Fiber Glass Systems, Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1986

278 N.L.R.B. 1255 (N.L.R.B. 1986)

FIBER GLASS SYSTEMS 1255
Fiber Glass Systems , Inc. and International Union
of Electrical, Radio and Machine Workers,
AFL-CIO-CLC. Cases 23-CA-8870, 23-CA-
8995, 23-CA-8996, 23-CA-9050, and 23-RC-
5065
25 March 1986
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 15 June 1983 Administrative Law Judge Phil
W. Saunders issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, an
answering brief, and motions to reopen the record
and/or to remand; the General Counsel filed limit-
ed exceptions, a supporting brief, and responses in
opposition to the Respondent's motions; and the
Charging Party filed exceptions, a supporting brief,
and an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs' and
has decided to affirm the judge's rulings, findings 2
and conclusions3 only , to the extent consistent with
this Decision, Order, and Direction of Second
Election.
1. The judge found that during the Union's orga-
nizational campaign, the Respondent violated Sec-
tion 8(a)(1) by interrogating employees about their
union sentiments and activities; by creating the im-
pression of surveillance; by threatening employees
with layoffs, discharges, and the freezing of bene-
fits if they selected the Union as their bargaining
representative; by forming a grievance committee;
by prohibiting union-related discussions on non-
work time; and by requiring an employee to stop
wearing union insignia on the job. We affirm the
1 In view of our finding that a Gissel bargaining order is not warranted
in this case , we find it unnecessary to pass on the Respondent's motions
to reopen the record or to remand for the taking of evidence concerning
the Union's continued majority status,
2 The Respondent has excepted to some of the judge's credibility find-
ings . The Board 's established policy is not to overrule an administrative
law judge's credibility ' resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 We adopt the judge 's conclusion that the Respondent violated Sec
8(a)(1) of the Act based on the conversation between Plant Superintend-
ent Harrison and Supervisor Brooks which was overheard by employee
Preciado ' In so doing , we find that, even assuming arguendo Harrison's
remarks did not constitute a "thinly veiled threat" as found by the judge,
Harrison's statement of an ambiguous and overbroad rule concerning the
employees ' talking about the Union reasonably tended to interfere with
the employees' Sec. 7 rights.
judge 's numerous 8(a)(1) findings except as set
forth below.
The judge found that the Respondent unlawfully
created the impression of surveillance in the fol-
lowing four instances : (1) In October 1981 Supervi-
sor Pena told employee Castillo that Pena already
knew that Portales and Castillo and others were
organizing; (2) on 19 November 1981 Plant Super-
intendent Harrison told employee Toscano that he
knew that Toscano had been president of the
Union at a different employer, and that this was
the reason Harrison believed that Toscano was
trying to organize the Union along with employees
Alvarado, Portales, and Rios; (3) on 11 January
1982 Harrison told employee Rios-an open union
adherent-that he knew that Rios was for the
Union. Rios replied that the only way that Harri-
son knew this was because Rios associated with
Portales at a nearby gasoline station; (4) about that
same date Pena approached employee Hernandez
at his work station and told him that Pena knew
that Hernandez was a member of the Union be-
cause Hernandez hung around with union leaders
like Portales, Alvarado, and Justus.
We disagree with the judge's findings about
these four incidents. In these circumstances, when
the Respondent's supervisors merely were commu-
nicating to employees that they had observed cer-
tain conduct and associations occurring openly at
the workplace, there was no implication of unlaw-
ful surveillance of union activities. The employees
named in these four, conversations did not attempt
to conceal their prounion sentiments and, in fact,
openly advocated the Union and wore union but-
tons, T-shirts, and caps at work. As the Board
stated in $chrementi Bros., Inc.,4 "[s]ince the [em-
ployees'] union sympathies were a matter of
common knowledge and they were aware that
their views were known to others, we cannot infer
that they assumed from [the supervisors'] state-
ments that their union activities were, under surveil-
lance." Accordingly, we reverse the judge and find
nothing unlawful in these conversations.5
4 179 NLRB 853, 853 (1969). See also Aero Corp., 237 NLRB 455 fn. 2
(1978).
s In addition , Chairnnian Dotson would reverse 8(a)(1) violations found
by the judge with respect ' to the following two incidents involving Su-
pervisor Nava ( 1) In mid-March 1982 Nava asked employees Granado
and Ramirez why they wanted the Union and then stated that he did not
want any "[expletive deleted] union driving a Cadillac with his dues."
The Chairman notes that Granado and Ramirez apparently openly solicit-
ed for the Union at work and, in the Chairman 's view, Nava s statement
about unions was nothing more than a noncoercive expression of personal
opinion. (2) Nava told his crew that if the Union came in and there were
negotiations, that "there was going to be a freeze of pay, pay raises and
all the benefits that we ' have." Chairman Dotson concludes that in the
absence of evidence that ' the Respondent had an established policy of
giving periodic pay and benefit increases, this remark was merely an at-
tempt to explain what would happen if collective bargaining occurred,
and did not constitute a threat of frozen pay and benefits
278 NLRB No. 154
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The judge found that the Respondent violated
Section 8(a)(3) by discharging employee Portales
for union activities, but that Portales is not entitled
to reinstatement or backpay because he lied about
his employment history on his job application. The
judge also found that Portales should be denied re-
instatement and backpay because approximately 4
months after his discharge, he pointed a pistol at
employee Munoz and threatened to kill him if he
did not vote for the Union.
We agree that Portales was unlawfully dis-
charged and that he should be denied reinstate-
ment. Contrary to the judge, however, we find that
Portales is entitled to backpay from his December
1981 discharge to the pistol incident in April 1982.
The Respondent has not shown that it would not
have hired him but for its reliance on the false in-
formation. In these circumstances, we shall toll
Portales' backpay at the date of the pistol threat to
Munoz, conduct which clearly bars his entitlement
to reinstatement and backpay.6
3. The judge found that by 1 March 1982 a ma-
jority of unit employees had signed authorization
cards designating the Union as their bargaining
representative, and that, in view of the Respond-
ent's unfair labor practices, it should be ordered to
bargain with the Union under the authority of
NLRB v. Gassed Packing Co., 395 U.S. 575 (1969).
We do not agree that a bargaining order is war-
ranted in this case. The General Counsel has failed
to demonstrate that the 8(a)(1) violations were so
substantial that their effects cannot be erased by
the use of traditional remedies and that the ques-
tion concerning representation raised by the
Union's petition cannot be resolved by the pre-
6 Backpay shall be computed as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231
NLRB 651 (1977)
Chairman Dotson notes that during cross-examination at the hearing in
this case, Portales admitted falsifying his employment application by fail-
mg to list former employment by two companies, that had each fired
him. Although the Chairman does not agree with the judge that the falsi-
fication issue was sufficiently litigated to infer that the Respondent would
not have hired Portales had he been truthful in his application, the Chair-
man would permit the Respondent to prove this in compliance and to toll
any backpay liability. See, e g, Service Garage, Inc, 256 NLRB 931
(1981).
Contrary to our dissenting colleague, we find it inappropriate to leave
the matter of Portales' falsification of his employment application to the
compliance stage of this proceeding In so finding, we note that this issue
clearly was raised during the unfair labor practice hearing, and that al-
though the Respondent was afforded the opportunity to demonstrate that
it would not have hired Portales but for its reliance on the information
contained in his application, it failed to do so We therefore conclude that
there is no justification for permitting the Respondent a second chance to
litigate this issue at the compliance stage . We further find our dissenting
colleague's reliance on Service Garage misplaced , because there the em-
ployer neither litigated nor was even aware of the existence of a basis for
denying reinstatement and backpay to the discrimmatee during the unfair
labor practice proceeding
ferred method of a fair Board rerun election.? Fur-
ther, the lone 8(a)(3) discharge in this case would
not tend to have a lasting inhibiting effect on other
employees' exercise of Section 7 rights in view of
the peculiar circumstances supporting a denial of
reinstatement and the limiting of backpay for Por-
tales. We therefore also reverse the 8(a)(5) viola-
tion found by the judge in connection with the Re-
spondent's 19 May 1982 unilateral implementation
of a new leave of absence policy, because at that
time the Respondent was not obligated to bargain
with the Union.
We find, however, that the judge properly found
that the Respondent engaged in conduct which im-
permissibly, interfered with the election held on 8
April 1982, and that the election should be set
aside because of that objectionable conduct." Ac-
cordingly, we shall direct a second election.9
ORDER
The National Labor Relations Board orders that
the Respondent, Fiber Glass Systems, Inc., San
Antonio, Texas, its officers, agents , successors, and
assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their
union activities, memberships, and sentiments.
(b) Threatening employees with layoffs, dis-
charges, lack of work, and a loss of benefits and/or
freeze in pay.
(c) Establishing and announcing a new grievance
procedure.
(d) Creating the impression of surveillance.
(e) Soliciting grievances.
(f) Telling employees to vote no at the election.
(g) Telling employees not to discuss the Union
while on their own time.
(h) Discharging employees because of their
union activities.
(i) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Disestablish the grievance committee and
procedure instituted in February 1982.
' In fording a bargaining order inappropriate , Member Dennis relies on
her concurring opinion in Regency Manor Nursing Home, 275 NLRB 1261
(1985)
8 In setting aside the election , we do not rely on that aspect of the
Union's Objection 8 involving the alleged discriminatory refusal to disci-
pline an intoxicated employee.
9 The judge failed to order the Respondent to disestablish the unlaw-
fully formed grievance committee We shall modify the recommended
Order to correct this omission
FIBER GLASS SYSTEMS
(b) Make Raul Portales whole, with interest, for
any loss of earnings and other benefits suffered as a
result of his unlawful discharge on 17 December
1981 and occurring until his early April 1982 pistol
threat directed at Ramon Munoz.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel ' records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its facility in San Antonio, Texas,
copies of the attached notice marked "Appen-
dix."10 Copies of the notice, on forms'provided by
the Regional Director for Region 23, after being
signed by the', Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by,any other material.
(e) Notify the Regional ]Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
10 If 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 Nation-
al 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 THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT coercively question you about
your union support or activities.
1257
WE WILL NOT threaten you with layoffs, dis-
charges, lack of work, and loss of benefits and
freeze in pay for supporting International Union of
Electrical, Radio and Machine Workers, AFL-
CIO-CLC or any other union.
WE WILL NOT establish and announce a new
grievance procedure to discourage support for any
union.
WE WILL NOT create the impression of surveil-
lance of your union activities.
WE WILL NOT tell you to vote no at the election.
WE WILL NOT tell you not to discuss the Union
while on your own time.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for supporting the Union
or any other union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL disestablish the grievance committee
and procedure instituted in February 1982.
WE WILL make Raul Portales whole for any loss
of earnings and other benefits resulting, from his
unlawful discharge on 17 December 1981 and oc-
curring until his April 1982 misconduct.
FIBER GLASS SYSTEMS, INC.
Guadalupe Ruiz Esq., for the General Counsel.
James Cheslock, Esq., for the Respondent.
Bruce Fickman, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
PHIL W. SAUNDERS , Administrative Judge. Based on
various charges filed by International Union of Electri-
cal, Radio and Machine Workers, AFL-CIO-CLC (the
Union or IUE) complaints were issued" against Fiber
Glass Systems, Inc. (the Respondent or Company ) alleg-
ing violations of Section 8(a)(1), (3), and (5 ) of the Act.
Respondent filed answers to the complaints denying it
had engaged in the alleged matter. All parties filed briefs
in this matter.2
" Complaint and notice of hearing issued in Case 23-CA-8870 on June
9, 1982, an order directing hearing, order consolidating cases, and notice
of hearing in Cases 23-CA-8870 and 23-RC-5065 issued on June 10,
1982. Consolidated complaint in Cases 23-CA-8895 and 23-CA-8996
issued on September 17, 1982 Complaint and notice of hearing in Case
23-CA-9050 issued on October 25, 1982, and order consolidating Cases
23-CA-8870, 23-CA-8995, 23-CA-8996, and 23-CA-9050 with Case 23-
RC-5065 issued on November 1, 1982 Case 23-CA-5065 related to the
Union's objections to conduct affecting the results of the election held on
April 8, 1982. Most of the objections are encompassed within the 8(a)(1)
allegations
2 1 have considered only the briefs filed with me on or before April 26,
1983 Accordingly, Respondent's motion dated May 13, 1983, to file a
reply brief, is denied
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the entire record in the case, and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Texas corporation and, at all times
material, has maintained its principal office and place of
business at San Antonio, Texas, where it is engaged in
the business of manufacturing fiberglass tubing and fit-
tings.
During the past 12 months, a representative period,
Respondent, in the course and conduct of its business op-
erations described above, purchased and received prod-
ucts, goods, and materials valued in excess of $50,000,
and which products, goods, and materials were shipped
to Respondent's San Antonio, Texas facility directly
from points and places outside the State of Texas.
Respondent is now, and has been at all times material,
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The main issues in this case are as follows:
Whether Respondent, by and through its supervisors
and agents, interrogated, threatened , placed its employ-
ees under surveillance, and engaged in other conduct
violative of Section 8(a)(1) of the Act.
Whether Respondent violated Section 8(a)(3) of the
Act by discriminatorily disciplining, suspending , and dis-
charging certain of its employees.
Whether Respondent violated Section 8(a)(5) of the
Act by refusing to bargain with the Union as the exclu-
sive bargaining representative of its employees.
The Company operates facilities in San Antonio and
Big Spring , Texas, where it is engaged in the businees of
manufacturing fiberglass pipe for use in drilling oper-
ations in the oil fileds . The San Antonio plant, and the
only facility involved herein is a relatively new facility
having commenced operations in October 1980.
It appears that the Union's organizational efforts start-
ed in July 1981 and on March 8, 1982 , the Union filed a
petition seeking to be certified as the representative of a
unit of production and maintenance employees , and pur-
suant to a Stipulation for Certification Upon Consent
Election approved by the Regional Director on March
18, 1982, an election was held on April 8, 1982. The
Union lost the election by a vote of 68 to 29, and certain
objections to the election were then filed, as aforestated.
The 8(a)(3) allegations pertained to the termination of
Raul Portales on December 17, 1981 , a written warning
issued Jimmy Rios on January 11, 1982, and a 3-day sus-
pension issued to Manuel Gonzalez on March 26, 1982.
Thereafter, the Regional Director issued further com-
plaints. The one dated September 17, 1982, alleged two
additional violations of Section 8(a)(3)-the termination
of Martin Alvarado on May 21, 1982, and the termina-
tion of Raymond Hernandez on June 5, 1982. A bargain-
ing order was also sought at that time. The complaint
issued on October 25 alleged three additional postelec-
tion terminations to be violative of the Act-the termina-
tion of Debbie Justus on May 21, 1982, the termination
of Manuel Gonzalez on July 27, 1982, and the termina-
tion of David Granado on September 20, 1982.
The 8(a)(1) Allegations
The General Counsel contends that shortly after the
Union commenced its organizing drive in July 1981, the
Respondent's supervisors3 began engaging in a pattern of
conduct involving a series of actions which have been al-
leged as violations of Section 8(a)(1) of the Act.
Counsel for Respondent points out that most of the
employees testifying about these allegations were self-
proclaimed union supporters who wore union buttons or
T-shirts to work. Counsel would emphasize that early in
the campaign all the Company's supervisors, including
the company president and plant superintendent, attend-
ed a training session conducted by Respondent's attor-
ney, and that in so doing, they received detailed verbal
and written instructions on the "do's and dont's" of
NLRB election campaigns. Supervisors were told not to
question employees, not to threaten employees, not to
make promises, not to spy on union activities, not to par-
ticipate in any antiunion petition, not to prohibit union
solicitation during nonworking time, not to discriminate
against employees who expressed support for the Union,
and not to prohibit the wearing of union insignia.4
Employee Rudy Ramon gave uncorroborated testimo-
ny that Respondent's president, B. F. Michael, during an
employee meeting conducted during March 1982, told
employees that if the Union won they might lose some
of their benefits. Ramon also testified that during this
meeting Michael told them that if the Union won the
employees would go on strike and some of them could
lose their job. Michael admitted telling employees that
after bargaining their benefits might not be what they
presently had.
Employee Jimmy Rios testified that in October 1981
Michael told the employees present that if they believed
in the Union "there was the door." Michael conceded
making a statement wherein he told employees that if
they were not happy with benefits and wages then they
should look for another job.
The only allegation pertaining to the Company's presi-
dent, B. F. Michael, is the allegation that about May 28,
1982, Michael told the employees that "if the Union won
the election, employees would lose most of their bene-
fits."
