Fort Lock Corp.

National Labor Relations Board - Board Decisions

Jan 15, 1975

216 N.L.R.B. 160 (N.L.R.B. 1975)

160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fort Lock Corporation and Local 44A , Service
Employees International Union, AFL-CIO-CLC.
Cases 13-CA-13034 and 13-RC-13232
January 15, 1975
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY ACTING CHAIRMAN FANNING AND
MEMBERS KENNEDY AND PENELLO
On September 26, 1974, Administrative Law Judge
John P. von Rohr issued the attached Decision in
this proceeding. Thereafter the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Fort Lock Corpora-
tion, River Grove , Illinois, its officers , agents,
successors , and assigns , shall take the action set forth
in the said recommended Order.
[Direction of Second Election and Excelsior
footnote omitted from publication.]
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing such findings.
2 No exceptions were filed to the Administrative Law Judge 's conclusion
that the General Counsel has not established that Respondent discriminated
against Socorro Cervantes.
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Administrative Law Judge: Upon a
charge filed on February 5, 1974 , the General Counsel of
the National Labor Relations Board , by the Regional
I Subsequent to the hearing, a brief on behalf of the Respondent was
submitted by Adams, Fox, Marcus & Adlstein, of Chicago, Illinois.
2 The answer on behalf of Respondent was filed by Attorney Michael J.
Rybicki, who was released by Respondent as its attorney prior to the
hearing. On August 26, 1974, I received a motion to strike or in the
alternative to reopen the record in this proceeding from Attorney Rybicki.
Director for Region 13 (Chicago , Illinois), issued a
complaint on April 30, 1974, against Fort Lock Corpora-
tion , herein called the Respondent or the Company,'
alleging that it had engaged in certain unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended , herein
called the Act. This case was consolidated 'with a
proceeding involving objections to conduct affecting the
results of an election (Case 13-RC-13232). The Respon-
dent filed an answer denying the allegations of unlawful
conduct alleged in the complaint.2
Pursuant to notice, a hearing was held before Adminis-
trative Law Judge John P. von Rohr in Chicago , Illinois,
on July 10 and 11 , 1974. Briefs were received from the
General Counsel and the Respondent on August 20, 1974,
and they have been carefully considered.
Upon the entire record in this case , and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Delaware corporation maintaining
a facility at River Grove, Illinois, where it is engaged in the
manufacture of locks . During the calendar year preceding
the hearing herein , Respondent received materials valued
in excess of $50,000 directly from suppliers located outside
the State of Illinois.
The Respondent concedes , and I find, that it is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 44A, Service Employees International Union,
AFL-CIO-CLC, herein called the Union, is a labor
organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Issues
The Union commenced an organizing campaign among
Respondent's production and maintenance employees in
September 1973. Following a representation petition filed
on November 6, 1973,3 an election was held on February 8,
1974. Losing the election by a vote of 52-10, the Union
filed objections to the election on February 15, 1974, said
objections subsequently being consolidated with the
complaint herein.
The complaint alleges that Respondent violated Section
8(aX3) of the Act by discharging employees Juanita Diaz,
Ismael Diaz, and Rosario Padilla on February 18, 1974,
and be refusing to recall Socorro Cervantes on or after
February 1, 1974 . It is also alleged that Respondent
The motion to strike refers to certain testimony by Respondent 's president,
Sidney Falk, concerning alleged legal advice he received from Attorney
Rybicki with reference to formation of an in -plant union . Inasmuch as I
have not relied on any of this testimony (tr. p. 167, 11.21-25) in making any
of the findings herein, I do not deem it necessary to pass on this motion.
3 Case 13-RC-13232.
216 NLRB No. 31
FORT LOCK CORPORATION 161
engaged in various other acts and conduct independently
violative of Section 8(axl) of the Act.
