English Brothers Pattern and Foundry

National Labor Relations Board - Board Decisions

Dec 23, 1980

253 N.L.R.B. 530 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
English Brothers Pattern and Foundry and Ware-
house Union Local 6, International Longshore-
men's and Warehousemen's Union. Case 32--
CA-2182
December 23, 1980
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND ZIMMERMAN
On August 21, 1980, Administrative Law Judge
Michael D. Stevenson issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed limited exceptions and a supporting
brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order, as modified herein.
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraphs 7 and 9
of the Administrative Law Judge's Conclusions of
Law:
"7. By polling employees on October 8, 1979, by
asking them to raise their hands if they wanted the
Union, and thereafter polling individual employees
at their work stations, Respondent interrogated its
employees for the purpose of undermining support
for the Union and thereby violated Section 8(a)(l)
of the Act.
"9. All production, maintenance, and warehouse
employees, including shipping and receiving clerks,
employed by the Employer at its Hayward, Cali-
fornia, facility, excluding office clerical workers,
salesmen, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act."
AMENDED REMEDY
We are of the opinion, in agreement with the
General Counsel, that the policies of the Act will
best be effectuated if the notice which Respondent
I Respondent has excepted to certain 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 The General Counsel requests that an additional instance of polling
be found and included in the Conclusions of Law. This polling occurred
at the employee meeting held by Clyde English shortly before the indi-
vidual polling of employees at their work stations concerning their union
sentiments. Both polls indicated majority support for the Union, have
been litigated here, and are binding upon Respondent We amend the
Conclusions of Law accordingly
253 NLRB No. 67
is required to sign and post includes an introduc-
tory paragraph explaining to employees by what
process their rights have been upheld, and that it is
appropriate to post the notice in Spanish as well as
English.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
English Brothers Pattern and Foundry, Hayward,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Substitute the following for paragraph l(d):
"(d) Polling employees at group meetings, as
well as polling individual employees at their work
stations, for the purpose of determining their sup-
port for the Union without adequate safeguards
and for the purpose of undermining support for the
Union."
2. Substitute the following for paragraph l(e):
"(e) Failing or refusing to recognize and bargain
collectively concerning rates of pay, wages, hours,
and other terms and conditions of employment
with Warehouse Union Local 6, International
Longshoremen's and Warehousemen's Union, as
the exclusive representative of its employees in the
following appropriate unit:
All production, maintenance and warehouse
employees, including shipping and receiving
clerks, employed by the Employer at its
Hayward, California, facility; excluding office
clerical workers, salesmen, guards and supervi-
sors as defined in the Act."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amend-
ed, gives all employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
530
ENGLISH BROTHERS PATTERN AND FOUNDRY
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT coercively interrogate em-
ployees concerning their union activities.
WE W. NOT threaten employees with
plant closure as a means of defeating the
Union.
WE WILL NOT suggest that benefits would
be increased and solicit grievances for the pur-
pose of undermining support for the Union.
WE WILL NOT poll employees, either at
group meetings or on an individual basis at
their work stations, as to their support for the
Union without adequate safeguards and for the
purpose of undermining support for the Union.
WE WILL NOT fail or refuse to recognize
and bargain collectively concerning rates of
pay, wages, hours, and other terms and condi-
tions of employment with Warehouse Union
Local 6, International Longshoremen's and
Warehousemen's Union, as the exclusive repre-
sentative of all the employees in the bargaining
unit described below.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them by Section
7 of the Act.
WE WILL, upon request, recognize and bar-
gain collectively with the above-named Union,
as the exclusive representative of all the em-
ployees in the bargaining unit described below,
with respect to rates of pay, wages, hours, and
other terms and conditions of employment,
and, if an understanding is reached, embody
such understanding in a signed agreement. The
bargaining unit is:
All production, maintenance and warehouse
employees, including shipping and receiving
clerks, employed by the Employer at its
Hayward, California, facility; excluding
office clerical workers, salesmen, guards and
supervisors as defined in the Act.
