola and there was only room for one to pass . As they
went through that area , Feliciano and Martin, as they later
testified, bumped shoulders and continued on their way
back to work . Stawinski who was behind them saw it
differently and testified first that Martin was behind
Feliciano and pushed Feliciano with both hands into the
lift truck, knocking him off balance . Stawinski said he was
about 5 feet away at the time and that he immediately
called Martin's supervisor, Luis Caban, and told him that
Martin had deliberately pushed Feliciano into the lift truck
and that Feliciano could have been injured. To an inquiry
Stawinski said that Feliciano spoke half in English and half
in Spanish and told him that Martin had pushed him in a fit
of anger. Stawinski said he then went to see Colosi and told
Colosi that Martin was full of anger and had pushed
Feliciano between the lift truck and the trash gondola.
When they went into the office , according to Stawinski,
Colosi spoke to them and discharged Martin for what he
had done.
Stawinski testified on cross-examination that after the
pushing incident both Martin and Feliciano were back at
their duties when they were told to go back to Colosi's
office . Stawinski specifically said that there was no fighting,
only one man shoved another, and that was the reason for
the discharge which he insisted Colosi imposed in this
second meeting. Stawinski insisted that Martin did not go
back to work after the second meeting.
Stawinski said that Feliciano stated Martin had pushed
him. Later Stawinski said that after Feliciano got pushed,
ELECTRI-FLEX COMPANY 863
he immediately spoke to Feliciano and then went and got
Caban but that Martin had already left and gone to his
machine. Asked if he waited until Martin left before he
talked to Feliciano and Caban, Stawinski stated he talked
to Caban right as it happened because Caban was standing
just a few feet away . During further examination Stawinski
reversed the order of march and stated that Martin was first
followed by Feliciano and that when they got by the lift
truck and trash gondola Martin turned around 180 degrees,
pushed Feliciano with both hands shoving him into the lift
truck and turned around again and walked on to his
machine some 40 feet away.
According to Martin, when they got to the office the
second time Colosi asked why they had fought and both he
and Feliciano replied that there had been no fight.
Union Committeeman Marrero was called to the office
both times. On the second occasion he talked in Spanish to
both Feliciano and Martin who told him that the place was
a bit close and that Martin had pushed or bumped
Feliciano a bit but that there had been no fight. Marrero
then told Colosi what they had said and Colosi said if what
Marrero said was true and nobody fought he was going to
let it go, but he did not want to see it happen again, did not
want anybody fighting. Marrero again repeated that
nobody had been fighting. Both Feliciano and Martin were
told to go back to work and both did. Marrero stated that
about an hour later Colosi came by and said that he trusted
him and was going to forget about it but that he did not
want anything like that to happen again.
Luis Caban testified that Stawinski told him Martin had
pushed Feliciano in anger, hard enough to push him inside
the gondola, and that Feliciano had said the same thing.
Feliciano testified that there was no grudge between him
and Martin and when he was asked if there had been a fight
he told Colosi there had not been, and they were told to go
back to work.
Caban said that he told Martin at that time that he was
suspended until Colosi decided what was going to be done,
but that Martin was going to be fired for pushing Feliciano.
Caban insisted on cross-examination that Martin was
discharged at that second meeting and Colosi said Martin
was suspended and would be fired the next morning, but
both of them were sent back to work.
Colosi said that Stawinski was very mad when he came to
the office and said that his man had been pushed or shoved
and that Stawinski later cooled down and told him that
Martin had pushed Feliciano by the lift truck hard enough
to hurt him. Colosi stated that in this second meeting
Feliciano said that he was pushed and through Caban,
acting as an interpreter, asked if Juan Martin hit Feliciano
and Martin said yes. Colosi said he decided to discharge
Martin and told the union committee present that he would
let them know that night, to reaffirm the decision he had
made, and then sent Feliciano and Martin back to work.
Colosi said that Marrero came in an hour later and told him
that Martin and Feliciano were friends and had not been
fighting. He said he told Marrero that they did fight and he
was not going to retreat on what he had said . He testified he
confirmed his decision with West and Bruce Kinander that
evening and told Marrero that same day that he would
discharge Martin the next morning.
Marrero disagreed and said he was surprised the next
morning when he was called into the office and Colosi said
he was going to discharge Martin . He asked Colosi why,
since there had been no fight, and Colosi replied that he
was discharging Martin because he had a boss (Bruce
Kinander) too, that he had talked it over with Kinander
and they decided to discharge Martin. Marrero stated that
Colosi said he was sorry about it because Martin was a
good worker but there was nothing he could do about it.
When Marrero said that this was another charge for the
Labor Board, Colosi told him he could do anything he
wanted to.
From the recitation of the witnesses and what the facts
appear to be there was no fight, but rather an insignificant
bumping. Stawinski's version of what happened was
contradicted by Stawinski a number of times . Colosi's use
of the word "fight" in this situation shows a propensity to
exaggerate a minor incident into a major one so that a
union supporter could be let go. Certainly if the incident
had been serious enough to warrant discharge it would have
been accomplished then and Martin and Feliciano would
not have been sent back to work where they were in close
proximity to one another. Commonsense dictates that
Respondent's reasons, statements, and testimony here are
erroneous and that Respondent was seeking again to get rid
of prounion adherents one by one and took this opportuni-
ty to magnify a minor incident into a major confrontation
as a reason to discharge an individual.
