Fiber Glass Systems, Inc.

National Labor Relations Board - Board Decisions

May 15, 1990

298 N.L.R.B. 504 (N.L.R.B. 1990)

504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
May 15, 1990
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 25, 1986, the National Labor Rela-
tions Board issued a Decision, Order, and Direc-
tion of Second Election in this proceeding,' in
which it, inter alia, found that the Respondent vio-
lated Section 8(a)(1) of the Act by interrogating
employees about their union sentiments and activi-
ties and by threatening employees with a freeze of
pay and benefits, and violated Section 8(a)(3) and
(1) of the Act by discharging employee Raul Por-
tales.2 The Board held that Portales was not enti-
tled to reinstatement because of certain misconduct,
but was entitled to approximately 4 months of
backpay. On a petition for review and a cross-ap-
plication for enforcement of the Board's Order, the
United States Court of Appeals for the Fifth Cir-
cuit vacated the Board's Order and remanded the
case for further proceedings consistent with the
court's opinion.3
The Board thereafter accepted the court's
remand and notified the parties that they could file
statements of position. The General Counsel and
the Respondent have filed statements of position.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
We have carefully reviewed the record in this
case, as well as the statements of position, and, for
the reasons discussed below, we have decided to
reaffirm the Board's previous findings-now at
'278 NLRB 1255.
2 The Board also found that during the Union's organizational cam-
paign, the Respondent violated Sec. 8 (a)(1) by the following conduct:
creating the impression of surveillance ; threatening employees with lay-
offs, discharges, and the freezing of benefits if they selected the Union as
their bargaining representative , forming a grievance committee and solic-
iting grievances ; prohibiting union-related discussions on nonwork time,
and requiring an employee to stop wearing union insignia on the job In
addition, the Board found that the Respondent engaged in independently
objectionable conduct by changing a union supporter's working condi-
tions, by treating union supporters disparately by searching them as they
entered work, and by engaging in electioneering and prolonged conversa-
tions with employees in and around the polling area during the election.
In light of the violations and objectionable conduct found, the Board di-
rected a second election.
a 807 F 2d 461 (5th Cir. 1987). The Respondent's petition for review
contested only the 8 (a)(1) violations cited above in the text which were
found by the Board and the limited backpay award to Portales The
court did not disturb the Board's findings on the uncontested violations,
and the court's remand was hunted to three incidents found to be unlaw-
ful interrogations and the granting of backpay to Portales
issue because of the court's vacation of the Board
order-that three interrogations and one threat
were coercive and therefore in violation of Section
8(a)(1). Further, in light of the court's opinion,
which we accept as the law of the case, we shall
afford the Respondent the opportunity at the com-
pliance stage of this proceeding to prove that Por-
tales would not have been hired or would have
been discharged because he provided false informa-
tion on his employment application.
As noted above, the court let stand the Board's
findings on the numerous uncontested 8(a)(1) viola-
tions.4 In vacating and remanding the Board's find-
ings concerning the contested violations, the court
found that the Board failed to apply the eight fac-
tors for determining an unlawful interrogation set
forth in Bourne v. NLRB, 332 F.2d 47 (2d Cir.
1964), and "failed to articulate the bases for its sec-
tion 8(a)(1) findings." The court set forth the
Bourne factors as follows:
(1) the history of the employer's attitude
toward its employees; (2) the type of informa-
tion sought or related; (3) the company rank of
the questioner; (4) the place and manner of the
conversation; (5) the truthfulness of the em-
ployee's response ; (6) whether the employer
had a valid purpose in obtaining the informa-
tion; (7) if so, whether this purpose was com-
municated to the employee; and (8) whether
the employer assures that no reprisals will be
taken if they support the union.
The first interrogation put in issue by the court's
remand occurred in early November 1981 when
Plant Superintendent Harrison called employee
Castillo into his office and asked him how the
union organizing was going. Castillo, who earlier
had been questioned about his union organizing by
Supervisor Pena, untruthfully told Harrison that he
did not know what Harrison was talking about.
Applying the Bourne factors, we adhere to the
Board's previous finding that this interrogation vio-
lated Section 8(a)(1). Harrison's questioning of Cas-
tillo cannot be examined in isolation. At the time of
this conversation, the Respondent had engaged in
numerous unlawful threats and interrogations di-
rected at employees in response to the Union's or-
ganizing activities, so the first Bourne factor weighs
in favor of a coercion finding. The second factor-
type of information sought-is not as strong since
the questioning here was less intrusive than at-
4 We have been administratively advised that the Respondent fully
remedied the uncontested 8(a)(1) violations by posting a notice and com-
plying with its terms. Further, a second election was conducted and, as a
result, the Union was certified as the exclusive collective-bargaining rep-
resentative of the unit employees on November 23, 1987
298 NLRB No. 98
FIBER GLASS SYSTEMS 505
tempts to learn identities of union supporters and
direct questioning about union attitudes. The third
and fourth factors, however, support our finding:
Harrison was a high-level member of management,
and Castillo was questioned after being summoned
into Harrison's office. Further, Castillo's untruthful
reply indicates that he was fearful of the conse-
quences of admitting that he was an active partici-
pant in the organizing campaign. The Respondent
already was aware of the union organizing drive,
and Harrison had no valid purpose in obtaining the
information he sought from Castillo. Finally, Harri-
son did not assure Castillo that no reprisals would
be taken against him if he supported the Union.
Thus, despite the fact that Castillo had worn union
buttons and T-shirts to work, we conclude that in