ENGLISH BROTHERS PATTERN AND
FOUNDRY
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge:
This case was heard before me at Oakland, California, on
April 29, 1980,1 pursuant to an amended complaint
I All dates herein refer to 1979 unless otherwise indicated
Relations Board for Region 32 on April 24, 1980,2 and
which is based on a charge filed by Warehouse Union
Local 6, International Longshoremen's and Warehouse-
men's Union (herein called Union) on October 11. (A
first amended charge was filed on October 12 and a
second amended charge was filed on November 30.) The
complaint alleges that Respondent English Brothers Pat-
tern and Foundry (herein called Respondent) has en-
gaged in certain violations of Section 8(a)(l) and (5) of
the National Labor Relations Act, as amended (herein
called the Act).
Issues
Whether Respondent restrained and coerced its em-
ployees in the exercise of their Section 7 rights by com-
mitting the following acts in violation of Section 8(a)(1)
of the Act:
(a) By interrogating its assembled employees concern-
ing their support for and activities on behalf of the
Union;
(b) By individually polling its employees as to whether
they had designated the Union as their collective-bar-
gaining representative;
(c) By promising its assembled employees increased
benefits and wages in order to discourage support for the
Union;
(d) By threatening its assembled employees with plant
closure before Respondent would deal with the Union;
(e) By refusing to recognize and bargain with the
Union as the collective-bargaining representative of unit
employees when Respondent was under a legal duty to
do so. (This also in violation of Section 8(a)(5) of the
Act.)
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent admits that it is a California partnership
engaged in the manufacture of wood and metal patterns
and aluminum, bronze, and brass castings, and having its
place of business located in Hayward, California. It fur-
ther admits that during the past year, in the course and
conduct of its business, it has sold and sent goods or
services valued in excess of $50,000 to customers or busi-
ness enterprises within the State of California, which cus-
2 The original complaint was filed on November 30. After the hearing
had begun, counsel for Respondent represented that he had received his
copy of the amended complaint only day before the hearing although
he had received telephone notice from the General Counsel a few days
before No claim was made that Respondent was not ready for hearing
While suggesting that counsel for Respondent file a written answer to the
amended complaint. I did not require him to do so and he has not done
so His oral amendment to the original answer may stand without preju-
dice.
531
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tomers or business enterprises themselves meet one of the
Board's jurisdictional standards, other than the indirect
inflow or indirect outflow standards. Accordingly it
admits, and I find, that it is an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. I'HE LABOR ORGANIZATION INVOI.VED
Respondent admits, and I find, that Warehouse Union
Local 6, International Longshoremen's and Warehouse-
men's Union is a labor organization within the meaning
of Section 2(5) of the Act.
111. 'I'HE AI.LEGED UNFAIR LABOR PRACTICES
A. The Facts
Since 1946, Ernie English owned and operated a small
foundry in Hayward, California. Over the years his son,
Clyde English, worked in the business, and about 3 years
ago Clyde joined his father as a partner on a full-time
basis. Respondent's production employees are all young
Mexican males who speak little or no English and have
limited educations. Their testimony, as reflected below,
was given through an interpreter. The parties agreed and
stipulated at the hearing that as of October 8, the follow-
ing production, maintenance, and warehousing persons
(hereafter P, M, & W) were employed by Respondent
and that these employees constituted an appropriate unit
for purposes of collective bargaining:
Jose Arias
Gorge Cardenas
Sergio Gonzalez
Alfredo Inguanso
Jose Inguanso
Richardo Ramirez
Francisco Reynosa
Juan Villalpando
Miguel Felix.
Beginning in early to mid-September, or before, Re-
spondent's production employees began to discuss among
themselves a perceived lack of fringe benefits and low
wages. One of their number, Sergio Gonzalez, an em-
ployee of Respondent for about 3 months, had a brother-
in-law who worked elsewhere and was a member of the
Union. Sometime in mid-September, Gonzalez went with
his brother-in-law to the union hall in Oakland where
Gonzalez met Felix Rivera, an organizer, and Roberto
Flotte, union business agent. It was explained to Gonza-
lez that in order to bring in the Union as collective-bar-
gaining representative, he and other employees would
have to sign union authorization cards. Flotte also told
Gonzalez at this time that if he and the other employees
wanted the Union, they should all return to the union
hall to sign the cards. Accordingly, about 2 weeks later,
Gonzalez returned to the union hall with six of his
fellow employees, Arias, Reynosa, two Inguanso broth-
ers, Ramirez, and Cardenas. Gonzalez had explained to
the others the purpose of the cards and four of his co-
workers signed at the union hall and three signed later at
the home of Arias. This was done because the Union did
not have sufficient cards for all seven at the time Re-
spondent's employees went there. I find that all seven
signed the cards because they wanted the Union to be
their collective-bargaining representative.