I conclude and find that Respondent violated Section
8(a)(l) and (3) of the Act by its discharge of Juan Martin.
7. Hermenejildo Mendoza started with Respondent in
June 1974 and was a lift truck driver. Part of his duties
included moving raw materials to various departments,
moving machinery, and cleaning and weighing raw and
slitted steel . Mendoza would deposit a skid with steel on the
scale, note the weight, put it on a tag, and place that tag on
the steel. Apparently there was a device on the scale which
would automatically compensate for the weight of the
skids, but there were two different skid weights, one for the
skids used for raw steel and one for the skids used for slitted
steel . It was therefore necessary for Mendoza to be sure
how the scale was set.
Mendoza testified that in early December 1975, and on
numerous other occasions, he complained about the scale
being out of balance and had been told when it was not to
weigh anything at that point, but to wait until the scale had
been repaired. About mid-December Mendoza stated he
told Enrique Garcia that after he had weighed a number of
skids, he noticed that the scale device which deducted skid
weight had been altered and that he would have to reweigh
some of those skids. He said that Garcia merely shrugged
his shoulders and said nothing and since it was close to
Mendoza's quitting time, he did not reweigh any of those
skids and did not have time to do so over the next 2 weeks.
In latter December, when a yearend inventory was being
run, Respondent's outside accountants had a number of the
skids weighed and noticed that the skid weight had not
been deducted to get a net weight for the steel. Respon-
dent's supervisors were then told that to get a true picture
for the yearend inventory and financial documents it would
be necessary to reweigh all of the steel to be sure just what
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had. According to Respondent, it took about a
day and a half to reweigh all the skids of steel . Mendoza
was given a 3-day suspension for not properly weighing the
steel, although he had originally been threatened with
discharge.
When Mendoza was asked about the errors , he told
Kinander and Colosi that the scale had been off any
number of times . This, however, did not answer the
question about deducting the skid weight . It should be
apparent that if the skid weight had not been deducted by
Mendoza by an adjustment on the scale, that by knowing
the skid weight that adjustment could have been made by
deducting the weight of the skid from the steel when it was
done. But nothing was done and the incorrect weights were
left on the tags on the steel. Mendoza on December 30,
when he was being reprimanded and given the 3-day
suspension apparently did not tell anybody that the scale
appliance for deducting the skid weight had not been set
properly, but merely blamed it on the inaccuracy of the
scale which was no answer to the problem.
Even though Mendoza 's prounion sentiments were
known to the Company I do not think that this enters into
this suspension . It appears that Mendoza made a mistake
and did not correct it, although he had some 2 weeks within
which to do so and when caught on it did not answer the
questions truthfully but sought to cover them up by saying
that the scale was inaccurate.
In this situation I find that Mendoza was not suspended
because of his support of the Union and, accordingly,
dismiss this 8(aX3) allegation.
E. Other 8(a)(1) Allegations
1. Several days prior to the election Colosi took the
employees' timecards and met with a group of supervisors
in the toolroom . They went through the timecards and
made up a list of who they thought was for the Union and
who was against the Union . A number of employees
including Uelsmann and others observed them making up
this list. Colosi said he was guided by what he thought the
sentiments of the employees were and eventually they came
to the conclusion that the Company would probably win
the election.
The complaint alleges that this activity within the sight of
the employees created the impression of surveillance of the
employees ' union activity and that Respondent was main-
taining a list of those that were for and against the Union in
violation of Section 8(aXl) of the Act.
It is clear that employees did see Respondent 's supervi-
sors engaging in these activities and would get the impres-
sion that Respondent did have some knowledge of what
their union activities or sentiments were and was making
lists of them. I conclude and fmd that this action did violate
Section 8(aX 1) of the Act.
2. The complaint was amended to allege that the
Company bypassed the Union and solicited grievances
from employees in violation of Section 8(aXl) of the Act.
The story of what was done concerns Dick Rose and I
conclude and find that what Respondent did, did not
violate the Act. Dick Rose and Supervisor Brilz were not
getting along and on one occasion Rose felt that Brilz was
having another employee improperly mark company tools
with Brilz' name . This led to a confrontation where Brilz
was angry and made remarks to Rose . There were also a
number of warning tickets given out and Rose complained
vociferously about them.
Rose was one of the three union committeemen and, at
one of the negotiation meetings after the tool matter, Bruce
Kinander asked Rose to stay after the negotiation meeting
and asked if Rose would meet with Colosi and Brilz in an
effort to work out their differences and suggested that they
meet each morning for 15 minutes to handle their problems.
They did start meeting and handled a number of problems
such as the parking lot and when the allotment of overtime
was discussed and either Colosi or Brilz said that Rose was
the only one complaining , Rose got the other people in the
toolroom and they all went in and talked to Colosi and
Brilz about overtime and other things they were complain-
ing about . Rose said that they talked on one occasion for
some 20 to 30 minutes about not receiving work, or having
tools to work with. These sessions gradually diminished and
stopped altogether.