It is clear that Michael talked to the employees about
the collective bargaining process, but he never threat-
ened to take benefits away if the Union won the election.
3 At all times material herein, the following named persons occupied
the positions set opposite their respective names and have been, and are
now, supervisors or agents of Respondent- B. F. Michael-president;
Robert Harrison-plant superintendent ; Fred Pena-supervisor; Mario
Nava-supervisor, and John Casarez-supervisor
4 See R Exh. 45
FIBER GLASS SYSTEMS 1259
Q. (By Mr. Cheslock) Now, again, directing your
attention to a meeting on or about the first of April
or the end of March, 1982, did you have an occa-
sion to discuss wages and negotiations and- what
would happen if the Union won the election? And
if so, what did you say?
A. Well, about the only thing that I recall then
was that if the Union won the election, that we
would bring all the benefits and wages to the table.
The Union would bring all that they desired to bar-
gain with on the other side of the table. Then after
a bunch of hard bargaining, well, what would come
out was what was agreed on between the two par-
ties.
Q. Okay. Did you tell the employees that they
would lose their existing benefits if the Union won
the election?
A. I never said that in my life.
Q. (By Mr. Ruiz) I believe that you also testified
that you explained to the employees the process of
bargaining, as you say it, if the Union won the elec-
tion._Is that correct?
A. Yes, I stated what I told them.
Q. Okay. And of course you told them that you
would have to start with a clean slate, did you not?
A. I told them that each company and the Union,
that the Union with what they wanted out of the
Company and the Company, what it had and could
afford, would be on the sides of the bargaining table
and that all of those would be bargained and what
you would come out, may or may not be what you
have now,
Q. And, you also told them that if the Union won
the election, they wouldn't have any benefits until
they were negotiated. with the Union?
A. No, I never made that statement at all.
In the instant case I credit the testimony of Michael. I
un in agreement that his statement did not contain any
hreats to take away benefits and was entirely permissi-
)le. Here, Michael was expressing his legal position that
he Company did not have to start bargaining from the
evel of existing benefits and it was informing the em-
>loyees what they might expect as the result of any ne-
,,otiatidns which might take place.5
The statement attributed to Michael in October 1981
)y Jimmy Rios; as aforestated, was acknowledged as
;ackground material only. Nevertheless, I credit the
lenial of Michael. He stated as follows:
A. No, I have told them frequently this: I have
told them that .if any of the people were not happy
with the Company benefits or the wages that we
have brought to San Antonio, then we wish that
they would go look for a job in some other manu-
facturing plant because we felt like we were paying
better benefits and better wages than most of the
companies here in San Antonio.
And all that we thought was that it would be
better for our Company and be better for them if
they got into an environment where they could
work happily.
Q. Did you single out any particular employees,
such as Jimmy Rios or Rudy Ramon and tell that
employee that if he didn't like it, he could leave or
she could leave?
A. Absolutely not. I never did that.
The allegation pertaining-to B. F. Michael is dismissed.
There is an allegation that on the day of the election,
April 8, 1982, Supervisor John Casarez told employees
that there would be a layoff if the Union won the elec-
tion.
Employee David Granado testified that on the date
here in question, John Casarez told several employees
gathered in the cafeteria that it was a "real close elec-
tion" and if the Union came in, there were going to be
strikes and" layoffs. Casarez denied making this statement,
but in this instance I have credited Granado. As will be
noted, the Company's campaign against the Union was
repleted with such dire consequences of unionization."
It is alleged that in mid-March Supervisor Mario Nava
interrogated employees about union activities.
Employee David Granado, with corroboration of em-
ployee Agapito Ramirez, credibly testified that about
mid-March 1982, Nava, while warning them not to be
distributing union authorization cards on company prem-
ises, asked them why they wanted the Union, and then
stated that he did not want no "union driving a Cadillac
with his dues." Employee Agapito Ramirez, in addition
to testifying about Nava's interrogation, also testified that
Nava told his crew that if the Union came in and there
were negotiations, "there', was going, to be a freeze of
pay, pay raises and all the benefits that we have."7 Ra-
mirez also testified that during this conversation with his
crew supervisor, Nava was also "putting down" union
adherents Raul Portales and Martin Alvarado.
Nava testified that on this occasion they were in the
lunchroom and were just going over the pros and cons
of the Union and discussing what they were looking for:
what they want the Union to do for them, and then
asking for his opinions every "once and awhile." How-
ever, later on in his testimony, Supervisor Nava admitted
to the foregoing interrogation when he testified that on
this occasion he did ask Ramirez (in a roundabout way)
why he wanted the Union. Nava also conceded that he
mentioned the subject of layoffs and strikes during the
discussion with his crew. I have credited the testimony
of Granado and Ramirez."
The complaints also allege various 8(a)(1) conduct on
the part of ' the Company's plant superintendent, Robert
Harrison.
Employee Jimmy Rios credibly testified that about
January 11, 1982, during a meeting with Harrison, when
6 See G C Exh. 84.
7 Even though not specifically alleged , all 8(a)(1 ) statements attributed
to Supervisor Mario Nava were fully litigated at the hearing
5 See Universal Producing Co., 123 NLRB 548, 550 (1959), and C & K 8 Both David Granado and Agapito Ramirez were strong union sup-
.oal Co., 195 NLRB 1038, 1039 (1972). porters who wore union buttons and T-shirts.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was issued a written warning for solicitation, Harri-
sion told him that he knew this was because he Rios as-
sociated with Raul Portales at the nearby Texaco station.
As noted, Rios was issued a written warning during this
same conversation in which Harrison acknowledged that
he knew that he was for the Union. (This issuance of the
warning will be discussed later.) Rios also testified that
about March 1982, during a safety meeting conducted by
management, Harrison told the employees present that if
the Union came in, they would lose all their benefits.
Employee Guillermo Toscano credibly testified that
about November 19, 1981, he had a conversation with
Harrison in his office. It appears that Toscano was in the
office to object to Harrison's accusations that he was so-
liciting for the Union. Toscano told Harrison that he was
not soliciting, but merely translating a company anti-
union leaflet to another employee. Harrison told him that
he knew Toscano had been president of the Union at
Stenner Industries, and that this was the reason he be-
lieved that Toscano was one of the people trying to or-
ganize the Union along with employees Martin Alvara-
do, Raul Portales, and Jimmy Rios.
Toscano further credibly testified that about February
1982, during an employee meeting conducted by Harri-
son and Michael, Harrison announced to the employees
present the formation of a grievance committee. 9 Harri-
son then- explained that if employees had complaints they
should be referred to such committee. It is undisputed
that this was the first time a grievance committee had
been formed at the plant. During his testimony, Harrison
explained that the committee was formed to establish a
forum by which problems and complaints regarding
working conditions could be handled.
Counsel for the Respondent admits that the Company
did form a grievance committee'at the time in question,
but points out that it has always had a written grievance
policy, that this policy, adopted in June 1981, is con-
tained in a written personnel policies booklet supplied to
all employees, and that no violation of the Act occurred
when the Company modified its grievance policy by
switching to a committee to resolve grievances.
It is noted that the initial grievance procedure or
policy only called for conferences with supervisors in
event of a complaint, but with no intervention of any
third party. However, in February 1982, the procedure
was changed or modified to the extent that a grievance
committee was established with final appeals to the com-
mittee itself, 'and this modification must certainly be
deemed a major change and/or addition from the former
procedure.
The establishment of a grievance committee during a
union organizational campaign has been found to be vio-
lative of Section 8(a)(l) of the Act, because such conduct
constitutes a clear attempt to dissuade employees from
supporting the Union by soliciting grievances and hold-
ing out possibilities of more favorable treatment. G. Q.
Security Parachute, 242 NLRB 508 (1979).
9 See G.C Exh. 2. It is alleged that the Company unlawfully formed a
grievance committee in mid-February 1982, and that such was violative
of Sec. 8(a)(1) of the Act.
Employee Arturo Castillo credibly testified that in
early November 1981, while he was working light duty,
he was called to Harrison's office, and on this occasion
Harrison asked how the union organizing was going.
It is alleged that in mid-March 1982, Plant Manager
Harrison told employees that they could not form in
groups and talk about the Union during company time
and on company property.
Employee Gerald Preciado testified that sometime be-
tween mid-March and April 1, 1982, he overheard a con-
versation between Harrison and Supervisor Don Brooks
and that he heard Harrison telling Brooks that, if he saw
people forming into groups talking about the Union, he
was to order them to disband as employees were not al-
lowed to talk union on company time or company prop-
erty. Brooks was then further instructed by Harrison that
the only time employees could talk about the Union was
before or after work and during the lunch period. Pre-
ciado stated that he was confused with such instructions
because he considered lunchtime as part of company
time because employees were paid during their lunch
period.
The Board has frequently indicated that the guidelines
or test in situations of this kind is whether it can reason-
ably be said that the employer's conduct tends to inter-
fere with the free exercise of employee rights under the
Act. Applying this guideline, I find that the remark over-
heard by Preciado constituted, under the particular cir-
cumstances here, a thinly veiled threat against union sup-
porters if they were found discussing union activities
even during their lunchbreaks in the lunchroom, and this
is especially so considering several other remarks by su-
pervisors carrying the same message , as detailed later
herein.
Preciado also testified regarding an employee meeting
conducted by Harrison. Preciado testified that about
April 1, 1982, after showing employees an antiunion film,
and soliciting questions from employees Harrison then
told them that he would try to get them better working
conditions, including sick leave and bonuses if they
voted no, and further told them that if they voted for the
Union there was a good possibility of layoffs and em-
ployees would be losing their jobs and should there be a
strike, the Company would get replacements and they
would be escorted in and out of the plant. Moreover,
Harrison stated that, during negotiations between the
parties, wages would be frozen.
Plant Manager Harrison denied the above statements
attributed to him and stated that after the film he merely
stated that if the Union did win the election, and if the
parties went to negotiations, then-existing benefits would
be frozen until after the negotiations (that he would con-
sider all benefits would be up for negotiations).
- In view of the fact that Harrison only conducted a
question and answer period following the showing of the
film, and in view of the fact that Preciado was apparent-
ly the only employee who heard the specific reply he at-
tributed to Harrison, I am rejecting his testimony and
crediting the testimony of Harrison. As a result, there is
no violative statement relative to this incident:
FIBER GLASS SYSTEMS 1261
The complaint alleges that in mid-March 1982, Harri-
son unlawfully asked Alvarado why he wanted the
Union and that Harrison created the impression of sur-
veillance by telling Alvarado that he knew he was one
of the union leaders.l o
Employee Martin Alvarado testified that around the
latter part of March 1982, Harrison came up to him
while he was working and told him that he did not like
Alvarado's union T-shirt or cap and told him not to con-
tinue wearing them. Alvarado further testified that
around this same time (a few weeks before the election)
Harrison asked him to go to his office. While in the
office Harrison asked him why he "loved the Union,"
said that he did not need a union, and then stated that he
knew Alvarado was one of the leaders of the Union.
Counsel for Respondent argues that the surveillance
allegation is easily disposed of. Alvarado had openly sup-
ported the Union and Harrison was aware of that fact
because of the union insignia worn by Alvarado. More-
over, the conversation complained about was not unlaw-
ful, as it occurred after Harrison had shown employees a
film and at which time Alvarado called Harrison over
and initiated a conversation. What ensued was a lengthy
conversation during which "[Alvarado] gave me the pros
of the Union and I gave him the pros of the Company
... it was a friendly conversation. There weren't any
words passed." At no time did Harrison ever tell Alvara-
do that he could not wear his union hat or T-shirt.
Concerning this incident, I credit the testimony of Al-
varado. Accordingly the remarks attributed to Harrison
occurred at the work station and in Harrison's office.
Harrison may well have had a later conversation with
Alvarado on an occasion when the film was showing,
but obviously this is not the incident or time period in
question. It is unlikely Alvarado would have referred to
the office had not the questioning happened there. Con-
cerning the argument that Harrison knew Alvarado sup-
ported the Union because of his insignia, this record
shows that numerous employees were continually wear-
ing union buttons, caps, and shirts in'the plant and, while
such apparel openly identified supporters for the Union,
it did not, in any way designate the leaders of the orga-
nizing campaign and management was very much inter-
ested in who they were.
I turn now to the alleged unlawful 8(a)(1) conduct of
Supervisor Fred Pena.
Raul Portales credibly testified that on October 5,
1981, Supervisor Fred Pena, in the presence of employee
Jesse Reyes (his coworker), told him that he had heard
that Portales was organizing the Union, and then in-
formed_Portales that he did not feel it was right for Por-
tales to be -organizing the Union. Portales responded by
telling Pena that under Section 7 of the Act he had that
right. Pena responded by stating that the Company did
not need "that kind of people." He then walked off and
headed directly toward Plant Manager Harrison's office.
Employee Jesse Reyes, who corroborated Portales' ac-
count of this conversation, added that Pena also told
Portales that if Portales was going to organize he would
have to do it outside the Company and not inside.
Portales also gave credited testimony that during the
month of November 1981 Pena approached him on sev-
eral occasions and asked him how the union organizing
was doing. About November 20, 1981, Pena summoned
him to the cafeteria where he asked him what was so
bad about the Company "that was bothering him." When
Portales responded by saying that it was the Company's
working conditions, Pena then asked him if Portales
knew that Pena had authority to fire him. Portales dis-
agreed with him, and told him that he had the right to
organize under the law. Pena then reiterated that he had
the authority to fire him because the Company did not
need the Union and it was not right for Portales to be
organizing.
About December 10, 1981, while Portales was talking
to a group of employees regarding their treatment by
Respondent, Supervisor Pena interrupted and told him
that he did not want him to be talking about the Union
on company property. Portales, who was talking to these
employees in the cafeteria, reminded Pena that they were
on their lunchbreak. On this occasion, Pena also called
Portales a "culero."11 Employee Jesse Reyes testified
that on this occasion Pena interrupted their discussion
and accused Portales of being a union organizer. He also
recalled Pena's telling Portales that he could not talk
union on company property, and that when Portales con-
tinued to assert his right to talk about the Union during
his lunchbreak, Pena called him a "culero."
This record further reveals that about December 14,
1981, Supervisor Pena again summoned Portales to the
cafeteria, and on this occasion in the presence of Por-
tales' coworker Reyes told him that Respondent's presi-
dent Michael was putting pressure on Pena because Mi-
chael felt that Pena was the one involved in organizing
the Union. Pena then told Portales that he knew that
Portales was the leader. Pena further warned Portales
that if he wanted his job he would have to "watch his
step." Reyes corroborated Portales' account of this con-
versation.
Employee Rudy Ramon credibly testified that approxi-
mately 1 week before the election, while he was at the
wax room, Pena approached,him and asked him his feel-
ings toward the Union.
Employee Debbie Justus testified that about the latter
part of March 1982, while she was walking out to the
lunchroom, Pena told her that she was stupid for jeop-
ardizing her job by working for the Union. Justus re-
called that she was wearing a union T-shirt at the time
Pena made these remarks. Justus further credibly testi-
fied that 2 or 3 days before the election, while she was in
the production line, Pena came by distributing Respond-
ent's literature, but when he approached her with the lit-
erature, Justus refused to accept it,, and Pena then told
11 Although Pena demed these statements attributed to him, he admit-
ted calling Portales a "culero" or an "asshole." Pena admitted that on
io Alvarado openly proclaimed his support for the Union by wearing that occasion he told Portales it was "assholes" like him that were rum-
union buttons, T-shirts, and caps. ing things for the other employees
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her that if she did not take it she "might as well just go
out and clock out." 12
Employee Ramond Hernandez credibly testified that
about January 11, 1982, Pena approached him at his
work station and told him that Pena knew that Hernan-
dez was a member of the Union because he hung around
with union leaders like Portales, Alvarado, and Justus.
Hernandez further testified that on April 1, 1982, Pena
approached him at his work station and asked him how
the Union was doing and, when Pena did not receive a
favorable response from him, he told Hernandez that the
Union was no good for him, and then also physically
pushed him twice in order to get into a fight with him.
Employee Arturo Castillo credibly testified that during
September 1981, while he was at the nearby Texaco sta-
tion, Pena asked him if he knew who Jaime Martinez
was, and also asked if he knew anything about Portales'
trying to organize . Moreover, on another occasion, in
October 1981, Pena approached him while he was work-
ing and told him that Pena already knew that Portales
and Castillo and others were organizing. Castillo was
also one of the many employees who wore union buttons
and T-shirts while at work.