The cards were printed in English only and read:
I designate the Warehouse, Processing & Allied
Workers, Local No. 6, I.L.W.U. as my bargaining
agent with the company on wages, hours, and
working conditions.
The cards then contained lines for [printed] name, ad-
dress, phone, date, name of employer, and signature.
Five of the persons who signed cards testified at the
hearing and I am fully satisfied that they as well as the
others understood clearly the purpose of these cards.
The employees were particularly concerned about medi-
cal benefits because the wife of one of their number, Al-
fredo Inguanso, had incurred large maternity expenses
not covered by any medical insurance plan.
It was also stipulated between the parties that, on Oc-
tober 5, Ernie English received a verbal telegram over
the telephone from the Union stating that it represented
a majority of Respondent's P, M, & W employees and
requesting that Respondent bargain over wages, hours,
and working conditions. It was further stipulated that on
October 6, Respondent actually received the telegram re-
ferred to above.
On October 8, Rivera and Flotte went to Respondent's
place of business and talked to Clyde English. The union
officials again stated that they represented a majority of
Respondent's P, M, & W employees and that they were
ready to sit down and negotiate a contract. English re-
sponded to this by saying, "Well, we are under a union.
We have a union here." The basis for this statement was
the fact that two patternmakers and Clyde English him-
self, all outside the unit, were members of the pattern-
makers' union. Rivera replied to the English statement
that, to the best of his knowledge, this was not true. The
two union officials then left and while outside greeted
several of Respondent's employees who had previously
signed union authorization cards and were then on cof-
feebreak. Upon conclusion of the coffeebreak, Clyde
English called a meeting of his P, M, & W employees in
the shop. The parties sharply dispute what occurred at
this meeting.
All agree that Clyde English first directed that all ma-
chines be turned off. Then he called Letitia Anguiano, a
bilingual secretary, to translate from English to Spanish
and vice versa. English had used Anguiano before on
two or three occasions to interpret between himself and
the employees, and her method, while not perfect, was
adequate. She did not perform simultaneous translation,
but rather one or two sentences or phrases at a time. An-
guiano, a current employee of Respondent, testified at
the hearing, but was of little value in resolving the con-
flicts in testimony. Basically, Anguiano testified that she
could not remember what was said either by Clyde Eng-
lish or by the employees.
Other witnesses, however, claimed to remember what
was said at the meeting. The General Counsel presented
Gonzalez, Cardenas, Arias, Ramirez, and Reynosa as
witnesses. None of the witnesses were currently em-
ployed by Respondent. All of them testified to what they
heard Anguiano say in Spanish as a translation of the re-
marks of Clyde English to the assembled employees.
532
ENGLISH BROTHERS PATTERN ANI) FOUNDRY
Gonzalez testified that Anguiano said the employees
should not think about the Union coming in. Anyone
who did not want to work should tell him. Then the fol-
lowing question and answer occurred at the hearing:
Q. [By the General Counsel] During the meeting
at any point do you recall that the employees raised
their hands?
A. [By Gonzalez] Yes. He [English] asked us
whether we wanted the Union and he said that
whoever wanted the Union should lift his hand a
little bit. And we all raised it just a little bit, very
low.
Gonzalez testified that seven employees raised their
hand-presumably the same seven who had signed the
cards. On cross-examination, Gonzalez added to his rec-
ollection of the meeting. English began by asking who
had called in the Union, but nobody responded. Still
later, on redirect examination, Gonzalez testified that, at
one point, English said he would close the plant before
giving in to the Union. 3
The next witness, Cardenas, also testified about the
meeting and, like Gonzalez, testified that English asked
employees to raise their hands if they wanted a union.