Since Rose was a union committeeman , I would consider
these discussions as more or less first-step grievances in that
the union committeeman was there ironing out with
supervisors problems that he and the employees had with
supervisors and with their working conditions . I therefore
would dismiss this allegation of the complaint . However,
there is another allegation entwined with it, that Rose had
been told by Bruce Kinander that if he refrained from filing
additional charges Kinander would remove all warning
notices from Rose's personnel file. This testimony is
undenied and I credit Rose and find that by such statement
Respondent by Bruce Kinander violated Section 8(aXl) of
the Act.
3. On another occasion Rose 's wife was in the hospital
and Respondent sought her room number in an effort to
send flowers . Rose felt that the inquiry was to check up on
him and became incensed and talked to Brilz about it. This
became known to Kinander and he called Rose in and
explained to him that Company policy provided that
Respondent would send flowers to employees or their
spouses when they were in the hospital . Rose stated that he
was being harassed and Kinander became angry. Rose said
something about filing charges and Kinander asked wheth-
er he intended to do so and told him to do what he wanted
but he was making him extremely angry. This allegation of
Section 8(a)(1) is, I think, a bit of overstatement and really
was a result of touchiness on behalf of the two people
involved. I feel that Rose was overly sensitive about being
questioned and that Kinander , being threatened with
charges for something he felt the Company was doing in a
humane way, lost his temper and made a statement that
was unnecessary and probably not intended. I will not find
that this incident violated Section 8(a)(1) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section II, and
therein found to constitute unfair labor practices in
violation of Section 8(a)(l), (3), (4), and (5) of the Act,
occurring in connection with Respondent's business opera-
tions as set forth, above, in section I, have a close, intimate,
ELECTRI-FLEX COMPANY 865
and substantial relationship to trade , traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
IV. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, I recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act as follows:
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act by unilaterally promulgating and
implementing a warning and disciplinary system, it is
recommended that such rules and the procedure to enforce
them be rescinded and withdrawn and that the status quo as
of August 7, 1975, be restored by Respondent removing
from its personnel or other files and destroying all warning
notices issued since August 7 , 1975, and by rescinding all
disciplinary action taken pursuant to its unilaterally im-
posed warning and discipline procedure and making whole
all employees suspended or laid off thereunder by reinstate-
ment and the payment to them of those sums which they
would have earned as wages for such periods , less any net
earnings , as prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest as set forth in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Having found that Respondent violated Section 8(a)(3)
and (1) of the Act by its transfer, discharge , layoff, or
suspension of Adrian Velez , Martin Ibarra, Juan Martin,
Ignacio Marrero, and Tony Capasso and additionally
violated Section 8(a)(4) of the Act regarding Capasso, it is
recommended that Respondent offer them full and immedi-
ate reinstatement to their former positions and make them
whole for any loss of pay they may have suffered by reason
of Respondent's discriminatory treatment of them by
payment to them of a sum equal to what they would have
normally received as wages from the dates of their transfers,
discharges, layoffs, or suspensions until they are fully
reinstated by Respondent, less any interim net earnings.
Backpay is to be computed as set forth above . I further
recommend that Respondent make available to the Board,
on request, payroll and other records to facilitate checking
the amounts of backpay due them and any other rights they
might be entitled to receive.
Further having found that Respondent violated Section
8(a)(1) of the Act by the numerous acts and conduct
detailed above and since it is part of the purpose of the Act
to prevent the commission of unfair labor practices, I
recommend that Respondent be ordered to cease and desist
from violating the Act in the above or in any other manner.
Having found that Respondent discriminatorily laid off
Ignacio Marrero by manipulating the layoff list and that it
also laid off and did not recall Teodoro Feliciano, Gilberto
Espinosa , Juan Santiago, Luciano N. Lopez, Daniel V.
Perez, and Sebastian Gomes, I recommend that Respon-
dent reinstate them to their former positions and make
them whole for any loss of wages they may have suffered in
the same manner as set forth above.
On the basis of the foregoing findings and the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
unlawfully : (a) Interrogating employees about their own
union sentiments and activities and those of other employ-
ees; (b) threatening employees with the loss of benefits or
employment or with other reprisals if they supported the
Union ; (c) promising employees benefits for withdrawing
support from the Union ; (d) threatening employees with
reprisals for taking matters to the Board and promising
benefits for withdrawing charges from the Board; and (e)
creating an impression of Surveillance of the union activi-
ties of employees and maintaining lists of pro- and anti-
union employees.
4. Respondent violated Section 8(a)(3) and ( 1) of the
Act by discriminatorily transferring , laying off, discharging,
or suspending Adrian Velez , Martin Ibarra, Juan Martin,
Ignacio Marrero, and Tony Capasso and violated Section
8(a)(4) of the Act by its termination of Tony Capasso.
5. Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally initiating and imposing a warning and
disciplinary system at a time when the Union had become
the employees' collective-bargaining agent.
[Recommended Order omitted from publication.]