Employee Martin Alvarado credibly testified that
about April 7, 1982, Pena approached him while he was
in his workplace and told him to vote no because they
did not need the Union. On this occasion, a day before
the election, Pena further told Alvarado that Plant Man-
ager Harrison, was putting pressure on employees to vote
no because if the Union won there would be "great un-
employment." Pena also cautioned Alvarado not to be
talking about the Union because he was going "to be
sorry." In this regard Pena conceded that he told Alva-
rado that there could be strikes. Pena also told Alvarado
that Joe Factor, Mike Rodriguez, and Robert Harrison
were "putting pressure" on people to vote no. Pena fur-
ther told him that what was happening to Alvarado was
because he was a leader of the Union. Pena also warned
Alvarado that he should be very careful because the
Company had "its bad people" on its side and things
could "go badly" for him.
Employee Manuel Gonzalez testified that about 2
weeks before the election while he was in the lunchroom
talking with other employees about the Union, Pena ap-
proached him and told him not to be talking union inside
company property.
The foregoing instances of 8(a)(1) violations, set forth
above, include numerous instances of interrogations on
repeated occasions; threatening layoffs, terminations, and
loss of employment, and the freezing of benefits because
of union activity; soliciting grievances; accusing people
of adhering to the Union because of their associations or
past backgrounds; announcing the formation of a griev-
ance committee and thereof soliciting grievances; asking
employees to vote no at the election; creating the im-
pression of surveillance by telling employees 'they were
12 Counsel for Respondent points out that Pena was one of the super-
visors who attended the company training session with their attorney in
November 1981, as aforestated, and knew better than to make such a
remark . In making my numerous credibility findings herein, I have fully
noted and considered such event, but I just do not believe that Pena and .
others always followed such instructions
known union leaders; telling employees that if they sup-
ported the Union they would be sorry; and telling em-
ployees not to discuss the Union while on their own
time.13
A. The Warning to Rios
It is alleged that employee Jimmy Rios was issued a
discriminatory written warning and, although the Gener-
al Counsel is not alleging that Respondent 's no-solicita-
tion rule is invalid on its face , it is contended that this
rule was promulgated and enforced discriminatorily in
connection with union activities . On January 11, 1982,
Jimmy Rios, an active adherent for the Union , was given
a written warning for violating the Company 's no-solici-
tation rule. 1,4
Robert Harrison testified that he issued the warning to
Rios after two employees, Pura Flores and Susan Polha-
mus, reported that Rios attempted to get them to sign
authorization cards while they were at their work sta-
tions.
The General Counsel points out instances which he
contends illustrates the unlawful application of the no-so-
licitation rule: as previously mentioned herein , employee
Gerald Preciado heard Harrison tell his supervisor,
Brooks, that, if he saw people forming into groups talk-
ing union, he was to order them to disband , and a little
later Brooks personally relayed these instructions to Pre-
ciado when he told him that he could not talk union on
company time or property; that another incident which
illustrates the unlawful promulgation of this rule oc-
curred just before the election when Harrison told Aga-
pito Ramirez that if he wanted to congregate with other
employees to do it outside and not in the Company; that
Supervisor Pena similarly applied the rule when he told
Portales that he did not want him to be talking about the
Union on company property and that if he was going to
organize for the Union to do it outside ; and 2 weeks
before the election Pena issued the same prohibition to
employee Manuel Gonzalez when he told him that he
did not want Gonzalez talking about the Union inside
company property . Moreover, argues, the General Coun-
sel, there is ample evidence to show that Respondent en-
forced its rule discriminatorily against union activities
13 All of the facts found herein are based on the record as a whole on
my observation of the witnesses. The credibility resolutions herein have
been derived from a review of the entire testimonial record and exhibits
with due regard for the logic or probability, the demeanor' of the wit-
nesses, and the teaching of NLRB v. Walton Mfg Co., 369 U.S. 404
(1962). As to those witnesses testifying in contradiction of the findings
herein, their testimony has been discredited, either as having been in con-
flict with the testimony of credible witnesses or because it was in and'of
itself incredible and unworthy of belief. All testimony has been reviewed
and weighed in the light of the entire record In many instances, hereto-
fore and subsequently herein, I have,also stated, my specific reasons,for
either crediting certain testimony or rejecting same
14 The warning issued to Rios reads, in pertinent part, as follows-
Fiber Glass Systems "No Solicitation Rule" reads in part, "The
solicitation of employees' by other employees' for any lpurpose is
strictly prohibited when either employee is supposed tolbe working."
It has come to our attention that you have solicited other employees
for the union while you and the other employees were' working in
the production area. This is in violation of company policy Any fur-
ther violation of the "no solicitation rule" will result in'your immedi-
ate termination. I
FIBER GLASS SYSTEMS
while condoning antiunion solicitation during working
time by its own supervisors , and in this regard the record
evidence established that Respondent conducted various
antiunion meetings with employees on company premises
and during employees ' working times , and in addition
the evidence disclosed that Respondent 's supervisors so-
licited and distributed literature to employees while they
were working.
Plant Manager Harrison testified that the Company
has never permitted any solicitations in the plant . Indeed,
I find there is no credited evidence that the Company
permitted employee solicitation before the Union ap-
peared.
The General Counsel also maintains that Rios was un-
lawfully disciplined because the Company used its super-
visors to pass out campaign literature during the election
campaign , but this contention is without merit even
though the Company did use supervisors to distribute
campaign literature . See Lutheran Hospital of Milwaukee,
224 NLRB 176, 181 (1976). In this case the Board stated
as follows:
Nor is it evidence of discriminatory enforcement of
the Respondent 's rule the fact that the Respondent
itself had the occasion to post and circulate in this
hospital a notice offering for sale to its employees
used hospital furniture and related items . Undeni-
ably, a no-solicitation rule, as a general proposition,
is not intended to, nor does it restrict the employer
from engaging in the activity encompassed by the
rule. [224 NLRB at 181.]
During the campaign supporters of the Union, in a
manner not prohibited by the rule here in question, en-
gaged in union activities and solicitations before and
after work and during rest breaks in the lunchroom.
Moreover, there appears to have been a consistent policy
by the Company in the enforcement of its no-solicitation
rule as employees were continually asked not to assemble
or to otherwise engage in their union efforts and solicita-
tions while at their work stations and, when Rios was
specifically reported as doing so, he was given the warn-
ing here in question.
I find that the General Counsel failed to sustain her
burden of establishing by a preponderance of the evi-
dence that the rule here in question was discriminatorily
enforced and applied against union adherents, particular-
ly employee Rios . Accordingly, this allegation is dis-
missed.
B. The Suspension of Manuel Gonzalez
It is alleged that the Company unlawfully suspended
Manuel Gonzalez for 3 days on March 26, 1982. The
Company maintains that Gonzalez was lawfully suspend-
ed for 3 days pursuant to the Company 's attendance con-
trol policy. It appears that Gonzalez had been employed
by Respondent since September 1981, and was under the
supervision of Fred Pena. He became involved in the
union organizing drive about December 1981, at which
time he started wearing union T-shirts and buttons to
work. It was around this time that Gonzalez also signed
1263
a union authorization card, distributed union cards to
other employees , and attended employee union meetings.
The Company has an attendance control policy and, in
accordance therewith, employees are awarded points for
absenteeism and tardiness . An employee receives two
points if he is late, three points if he is absent , five points
if he is absent on a Monday after payday, and one point
if he leaves early. When an employee receives 18 points
within a 3-month period, he is issued a suggestion for im-
provement (warning) letter . Twenty points within 3
months gets the employee a 3-day suspension and 23
points is considered grounds or cause for termination.' b
As one can either gain or lose points under the policy,
employees are apprised of their aggregate points by way
of postings on the bulletin board. Gonzalez testified that
during the week of March 15, 1982, he consulted the bul-
letin board and found that he had accumulated 15 points.
The General Counsel points out that although Gonza-
lez had accumulated 20 points by March 16, 1982, no
action had been taken against him . By March 18, he had
accumulated 23 points , and still no action was taken
against him, but on March 25, 1982, the same day that
his supervisor Pena asked him why he was wearing a
union T-shirt, he was called into the office and given a
3-day suspension . The General Counsel maintains that,
under these circumstances , had Gonzalez not asserted his
prounion sentiments on the date in question , no discipli-
nary action would have resulted, and that this conclusion
is supported by the fact that Supervisor Pena, whose
animus against the Union had been abundantly illustrat-
ed, initiated the suspension after observing Gonzalez
with a union T-shirt.
Gonzalez' attendance records for 1982 were received
into evidence, 16 and these records reveal that during the
week of January 9, 1982 , Gonzalez acquired 20 points
and was issued a warning letter at that time which he
admits receiving ." The Company's personnel director,
Lucy Contreras , explained that Gonzalez was warned,
rather than suspended , because company policy is to
warn an employee first. During the week ending March
13, 1982, Gonzalez had 18 points on this record, and the
following week he acquired 3 points for being absent and
2 points for being late-bringing his total to 23 points.
Thereafter, he was suspended for 3 days.
As pointed out, Gonzalez' attendance records, and the
testimony of Lucy Contreras, established that Gonzalez
was lawfully suspended for absenteeism , and there is no
evidence of disparate treatment.
The General Counsel argues that had Gonzalez not as-
serted his prounion sentiments on March 25 , 1982, by
wearing a union T-shirt, no disciplinary action would
have been taken . However, Gonzalez admitted that he
started wearing union buttons and T-shirts about a
month after signing his authorization card on December
3, 1981. Therefore, about the first week of January 1982,
the Company knew he was a union adherent , and yet
there was no discipline given until about March 25, 1982.
By this time he had acquired 23 points against him under
16 See R. Exh. 5, p. 2.
16 R. Exh. 9.
17 R. Exh. 7.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent's recognized and established attendance
control policy.
In accordance, with the above, this allegation is dis-
missed.
C. The Termination of Raul Portales
Portales was hired by the Respondent on August 24,
1981, and was employed as a waxer. The waxer duties
are performed by a two-person crew. Portales worked
with Jesse Reyes and both were supervised by Fred
Pena. Portales successfully completed his 90-day proba-
tionary period on November 24 with no record of disci-
pline or misconduct.
Considering all of Portales union activities, it clearly
appears that he was the main union adherent. Portales
commenced his union involvement around September
1981, when International Union Representative Jaime
Martinez selected him to be the head organizer. At this
time Portales was given approximately 50 authorization
cards to distribute to Respondent's employees. As the
record evidence established, Portales was very visible in
his efforts -to organize the employees. His activism on
behalf of the Union is further illustrated by his testimony
concerning the solicitation of numerous union authoriza-
tion cards. Equally apparent is Respondent's knowledge
of his union activities and Respondent' s animus towards
him for such, but because Respondent's unlawful 8(a)(1)
conduct towards Portales has already been chronicled
above, such will not be repeated herein.
On December 16, 1981, while Portales and his co-
worker Jesse Reyes were getting ready to start work,
Fred Pena told Portales that they needed to pick up their
production. Portales replied that one of the reasons the
production might be low was that he and Reyes had to
fill the wax tanks and clean the area because the previous
shift was not doing so. He further explained, as he had
before, that this preliminary work, which was supposed
to be done by the previous shift, had to be performed
before they could actually start on their own work. Por-
tales' explanation apparently angered Pena who then told
Portales that he was tired of arguing with him and in-
structed him to follow him to Plant Manager Harrison's
office as he was going to be suspended. Portales told
Pena that he was just trying to tell him the problems
with their production. However, on the way to the
office, Pena had second thoughts and told Portales that
he had decided not to suspend him, but that he did not
want any more arguments from him. According to Pena,
he decided not to suspend Portales because Portales
begged him for a second chance.
After his confrontation with Portales, Pena then, went
to see Harrison and informed him of what had tran-
spired, but Harrison told Pena that he had made a mis-
take in not taking any disciplinary action. Harrison then
informed Pena that he was going to think about the
matter. Harrison said that Pena had also told him that
Portales was a low producer, foulmouthed, and an un-
cooperative employee and, on the basis of all this infor-
mation, he decided to terminate Portales for insubordina-
tion.
On December 17, 1981, Harrison wrote out Portales'
termination notice, and then called him into the office. In
the office, Portales was handed a termination notice and
was told by Harrison that he was being terminated for
misconduct on the job.
According to Harrison, management had received
complaints from Portales' crewmate, Jesse Reyes, that
Portales was not doing his fair share of the work, but at
the hearing Reyes was not asked to confirm this point.
Finally, Harrison claimed that he had no knowledge of
Portales' involvement in the organizing effort until after
he fired Portales and was then so advised by Portales.
Portales testified that prior to December 16, 1981,
Pena had never spoken to him about his production, and
that during his employment with the Company he had
received no reprimands or written warnings. In fact,
prior to his involvement with the Union, Pena had com-
plimented him on doing a good job. In addition, prior to
his involvement with the Union,, Portales enjoyed a per-
sonal relationship with Supervisor Pena.
Pena portrayed Portales as an indifferent employee
from the inception of his employment. Pena testified that
Portales was only an average worker, was argumenta-
tive, and around the early part of November 1981, when
Reyes complained about Portales, he had an "informal
talk" with Portales wherein he told him that he needed
to be more cooperative and to work as a team. This talk
occurred while Portales was still on his probationary
period, which he successfully completed on November
25, 1981, as aforestated.
Respondent Exhibits 53 and 54 were introduced to
show that the Company had terminated other employees
for similar "insubordination." However, Respondent Ex-
hibit 53 involved the discharge of Raymond Llames for
refusal to follow the orders of his supervisor and for ex-
cessive absenteeism. Under the Company's attendance
policy, Llames could have been terminated for his absen-
teeism alone. Unlike Llames, Portales had no attendance
problem, nor did he refuse to follow the order of any su-
pervisor regarding production.
Respondent Exhibit 54 dealt with the discharge of
Leonardo Vidal for his unwillingness to do anything to
improve production. Vidal allegedly told Company
President Michael that "he would do as little, as possible
until [he] found another job." No such comment or lack
of commitment to work was ever expressed by Portales.
Counsel for Respondent maintains that Portales simply
does not know how to tell the truth, that he falsified his
employment application when he applied for a job with
the Company, and blatantly falsified his employment his-
tory during his direct and cross-examination, and that his
employment application, under the heading "Former
Employers" listed the following:
Jesse Hernandez Construction-6/24/76 to 6/20/81
Kiddie Park-5/15/75 to 6/1/76
Tower of the Americans-6/3/74 to 5/9/75
But this application fails to list Portales' two real em-
ployers during the 5 years immediately preceding his em-
ployment by the Respondent: Stainless Ice Tainer Cor-
poration (SITCO) and Freidrich Refrigeration. Under
cross-examination, Portales admitted he had been em-
FIBER GLASS SYSTEMS
ployed by Freidrich and SITCO and he had been fired
by both 'employers . Moreover , in addition to being un-
truthful , Portales admitted he was also insubordinate,
was at best an average worker , and was argumentative in
the extreme . It is further pointed out by Respondent that
in early November 1981, Reyes complained to Pena that
Portales was slacking off and was leaving his station and
was letting Reyes do most of the work , but Pena told
Reyes to give Portales some time because his brother
had recently died and he was having some personal
problems . Pena then watched Portales for a week or so
and observed that Portales was not carrying his share of
the load , but when Pena spoke to Portales about the
matter , Portales replied that Pena was working him too
hard and that he was working Portales "like a hog."
Counsel for Respondent concludes his argument as fol-
lows.
Assuming arguendo that Harrison was aware of orga-
nizing activity by Portales , the termination would still be
lawful because Portales was terminated for insubordina-
tion , not because of union activity . Harrison was not re-
quired to retain an employee who called his supervisor
"stupid ," told his supervisor that he "worked by the
hour, not by the piece," and accused his supervisor of
working him "like a hog ." Lest there be any doubt that
Portales said such things , keep in mind that Portales was
fired by Freidrich , fired by SITCO for fighting , and en-
gaged in picket line violence at SITCO. He was clearly
guilty of insubordination to Pena and was lawfully termi-
nated for that reason.
As noted , this record clearly shows that Portales was a
dominant force in the Union 's organizing effort. Portales'
role was known by company supervisors and most likely
as early as October 1981 . In fact, by the testimony of Re-
spondent's own witness, Jose Factor , it was common
knowledge among the supervisors that Portales was a
leader in the union organizing effort. Moreover , there is
every reason to believe that Pena reported his knowl-
edge of Portales ' organizing effort to Michael and/or
Harrison prior to the December 17 discharge.