Then English added that the Union would not come in
and that he would close his business before he would
give money to the "government."Cardenas concluded his
testimony by relating additional comments of English to
tell the Union not to come in if employees wanted more
money. The witnesses Arias. Ramirez, and Reynosa also
testified and generally supported the accounts of the first
two witnesses.
For Respondent, Ernie English, who was present for
the meeting, did not testify, but Clyde English did.
Called both as an adverse witness and as a witness in Re-
spondent's case-in-chief, English testified that he told the
assembled employees that he had no objection to the
Union, that he did not care who called the Union, but
asked, "What seems to be the problem?" One of the em-
ployees mentioned that they had no medical benefits and
English replied that he was working on a plan, but that
it would take additional time. Then English asked his
employees whether they wanted some form of profit-
sharing, saying further that Respondent might provide
profit-sharing at a later date. English further testified
that, a week before the meeting, he had arranged for a
wage increase for the P, M, & W employees, but it had
not been announced generally. English mentioned it at
this meeting. Only two employees, Jose Inguanso, and a
foreman, Villalpando, allegedly knew about the raise.
Neither of these persons testified, Inguanso because he
was in Mexico at the time of the hearing and Villalpando
for unexplained reasons. In addition, neither payroll re-
cords nor any other business records were offered by
Respondent. In continuing his testimony, English denied
asking employees to raise their hands or threatening to
close down the plant. He did admit saying to employees,
3 Anguiano used the Spanish word for "government" instead of
"union." But Gonzalez testified that he and everyone else knew what she
meant to say as a translation of English's remarks.
"What are you trying to do, close the plant down or
what?"
After the meeting ended, English had short conversa-
tions with several of the employees individually. Al-
though English did not use an interpreter, he was able to
communicate. Again the content of the conversations is
disputed. All the employee witnesses testified that Eng-
lish came up to them as they were working and asked
them if they wanted the Union. All answered that they
did. English, while admitting that he contacted the em-
ployees, testified that he asked only whether the individ-
ual thought it was a "bueno" [good] union. English
denied that what he did constituted polling his employ-
ees.
B. Discussion and Analysis 4
I begin by resolving all conflicts in the testimony
against Clyde English. I find him to be a less credible
witness than the five former employees. In reaching my
conclusion, I note that neither Gonzalez nor Cardenas
had mentioned to a Board agent English's statement
asking all employees who wanted the Union to raise
their hands. In addition, Anguiano did not recall employ-
ees raising their hands. Yet, these discrepancies are not
sufficient to convince me that English did not make the
statement. First, Arias, Reynosa, and Ramirez were not
impeached on this point.5 Next, Anguiano was not a
credible witness. Of all the employee witnesses involved
in the meeting of October 8, she was the only one still
employed there. Her testimony that she was unable to
remember any of the conversation in which she acted as
interpreter is totally incredible. Finally, I believe the five
employees and disbelieve English because the undisputed
evidence clearly shows a course of action to defeat the
Union by coercing employees into retreating from their
desire to have the Union represent them. 6 This course of
conduct becomes more meaningful when first examined
in light of surrounding circumstances.
English called a meeting of employees during work-
time immediately after the two union officials had made
their demand for recognition and for bargaining. No
group meetings of employees had ever been held before.
4 I agree with the General Counsel that Anguiano, in interpreting to
the assembled employees, acted as agent of Respondent. As the Board
stated in Community Cash Stores. Inc., 238 NLRB 265 (1978), affd. 603
F2d 217 (4th Cir 1979), "The critical issue in making this determination
[whether an employee, not an acknowledged supervisor acted as a Re-
spondent's agent]l is whether under all the circumstances [the employee
would reasonably believe that the employee was reflecting company
policy, and speaking and acting for management." Based on Anguiano's
actions here, there can be little doubt that employees reasonably believed
that she spoke and acted for management.