B. Interference, Restraint, and Coercion
As background to certain conversations and meetings
which were held between Sidney Falk, Respondent's
president and its sole owner , it is preliminarily noted that
copies of the following document , which bear the date of
August 31, 1973, and copies of which were made in
Spanish and English, were shortly thereafter distributed
among the employees: 4
SINCE THERE WERE PRIOR UNION ACTIVITIES. IT IS
SUGGESTED THAT AN INFORMAL UNION OF THE
EMPLOYEES SHOULD BE FORMED . TO WHICH NO ONE WILL
HAVE TO PAY DUES . IT WILL BE A COMMITTEE OF 6
PERSONS SELECTED BY THE EMPLOYEES OF THE COMPANY
TO REPRESENT THEM ALL.
THE COMMITTEE WILL BE ELECTED BY THE EMPLOYEES.
THIS COMMITTEE WILL MEET TWO TIMES A MONTH
TOGETHER WITH THE EMPLOYER AND SUPERVISORS OF
THE COMPANY . THE MEETINGS WILL BE ON THE FIRST AND
THIRD WEEKENDS OF EACH MONTH IN THE COMPANY
CAFETERIA . AT THESE MEETINGS ALL THE EMPLOYEES MAY
ATTEND WHO WISH TO DO SO. IN ORDER TO OPPOSE
EVERY KIND OF DEMAND OR COMPLAINT WHICH THEY
HAVE.
employees to vote against the Union and that he should tell
them "whatsoever I told you." 7
Employees Juanita Diaz and Socorro Cervantes testified
about a series of meetings which Falk held with the
employees in the company cafeteria during the months of
September , October, and November 1973. According to
their testimony, which I credit, at an October meeting Falk
told the employees that they were to choose six employees
to "represent" them. In this connection he stated that with
representation of this type they would not have to pay
dues, whereas they would be required to pay dues if they
selected an outside union. It was at a subsequent meeting,
according to Diaz , that Falk in fact selected the six
employees who were to act as the employees ' representa-
tive. In addition, Diaz and Cervantes credibly testified that
at the latter meeting Falk told the employees that he did
not want an outside union and that he would close the
plant if the Union came in.
Concerning any threat to sell the plant, Falk conceded
telling his "executive staff" that he would sell the plant if
the Union came in, but testified that "I didn't tell our
people that." However, his testimony in this regard was
rambling and confused , and also involved a conversation
with someone he identified only as "this man." Since this
testimony is revealing of Falk 's entire attitude towards the
unionization of his employees , I set it forth in his words as
follows:
THIS COMMITTEE SHOULD LAST 6 MONTHS TO BE RE-
ELECTED OR TO CHANGE THE REPRESENTATIVES.
Although the contents of the above message to the
employees, as well as other conversations related below,
reflect possible sponsorship by the Respondent of an
internal-type employee bargaining representative , it should
be made clear at the outset that there is no allegation in the
complaint that Respondent violated Section 8(axl) or (2)
of the Act by engaging in any such conduct5 Accordingly,
and although I do consider this evidence as relevant
background to the other allegations involved in this case,6 I
will make no such finding.
In or about the first week of October , President Falk
came up to employee Ismael Diaz and spoke to him about
the Union : He first asked Diaz which person or employee
brought the Union into the plant. Diaz responded that he
did not know . Falk then told Diaz that unions promise a
lot of things but that they do not always keep their
promises. He thereupon told Diaz that he would give him a
10-percent increase in salary if he voted against the Union,
concluding with the statement that he should ask the other
4 Although Falk raised some question as to the accuracy of the English
translation of the document received in evidence , an interpreter testified
that except for one word relating to a matter of tense , the English was an
accurate translation of the Spanish . In any event , Falk in effect conceded
that a document of substantially similar content was prepared and
distributed among the employees , for he testified , "I wrote the thing in
English and the translation is in Spanish ." While the record does not reflect
the precise date on which the documents were distributed , at least one
employee , Rosario Padilla , tgstified that it first came to his attention in
September.
5 In his brief the General Counsel asserts that Sec. 10 (b) precluded him
This man was on his own . He said the excitement was
too damn much for him and he walked away from it.
There were statements made . I said I was going to sell
the factory . . . . Some of my key personnel , men who
have been with me 15 years or more , men who have
large families who have responsible jobs, men who have
something to do with the union couldn't cope with this.