Under the Board 's Wright Line test, once the General
Counsel makes a prima facie showing to support the in-
ference that protected activity was a motivating factor in
the employer's decision , the burden shifts to the employ-
er to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The
Respondent has failed to meet this burden . According to
Pena, he had constant difficulty with Portales ' poor atti-
tude and work habits . However, no discipline or' repri-
mand was ever issued to Portales . Moreover, as also
noted, had Portales been the type of employee described
by Harrison and Pena , he most likely would not have
completed his probationary period . Further , the . Re-
spondent's contention that fellow worker Reyes com-
plained about Portales' poor work habits in being absent
when needed was not confirmed by Reyes, nor were any
production records introduced to confirm testimony by
management that Reyes and Portales were behind in
their waxing operations . As also pointed out, Harrison's
claim is further eroded by the fact that Pena made no'
comment to Portales concerning production until De-
cember 16 . If production had been poor for several
1265
weeks, as Harrison claimed , one would have expected
Pena to make such comments long before December 16.
Additionally, as also noted , there is the disparity between
the suspension initially suggested by Pena and Harrison's
decision to discharge Portales . No explanation was of-
fered why Harrison believed discharge was warranted
when Pena believed only a suspension was necessary.
This is even more puzzling in light of the fact that all
Harrison 's information had been provided by Pena.
Finally, there is the lack of similarity between Por-
tales' alleged misconduct and that of other employees
similarly discharged for insubordination . Unlike Ray-
mond Llames , Portales had no absenteeism problem and,
unlike Llaines and Vidal, Portales • never refused a work
order nor did he refuse to improve production.
I now turn to Respondent 's contention that Portales
falsified his employment application and testimony in
connection therewith. When Portales was questioned on
cross-examination why he did not put one of his last em-
ployers, Freidrich's Refrigeration , on the Respondent's
employment application , he replied that he was shop
steward and very active in union affairs while at Frei-
drich, and if he had given their name, the Respondent
would not have hired him. Portales also admitted he had
worked for Hernandez Construction , but this had been
some time ago, and further acknowledged that he had
worked for SITCO Corporation in 1981 before he was
employed by the Respondent , but said that this was also
a union shop, and he was afraid that this disclosure
would prevent his hiring by the Company.
Although Portales did not fully disclose his prior em-
ployment on his application with Respondent and such
deletions are in no way condoned here, he did , neverthe-
less, have a reason and some basis for doing so. Further-
more , and what should also be noted in this regard, is
the fact that several of the factual circumstances and the
central events leading to the discharge of Portales in the
instant case are really not in serious dispute , as readily
indicated above, and, therefore, the propensities for the
lack of full disclosures by Portales in certain situations is
not as demanding as it otherwise might be . But more im-
portant is the fact that falsification of his employment ap-
plication had nothing to do with his termination; such
was never mentioned or considered on December 17,
and can only have a bearing on whether he should be re-
instated . I have found that Portales was terminated be-
cause of his activities on behalf of the Union.
Now I turn to Respondent 's argument that Portales'
misconduct precludes his reinstatement and that he had
lied about his employment history in his job application
form , as aforestated. In Service Garage, Inc., 256 NLRB
931, 931-932 (1981 ), the Board stated as follows:
On the other hand , we find that the discovery of
Perry's original falsification of critical employment
application information [his age and work experi-
ence] bars his entitlement to reinstatement and any
backpay. On several occasions the Board had held
that a discriminatee 's right to reinstatement and
backpay will be forfeited if a respondent affirma-
tively proves that it would not have hired the em-
ployee but for its • reliance on application informa-
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion whose falsity was discovered subsequent to the
employee's unlawful discharge . W. Kelly Gregory,
Inc., 207 NLRB 654 (1973); National Packing Com-
pany, Inc., 147 NLRB 446, 458 ( 1968).
In the instant case, I believe it is reasonable to infer
that had Portales truthfully answered the questions on
his employment application , and had the Company
known of his past record, the Company would not have
hired him.
Moreover, as also noted , Portales made various threats
to employee Ramon Munoz and, in fact , shortly before
the election , he pointed a pistol at Munoz and told him
that "he had better vote" (for the Union). On one occa-
sion Portales called Munoz and wanted to know why he
was asking questions about what the Union could do for
the workers , and called Munoz a "son of a bitch" and
told him that he was going to "beat him up that night."
A few days later, Portales threatened to kill Munoz. Ap-
proximately 5 or 6 days before the April 1982 election,
Munoz was at a 7-Eleven store putting gas in his car,
and after he had finished doing so turned around and
saw Portales leaning up against his car pointing a pistol
at him . Portales then told Munoz that "he had better
vote" (for the Union). Munoz said , "OK," and Portales
then left.
Although Portales was called as a rebuttal witness, he
did not deny making the threats attributed to' him by
Munoz , including the incident with the pistol . Munoz'
testimony is therefore credited.
Not every act of impropriety committed by an em-
ployee is deemed sufficient to place that employee out-
side the protection of the Act. W. C. McQuaide, Inc., 220
NLRB 593 (1975). The Board has differentiated between
those cases in which employees have arguably exceeded
the bounds of lawful conduct during a strike in a
"moment of animal exuberance" from those cases in
which the misconduct is so flagrant or egregious to re-
quire subordination of the employees' protected rights in
order to vindicate the broader interests of society as a
whole. Thus, an employer is not entitled to discharge a
striker for engaging in threats unless the threats are ac-
companied by "physical acts or gestures" that would
provide added emphasis or meaning to the words suffi-
cient to warrant a finding that the striker should not be
reinstated to his job.
Although this pistol incident in the instant case did not
occur on any picket line, nevertheless , it was not an act
of impulsive behavior done on the spur of the moment,
but was obviously the result of premeditated conduct. As
in all cases where the right to reinstatement is chal-
lenged , the test is whether the misconduct is so flagrant
to render the discriminatee unfit for further service. Here
it most certainly does . See Richlands Textile, Inc., 220
NLRB 615 (1975), and cases cited therein. In the instant
case, Portales not only failed to make full disclosures on
his employment application, as aforestated, but he also
threatened to kill employee Ramon Munoz because of his
union activity and then went so far as to point a pistol at
him in efforts to convey his threat . Such conduct bars
his entitlement to reinstatement and backpay.' 8
D. The Termination of David Granado
The Respondent maintains that Granado was lawfully
terminated on September 20, 1982 , for misconduct at a
company picnic a few days earlier.
David Granado had been employed with Respondent
since June 1981, and worked as a tester under the super-
vision of Don Brooks . He became involved in the
Union 's organizing efforts around September 1981, and
his involvement with the Union included his being a
member of the organizing committee , wearing union T-
shirts, buttons, and caps, and encouraging employees to
support the Union.
On September 18, 1982 , Granado and his girlfriend at-
tended the Company's annual picnic . Granado testified
that after being at the picnic for some time , he noticed
that Supervisor Fred Pena was "staring at him," and
when he went to the beer keg, Pena asked him what he
was doing at the picnic , that this was "not a union
party," it was a "Company picnic" and he had not been
invited . Granado said that about this time Plant Manager
Harrison arrived and informed him to leave the picnic
because he was "causing trouble," and shortly thereafter
security guards escorted him and his girlfriend off the
premises (Poplar Grove Park).
Employee Manuel Gonzalez , who was present during
this incident, testified that Pena started cursing Granado,
calling him a weak "son of a bitch" and a "homosexual."
Gonzalez also testified that, while Pena was cursing
Granado, Pena was pointing his finger at him and, when
Pena had finished with Granado , Supervisor Joe Factor
came over and started talking with Granado.
Supervisor Pena testified that about 95 percent of the
employees were at the picnic here in question and that
late in the afternoon he went to the beer keg for refresh-
ment and, at this time David Granado, who was close
by, "hollered at him" not to spill the beer on the floor,
and also told him not to give him any more warnings at
work . It appears that Pena had warned Granado in
August 1982 , when he had kicked a trashcan down the
stairs . Granado further remarked that he and Pena "were
going to have to settle" their differences that night. Pena
also testified that as he started to walk away , Granado
then grabbed his beer and threw it on the floor and also
"pushed him," and that he "pushed back," and the two
of them were then separated by other employees in the
vicinity.
Supervisor Joe Factor also attended the picnic . Factor
said that as he went to get a beer , • Granado was standing
by the keg , and asked Factor , "What the blank are you
doing here," and then accused Factor of reporting him
'a There is also a final argument by the Respondent that Portales was
a professional organizer being paid by the Union and was not an "em-
ployee" within the meaning of the Act. This record shows that when
Portales was terminated by the Company , and when his unemployment
claim was initially denied, the Union then paid him $100 a week for 2 or
3 months until his unemployment benefits were received . From this limit-
ed factual situation , I have rejected Respondent 's argument that Portales
was not an employee under the Act.
. FIBER GLASS SYSTEMS
to Robert Harrison for playing softball. when he was
absent from work due to a work-related injury. That
Granado then called Factor a "culero" (asshole) and
dared him to "punch him out." Factor said he had no
reason to fight and walked away, and further testified
that shortly thereafter he was on his way to the men's
room when Granado shoved him from behind spilling
beer all over -him and again wanted to fight him, but
other employees then intervened and no blows were ex-
changed. Factor said he reported this incident to Bob
Harrison.
Plant Manager Harrison was present at the picnic on
September 18 and testified he saw Granado push Factor.
He then asked Granado to leave and, when Granado
failed to leave, he told the security guards to escort
Granado from the premises. He testified that, prior to the
termination here involved, he had discussed the picnic
incidents with Supervisors Pena and Factor, and then de-
cided to discharge Granado for fighting at the picnic and
did so. Harrison conceded that the only thing he had
personal knowledge of was Granado's alleged pushing
incident with Factor, and admitted he did not hear the
verbal exchanges between Granado, Factor, or Pena.
During cross-examination, Harrison testified that he
spoke with Factor about the incident, but not with Pena.
The General Counsel points out that a composite of
Factor's, Pena's, and Harrison's version of the picnic in-
cident revealed that when Harrison made the decision to
terminate Granado, the only thing that he was aware of
was that Granado had pushed Factor. Accordingly, since
the testimony revealed that no one had advised Harrison
of what had actually occurred that day, Harrison, on the
basis of the pushing incident, precipitously decided to
terminate Granado, and without obtaining Granado's ac-
count of what had transpired that evening. Moreover,
argues the General Counsel, on September 20, 1982,
Granado was summoned to the office where Harrison
told him that he was firing him for acting "like a kid" at
the company picnic, that Harrison's conduct in precipi-
tously discharging Granado once again showed his total
disregard for the facts, and it should also be noted that
separate and apart from the faculty reasoning behind
Granado's discharge, the alleged incident or incidents at
the picnic had absolutely nothing to do with any breach
by Granado of his responsibilities as an employee. More-
over, an incident similar to the one alleged to have oc-
curred herein did not result in termination of the em-
ployee who committed the offense; Supervisor John Ca-
sarez testified that in April 1982, employee Jesse Castillo
reported for work under the influence of alcohol and,
despite a rule calling for the immediate termination of
employees so reporting, Castillo was merely told to go
home and was not fired. In concluding, the General
Counsel submits that under the circumstances of this
case, including the precipitous nature of the discharge,
the antiunion animus directed at union adherents, and the
disparate treatment towards Granado, it is clear that Re-
spondent's reasons for the termination of Granado were
pretextual. I disagree and find otherwise.
Granado's termination occurred more than 5 months
after the election. The credited evidence shows that he
was fired for misconduct directed at two supervisors
1267
and, as a result , the Company obviously had good cause
to terminate him. As noted , it has been well established
that it is not for the Board to substitute its judgment for
that of an employer in deciding what are "good or bad •
reasons for discharge." In the instant case, Harrison
denied that Granado was terminated for his activity in
behalf of the Union and , certainly, if the Company had
been motivated by union animus , it could have found a
reason to terminate Granado long before September 20
as Granado had worn union insignia and management
was aware of his support for the Union. In fact , if I were
to credit the testimony of Granado, I would have to con-
clude that security guards asked him to leave and escort-
ed him out of the park because Pena had merely in-
formed him that event in question was a company and
not a union picnic, and that his statement , in itself, was
then calculated as "causing trouble " sufficient for his re-
moval . Moreover, if I were to credit the testimony of
Manuel Gonzalez about this incident , I would have to
conclude that Granado was forced to leave the picnic
merely because Pena cursed Granado and pointed his
finger at him, and then Joe Factor came over and talked
to Granado.
In the final analysis , Granado admitted that he was es-
corted out of the park by security guards and , certainly,
this would not have happened had Granado merely en-
gaged Pena and Factor in conversations . The security
guards were necessary because Granado had threatened
them with fighting and then physically pushed both of
the supervisors , as aforestated, and obviously it was only
the intervention of other employees that prevented a
fight from breaking out. Certainly, the Company had
every right to insist that its annual family picnic, with
wives and children, be conducted without supervisors
being pushed around and threatened with bodily harm,
beer or no beer.
Under the Wright Line, supra, test, the General Coun-
sel has presented evidence to raise the inference that
Granado was discharged because of his known union
support, but the credible evidence supports the Respond-
ent's claim that it would have discharged Granado even
in the absence of his known union support . The allega-
tion concerning the discharge of David Granado is dis-
missed.
E. The Alleged Terminations of Alvarado, Justus,
Gonzalez, and Hernandez
The record shows that in 1982 seven employees were
placed in leave-of-absence status pursuant to the Compa-
ny's leave of absence policy . However, there are no alle-
gations in the various complaints pertaining to three of
those employees , i.e., Richard Moreno, Norris Hamilton,
and Beatrice Arreguin . The four alleged discriminatees
here involved , Manuel Gonzalez , Raymond Hernandez,
Martin Alvarado , and Debbie Justus, were also placed in
leave of absence and the Respondent contends were
treated exactly the same way as the other three. More-
over, argues the Respondent , the evidence overwhelm-
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ingly demonstrates that the alleged discriminatees were
not terminated , as the General Counsel maintains.' e
The Company 's leave of absence policy is expressed in
two documents : General Counsel Exhibits 4 and 5. The
first document , dated May 19, 1982, addresses workmen's
compensation cases . It provides that employees absent
more than 4 weeks will be placed in leave-of-absence
status . In this regard , paragraph "C" of the policy states
as follows:
C. Employees out on workmen 's compensation
longer than 4 weeks will automatically be put on an
indefinite leave of absence and' will be considered
for reinstatement when physically capable of per-
forming all the duties of his/her regular job.
The policy was further clarified on August 2, 1982, as
follows (G.C. Exh. Exh. 5):
We want to take this opportunity to reiterate our
leave of absence policy , which has been in effect for
quite some time . Employees who are absent from
work because of illness or injury for twenty or
more days will be placed on indefinite leave of ab-
sence status . All such employees are subject to the
following provisions.
1. The employee must be fully capable of per-
forming all the duties of his previous job before he
will be considered for reinstatement.
2. The Company may require the employee to
submit to an examination by a physician of its
choice.
3. Reinstatement may be denied if the employee's
former job has been filled.
The foregoing policy will also be applied to em-
ployees who are granted a leave of absence for per-
sonal reasons.
Personnel Director Lucy Contreras explained the 20-
day (4-week) provision , referred to above , was 20 work-
ing days : Saturdays and Sundays are not working days at
the Company , and that this leave-of-absence policy was
promulgated to answer serious questions which arose as
a result of the lengthy absence of employee Art Castillo.
Contreras explained that Castillo sustained an on-the-job
injury in March 1981 , and worked sporadically thereaf-
ter, but was absent continuously from December 1981
until he was verbally notified of his termination on
March 2 , 1982. It appears that during the period of his
absence, Castillo's doctors submitted reports to the Com-
pany revealing that Castillo suffered from two serious
back conditions, spondylosis and degenerative disc dis-
ease, and in February 1982 , Castillo accepted a'settle-
ment of $9500 for his on -the-job injuries , but after receiv-
ing his check Castillo wanted to come back to work. He
was then verbally told that he had been terminated on
March 2 , 1982 , and he was later sent a letter document-
ing the reasons for his termination . In the period that
as It is alleged in the complaints that all four employees here involved
were discriminatorily discharged in violation of Sec . 8(ax3) of the Act,
that Alvarado and Justus were discharged on May 21 , 1982, that Gonza-
lez was discharged on July 27, 1982, and that Hernandez was discharged
on June 5, 1982.