s Respondent mistakingly argues in its brief that none of the five wit-
nesses had previously mentioned that they were asked to raise their
hands. In addition, I find, contrary to Respondent's claim, that seven of
the employees raised their hands in response to the question As to
whether English observed the raised hands. this is less clear, but also in-
material
6 In addition. Respondent's unexplained failure IIo call Ernie English.
partner in the business. and a witness to the October 8 meeting. creates
an adverse inference that his testimony would support the General Coun
sel's case. See artin Luther King. Sr. Nursing Center. 231 NRB 15
{1977) (failure of employer to produce material ilness): rodm(xr
Lumber Compunv. 227 NLRB 1123, 1130 (1977) (failure of employer to
produce witness to corroborate denials)
53 3
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
English directed that all machines be turned off and pro-
duction was halted for the duration of the meeting.7 Im-
mediately before this meeting, Respondent's P, M, & W
employees had been on a coffeebreak. They saw and
spoke to the two Spanish-speaking union officials who
had just left the building after having spoken to Clyde
English. This then is the background for the meeting and
I turn to the individual violations alleged by the General
Counsel.
1. Unlawful interrogation
The credited testimony indicates that English began
the meeting by asking who had called in the Union. The
fact that no one responded to this question is itself evi-
dence of its coercion. 8 Later, English asked all who
wanted the Union to identify themselves by raising their
hands. This time several of the employees responded, but
cautiously, as reflected by the testimony of Gonzalez re-
lated in "The Facts." The test applied in determining
whether a violation of Section 8(a)(1) of the Act has oc-
curred is "whether the employer engaged in conduct
which, it may reasonably be said, tends to interfere with
the exercise of employee rights under the Act." 9 Apply-
ing this test, I find that Respondent, by interrogating its
employees as set forth above, has interfered with, re-
strained, and coerced its employees in the exercise of its
Section 7 rights. My conclusion here is supported by the
lack of any legitimate reason for the questioning of em-
ployees.1 0 In addition, English, while interrogating em-
ployees, gave them no assurances against reprisals. "
2. Threats to close the plant
The interrogation discussed above was not only coer-
cive when considered in the context of the union
demand for recognition and bargaining but was also ac-
companied by English's threat to close the plant before
giving in to the Union. This threat is itself a violation of
Section 8(a)(l) of the Act.12 In this respect, I agree with
the General Counsel that even accepting English's ver-
sion of what was said, "What are you trying to do, close
the plant?" in the context of discussing the union petition
and what employees wanted from English, would require
that a violation be found. This is so because he is clearly
conveying to employees that by going to the Union, they
risked having the business closed.' 3
I Gonzalez testified that the meeting lasted about 1-1/2 hours. I believe
this estimate to be exaggerated. However, a small business can ill afford
any lost production time. Therefore, the length of the meeting, as well as
its content, served to emphasize Respondent's purpose-which I find to
be to erode support for the Union.
0 H Restaurant, Inc., trading as The Backstage Restaurant, 232
NLRB 1082 (1977).
9 Electrical Fillings Corporation, a Subsidiary of I-T-E Imperial Corpora-
tion, 216 NLRB 1076 (1975).
10 See Jefferson National Bank, 240 NLRB 1057 (1979); World Wide
Press, Inc., 242 NLRB 346 (1979).
d N.L.R.B. v. Cement Transport, Inc., 490 F.2d 1024, 1028 (6th Cir.
1974), cert. denied 419 U.S. 828 (1974).
12 N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618-620 (1969);
Keeshim Charter Service. Inc., 250 NLRB 780 (1980).
Is Winn-Dixie Stores, Inc., 236 NLRB 1547, 1550 (1978).
3. Increased benefits and solicitation of grievances
In this area there is little conflict between English and
his employees. English testified that in attempting to find
out what the employees wanted, he raised the question
of profit-sharing. I credit this portion of English's testi-
mony and find that it violates the Act. He was clearly
indicating that if this is what it took to keep the Union
out, he would consider it.