these circumstances Harrison's questioning of him
was unlawful.
The second incident presented to us on remand
involves a conversation between employee Ramon
and his immediate supervisor, Pena, about a week
before the election. Pena approached Ramon and
asked him what his feelings were toward the
Union. Ramon stated that he believed that the
Union was just trying to help the employees obtain
better wages and job conditions. Pena responded
that the employees did not need a union and that
the Company was running fine without one.
As with the interrogation discussed above,
Pena's questioning of Ramon occurred in the con-
text of the Respondent's many unfair labor prac-
tices intended to stifle the employees' union activi-
ties. Although not all the Bourne factors are indica-
tive of coercion here, we find that the first, second,
fourth, and sixth through eighth support the
Board's finding. Thus, as noted above,, the Compa-
ny's historic attitude toward employees was mani-
fested in its previous unfair labor practices; this
was a direct inquiry about Ramon's union senti-
ments and it was followed by the supervisor's ap-
parent disapproval of Ramon's response (type of in-
formation sought and manner of conversation); the
inquiry served no legitimate purpose so none was
conveyed to Ramon; and Pena did not provide as-
surances against reprisal for support of the Union.
The final incident that we must address occurred
in mid-March 1982 when Supervisor Nava talked
to his crew, including employees Granado and Ra-
mirez, about the Union while they were in the
lunchroom in their work department. This conver-
sation entails both, one of the alleged interrogations
specifically remanded by the court and the alleged
threat that the court's vacation of the Board's
Order leaves in issue. The incident began when
Nava unlawfully warned Granado and Ramirez
that they would be disciplined and ultimately fired
if they distributed union authorization cards on
company premises. 5 Nava then asked the two em-
ployees why they wanted the Union, and Nava
stated that he did not want any "[expletive deleted]
union driving a Cadillac with his dues." Later
during this meeting 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." In addition to Granado
and Ramirez, there were at least four other em-
ployees present when Nava made this statement.
We find the interrogations of Granado and Ra-
mirez unlawful under the standards set forth in
Bourne. For reasons stated above regarding the Re-
spondent's prior unfair labor practices, the first
factor supports a coercion finding. The contempo-
raneous threats regarding firing for union solicita-
tion and a wage freeze made the manner of the in-
terrogation coercive (third factor); no legitimate
purpose for this questioning either existed or was
conveyed (sixth and seventh factors); and, far from
giving assurances against reprisals, Nava's remarks
would tend to suggest that support for the Union
would be a black mark in the eyes of the Respond-
ent (eighth factor). Accordingly, we reaffirm the
Board's previous findings concerning these three
incidents of interrogation and the single threat.6
Turning to the other aspect of the court's
remand, we note that the Respondent did not chal-
lenge, and the court did not disturb, the Board's
finding that employee Portales was unlawfully dis-
charged in retaliation for his union activities. The
Board's previous decision found that Portales was
not entitled to reinstatement because approximately
4 months after his discharge he pointed a pistol at a
fellow employee and threatened to kill him if he
did not vote for the Union. Contrary to the judge,
however, who found that Portales was not entitled
to reinstatement or any backpay both because he
had lied about his employment history on his job
application and because of the pistol incident, the
Board held that Portales was entitled to backpay
for the period from the date of his discharge to the
date of the pistol incident. In so doing, the Board
found that the Respondent, although provided the
opportunity at the hearing to demonstrate that it
would not have hired Portales but for its reliance
on the false information on his application, had
failed to do so.
' The court did not disturb the Board's fording that this prohibition of
union solicitation violated Sec 8(a)(1).
s We also reaffirm the Board's previous finding that/the interrogations
at issue were unlawful under the principles set forth in Rossmore House,
269 NLRB 1176 (1984), which cited Bourne with approval We addition-
ally note that in any event these four violations are merely cumulative to
uncontested findings and would not affect the remedy that the Board pre-
viously ordered in this case
506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The court declined to enforce the backpay order
regarding Portales because it was of the view that
the Board had not properly reconciled this case
with several prior Board decisions in which infer-
ences were drawn that employers would not have
hired certain employees had they known that the
employees had falsified their employment applica-
tions.7 The court remanded this case with the di-
rective that the Board order further backpay pro-
ceedings at which the Respondent is to be permit-
ted to present evidence that it would not have
hired Portales had he given a truthful employment
history on his application. In accordance with the
court's opinion, we shall leave to the compliance
7 W. Kelly Gregory, Inc., 207 NLRB 654 (1973); National Packing Co.,
147 NLRB 446 (1964), and Southern Airways Co., 124 NLRB 749 (1959).
Because we are remanding this case in accordance with the court's deci-
sion , we find it unnecessary to address in this decision the question of
whether these prior cases continue to have precedential value
stage the determination of whether the Respondent
would not have hired Portales had he been truthful
on his application.
ORDER
The National Labor Relations Board reaffirms
the Order contained in the Board's original deci-
sion in this case (278 NLRB 1255) and orders that
the Respondent, Fiber Glass Systems, Inc., San
Antonio, Texas, its officers, agents, successors, and
assigns, shall take the action set forth in that Order
to the extent that it has not already done so, unless
it is determined during a compliance proceeding
that Raul Portales is not entitled to any backpay.
Accordingly, we remand this case to the Regional
Director for Region 16 for further appropriate
action consistent with this Supplemental Decision
and Order.