Castillo was away from work , the Company did not
have a written leave -of-absence policy and apparently
became concerned with its rights as well as its obliga-
tions to employees under the workmen 's compensation
law. Therefore the Company sought legal advice about
this matter, and then decided to promulgate its written
policy, as indicated above and to expand its leave -of-ab-
sence policy due to sickness , injury, or personal reasons,
as indicated in General Counsel 's Exhibit 5.
Counsel for Respondent contends that the treatment of
the four alleged discriminatees in this phase of the case
must also be evaluated in context of the poor business
conditions in effect in 1982 and the actions taken by the
Company in response to these conditions . Carl Ritter, the
Company's secretary-treasurer , testified that sales began
to decline in November 1981 and did not resume normal
levels until October and November 1982. Business
records introduced through Ritter documented the de-
cline in sales and the buildup in inventory . 20 Ritter testi-
fied that as a result of declining sales, the Company initi-
ated several economy measures : The Company stopped
hiring , and a hiring freeze was also placed in effect from
December 21, 1981 , until mid-November 1982 and even
the 10 vacancies at the San Antonio plant caused by res-
ignations and discharges were not filled during the hiring
freeze . It appears that the Company also laid off 26 em-
ployees at its Big Spring plant in May 1982, and initiated
a wage freeze for all employees, salaried and hourly, at
both plants . Ritter stated that the wage freeze for hourly
employees lasted from April 15 until September 15, 1982,
and the wage freeze for salaried employees was still in
effect at the time of the hearing in this matter.
Raymond Hernandez, who began his employment with
Respondent in November 1981 as a sock person under
the supervision of Fred Pena , testified that he became in
involved with the Union around the first month of his
employment. Hernandez, who was also a member of the
in-plant organizing committee, wore union buttons, hats,
and T-shirts to work and, in addition, talked to employ-
ees encouraging them to support the Union . Hernandez
signed an authorization card on November 25, 1981.
Hernandez admitted that he was injured at work on
February 23, 1982, and worked sporadically thereafter. It
appears that he was placed in leave-of-absence status on
June 5, 1982, and submitted a full release from his doctor
about July 6, 1982 , but the Company was not filling any
positions at that time due to the decline in business, as
aforestated. However, on October 21, 1982, he was sent
the same letter sent to all employees in leave-of-absence
status. E 1
20 See R. Exhs. 8(a) through 8(y).
21 By mid-November 1982, the Company was filling several vacancies,
but was giving people on leave of absence the first option to return. The
October 21 , 1982 letter from the Company to all employees on leave of
absence status reads as follows:
On .. . you were placed in leave of absence status pursuant to the
Company 's leave of absence policy . You are currently in that status.
Vacancies which have arisen since January of this year have not
been filled because business conditions did not necessitate replacing
employees who had resigned , or who had been terminated or placed
in leave of absence status . We are now getting ready to fill some va-
Continued
FIBER GLASS SYSTEMS 1269
Hernandez then responded that he was ready to return
to work and resubmitted his doctor 's release . After pass-
ing an examination by the Company 's doctor in October
1982, he was reinstated on November 11, 1982.22
Manuel Gonzalez began his employment with Respond-
ent around September 1981 and was employed as a sock
person under the supervision of Pena . He began his in-
volvement with the Union around January 1982. He also
signed a union card , distributed several to other employ-
ees, and attended several union meetings during this
period of time.
Gonzalez testified that he injured his knee at work in
July 1982 , his injury required surgery , and that he was
placed in a leave -of-absence status . Gonzalez also ac-
knowledged signing the leave -of-absence notice in late
July 1982 . In October 1982 he too was contacted by the
Company by letter about returning to work , as aforestat-
ed, responded that he was ready to return , and supplied
a release from his doctor dated October 28, 1982. He
was then reinstated on November 8, 1982, after passing
an examination by the Company's doctor.23
Debbie Justus, who had been employed since January
1981 as a sock person under Fred Pena , became involved
with the Union around July 1981. As the record evi-
dence showed , Justus was among the first employees
whose efforts and involvement helped start the union or-
ganizing drive . Justus' union involvement included at-
tendance of union meetings , signing an authorization
card , wearing union T-shirts and hats, encouraging em-
ployees to support the Union , and handing out union lit-
erature . In addition , Justus distributed authorization
cards to employees , and was also a member of the in-
plant organizing committee.
Justus testified that she was injured at work in mid-
April 1982 and was placed in leave -of-absence status on
May 21 , 1982 . She submitted a release from her doctor
for light duty work in June 1982 , but was told the Com-
pany no longer had such work , and then submitted a full
release on August 4, 1982 . The Company contends that
she was not reinstated at this time because of poor busi-
cancies and desire to know whether you are ready , willing, and able
to return to work.
In order to be considered for reinstatement to the active rolls, you
must submit a release from your doctor indicating that you are able
to return to work . Pursuant to our leave of absence policy, you may
be required to submit to a physical examination by a physician se-
lected by the Company . If such an examination - is required , it will be
paid for by the Company.
Three statements are listed below my signature. Place an "X"
before the appropriate statement , indicating the option you have se-
lected, and return this letter to we by November 1, 1982. You
MUST complete your portion of the letter and return it to me in a
timely manner . If you do not do so, we will assume that you no
longer desire to be employed by Fiber Glass Systems, Inc., and your
employment will be terminated.
Sincerely yours,
Lucy Contreras
() I am ready , willing and able to work . A release from my
doctor is enclosed.
ness conditions .24 About October 21, 1982, Justus was
sent the Company's letter informing her that - the Re-
spondent intended to start filling vacancies and inquiring
about her condition . Although she replied that she was
ready to return to work and attached a doctor's release
given to her in August 1982, she then admitted that she
was really not ready to return and, in fact, had to under-
go surgery for her injury on September 16, 1982. On No-
vember 12, 1982, Justus provided Lucy Contreras with
another doctor's release stating that she could return to
work on November 15, 1982.25 The Company maintains
that by the time Justus supplied Contreras with the re-
lease on November 12, 1982, management had already
hired seven new employees . In this regard, it should be
noted that the Company' s letter of October 21 sent to all
the people on leave of absence , established a November
1 deadline , and Justus admittedly was not released until
November 15. In her testimony , Justus also admitted that
Lucy Contreras never told her that she had been fired.
Moreover, Contreras told her on November 12 that she
would be recalled. The Company was still paying for her
health and life insurance as of the time of the trial. It also
appears that there were no new hires between mid-No-
vember 1982 and the date of the trial (January 1983).
Martin Alvarado, an employee of Respondent since
May 4, 1981 , began his involvement with the Union
around the latter part of July 1981 . Alvarado, who was a
sock person under the supervision of Fred Pena, was a
member of the Union's in-plant organizing committee,
and his involvement with the Union also included his
wearing union T-shirts, caps, and buttons and talking to
employees about the Union. He also attended several
union meetings and signed an authorization card.
Alvarado was injured at work on April 19, 1982, and
was placed on leave-of-absence status on May 21, 1982.
He produced a doctor's release about June 7 , 1982, but,
according to the Company, was not permitted to return
to work at that time because of poor business conditions.
Moreover, after submitting his doctor's release, he was
still experiencing considerable pain and sought other
medical attention. By letter dated October 21 , 1982, the
Company informed Alvarado, as did the others on leaves.
of absence , that it was getting ready to fill positions and
solicited information about his physical condition. On
October 26, 1982, Alvarado replied as follows : "I am still
under a doctor 's care . As soon as I am physically capa-
ble, I want to return to work." Thereafter, he did not
submit a release until late December 1982 . 26 By this
time , the Company had hired seven new employees in
November and had no position available for Alvarado at
the end of December. Moreover , despite the release sub-
mitted in December 1982, Alvarado admitted that he was
again hospitalized in January 1983 for 10 days. The
Company was still paying for his health and life insur-
ance when this case went to trial.
() I am not yet physically capable of returning to work. 24 As noted previously, the Company did not begin to fill positions
() I no longer desire to be employed by Fiber Glass Systems , Inc. until mid-November 1982. The leave of absence occurred in the context
[R. Exh . 22.1 of a hiring freeze , a wage freeze, and a layoff at the plant in Big Spring.
22 See R. Exhs. 25, 26, 27, 28, and 29 . 85 See G . C. Exhs. 64, 65 , 66, and 82 and R. Exhs . 4 and 41.
23 See R. Exhs . 35, 36, 37, and 38 . 26 See G.C. Exhs. 72 and 83 and R. Exhs. 42, 43 , and 44.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel points out that the Respondent's
knowledge of the union activities of these employees and
its antiunion animus directed towards them has been well
documented and, in particular, it should be noted that
these employees were all under the supervision of Fred
Pena. Further, it is clear that Respondent saw these em-
ployees as being the instigators of the Union 's organizing
drive.
The General Counsel also maintains that it is impor-
tant to analyze Respondent 's alleged economic slump
which, it asserts, prevented the discriminatees from being
reinstated during the summer and fall of 1982, as afores-
tated . The General Counsel attacks the testimony of Re-
spondent 's secretary-treasurer , Carl Ritter, showing an
economic depression from December 1981 to November
1982 , on the basis that his calculations presented com-
bined figures for both the Big Springs and San Antonio
facilities that the presentation of the combined figures
only clouded the issue with respect to the specific eco-
nomic situation at Respondent's facility in San Antonio.
Because Ritter conceded that separate income statements
are prepared and are available for both plants, it can
only be assumed that Respondent 's failure to provide
such pertinent statements constituted an attempt to con-
fuse and mislead . In addition , Ritter acknowledged that
Respondent 's Exhibits 8(a) through 8(y) represented only
half the income statements for the period in question.
Moreover , argues the General Counsel, Respondent's as-
sertion that no employees were hired from December
1981 through November 1982 was proven false by Gen-
eral Counsel 's Exhibit 67 as this exhibit shows that at
least one person (Joe Chapa) was hired at approximately
the same time that these four discriminatees were being
turned away and told that they should look for another
job. Moreover, during the same period that the discri-
minatees were being turned away , the San Antonio facili-
ty, through attrition , had more than 10 vacancies in the
production area , and the General Counsel submits that
the Company was in a position to reinstate these individ-
uals at the time they presented their full doctor's re-
leases . In view of these circumstances , and the record as
a whole, it is submitted that Respondent , at no time, had
any intention of reinstating the discriminatees, and that
their - placement on leave of absence was tantamount to
discharge . Furthermore, this latter conclusion that the
four discriminatees here involved were actually dis-
charged is supported by the comments made to them at
the time they were issued their leave-of-absence notice.
The General Counsel points out that Debbie Justus testi-
fied that on May 21 , 1982, when Contreras gave her the
leave of absence notice, Contreras told her that, consid-
ering the way business was, they might not have a job
for her when she obtained a full release , and then sug-
gested that Justus look for another job and when Justus
obtained a release for light duty in June 1982 , she was
told that the practice of placing employees on light duty
had been discontinued . Moreover, when Ramon Hernan-
dez submitted his full doctor 's release in July 1982, he
was told by Robert Harrison that he was fired , and when
he was later called in by Contreras she told him the same
thing . The General Counsel points out when Martin Al-
varado presented a full doctor 's release on June 7, 1982,
to Contreras, she then asked him to sign a release and
which she had backdated to May 21, 1982, and also told
him that the Company did not have any work for him
and that he should look elsewhere for a job. Similarly,
Manuel Gonzalez was also told to look for another job
when he presented his full release to Contreras . In these
circumstances , maintains the General Counsel , it is clear
that Respondent 's intentions were to permanently sepa-
rate these individuals from their employment and not just
to place them on leave of absence with a definite date of
return.
It is the further contention of the General Counsel that
Respondent 's offer of reinstatement to these discrimina-
tees in October 1982, by itself, does not diminish the
General Counsel 's case that these offers can be viewed as
being nothing- more than a show in preparation for the
trial of this case , which was originally scheduled for Oc-
tober 26, 1982. More important is the fact that Respond-
ent very well knew that the main union adherents, and
the ones that it was most opposed to, namely Debbie
Justus and Martin Alvarado, were still under doctor's
care.
In full evaluation of this record , I find that the evi-
dence in this case establishes that Gonzalez , Hernandez,
Alvarado, and Justus were not terminated . When busi-
ness conditions improved in October and November
1982 , the Company contacted everyone on leaves-of-ab-
sence status before hiring off the street, and all persons in
leaves-of-absence status were treated alike.27 The
number of vacancies filled in November is a matter pecu-
liarly within the business judgment of the Company, and
its judgment should not be disturbed.
I have credited the testimony of Carl Ritter that eco-
nomic conditions and declining sales prevented the hiring
of employees from December 1981 until November 1982,
even though there were several vacancies . Ritter admit-
ted that Respondent Exhibits 8(a) through 8(y) (com-
bined figure for the two plants) do not contain all the
figures for the 1982 fiscal year.28 Moreover , there is no
er Richard Moreno was placed in leave -of-absence status on April 8,
1982. On October 21, the Company sent Moreno a letter informing him
that it was getting ready to fill vacancies and inquired about his condi-
tion. Moreno responded that he was ready to return to work and en-
closed a full release from his doctor. After passing an examination by the
Company's doctor on November 2, 1982 , Moreno was reinstated. Norris
Hamilton was placed in leave-of-absence status on June 21, 1982. In Oc-
tober he notified the Company that he was ready to return to work.
However, Hamilton provided a release for light duty work only , but was
not allowed to return to work until he produced a full release. After
passing an examination by the Company 's doctor, Hamilton was then re-
instated. Beatrice Arreguin was placed in leave-of-absence status on July
9, but she never contacted the Company about her condition during her
absence, and was therefore terminated on August 18, 1982.
Be It appears that the records are complete for the period in question
that the Company chose these periods because the General Counsel sub-
poenaed such material from September 1981 to September 1982 , and then
counsel for the Respondent added the months of October and November
1982 to round it out , and to show the hiring in November because of the
pickup in sales . Both the plant at San Antonio and Big Springs manufac-
ture the same products, and the combined production figures supplied in
response to the subpoena is probably the best evidence about the overall
financial condition of the Respondent.
FIBER GLASS SYSTEMS 1271
evidence in this record showing that any employees,
with possibly one exception , were hired during the
summer of 1982 (not until November) and those employ-
ees who were working in the San Antonio plant during
this time would , of course, be in a position , to observe
the situation and circumstances , and to testify to the con-
trary if it was otherwise.
Lucy Contreras credibly denied telling Raymond Her-
nandez, at any time, that he should look elsewhere for
work , and in relation to the hiring of seven new people
and the call back of those on leaves of absence, Con-
treras stated as follows:
JUDGE SAUNDERS : On October 21st, when you
put out this letter to the employees that were on a
leave of absence status . In general , were you getting
quite a few replies back from that letter?
THE WITNESS: Well, everyone of them respond-
ed, of which only four had a release to return to
work.
JUDGE SAUNDERS : About how many employees,
if you recall , were on a leave of absence status at
this time?
THE WITNESS: I think seven.
JUDGE SAUNDERS : Seven? Did you get replies
from all seven?
THE WITNESS: All but Bea Arreguin. She was
the one that never responded at all, so she was just
considered terminated.
JUDGE SAUNDERS : So is it true in late October
then that you had returns from five or six of these
employees?
THE WITNESS: Four of them returned to come
back to work.
JUDGE SAUNDERS : Indicated that they wanted to
come back.
THE WITNESS: And that is why I waited to hire
new people until all of the people on leave of ab-
sence had contacted me. I gave them until Novem-
ber the 1st.
JUDGE SAUNDERS : Well, your having this four or
five people that were willing to come back to work,
you were having this by late October-
THE WITNESS: Yes.
JUDGE SAUNDERS : -and then on November 11th
or 12th, you were hiring , what, seven new people?
THE WITNESS: Yes.
JUDGE SAUNDERS : And did you consider that
aspect in relation to those people who were on
leave of absence and who well might come back?
THE WITNESS: Yes, sir , I had to. Right. Because
we weren 't quite sure how many of those leave of
absence people would come back, how many were
ready at that time to come back, so I got it all clear
with the leave of absence people to know exactly
who was coming back, how many people we were
talking about, in what work areas, so that once that
was all established , they were already starting to
work, they had already gotten their job locations
and things like that.
Then at that time, that really influenced the fact
of how many I could hire as new people, because,
you know, there were very limited positions that
were open to begin with. So I was not going to hire
a whole slew of people if everybody from leave of
absence came back. Since only four came back, it
left a few more vacancies that we could fill with
new people.
JUDGE SAUNDERS: Any other questions?