They said, "Boss, what's going to happen if the union
gets in." I said, "I'm 67 years old. This rate raise is
going along . I'm tired . If I can't run this thing my way,
I will try to sell it." That's what I told him. If this thing
had occurred and I had to sell it . I would have sold it
.... If the union, if we had lost the election , I would
have made an attempt to sell this thing , but I didn't tell
our people that.
A Christmas party was held at Respondent 's plant on or
about December 22, 1973. At this meeting Falk again
spoke in favor of an inside union and against an outside
union and again stated that he would close the plant if the
Union came in -8 During this meeting he further stated that
from alleging this conduct to be violative of the Act. Although this would be
true as of the date of the document (August 31, 1973), I do note that the
action therein proposed appears to have continued within the 10(b) period.
8 This is particularly true since reference to the formation of an
"informal union" was included in conversations which Falk had with
employees at times and concerning matters material hereto.
7 Diaz testified, and Falk denied, that during this conversation Falk
referred to the Union with a four-letter word . However, Falk did not deny
the main portion of this conversation , as related above. The alleged use of
the four-letter word is not a material issue and need not be decided.
8 Credited testimony of Rosario Padilla and Orge Magna.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he would give the employees a wage increase if they did
not select an outside union.9
Employee Jose Lemon credibly testified concerning a
conversation which he had with Falk a day or two before
the election. He testified that Falk came up to him at this
time and stated, inter alia, that if the Union got in he would
have to cut out night work, overtime, and "people, too."
Juanita Diaz, who acted as election observer for the
Union at the February 8, 1974, election, testified that on
the morning of the of the election Falk handed her a paper,
whereupon he stated, "I know you are in favor of the
union." She said that when he replied, "You don't know
that," Falk stated, "Yes, I know you are in favor of the
union." Concerning the paper which Falk gave her, Diaz
testified that it stated, "I will give you a picnic the 4th of
July. You can take all of your relatives with you. I will give
you a bonus and you will vote `No' for the outside union;
the union from the outside will give you three or four days
of work a week." 10 Diaz testified that on this morning she
also observed Oose Hyland, vice president of the Respon-
dent, and Don Fidel, a former foreman of the Respondent,
distributing papers to the employees. Concerning all of the
foregoing, Falk testified only that Fidel was not at the
plant on election day, and further that "we were told and
instructed that there would be no election activities on that
day; and, during certain hours we abided by that
decision." Falk did not otherwise deny the testimony of
Diaz concerning the conversation which she had with him
on the morning of February 8 and the paper which he
handed her at that time. I credit the testimony of Diaz as
set forth above.1'
In sum, and upon all the foregoing, I find that
Respondent violated Section 8(axl) of the Act by the
conduct of its president in threatening to close the plant if
the Union came in, threatening to eliminate overtime and
night work' if the Union came in, and promising to grant
the employees an increase in wages and other benefits if
they did not select the Union as the bargaining representa-
tive, and by interrogating employees concerning their
union activities and sympathies and the union activities
and sympathies of other employees.
C. The Termination of Juanita Diaz, Ismael Diaz,
and Rosario Padilla
1. The General Counsel's case
It is undisputed that on February 12, 1974, agents of the
U.S. Immigration Service came to the plant , showed Falk a
copy of the Excelsior list,12 and seized approximately 50
percent of Respondent 's 80 production employees alleged-
ly because they had entered the country unlawfully. Falk
9 Credited on substantially corroborative testimony of Rosario Padilla
and Juanita Diaz.
10 Diaz testified that Falk took the paper from her after she had tead it.
1 1 Oose Hyland did not testify although she was present at the hearing.
12 The record reflects that the fist, which Respondent and General
Counsel refer to in their brief as the so-called Excelsior list, was a duplicate
of the list of employees which Respondent had furnished to the Board and
to the Union prior to the representation election.
13 Diaz testified that during this conversation Falk also made the
statement, "You don't feel ashamed to be working in my place after being in
favor of the union ." Whatever construction the General Counsel or
Respondent would give to this remark , I find the remark to be ambiguous.
testified that, when he asked the agent in charge where he
obtained the list, the agent replied that he could not tell
him, but that "usually this stuff comes from the union."