As to wages, English asked whether this is what the
employees wanted. This time, however, he had some-
thing positive to offer, claiming that the decision to raise
wages had been made "a week before any of this hap-
pened." English was apparently referring to a week
before October 5, his first official notice of union activi-
ties. Respondent had the burden of proof to show that a
wage increase had been decided upon prior to the criti-
cal period when it was announced. Two persons alleged-
ly knew about it: one was in Mexico and the other, a
foreman, did not testify for unexplained reasons. Also,
Ernie English did not testify and no payroll or other
business records were introduced to show when the raise
in pay was decided upon. Accordingly, I find that the
purpose of mentioning it to the assembled employees was
to persuade them that a union was not necessary for in-
creased benefits, because only the Employer had the nec-
essary power. This violates Section 8(a)(l) of the Act.t4
I also find that English told the employees that more
wages would come only if the Union was kept out. This
is still another violation of Section 8(a)(l).
The solicitation of employee grievances after a union's
demand for recognition and for bargaining accompanied
by a promise, express or implied, that the grievances will
be remedied is a violation of the Act. The essence of
such a violation is not the solicitation of grievances itself;
rather, it is the promise to correct them, either express or
inferred from the solicitation. 5 Such conduct constitutes
an unlawful restraint upon and interference with the em-
ployee's self-organizational rights guaranteed under the
Act because implicit therein is the promise that benefits
will be awarded to them by their employer so long as
they are not represented by a labor organization and be-
cause it tends to frustrate the employees' organizational
efforts by showing them that union representation is un-
necessary. Thus, when Respondent herein, in response to
the Union's demand for recognition and for bargaining,
solicited grievances from its employees and then indicat-
ed that it would or might satisfy their demands, it violat-
ed Section 8(a)(l) of the Act. t
4. The Employer's post-meeting poll of employees
It is undisputed that after the above-discussed meeting
with employees ended, they returned to work. Shortly
4 For the same reasons, I find that English's promise to have medical
benefits in December or January is not supported by evidence that it had
been arranged before the employer learned of the union activity and is
therefore violative of Section 8(a)(1).
if The Stride Rite Corporation, 228 NLRB 224 (1977). Campbell Soup
Company, 225 NLRB 222 (1976); Uarco Incorporated, 216 NLRB 1 (1974).
16 N.L.R.B. v. Exchange Parts Company, 375 US. 405, 409-410 (1964).
McMullen Corporation d/b/a Briarwood Hilton, 222 NLRB 86 (1976); Te-
ledyne Dental Products Corp., 210 NLRB 435 (1974).
534
ENGLISH 3ROTIiERS PATTERN AND FOUNDRY
thereafter, English had a brief conversation with each at
his work station. The parties dispute what was said, but I
credit the employees' version. English asked each of the
five whether they wanted the Union and each of them
said they did. English testified that he may have talked
to five employees. Thus, there is no disagreement that a
majority of the unit was contacted. I find that a majority
was polled.
The General Counsel correctly states that there is a
duty on an employer to bargain following a demand for
recognition. He may demand an election or agree with
the Union on some alternative means to resolve the issue.
The Supreme Court stated in N.L.R.B. v. Gissel Packing
Co., Inc., 395 U.S. 575, 594 (1969):
Thus, an employer can insist that a union go to an
election, regardless of his subjective motivation, so
long as he is not guilty of misconduct; he need give
no affirmative reasons for rejecting a recognition re-
quest, and he can demand an election with a simple
"no comment" to the Union. The Board pointed
out, however, that an employer could not refuse to
bargain if he knew, through a personal poll for in-
stance, that a majority of his employees supported
the Union ....
In this case, after the two union organizers made a
demand for recognition on October 8, English never in-
dicated any doubt as to the majority status of the Union,
never asked for an election, never made a "no com-
ment." Instead, I find that he told the organizers that the
employees already had a union there. This is some evi-
dence of Respondent's bad faith since there was no union
there. However, after Respondent's poll of the afternoon
of October 8, there was evidence of majority support for
the Union and Respondent cannot now disavow the
result of its poll. In Direct Image Corporation of New
York. a subsidiary of Direct Image Corporation, 233
NLRB 365 (1972), the Board affirmed a finding that the
respondent there was legally bound by the results of the
poll and was obligated to comply with the Union's
demand for exclusive recognition and bargaining
rights. 17 Because Respondent failed to do this, I find that
it violated Section 8(a)(5) of the Act. The General Coun-
sel has shown majority support for the Union not only as
a result of the poll, but also as a result of a majority of
employees signing union authorization cards.