Q. (By Mr. Cheslock) In filling-in hiring these
people, were you not also filling vacancies that
were created by people who had quit or who had
been terminated between January 1, 1982, and No-
vember of 1982?
A. Yes.
Q. And those ten or 11 people, we have intro-
duced those exhibits into evidence already, with re-
spect to those people.
A. Yes, sir.
Q. Okay.
A. We were just filling vacancies at that point
with the leave of absence people and whatever few
new people that we brought on, all it did was fill
vacancies of people who had in the past resigned,
quit, left out of town or left for whatever reason.
Q. Now, there has been some testimony about re-
leases, the Supplemental Reports of Injury pertain-
ing to Debbie Justus, Martin Alvarado, and to one
other individual , I believe Mr. Hernandez . Now, if
those employees had indeed come to you in July
and August with releases, and if they had given
them to you at that time, and if they had been full
releases to come to work, would you have put them
to work at that time?
A. No.
Q. Why?
A. We didn't have any vacancies at all. We had
just no positions open at all. We were not hiring
anybody at all.
Q. You didn't start again until November.
A. Right.
JUDGE SAUNDERS : I guess it is your testimony
that in November when you started hiring, the 11th
or 12th, there were some of these individuals named
in this complaint , the alleged discriminatees, that
did not have doctor's releases to return to work?
THE WITNESS: Those that did not have were just
Martin Alvarado and Debbie Justus at the time.
JUDGE SAUNDERS : Those two did not have full
releases.
THE WITNESS : Right.
JUDGE SAUNDERS : So you couldn' t consider
them.
THE WITNESS: No. And when I-like I said, I
had not heard from them and so when they re-
turned the letters to me, they did not have a release
and at that time I didn 't know when they were
going to be released because I had not had contact
with them. And so whenever Debbie did come back
with a release, we were just not filling any more
positions . We were just filling several little vacan-
cies . That is why all the work areas were scattered
out.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
JUDGE SAUNDERS : And a couple of the other
8(a)(3)'s were put back, were reinstated?
THE WITNESS: Yes, they are back at work right
now.
In the final analysis, Raymond Hernandez was on
leave of absence due to an injury , and then reinstated
about November 11, 1982. His job was not filled during
his absence, and he was never discharged. Manuel Gon-
zalez was also on leave of absence due to an injury and
then reinstated on November 18, 1982 . He was never ter-
minated and his job was not filled in his absence . Debbie
Justus was placed on leave of absence due to an injury
and was unable to obtain a full doctor's release until No-
vember 15, 1982, and by this time the Company had re-
placed all the employees it needed . Martin Alvarado did
not submit a release until late December 1982. Moreover,
he was afforded an opportunity to return to work in Oc-
tober and , by his own admission , could not do so as he
was still under a doctor's care.
Had this leave of absence policy been specifically de-
signed and planned to adversely affect the employment
of the Union's staunch supporters, as suggested by the
General Counsel, then, under those circumstances, it is
highly unlikely that two of them, Hernandez and Gonza-
lez, would end up being reinstated by the Company.
Moreover, there is no evidence in this record showing
that Justus and Alvarado will not be recalled , if not al-
ready reinstated , when additional jobs become available.
In accordance with the above, the 8(a)(3) allegations
pertaining to the discharges of Alvarado, Justus, Gonza-
lez, and Hernandez are dismissed as I have found that
they would have been placed on a leave-of-absence
status and handled in the same manner on recall had they
not been union supporters . Wright Line, supra.
collective-bargaining representative of its employees in
the unit described above.
The General Counsel contends that the record in this
proceeding established that the Union , as of March 1,
1982, had been designated by a majority of the employ-
ees in the appropriate unit as the exclusive bargaining
representative and, once the Union had achieved this ma-
jority status , the Respondent was then obligated to bar-
gain with the Union concerning the employees in the ap-
propriate unit . Moreover , this result is mandated by the
decision in NLRB v. Gissel Packing Co., 395 U.S. 575
(1969), in which Gissel provides that when Respondent
had destroyed an established majority , through unlawful
conduct, seriously impeding the prospects that a fair
election could be held, then , under such circumstances,
the imposition of a bargaining order is warranted. Under
all the circumstances in this case , the General Counsel
submits that a bargaining order is appropriate to remedy
the Respondent 's serious and substantial unfair labor
practices.
Counsel for Respondent points out that signatures on
authorization cards must be obtained only by proper
methods so that they will truly represent a reasoned
choice by employees and must be scrutinized with great
care to establish that the signer of the card did what he
would have done by voting in a Board election , citing
NLRB v. J. M. Machinery Corp., 410 F.2d 587, 591 (5th
Cir. 1969), and Medline Industries v. NLRB, 593 F.2d 788
(7th Cir. 1979).
Respondent points out that in Medline Industries,
supra , the court held that a card was invalidly obtained
when the employee signed the card only after being re-
peatedly harassed by union supporters [593 F . 2d at 557-
558]:
F. The Alleged 8(a)(5) Violations
The complaint alleges, and Respondent admits, that
"all production and maintenance employees, including
leadmen and inspectors , testers, employed by Respondent
at its facility in San Antonio , Texas-excluding all other
employees , including office clerical employees , technical
employees , guards, watchmen , professionals and supervi-
sors as defined in the Act" constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
It is also alleged that about March 1, 1982, a majority
of the employees of Respondent in the above unit desig-
nated and selected by the Union as their representative
for the purposes of collective bargaining and that be-
cause then the Union has been, and is, the exclusive rep-
resentative of employees in the unit described above for
the purposes of collective bargaining with respect to
rates of pay , wages, hours of employment, and other
terms and conditions of employment.
The Respondent admits that about March 8, 1982, the
Union, by letter, requested Respondent to recognize it as
the exclusive collective -bargaining representative of the
Respondent employees in the unit described above. Simi-
larly, Respondent admits that about March 8, 1982, it has
failed and refused , and continues to fail and refuse, to
recognize and bargain with the Union as the exclusive
The uncontradicted testimony of Youngs shows
that he openly expressed his intent not to sign the
authorization card during a two-day period prior to
signing it. It further shows that he signed only after
being subject to repeated pressures and material
misrepresentations by the Union. Union representa-
tives approached Youngs on at least 11 occasions on
May 13 and countless times on May 14 before he
signed on May 15. Before capitulating on May 15,
he adamantly refused to sign because of a strong
opposition to unions based in part on an earlier ex-
perience when he was threatened with violence be-
cause of his non-union status.
Moreover, it is also pointed out by Respondent that simi-
larly the Supreme Court's opinion in Gissel recognizes
that oral representations calculated to mislead the card
signer can vitiate the authorization language on the card.
The Court stated that:
[E]mployees should be bound by the clear language
of what they sign unless that language is deliberate-
ly and clearly cancelled by the Union adherent with
words calculated to distract the signer to disregard
and forget the language above his signatures. [395
U.S. at 606.]
FIBER GLASS SYSTEMS
That relying on the foregoing language from Gissel, the
courts have repeatedly held that a card is invalid when it
was obtained through the misrepresentation that a major-
ity of the employer's employees had already signed
cards, and citing NLRB v. Roney Plaza Apartments, 597
F.2d 1046 (5th Cir. 1979); Medline Industries v. NLRB,
supra, and Schwarzenbach -Huber Co. v. NLRB, 408 F.2d
236, 241 (2d Cir. 1969). The Respondent maintains that
its validity of the cards obtained by the Union must be
judged according to the above principles.
In the instant case, there were 97 eligible voters on the
Excelsior list supplied to the Regional Director. The
General Counsel offered • into evidence 59 authorization
cards and the Union needed 49 valid cards to establish its
majority status . The Company contends that 21 of the
cards relied on to establish the Union's majority status
cannot be counted for the reasons set forth below.
The authorization cards, on which the majority is
predicated, are unambiguous, single-purpose cards, de-
claring the Union to be the exclusive bargaining repre-
sentative . The following individuals testified with respect
to the solicitation of the foregoing cards : Raul Portales
(both before and after his discharge), Jimmy Rios, Henry
Gomez, Agapito Ramirez , Debbie Justus, and Martin Al-
varado. The record testimony revealed that prior to the
solicitation of the cards by the members of the Union's
in-plant organizing committee , which included most of
the individuals named above , meetings were held at
which the purpose of the card was explained. The
above-named solicitors were shown a card and told by
Union International Respresentative Jaime Martinez that
if they signed up, a majority of the employees the Union
would send a letter to the Company requesting recogni-
tion to represent employees . Martinez explained that, if
such request was denied, then the Union would proceed
to file a petition with the NLRB. During the hearing in
this matter , the above-named people , who solicited the
cards, uniformly testified that, as instructed , they had
told the individual employees they had contacted that
the purpose of the card was to authorize the Union as
the employees ' collective-bargaining representative. The
employees were also told that if the Company refused to
recognize the Union after a demand , an election would
be sought.
The General Counsel submits that the authorization
cards were properly authenticated and constituted valid
designation of the Union as the employees' bargaining
representative and, thus, should be counted towards the
union majority as the Board stated in McEwen Mfg. Co.,
172 NLRB 900 ( 1968):
The Board has long held that an authorization card
may be properly authenticated by a person other
than the signer and that the latter's absence as a
witness need not be accounted for . . . . The Board
will . . . accept as authentic any authorization cards
which were returned by the signatory to the person
soliciting them even though the solicitor did not
witness the actual act of signing.
See also Stride Rite Corp., 228 NLRB 224 (1977).
1273
I now turn now to the specific cards which the Com-
pany contends cannot be relied on to establish the
Union 's majority.
Gregorio Acevedo : Portales gave Acevedo the card
(G.C. Exh. 10). It is dated January 15, 1982 . Portales saw
Acevedo sign the card and Acevedo filled out the front
part of the card . Portales informed Acevedo that it was a
card to authorize the IUE as the collective-bargaining
agent and , when the majority signed , they would request
recognition.
The Respondent contends that Acevedo had refused to
sign a card several times before he finally signed , that he
was told that a majority of employees had already signed
up, and also testified he signed to avoid harassment.
However, Portales gave credited testimony that he did
not speak to Acevedo about his card prior to January 15,
when the card in question was signed , and informed him
the purpose of the card , as outlined above . There is no
reliable evidence in this record that Acevedo signed his
card to avoid harassment . I accept this card as a valid
authorization.
Beatrice Rodriguez: Rodriguez signed her card at
Henry Gomez' house on July 25, 1981 . 29 Gomez credi-
bly. testified that he gave the card to Rodriguez, ob-
served her signing it, informed her that the card was for
representation, and that Union Respresentative Jaime
Martinez had told those present that when the Union got
a majority of the employees signed up, they could then
ask for an election.30
Rodriguez testified that she did not read the card
before signing it, that nobody explained the purpose of
the card to her, and that she signed the card simply "be-
cause she was there" and was told to sign . However, on
cross-examination , Rodriguez admitted that she did read
at least the top portion of the card , and also admitted
that Jaime Martinez explained what the Union was for
although she could not remember what he said except
that he did tell them that employees needed to be repre-
sented by the Union for better wages and working condi-
tions . I find this card to be a valid authorization.
Angel Hernandez: Jaime Martinez testified that he gave
Hernandez the card here in question at a union meet-
ing,.' and observed him when he signed the card. More-
over, Hernandez filled out the front portion of the card
and also some of the back portion after being told that if
they could get a majority, the Union would then request
recognition but, if this was refused , the Union would
then follow "the petition route."
On direct examination , Hernandez testified that Marti-
nez did not tell him what the card was for and' he did
not read it. On cross-examination , Hernandez admitted
that he filled in the card and that he also read the top
29 G.C. Exh. 54.
so In Levi Strauss & Co., 172 NLRB 732, 733 at fn. 6 (1968), the Board
stated:
It is not the use or nonuse of certain key, or "magic" words that is
controlling , but whether or not the totality of circumstances sur-
rounding the card solicitation is such as to add up to an assurance to
the card signer that his card will be used for no purpose other than
to help get an election.
The above was quoted by the Supreme Court in Gissel Packing, supra.
31 G.C. Exh. 7, dated July 13, 1981.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
portion of the card , and then admitted that when Marti-
nez was talking or explaining , he did so in Spanish. I
accept this card as a valid authorization.
Gabriel Garibay: Portales stated that he talked to Gari-
bay on October 8, 1981 , when he signed his card ,S2 and
that Garibay filled out the entire card . Portales also testi-
fied that on this occasion he told Garibay that they were
trying to sign a majority so the Union could request rec-
ognition.
Garibay initially testified that he had signed the card
here in question because he did not want any hassle, but
later admitted that he had signed the card while attend-
ing a union meeting at Cueller Park and had been in-
formed at the meeting that the Union was to represent
employees. He also testified that employee Jimmy Rios
told him that he should sign the card so that they could
send papers to him explaining the Union. The statements
made to Garibay do not constitute inducements inconsist-
ent with the purposes of the card , nor is there any reli-
able or corroborated evidence of any kind that Garibay
signed to avoid harassment . I deem the card to be a valid
one.
Richard Castilla: Martin Alvarado testified that he
gave Castilla a card on February 3, 1982,33 but he did
not see him sign it . However, on the next day he asked
Castilla if he had filled out the card , and he replied that
he had done so and had delivered it to Raul Portales. Al-
varado stated that when he had given the card to Cas-
tilla, he told him that if the Union got a majority of the
cards they could be recognized , and employees would
then be represented by the IUE.
Castilla testified that he signed his card to put an end
to harrassment by union supporters as he had been asked
to sign a card six or seven times before and had refused.
He stated that he was in a car one night when two union
supporters approached him and told him to get out of
the car and that it was cold and raining at the time and,
although he was undecided about the Union, he signed
only "because they kept bothering me." According to
Castilla, he was also told that a majority of the employ-
ees had already signed and that he did not read the card
before signing it.
Castilla 's testimony that he had not read ' the card is
not credited because, on cross-examination , he admitted
filling out all the information on the face of the card and
also conceded that he had glanced at the name of the
Union on the top of the card . The testimony by Castilla
in no way resembles the testimony of Alvarado , and it is
rejected on the basis of inconsistency and utter confusion
about other circumstances and dates . This card is a valid
authorization.
Carlos Pau: Portales testified that he gave the card to
PaiZ34 and saw him sign it at a union meeting on Janu-
ary 9 , 1982, and that Paiz filled out the entire card. Por-
tales told him that they were trying to sign a majority so
the Union could request recognition and, if denied, the
Union would petition for an election.
32 G.C. Exh. 24.
93 G.C . Exh. 77.
94 G.C . Exh. 77.
Paiz testified that when he signed his card Portales
told him that the purpose of the card was for mailing
purposes-brochures, papers, and documents-and that a
majority of the employees had already signed up. Paiz,
who has a high school education , also testified that he
had filled out the card but had not read it and explained
that someone had pointed out where the information in
the card should be placed . However, later on, he admit-
ted reading his name, address , telephone number, and
place of employment . During cross-examination Paiz was
asked whether he had discussed his testimony with
anyone prior to taking the stand. Reluctantly, he admit-
ted that some of the card witnesses had been discussing
their testimony in the cafeteria while waiting to testify. I
have rejected the testimony of Paiz and, accordingly,
find his card to be a valid authorization.
Julian Rodriguez : Henry Gomez testified that he gave
a card to Rodriguez and observed while he signed it on
July 25, 1981.35 Gomez stated that Rodriguez filled out
the entire card , and he told him it was for union repre-
sentation.
Rodriguez stated that his card was obtained based on
Gomez' representation that it would be used to send him
information about the Union, and he did not ask any
questions about the card.
There is nothing in this record showing any statements
to Rodriguez which would in any way cancel or mislead
him and thereby vitiate the unambiguous language on the
card. I accept this card as a valid authorization.
Manuel Chapa: Portales saw Chapa sign his card on
January 15, 1982, 36 and testified that Chapa filled out
the front part of the card. Portales told Chapa that the
card was to authorize the IUE as bargaining agent, and
the Union was trying to get a majority in order to re-
quest recognition.
Chapa stated that he signed his card after being asked
to do so several times and , when he signed his card, Por-
tales told him "that they needed my name to send me
some information and booklets on, and it was just to
verify that I was interested ." He also testified that he
had never attended any union meetings and signed to
"avoid being asked over and over to sign a card." I
reject the testimony of Chapa,37 but even assuming, ar-
guendo , his version of the circumstances surrounding the
signing of the card, there would still be insufficient evi-
dence to deem it harassment or misrepresentation. I will
count his card as a valid authorization.