It will be recalled that Juanita Diaz acted as the umon
observer at the election held on February 8. This employee
testified without contradiction that, on February 12, Falk
came up to her, stated that she was for the Union, and
thereupon accused her of having called the U.S. Immigra-
tion Service. He further told her, she testified, that, if she
wanted the Union, she should "go with the 'union." 13
According to the further uncontradicted testimony of
Juanita Diaz, Falk came up to her again on the morning of
February 14 and at this time spoke to her as follows: "Stop
working, you brought to me a lot of problems, you call to
the Immigration and besides that I am telling you, you are
telling it to the union and beside that all the women from
this place are mad at you because you are not representing
them in the union." It appears that Diaz in fact did not
stop working at this time, but Falk came up to her again at
or about 11:30 a.m. This time, according to her undenied
testimony, Falk told her that he did not want her working
at his plant and that she should wait for her check. She
thereupon left the plant.14 Upon arriving home she
apprized her husband, Ismael Diaz, of what had happened.
Ismael Diaz, also an employee of Respondent, was at this
time off work due to an injury incurred at the plant. Upon
being so advised, Mr. Diaz promptly called the plant and
spoke to Jesse Godinas, the general foreman, and asked
why his wife had been laid off. According to the unrefuted
testimony of Diaz, Godinas responded that she had been
laid off because she had brought "too many problems to
the factory," and "because she was sitting at the table
when the union was there" and because "all the women in
the factory were mad at her." Diaz rejoined that his wife
was "innocent ," but that it was Rosario Padilla, a machine
operator, who had brought the Union to his home.
Godinas thereupon told Diaz that his wife could have her
job back "if you can prove before Mr. Falk that your wife
[is ] innocent." Godinas also advised that they should come
to the plant the following Monday if they wished to prove
that point.
Mr. and Mrs. Diaz came to the plant early Monday
morning, February 18. Juanita Diaz first went to the
timeclock and observed that her card was missing. Not
long thereafter she and Mr. Diaz were summoned to the
vestibule of Falk's office . Rosario Padilla and an employee
who acted as interpreter were also summoned there.
Through the interpreter, Falk thereupon held a meeting
with Juanita Diaz, Ismael Diaz, and Rosario Padilla. Each
of these employees testified as to the conversation which
ensued. While not in strict accord in every detail, in its
In this regard it is noteworthy that all the employee witnesses testified in
Spanish and that their testimony was translated into English by an
interpreter . I shall not speculate whether the ambiguity was due to the
manner of speech of the witness , whether it was due to possible error of the
interpreter or the court reporter, or whether in fact it was an exact quotation
of what was said.
14 Falk testified that on February 14 he told all the remaining employees
to go home . Apparently they did so, since Falk also testified without
contradiction that the plant from this time was closed until February 18.
However, Falk did not deny the individual conversation with Juanita Diaz,
as related above.
FORT LOCK CORPORATION 163
entirety, however, their testimony was substantially corro-
borative. Their version of what transpired may be
synthesized as follows: Falk first brought up the raid which
had occurred the preceding week, asking those present if
they did not feel sorry for the employees who had been
taken away in handcuffs . He mentioned that he had paid a
certain sum of money "from each person from Mexico."
He then stated that he was afraid of three employees,
naming each of them ; Ismael Diaz , Juanita Diaz, and
Rosario Padilla, because they had brought too many
problems to the plant and because they had called
Immigration. At or about this point he asked Padilla if he
"had brought the union" to Juanita and Ismael Diaz.
Padilla responded in the affirmative , adding that he and
another employee (Charo) had brought the Diazes' cards
to be signed. Padilla denied, however, that he had called
Immigration . Falk thereupon told the three employees that
he was laying them off for about 2 weeks or a month and
that after that he would call them back. Falk concluded by
stating that he did not want a union in the plant and that if
they wanted a union they should go find a place with a
union.
It is undisputed that Respondent did not at any time
thereafter call the three employees and ask them to return
to work. They have not since worked for the Company.