The polling of employees under the circumstances of
this case has a second undesirable result for Respondent,
i.e., a violation of Section 8(a)(1) of the Act.'8 In this re-
spect, I note that English was no low-level supervisor,
but rather, a partner and co-owner of Respondent, and
son of the other owner. Moreover, the individual poll
was taken after a group meeting, at which English indi-
cated in unmistakable terms, his opposition to the Union.
His attitude toward the Union transcended the language
barrier. I find that Respondent failed to observe the
Struksnes guidelines, supra, which might have prevented
17 See also Sullivan Electric Company. 199 NLRB 809. 810 (1972),
where the Board said, "An employer cannot disclaim the results [of the
poll] simply because he] finds them distasteful."
18 Struksnes Construction Co.. Inc., 165 NLRB 1062 (1967)
an 8(a)(1) violation here. That is, Respondent gave no as-
surances against reprisal nor did he use a secret ballot.'9
I find also that the purpose of the poll was not to deter-
mine the truth of a union's claim of majority-Respond-
ent never indicated such doubt and, in any event, would
have confirmed it at the first meeting-but rather the
purpose was to coerce and intimidate employees in the
exercise of their Section 7 rights. Finally, I find that Re-
spondent has engaged in other unfair labor practices as
found herein and otherwise created a coercive atmos-
phere. Thus, the evidence fully supports the finding of
an 8(a)(l) violation.
After reviewing the record, I am convinced that a bar-
gaining order is warranted in this case. First, Respondent
threatened to close its plant before it would bargain with
the Union. I agree with the General Counsel that this
alone is sufficiently serious to warrant a bargaining
order. 20 In addition, on October 8, Respondent made
promises of increased wages and benefits. This, together
with Respondent's other unfair labor practices, has a
tendency to undermine majority strength and impede the
election processes. t The evidence regarding the union
authorization cards and the poll shows employee major-
ity support for the Union. 2 2 I agree with the General
Counsel that by taking the poll under the circumstances
of this case, Respondent waived its right to an NLRB
election and is bound by the results of the poll.2 3
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's oper-
ations described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening commerce and the free flow
thereof.
'" Compare Offner Electroncs, Inc., 127 NLRB 991 (1960).
20 Jimmy-Richard Co.. Inc., 210 NLRB 802, 808 (1974), enfd. 527 F.2d
803 (D.C. Cir. 1975).
2' Stanley M Feil. Inc., 250 NLRB 1154 (1980). citing .VL.R.B.
Gissel Packing Co.. Inc., 395 U.S 575, 614 (1966).
12 Cf. Brooks Cameras, Inc., 250 NLRB 820 (1980).
13 Neither party has raised the issue of employee turnover in this case
as affecting my recommended bargaining order. Therefore, extensive dis-
cussion is not warranted. However, I have carefully read the case of Peo-
ples Gas System, Inc. v. NL R.B., 629 F.2d 35 (D.C. Cir 1980), where,
because of employee turnover, the court refused to enforce a bargaining
order in a refusal-to-bargain case involving a company's alleged good-
faith doubt of an incumbent union's majority status Although I am
bound by the Board's decision In Peoples Gas, I cannot believe that the
D.C Circuit or any other circuit would refuse to enforce a bargaining
order in the present case despite the evidence showing in the approxi-
mate 10 months' time since the Union's demand, apparently six of the
nine unit members are no longer employed by Respondent The basis for
this finding is: (1) the lack of evidence showing that any new employees
as may have been hired did not desire union representation in the same
proportion as the former employees; (2) the necessity to deter employers
from committing unfair labor practices like those committed here; (3) the
Union, as an innocent party, should not be put to the burden of an elec-
tion when they had a right to recognition as of October 8; and (4) other
factual differences which distinguish Peoples Gas from the instant case. In
conclusion. I note that, initially, the General Counsel attempted to in-
clude with this case an issue regarding Respondent's layoff of employees
However, insufficient evidence was found during the preliminary investi-
gatiln to support this allegation and it was not included In the complaint
535
DECISIONS OF NAITIONAL LABOR RELATIONS BOARD
CONCI.USIONS OF LAW
1. Respondent, English Brothers Pattern and Foundry,
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Warehouse Union Local 6, International Longshore-
men's and Warehousemen's Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Anguiano, in interpreting to the assembled employ-
ees, acted a an agent of Respondent.