Joe Meyers: Portales gave Meyers his card on Novem-
ber 5, 1981, after Martinez had talked to him and
watched while he signed it.38 He testified that Meyers
filled in most of the card , and he had informed Meyers
that the card authorized the IUE as the bargaining agent
if a majority of the Union would request recognition
and, if denied, the Union would petition for an election.
35 G.C. Exh. 53.
36 G.C. Exh. 18.
97 Chaps , like other employees, testified that he had not read his card,
but on questioning as to how he could have filled in blanks without read-
ing the card , Chapa admitted that he had read some portions of the card.
38 G.C . Exh. 31.
FIBER GLASS SYSTEMS 1275
Meyers testified that Jaime Martinez asked him to sign
his card while he was drinking at the Texaco station and
did so as he was told that "they were going to have
some free beer and barbecue " and then at this time
would explain the Union to him . He stated that on this
occasion he was also told that the Union wanted his
name and address so it could sent him further informa-
tion . Moreover , Meyers could not recall reading the
card.
Joe Meyers , who has a high school education, was
more or less typical of several witnesses who stated they
had not read their card . However, when questioned
closely about how he was able to fill it out, Meyers re-
called having read portions of the card and , although ap-
pearing to know little of union matters, Meyers testified
that from a conversation with his neighbor, who be-
longed to the Carpenters Union , he knew that unions
represented employees for better jobs and wages. There
is no reliable evidence that Meyers was "bribed" into
signing his card or that he was intoxicated at the time.
His card will be counted.
Roberto Esteves : Portales gave Esteves his card on Jan-
uary 16, 1982 , 59 and observed him as he signed it and
filled out the front part of the card. Concerning the pur-
pose of the card , Portales told Esteves the same thing as
he told Meyers and the others , as aforestated.
Esteves testified that 2 months prior to signing his
card , he had been asked to do so by another employee.
He was then told if he signed , they would then have an
election to vote, and that on January 16 , 1982, when he
signed , Portales told him about the same thing and that
most of the employees had already signed cards . Esteves
admitted that at another time he had read some union lit-
erature or leaflets and was aware that the Union was
going to try to get better wages and benefits for employ-
ees. He did not deny filling in part of the card he signed
on January 16. There exist no grounds on which his card
can be invalidated , and it is counted.
Victor Hernandez : Employee and union adherent Aga-
pito Ramirez testified that he gave a card to Hernandez
on March 10, 1982,40 saw him fill it out and sign it, and
told Hernandez that the card was to ask - for union recog-
nition and, if refused , the Union could petition for an
election.
Hernandez testified that before signing his card, he
had been asked "several times" by others to do so, that
the employees wanted to be "united ," and that he was
the "only one" who had not signed. He then signed his
card so they would stop "bothering" him.
In the final analysis, Hernandez admitted that he al-
ready knew what the Union was for because he belonged
to a union at his previous place of employment. More-
over, he did not specifically deny reading at least some
portions of his card . Counsel for Respondent maintains
that Hernandez was repeatedly "harassed" and "threat-
ened ," and therefore his card was obtained under
"duress" and should not be counted . However, Hernan-
dez only classified his alleged annoyance as "bothering."
His card is also a proper authorization although it is
dated March 10, 1982 , as aforestated.
Letitia Velasquez : Agapito Ramirez also solicited this
card on March 10 , 1982,41 and testified that Velasquez
filled out the front portion of the card and was informed
that it was so the Union could represent the employees
and, if refused , the Union would petition for an election.
Velasquez testified that she signed her card in the
parking lot in the presence of Agapito Ramirez and
David Granado , that Granado and Ramirez had tried to
get her to sign a card "about ten times" before she final-
ly signed , and that she was afraid of them because both
had cursed her for refusing to sign up. She finally signed
when Granado told her that she would have "problems"
if she did not sign.
On cross-examination , Velasquez admitted that David
Granado told her if the Union came in , it was going to,
help employees . She further admitted that she filled out
the card and had read it before signing it . Although Ve-
lasquez testified that she had signed the card because she
was afraid , her own testimony does not support any such
conclusions . At most she was merely reminded on sever-
al occasions to sign her card , but there were no overt ac-
tions of any kind to implement such suggestions. This
card is a proper authorization.
Fernando Gomez : Portales gave Gomez his card on
January 15, 1982 ,42 and observed Gomez when he filled
most of it out and signed it . Portales told Gomez the
same reasons for the card as he had stated to the others,
as aforementioned here.
Gomez described his conversation with Portales as fol-
lows:
Q. What did he tell you when he gave you the
card?
A. Well, I just got out to go buy some gum at
the Texaco, and then he told me , Hello, friend; sign
this card. I just told him, No , I don't want-I don't
know nothing about the union , and I don 't want to
know nothing about the union . And he said, Come
on, come on; it will be good benefits and every-
thing . He said , Come on. And I said, No, I don't
want to sign it right now.
He said , Come on; I don 't want to force you this
way. Why are you forcing me right now to sign it.
I just got the card and signed it, so I could get rid
of him.
Q. He said he didn't want to force you to sign
the card?
A. Yes. He told me-no. He told me , I don't
want to force you, but he was keeping telling me to
sign it . And I told him, Now you are forcing me to
sign it . You are telling me to sign it and forcing; he
is forcing me. And I got the card and signed it.
Q. You just didn 't want any problems with him.
A. I didn't want any problems with him.
se G.C . Exh. 20 . 41 G.C. Exh. 58.
4 0 G.C. Exh . 56. 42 G .C. Exh. 25.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gomez stated that , although he filled out the card, he
did not read it but, after viewing the card, Gomez, as
several of the other employees before him, recalled that
he had read portions of the card . Moreover, according to
his own testimony , Portales gave him assurance when he
signed his card that he did not want to force him (hardly
intimidation) and there was no hostile, overt conduct of
any kind toward Gomez or even a suggestion of the
same . I will count this card as a proper authorization.
Jesus Castillo: Portales gave Castillo his card on Febru-
ary 13, 1982,49 and watched him fill out some of the
card and sign it . Portales told him the same reasons for
the card as. he had stated to the others.
Castillo testified that he was told to sign the card by
Martin Alvarado and Raul Portales ; that they did not tell
him the purpose of the card , and that Castillo does not
read English . He said he had been asked before to sign a
card by Martin Alvarado and he signed the card solely
to keep from being bothered. Counsel for Respondent
argues that Castillo 's testimony established that Castillo
did not know the significance of signing the card and
that unambiguous English language on a card is mean-
ingless when an employee cannot read and no one clear-
ly explains the purpose of the card . Further, Castillo tes-
tified that he signed the card to avoid harassment.
Raul Portales, who solicited Castillo's signature , credi-
bly testified that he explained the card to Castillo at the
Texaco station on February 13, 1982, telling him the pur-
pose of the card was to authorize the Union as the em-
ployees' collective-bargaining agent . Under these circum-
stances, Castillo's designation will be counted toward the
Union 's majority.
Jerry Villarreal: Portales gave Villareal his card on
March 1 , 1982,44 saw him sign it , and'also observed him
filling in the card . Portales told Villarreal the same as he
told the others relative to the purpose of the card.
Villarreal testified that in signing the card he was told
by David Granado that the card was for an "election
purpose" or a "majority" would "okay an election."
Counsel for Respondent points out that, based on the
statements made to him , Villarreal expected to get an
election when he signed the card and that no one had
ever told him the true purpose of the card . Moreover,
the card was obtained on the basis of material misrepre-
sentations about its purpose and should not be counted.
On cross-examination , Villarreal admitted that he read
the card , and clearly there were no statements made to
Villarreal, either by Portales or Granado , which would
negate the unambiguous language on the card. This card
is a valid designation and will be counted.
Stephen Seubert : Employee Jimmy Rios testified that
he gave a card to Seubert45 and saw him fill out and
sign the card on October 15, 1981 . Rios told him that the
card was so that the Union could represent the employ-
ees in order to have better wages and conditions.
Seubert testified that Jaime Martinez gave him the
card here in question and told him that the card was
only to be used for an election.
On cross-examination , Seubert admitted that he read at
least a portion of the card and, as a result, I have cred-
ited the testimony of Rios and , of course, there was no
misrepresentation in what Rios told him . The card will
be counted.
Arturo Castillo: Castillo signed a card in November
1981.46 However, Castillo testified that on November 5,
1981, Robert Harrison told him that he was fired, and
that this was his last day at work. It appears that Castillo
was out of work due to an on-the-job injury, and that
there was no light duty job available. There are no alle-
gations in the complaint pertaining to Castillo, and it ap-
pears that he was lawfully terminated before March 1,
1982. His card will not be counted.
Domingo Sanchez Jr.: Portales gave Sanchez his card
on January 23, 1982,47 and observed him while he filled
in and signed the card. Concerning the purpose of the
card , Portales gave the same explanation to Sanchez as
he gave to all the others.
Sanchez testified that Portales told him that "some
people wanted the Union," and also testified that Jaime
Martinez, along with others, explained to him the things
the Union could do, such as improve benefits and pay
for employees . This card will be counted.
Raul Portales : Portales signed his authorization card on
September 10, 1981.48 As aforestated, I have concluded
that Portales was discriminatorily discharged , but that
his conduct , involving the solicitation of a card from
Ramon Munoz (showing a pistol) and falsification of his
employment application , precluded his reinstatement and
backpay . However, there are no circumstances to show
that his card was invalid , and it will be counted.
David Granado was not discharged until September
1982, and his card (G.C. Exh. 45), will be counted as a
valid one since he read and signed in on November 5,
1981, when he was working for the Company.
Paul Bentez signed a card on November 21, 1981 (G.C.
Exh. 13), and will be counted since he did not resign his
employment until 1 year later . Oralia Perez signed a card
on October 8, 1981 (G.C. Exh. 35), and because she was
not terminated until August 12, 1982, her card will be
counted as she, too, was an employee within the rele-
vant, critical periods . The card signed by Richard Campo
on December 7, 1981 (G.C. Exh. 15), is also a valid card
as admittedly he read the card and was also told by Por-
tales that it was to show recognition . There are also no
circumstances which infringe on the validity of the card
signed by Neri Gaitan on January 12, 1982 (G.C. Exh.
21).
Other than the cards individually discussed above, the
Respondent does not seriously argue the validity of the
remaining cards introduced by the General Counsel.
Therefore, based on all the foregoing , it is clear that on
or before March 1 , 1982, the Union held 56 valid author-
ization cards, and a majority of the 97 employee work
force is an appropriate unit.
48 G.C. Exh. 17.
44 G.C. Exh. 43.
48 G.C. Exh. 51.
48 G.C . Exh. 16.
47 G.C. Exh. 39.
48 G.C. Exh. 9.
FIBER GLASS SYSTEMS 1277
G. Alleged Change in Point System
It is alleged that in the first part of July 1982 the Re-
spondent unilaterally instituted and implemented a
change in its "No Call In Point System" in violation of
8(a)(5) of the Act.
In support of this allegation , the General Counsel
called employee Jesse Reyes . Reyes testified briefly
about the Respondent 's no-call policy , but did not men-
tion that any change had been made to that policy
during his tenure of employment. In fact , he implied that
no changes to the policy were made . Even though the
Union was the representative of the Company's employ-
ees at the time.of the alleged violation , as aforestated, I
am in agreement that the testimony of the General Coun-
sel's own witness negates this allegation of the complaint,
and the allegation is therefore dismissed.
H. Alleged Clocking for Lunchbreaks
It is alleged , that during the first part of July 1982 the
Respondent unilaterally instituted and implemented a
new work rule violative of Section 8(a)(5) requiring em-
ployees to clock in and out for lunchbreaks.
The General Counsel points out that on August 13,
1982, the Respondent issued new guidelines with respect
to the punch in and out for work. These new guidelines
made the Respondent 's policy regarding timecards more
restrictive , and that prior to August 13, 1982, the only
policy pertaining to timecards was contained in the com-
pany policy booklet received into evidence as Respond-
ent's Exhibit 5. This prior policy was a rather simple ex-
planation of the employees ' responsibility regarding time-
cards, but such is not the case with the August 13, 1982
notice which states that effective August 16, 1982, em-
ployees' paychecks would be determined strictly on what
was punched on the individual 's timecards ; that points
would be given for time not accounted for, and employ-
ees would be paid in accordance with what was actually
printed on individual timecards . 49 Moreover, maintains
the General Counsel , a close review of these two policies
contradicts Lucy Contreras ' assertions that nothing
really changed with respect to Respondent's timecard
policy.
The testimony of the Company' s payroll clerk, Tony
Cline, establishes that the announcement here in question
was made to get the employees' attention and that the
past policy has not changed . In this regard Cline testified
as follows:
Q. (By Mr . Cheslock) Prior to the time that
notice was posted , what did you do when an em-
ployee failed to clock in after lunch? What would
be done?
A. I went to his supervisor to see if he left, to see
if he went home for the day or if he finished his
shift, and if he left the premises for lunch . If his su-
pervisor couldn 't answer it, I went to Bob Harrison.
Q. If the employee had just accidently forgot to
clock in and he reported back to work , what did
you do?
49 G.C . Exh. 70.
A. I paid him.
Q. He was paid for the time?
A. Yes.
Q. And if he had left the premises when he was
supposed to be working , what happened?
A. He was docked.
Q. Okay. Now, after posting that notice [G.C.
Exh. 70], what do you do when an employee fails
to clock in after lunch?
A. Basically, the same thing . I go to his supervi-
sor, I go to the individual , or I go to Bob Harrison.
If it was just an accident , he just failed to punch in,
then he is paid for the time.
Q. You still pay him?
A. Yes, sir. There hasn' t been any change.
Q. Okay. Why was that notice posted then?
A. They had become so sloppy with punching in
and out . They might punch in , they might not.
They may punch in in the morning and they might
not punch out when they left in the afternoon. It
got to where it was impossible for me to figure the
timecards correctly.
Q. So you did that to get the employees ' atten-•
tion?
A. Yes, sir.
Cline further testified that points have been given if the
employee overstayed his 25-minute paid lunch period.
Lucy Contreras testified that a lot of employees were
not punching in and out after lunch , and it was then nec-
essary to get supervisors to initial their timecards when
employees forgot to punch in , and this caused consider-
able inconvenience to the supervisors . She stated that the
prior policy on this matter also called for points to be
given to people punching in late from lunch , and the
memo or rule posted on August 13, 1982, was not a new
policy.
In the final analysis , the General Counsel 's own wit-
ness Jesse Reyes testified that employees had always
been required to clock out before lunch and to clock in
after lunch, that if they did not do so, there was the pos-
sibility of not getting paid for those hours, and the policy
had not changed.
The testimony by Respondent witnesses Cline and
Contreras, and even General Counsel 's witness Reyes,
makes it clear that there was no real change in the long-
established punch-in policy. The Respondent merely
made an announcement reiterating and clarifying its
prior policy due to some employees disregarding past
practices . Moreover, in order to constitute an 8(a)(5) vio-
lation , a unilateral change in policy must be a "material,
substantial and significant one." Peerless Food Products,
236 NLRB 161 (1978).
In accordance with the above, this allegation is dis-
missed.
I. New Leave of Absence' Policy
It is alleged that about May 19 , 1982, the Respondent
instituted and implemented a new leave of absence
policy.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel argues that although Respondent
denied it had-instituted and implemented a new leave of
absence policy , the evidence clearly established this alle-
gation . She points out that Personnel Manager Lucy
Contreras testified that prior to implementation of this
new policy , no such procedure existed and that because
the Respondent had an obligation to bargain with the
Union, as of March 1, 1982 , the unilateral implementa-
tion of this leave of absence policy violated Section
8(a)(5) of the Act.
Lucy Contreras credibly. testified that the leave -of-ab-
sence policy here in question arose because of the on-the-
job back injury to Art Castillo, who asked for his job
back after being awarded a $9500 payment from the
Company , as aforestated . Contreras admitted that when
this particular situation arose , the Company did not have
a written leave-of-absence policy, and these circum-
stances led up to the promulgation of General Counsel
Exhibit 4 in May 1982 . Contreras stated that in August
1982, General Counsel Exhibit 5 was implemented in
order to bring all employees under the Respondent's
leave-of-absence policy if they were to be out-20 or more
days and applies not only to workmen's compensation in-
juries, but to personal illness and to absences.
Although it is not completely clear from the record
the exact status of the Respondent 's prior leave of ab-
sence policy , it was admitted by Contreras that the pro-
cedures here in question were new policies (they had
nothing like it before) and, considering the broad appli-
cation of this policy to all employees , it must be deemed
a material and substantial change . In accordance with the
above , and because the Union had a majority by March
1, I find that the unilateral and subsequent implementa-
tion of this new leave-of-absence policy was, at least, a
technical violation of Section 8(a)(5) of the Act.