2. Respondent's defense ; conclusions as to the
discriminatees
The essence of Respondent 's defense , according to Falk,
is as follows: He (Falk) received reports to the effect that
some of his employees were under the belief that the Union
was responsible for calling Immigration and bringing
about the raid . These reports further had it, he said, that
these employees threatened to take bodily harm against
Mr. and Mrs. Diaz and Padilla because they were the
persons whom these employees believed to be "associated
most closely with the union." Accordingly, Falk asserted, it
was for their own protection that he decided to lay off the
three alleged discriminatees for 2 weeks or a month until
the situation quieted down , after ' which time they were to
call him to see about returning to work . Concerning the
conversation which he had with the Diazes and Padilla on
the morning of February 18, Falk simply testified as
follows:
I called them all in and I said to them, there's so much
excitement around here and there's threats now to your
person . I have actually had people threaten if they got
ahold of you, they would beat the daylights out of
you. "
I said ... "Why don't we do this, you take a two-
weeks leave of absence ; and, if its quiet after two
weeks, then fine, you can come back to work . If not,
then you might have to stay out as long as a month, but
get in touch with me and I 'll let you know what the
situation is."
Tutning to my conclusions , upon the entire record I am
convinced and find that the three employees whose cases
are at issue were terminated from their employment for
reasons proscribed by the Act. There are a number of
reasons for my so finding, including, in the first place, the
fact that Respondent's defense does not stand up under
scrutiny. Thus, bearing in mind that the ultimate basis
asserted by Falk for "laying off" these employees was
predicated upon reports he had received from other
persons , Falk testified on the first day of the 2-day hearing
that these reports "came to me from not one or two but a
half dozen people in the factory." When he was thereupon
asked to identify these individuals, Falk responded, "I can
produce them, sir. I don't recall their names. I'm very bad
on names ." The fact is, however, that Respondent failed to
produce any employees to testify on this important point.
The only testimony bearing on this subject at all was
adduced through Jesse Godinas, the general foreman, who
was called by Respondent on the second day; and as for
Godinas, he was only able to testify concerning a
conversation which he had with a nonemployee, one Sonja
Jacome, who was the wife of another Respondent foreman.
According to Godinas, Jacome came to the plant one day
shortly after the raid to pick up some checks and at this
time told him, "You know the people are very angry and
are looking for the persons that cause this . They want to
give them a lesson." When asked if Jacome named the
persons who "the people" were looking for, Godinas
responded that she named Ismael Diaz and Rosario
Padilla. He did not say that she also named Juanita Diaz.
Although Godinas testified that he reported the foregoing
conversation to Falk, this was the entire extent of the
evidence adduced by Respondent as providing the asserted
basis for Falk's actions on February 18. Assuming that
Godinas did report this matter to Falk, this hearsay
information would hardly seem a sufficient basis for
justifying Falk's action in kind. In any event, however, the
evidence in this case leaves little doubt but that the reason
advanced by Respondent for the terminations (i.e., the
alleged threats) was at best but a pretext for discrimination.
For the reasons below , I so find.
To briefly recapitulate, it has been previously noted that
Respondent was extremely hostile to the unionization of its
employees. As the only observer on behalf of the Union at
the representation election , it is obvious that Respondent
knew Juanita Diaz to be a leading union supporter. Indeed,
at the hearing Falk went so far as to say that he "resented
the fact" that Juanita Diaz exercised her legitimate right in
challenging several of the voters at the election. Moreover,
that he also resented the fact that she was a union
supporter is clearly evidenced by the fact that a few days
after the election he told her that "if she wanted the union,
she should go with the union." Two days later she was sent
home because, according to the reasons given her by Falk,
she had caused "a lot of problems" and because she had
called Immigration. Significantly, when Mrs. Diaz' hus-
band called the plant later that day and spoke to Foreman
Godinas, Godinas told him that she was laid off because
she had brought too many problems to the factory and
because she was "sitting at the table when the union was
there," the latter remark an obvious reference to her having
acted as the union election observer. Furthermore, when
Mr. Diaz protested that his wife was innocent , but that
Padilla had brought the Union to them, Godinas stated
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that she could have her job, back if he could prove to Falk
that his wife was innocent . From the foregoing , it would
indeed appear that Mrs. Diaz was unlawfully terminated
on February 14 because she was a union supporter. But to
continue , and adding to the plausibility of the testimony of
the alleged discriminatees , it is noteworthy that Padilla was
not brought into the picture until after Mr . Diaz told the
general foreman that it was Padilla who had brought the
Union to him and his wife . Thus, when Padilla was
summoned to appear before Falk along with Mr. and Mrs.