4. By interrogating employees concerning their union
activities and sympathies, Respondent violated Section
8(a)(l) of the Act.
5. By threatening to close its plant before it would bar-
gain with the Union, Respondent violated Section 8(a)(l)
of the Act.
6. By suggesting that benefits would be increased and
by soliciting grievances for the purpose of undermining
support for the Union, Respondent violated Section
8(a)(1) of the Act.
7. By polling employees for the purpose of undermin-
ing support for the Union, Respondent violated Section
8(a)(1) of the Act.
8. By refusing to recognize and bargain with the
Union after determining said Union had majority support
of Respondent's employees, Respondent violated Section
8(a)(5) of the Act.
9. The following P, M, & W employees of Respondent
or their replacements constitute a unit appropriate for
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
Jose Arias
Gorge Cardenas
Sergio Gonzalez
Alfredo Inguanso
Jose Inguanso
Richardo Ramirez
Francisco Reynosa
Juan Villalpando
Miguel Felix
10. The above-named labor organization is, and has
been since October 8, the exclusive bargaining repre-
sentative of all employees in the appropriate unit within
the meaning of Section 9(a) of the Act.
11. By failing and refusing to recognize and to bargain
with the Union on and after October 824 as the exclusive
representative of the employees in the appropriate unit,
Respondent has violated Section 8(a)(5) and (1) of the
Act.
12. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act.
I shall also recommend that, upon request, Respondent
be ordered to recognize and bargain with the Union as
the exclusive representative of all employees in the stipu-
lated, appropriate unit.
24 Peerless of Amernca. Incorporalted, 198 NLRB 982, 984 (1972).
Finally, in view of the egregious nature of Respond-
ent's unlawful conduct directed at its employees because
of their union-related activities, I find that Respondent's
conduct demonstrates a general disregard of its employ-
ees' fundamental statutory rights and warrants a broad
remedial order. See Hickmott Foods, Inc., 242 NLRB
1357 (1979).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, I hereby issue the following
recommended:
ORDER2 5
The Respondent, English Brothers Pattern and Found-
ry, Hayward, California, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning union activi-
ties.
(b) Threatening employees with plant closure before
Respondent would bargain with the Union.
(c) Suggesting that benefits would be increased and so-
liciting grievances for the purpose of undermining sup-
port for the Union.
(d) Polling employees as to their support for the
Union, without adequate safeguards and for the purpose
of undermining support for the Union.
(e) Failing or refusing to recognize and bargain collec-
tively with Warehouse Union Local 6, International
Longshoremen's and Warehousemen's Union, as the col-
lective-bargaining representative of the following-named
employees or their replacements in the stipulated P, M,
& W unit:
Jose Arias
Gorge Cardenas
Sergio Gonzalez
Alfredo Inguanso
Jose Inguanso
Richardo Ramirez
Francisco Reynosa
Juan Villalpando
Miguel Felix
(f) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action, which will ef-
fectuate the policies of the Act:
(a) Upon request, bargain with the Union as the exclu-
sive representative of all employees in the appropriate
unit with respect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its business copies of the attached notice
marked "Appendix."2 6 Copies of said notice, printed
25 In the event no exceptions are filed as provided by Sec 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall. as provided
in Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived fr all purposes.
2h 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board.
536
ENGLISH BROTHERS PATTERN AND FOUNDRY
both in English and Spanish2 7 on forms provided by the
Regional Director for Region 32, after having been duly
signed by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by Respondent for 60 consecutive days there-
after, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
27 Caprkico Refavturanr. Inc., 24q N.RB 68hR5, fn 3 (1980)
tices are not altered, defaced, or covered by any other
material. In addition, Respondent shall send a copy of
said notice by mail to the last known address of each and
every member of the stipulated unit, who for any reason
is not currently employed at Respondent on either a per-
manent or temporary basis. 28
(c) Notify the Regional Director for Region 32. in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
' I. a it n 2
537