This aspect of the case , and my finding of an 8(a)(5)
violation might also have some bearing on the alleged
8(a)(5) terminations of Alvarado, Justus, Gonzalez, and
Hernandez , who all were otherwise legally processed
under the new leave-of-absence policy, as' aforestated.
However, in the instant case and under the particular cir-
cumstances here, I rind there is no legal justification for
finding a violation of Section 8(a)(3) as a derivative of an
8(a)(5) violation even if this theory is advanced or con-
sidered.
Section 8(a)(3) prohibits an employer from encourag-
ing or discouraging membership in a union by means of
discrimination . Section 8(a)(5), on the other hand, pro-
hibits an employer from refusing to bargain collectively
with the agent and representative of its employees, but
makes no mention of discrimination regarding union
membership . Thus, the element of discrimination, which
is crucial to the finding of a violation of Section 8(a)(3),
is not a necessary prerequisite to the finding of a viola-
tion of Section 8(a)(5). An employer , as in this case, may
have had a nondiscriminatory purpose in implementing a
new leave-of-absence policy yet may violate Section
8(a)(5) by not bargaining over the decision to do so.
Therefore, a finding of a violation of Section 8(a)(5),
without more, is not sufficient to sustain a finding of a
violation of Section 8(a)(3).5°
The main question is whether there is an independent
basis for finding a violation of 8(a)(3). The General
Counsel contended that Respondent 's new leave-of-ab-
sence policy was specifically designed and planned to
effect the employment status of the Union's staunch sup-
porters (Alvarado, Justus, Gonzalez, and Hernandez),
but I have rejected this contention and argument. Re-
spondent , at the time of the leave-of-absence procedures
here in question, was experiencing a major difficulty in
the lengthy absence of Art Castillo and his request to
return to work after receiving a considerable payment
for his on-the-job injury, as aforestated . The Respondent
then sought legal advice on how to handle such situa-
tions, and the promulgation of a leave -of-absence policy
here in question resulted . Moreover, the policy was then
applied uniformly and without discrimination during the
economic recession, as also detailed previously . I there-
fore conclude that the evidence in this record, taken as a
whole, did not warrant a fording that Respondent's deci-
sion to implement in writing its leave -of-absence policy
here in question was the result of unlawful motivation.
Accordingly, my dismissal of the 8(a)(3) allegations as to
the four employees named above still stands.
J. New Evaluation Policy
It is alleged that about September 13, 1982, the Com-
pany unilaterally instituted and implemented a new em-
ployee - evaluation policy in violation of Section 8(a)(5)
and (1 ) of the Act.
The General Counsel points out that on September 15,
1982 , Respondent posted a notice to employees announc-
ing the end of the wage freeze, and included therein
were certain factors by which future wage increases
would be determined,5' but in comparison with the pre-
existing factors contained in General Counsel Exhibit 3,
and sample of evaluation forms (R. Exhs . 6(a) through
6(d)), it is noted that two additional factors were added:
that the September 15, 1982 notice to employees adds the
category of "suggestions contributed" and "attendance at
scheduled meetings" as additional factors to be consid-
ered in wage increases . The General Counsel maintains
that because this change occurred at a time when Re-
spondent was obligated to bargain with the Union, Re-
spondent violated Section 8(a)(5) of the Act by unilater-
ally implementing same.
The testimony of Lucy Contreras establishes that the
Company is continuing to use the same employee evalua-
tion forms it has always used . It appears that these forms
broadly review the employee's ability, quality of work,
cooperation with his supervisor and others , attendance,
willingness to follow rules , and other factors. However,
the General Counsel contends that a violation occurred
because a notice posted and dated September 15, 1982,
reminds employees that "suggestions contributed" and
"attendance of scheduled meetings" are also two of the
factors now taken into consideration when the Company
60 See Production Molded Plastics, 227 NLRB 776 (1977).
s1 G.C. Exh. 71.
FIBER GLASS SYSTEMS
determines the wage increase to be given to an employ-
ee.
Contreras testified that " suggestions contributed" is
covered by the evaluation forms here in question under
such headings as "attitude" and "performance," and
stated that, concerning "attendance at scheduled meet-
ings," the evaluation forms have always listed "attend-
ance" as a factor.
It appears to me, and I find , that the announcement of
September 15, 1982, did not repudiate the standard em-
ployee evaluation forms or make any "material , substan-
tial or significant change" in evaluation criteria . Peerless
Food Products, supra ; Rust Craft, 225 NLRB 327. As the
Board stated in Rust Craft:
We agree with the Administrative Law Judge
that the Respondent did not violate Section 8(a)(5)
of the Act by unilaterally initiating a more dependa-
ble method of enforcing its longstanding rule that
employees record their time "in and out." In the
circumstances of this case , it is clear that while the
change to a mechanical procedure for recording
working time marked a departure from the previous
practice , more importantly the rule itself remained
intact . And to those employees who had conscien-
tiously followed this rule in normally marking their
timecards , the new timeclock procedure would
have been inconsequential . Therefore, the General
Counsel's reliance on Murphy Diesel Company, and
similar cases, is misplaced , for in Murphy we found
that the respondent employer initiated new and
more stringent rules which represented a "material,
substantial , and a significant change" from prior
practice. We"find no such radical change in the cir-
cumstances of this case.
In accordance with the above , this allegation is dis-
missed.
K. The Election Objections
The Union filed 11 objections to the election, and
prior to the hearing it withdrew Objection 6, 7, and 9.
Objection 11 was withdrawn at the hearing. Likewise,
counsel for the Union stated that no campaign literature
would be introduced in support of Objection 5. It also
appears that most of the remaining objections were en-
compassed with the 8(a)(1) allegations , and which I have
previously considered. However , Objection 8 is a very
broad allegation which stated that the Company unlaw-
fully disciplined and otherwise discriminated against em-
ployees because of their union sympathies and activities
and, in relation to this objection, the Union assigns three
instances of discrimination.
First, the Union contends there was a discriminatory
charge in Debbie Justus' working conditions . The record
shows, as aforestated, that Justus was a known supporter
of the Union who wore union T-shirts, buttons, and hats;
distributed campaign literature; and solicited employee
signatures for authorization cards.
Justus testified that employees working "on the line"
really have no designated lunchtime, and when a set of
pipes was finished employees could then go to lunch.
1279
Justus said that she and Juan Gomez normally go to
lunch together , but about 10 days before the April 8
Board election , Supervisor Pena would tell her when she
could go to lunch . She then noticed that there was no
other employee in the lunchroom and, all the way up
until the election, she was eating alone . Justus further
testified that a week before the election, Pena also told
her to stay in her own designated area , but testified that
prior thereto there was no complaint when she was
walking around after being caught up in her work.
No explanation was offered by Pena as to the above
and, from such circumstances , it is clear that the Compa-
ny sought to isolate a supporter for the Union during the
final week of the campaign in order to discourage her
union support and, in so doing , discriminated against her.
The credible record evidence also established , again in
relation to Objection 8, that 3 days before the April 8
election , employee Jesus Castillo entered the Company's
premises intoxicated and sought to provoke a fight with
Martin Alvarado. By this time, Alvarado was well
known among employees and supervisors as an active
union supporter. Castillo told Alvarado that if he did not
stop talking about the Union, he was going to be sorry.
Alvarado avoided the confrontation and sought assist-
ance from his supervisor, Pena, and the Company 's secu-
rity guard, but neither Pena nor the security guard
would respond to Alvarado's request for assistance.
When Castillo continued his attempts to provoke a fight,
Alvarado again requested assistance from Pena and Su-
pervisor John Casarez. Casarez then escorted Castillo
from the Company's property, but when Alvarado asked
Pena if he was going to report the incident , Pena re-
sponded that he did not need Alvarado to tell him how
to do his job. Under the Company's plant rules, "anyone
caught consuming or under the influence of an intoxicat-
ing substance on Company time or on Company proper-
ty will be immediately fired,52 and the only evidence
that Castillo received any discipline at all was Casarez'
belief that Castillo received a 2-day suspension . Howev-
er, Casarez' testimony concerning Castillo's alleged sus-
pension was not confirmed by either Harrison 's testimo-
ny or by any disciplinary or attendance records. More-
over, no explanation was offered for the Company's fail-
ure to enforce the plant rule which calls for immediate
discharge for conduct similar to that engaged in by Cas-
tillo. By failing to discharge Castillo, the Company re-
fused to invoke its own rule prohibiting such conduct
and also condoned Castillo's drunken attempt to provoke
a fight with Alvarado 3 days before the election. Such
improper conduct resulted in continued pressure on key
supporters of the Union during the final days of the cam-
paign and must be deemed discriminatory.
On April 6, again in regard to Objection 8, 2 days
before the election, Robert Harrison instructed plant se-
curity to search a group of employees as they entered
work. Employee Agapito Ramirez was searched by the
Company 's guard in front of other employess who were
not searched , and Ramirez complained to Harrison about
this degrading occurrence in front of his fellow employ-
68 See R. Exhs. 5 and 13.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees. Debbie Justus was instructed to unzip her jacket so
that she could be searched for a gun, but Justus testified
that other employees were permitted to enter without
being searched . It appears that Manuel Gonzalez was
also bodily searched by plant guards, but Martin Alvara-
do refused to be searched by the guard because he had
done nothing wrong . Alvarado was then informed by
Supervisor Pena that he could not report to work unless
he was searched by the guard . The following day, Alva-
rado was permitted to work without the need of a
search . Gonzalez, Ramirez, Justus, and Alvarado were
known union supporters prior to the date of the search
and, other than one other person, there is no evidence
that any other employees were searched.
According to Plant Manager Harrison , on the occas-
sion here in question , he instructed the guards to search
employees following a telephone call from an undis-
closed source that claimed that David Alvarado had
pulled a gun on a fellow employee during a confronta-
tion at a public park or baseball game on the preceding
weekend . 53 Harrison initially testified that following this
incident he instructed the guard to search employees at
random but , on cross-examination, changed his testimony
by claiming that he had provided the guard with a list of
employees to search . According to Harrison , this list in-
cluded all employees who were at the park at the time of
the gun incident . No such list was ever introduced by
the Respondent , nor did the Company call any security
guard to confirm Harrison 's testimony about those em-
ployees who were to be searched . The only other em-
ployee who testified he was searched was Manuel Gu-
tierrez, but I reject Gutierrez' and Pastrano 's testimony
that Alvarado pulled a gun . The credible evidence from
Portales and Alvarado clearly established that it was
Manuel Gutierrez who threatened Alvarado with a gun,
and not the other way around . Gutierrez even admitted
that he did not see Alvarado with a gun , and that Gu-
tierrez was so "pissed off" he would have "done any-
thing" to Alvarado and, in fact, he had grabbed a piece
of steel.
In the final analysis , and despite Harrison 's claim to
the contrary, there is no evidence that Justus, Ramirez,
or Gonzalez was ever at the public park and baseball
game during the alleged gun incident , and the only
common factor among the emmployees searched 2 days
before the election was their known union support.
In accordance with all of the above , I sustain Objec-
tion 8.
Objection 10 relates that the Company engaged in
electioneering, and other prolonged conversations with
unit employees, in and around the polling area during the
election.
Several witnesses for the General Counsel (Portales,
Granado , Justus, and Alvarado) credibly testified that,
while employees waited in line to vote during the morn-
ing polling period , Plant Manager Harrison and Supervi-
sor Fred Pena repeatedly told them to "vote no"-that
89 Employee Angel Pastrano testified for the Company that on this oc-
casion there were union discussions with Portales aid Alvarado and
other employees and that the arguments became quite heated . Alvarado
pulled a gun on his brother-in-law Manuel Gutierrez and Pastrano then
reported the incident to Harrison.
these comments were heard in the polling area itself, and
that electioneering continued as employees stood in line
to vote, entered the polling area, and exited the polling
area . Pena's blanket denial of this misconduct is rejected.
Moreover, my rejection of Pena's testimony is further
substantiated by Harrison 's silence on this point . 54 I will
sustain Objection 10.
The Respondent 's conduct, as detailed above, and in
my 8(a)(1) findings set forth previously , and several ac-
tions within the critical preelection period , impermissibly
taints the atmosphere surrounding a fair and free elec-
tion . In accordance , it will be recommended that the
election conducted on April 8, 1982 , in Case 23-RC-
5065 , be set aside.
L. The Suggested Bargaining Order
The remaining issue in this case is whether a bargain-
ing order is warranted on the authority of NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969). As set forth pre-
viously herein, the Union has requested recognition in an
appropriate unit in which it represented a majority of the
employees.
In the instant case the Respondent committed unfair
labor practices which clearly have had "the tendency to
undermine majority strength and impede the election
processes." NLRB v. Gissel Packing Co., supra. It also ap-
pears that "the possibility of erasing the effects of past
practices . . . is slight," and thus a bargaining order,
rather than another election , would best protect employ-
ee sentiment , as indicated by the authorization cards.
During the time elements involved in this case, mem-
bers of high-level management , including the plant man-
ager, engaged in numerous and persistent acts of unlaw-
ful interrogation of employees; threatened employees
with layoffs, discharges , loss of benefits, and lack of
work if they selected the Union as their bargaining rep-
resentative;65 created the impression of surveillance by
continually telling union adherents who their leaders
were; solicited grievances ; established a new grievance
procedure ; repeatedly accused employees of being for
the Union due to their association with other workers;
told employees to "vote no" at the election; unlawfully
discharged the main adherent for the Union (Portales);
and frequently warned the employees not to discuss the
Union while on their own time in the lunchroom-all
fully outlined earlier herein.
64 In Boston Insulated Wire Co., 259 NLRB 1118 (1982), the Board
noted the factors it considers in reviewing electioneering occurring at or
near the polls . The factors noted were : ( 1) whether the conduct occurred
within or near the polling place ; (2) the extent and nature of the election-
eering ; (3) whether it was conducted by a party to the election or by em-
ployees; (4) whether the electioneering occurred within a designated "no
electioneering" area ; and (5) wheiher the electioneering continued con-
trary to the instructions of the Board agent . In Bally's Park Place, 265
NLRB 703 (1982), the Board held that , in the absence of a clearly desig-
nated "no electioneering" area, no electioneering was to be permitted
within the customary area at or near the polls. In the instant case the
electioneering occurred immediately outside the polling area , and it was
conducted by a "party to the election" in a no-electioneering area.
66 The Board has held that threats directly related to employment
status "are not easily erased from the minds of employees ." Tri-City
Paving, 205 NLRB 174, 174 (1973).
FIBER GLASS SYSTEMS
Accordingly, I am of the opinion that the possibility of
erasing the effects of the Company 's unfair labor prac-
tices and insuring a fair election by the use of the tradi-
tional remedy of a cease-and-desist order is slight. I feel
that in this case the employees ' sentiment , expressed
through the authorization cards obtained by the Union,
would, on balance, be better protected by a bargaining
order . I shall therefore recommend that such an order
shall issue.56
In the final analysis, the Respondent 's unlawful con-
duct impeded the election process, undermined the
Union , and tended to destroy its majority status . This un-
lawful conduct can be remedied only by an order requir-
ing the Respondent to bargain with the Union as of
March 1, 1982, when the Union attained its majority
status.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (3), and (5)
of the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent has unlawfully refused
to bargain collectively with the Union, I shall recom-
88 It has been established that violations of Sec. 8(a)(1), if severe
enough , warrant a bargaining order under Gissel. See the Board 's deci-
sion in Great Atlantic & Pacific Tea Co, 230 NLRB 766 (1977).
1281
mend that , on request , it be ordered to do so concerning
rates of pay , wages, hours, and other terms and condi-
tions of employment , and, if an understanding is reached,
embody such understanding in a signed agreement.
CONCLUSIONS OF LAW
1. Respondent is 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. By engaging in conduct described and detailed in
section III , above, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
4. The unit set forth herein constitutes a unit appropri-
ate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
5. On or before March 1 , 1982, and at all material
times thereafter, the Union represented a majority of its
employees in the appropriate unit and has been the ex-
clusive representative of the employees for the purpose
of collective bargaining within the meaning of Section
9(a) of the Act.
6. Respondent has refused to bargain collectively with
the Union in violation of Section 8(a)(5) of the Act.
7. The above-described unfair labor practices affect
commerce within the meaning of Section 2 (6) and (7) of
the Act.
[Recommended Order omitted from publication.]