Diaz on the morning of February 18, Falk asked Padilla if
he in fact had brought the Union to the Diaz's just as Mr.
Diaz had informed Foreman Godinas on the previous
Friday. It was then , upon Padilla 's affirmative response to
the question , that all three of the employees were
terminated . Any remaining doubt as to the real reason for
this action is dispelled by Falk's final statement to these
employees , and one which clearly speaks for itself , that he
did not want a union in the plant, but if they wanted a
union they should go find a place that had one.
In finding that Diaz and Padilla were terminated because
they were union supporters , as I do, I am mindful that Falk
and Refugio Gonzales, the individual who acted as
interpreter on February 18, testified that the discriminatees
were advised to call back after 2 or 4 weeks to see if the
situation had calmed down sufficiently for them to return
to work . However, the three discriminatees , and each of
them , testified that Falk promised to call them . From my
observation of the witnesses , I credit the testimony of the
discriminatees on this point .15 Indeed, upon the entire
record in this case , I am persuaded that Falk had no
intention whatsoever of recalling these employees after he
let them go on February 18, 1974. Except for the further
factual situation with regard to Ismael Diaz, which I note
immediately below , I conclude and find that these
employees were effectively discharged as of that date.
It will be recalled that Ismael Diaz was off work due to
an injury at the time he brought his wife to the plant on
February 18. He was , nevertheless, summoned by Falk to
the above-described meeting which was held in the
vestibule of Falk's office . Aside from the fact that Ismael's
wife was known by Respondent to be a union supporter,
Falk testified that, in the month or two preceding February
18, he observed that Ismael was "very active" in driving
back and forth from the plant and that he therefore "really
thought he [Ismael ] was under the employ of the union."
Inasmuch as Ismael Diaz was known or suspected by Falk
to be a union adherent , and inasmuch as he was fully
included in the discussion held on February 18 (at which
time he was still an employee , albeit on a leave of absence),
it is clear that Falk 's entire remarks were also applicable to
him and that , in the context of the entire discussion, he was
also terminated at that time.16
In sum, upon the totality of the evidence and for the
reasons described above , I conclude and find that Juanita
Diaz, Ismael Diaz, and Rosario Padilla were terminated by
15 With respect to Gonzales , the record clearly reveals that he did not
have a reliable memory of the February 18 discussion wherein he acted as
interpreter . Thus, whereas it is undisputed between all the parties , including
the Respondent , that Padilla was present, Gonzales testified that only Mr.
and Mrs . Diaz were present
16 However, and as noted in In . 19, infra, any backpay owing Diaz shall
Respondent in violation of Section 8(a)(1) and (3) of the
Act.
D. Alleged Discrimination against Socorro Cervantes
Socorro Cervantes is the wife of Rosario Padilla. The
complaint alleges that on or about February 1, 1974, and
thereafter , Respondent discriminatorily refused to recall
her because she was Padilla 's wife.
Cervantes worked for Respondent from September 1972
until November 8, 1973. It is undisputed that on the latter
date Cervantes quit her job to go to California. It is also
undisputed that she did so without giving Respondent any
advance notice and without giving any indication that she
ever intended to return to her job . She simply sent a note to
her foreman stating that he should "please send my check
to California because I [am] going to California." 17
Cervantes returned from California on or about January
28, 1974. At no time thereafter did she personally apply for
a position with Respondent. However, her husband,
Padilla, testified that immediately after she returned from
vacation he asked Foreman Godinas that she be returned
to her job. According to Padilla, the foreman told him he
should wait a week . Padilla testified that on several
subsequent occasions he repeated this inquiry , but that
each time the foreman told him to wait . Finally, Padilla
testified, the foreman advised him that he was sorry that he
could not give her a job.
In addition to the foregoing, the General Counsel called
Marie Escovar, the sister of Rosario Padilla . Escovar
worked for Respondent from May 1973 to October 1973,
at which time she left by reason of pregnancy. Escovar
testified that she telephoned Godinas in April 1974 to see
about returning to work. According to Escovar, Godinas
responded , "You are losing your time because I am not
giving more work for the family of Rosario ." Concerning
this conversation , she later testified that Padilla added to
the foregoing statement "because your brother is giving me
problems."
Notwithstanding that the above testimony does raise
some suspicion as to Cervantes ' case, I am persuaded that
the General Counsel has not established by a preponder-
ance of the evidence that Respondent discriminated
against Cervantes in violation of Section 8(a)(3) of the
Act.ts There is no evidence that Cervantes was at all active
in the Union or that she had even signed a union card.
More importantly, and with particular regard to the
General Counsel's theory of the case, it will be recalled that
Respondent did not learn of Rosario Padilla's union
activities until being so apprized by Ismael Diaz on
February 14. With respect to the times that Padilla
requested Foreman Godinas to put his wife back to work,
Padilla 's testimony was uncertain . Except for his testimony
that he first spoke to Godinas on this subject "immediate-
ly" after his wife returned from California, he did not
pinpoint or identify any of the subsequent occasions when
not commence until he was released by his doctor for resumption of work
17 Testimony of Cervantes.
18 In view of the General Counsel's apparent reliance on the testimony
of Mane Escovar, one might speculate why she was not also named in the
General Counsel 's complaint.
FORT LOCK CORPORATION 165
he repeated this request . In short , the General Counsel did
not establish that Padilla requested , and that Respondent
refused , to hire (or rehire) Socorro Cervantes at any time
on or after February 14, the earliest date of any proven
company knowledge . Any inference of discrimination
against Cervantes that may be drawn from the testimony
of Escovar is negated by the equally arguable inference
that Respondent refused to hire Cervantes immediately
upon her return from California because she quit her job
without notice and therefore was not a reliable employee.
Indeed , Falk testified that this was the second time that
Cervantes had walked off the job and it was for this reason
that the foreman did not rehire her again . Accordingly, in
view of all the foregoing , it is recommended that the
allegation as to Cervantes be dismissed.
E. The Objections
The Union offered no evidence in support of its
objections 1, 5, and 7. These objections are, therefore,
overruled.
Objections 2 and 3 parallel the 8(axl) violations which I
have previously found with respect to unlawful promises of
benefits . These objections are, accordingly, sustained.
Objection 4 parallels the 8(aX3) violations previously
found . It is therefore sustained.
Having found that objections 2, 3, and 4 have been
sustained , it is recommended that the election held on
February 8, 1974 , be set aside and that a new election be
held at such time as the Regional Director deems
appropriate.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
discharge to the date of Respondent's offer of reinstate-
ment . Backpay shall be computed in accordance with the
formula in F. W. Woolworth, 90 NLRB 289 (1950), with
interest thereon computed in the manner and amount
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).19
In view of the nature and extent of the unfair labor
practices herein found, it will be recommended that
Respondent be ordered to cease and desist from in any
manner infringing upon the rights guaranteed employees in
Section 7 of the Act.
CONCLUSIONS OF LAW
1. The 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
meaning of Section 2(5) of the Act.
3. By discharging Juanita Diaz , Ismael Diaz, and
Rosario Padilla, for the purpose of discouraging member-
ship in a labor organization, Respondent violated Section
8(a)(3) and (1) of the Act.
4. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed by Section 7
of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Respondent has not violated the Act by not rehiring
Socorro Cervantes.
Upon the basis of the foregoing findings of fact,
conclusions of law, and upon the entire record in this case
and pursuant to Section 10(c) of the Act, I hereby make the
following recommended:
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above , have a close,
intimate , and substantial relationship to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that Respondent discharged
Juanita Diaz, Ismael Diaz, and Rosario Padilla, I shall
recommend that Respondent be ordered to offer them full
and immediate reinstatement to their former positions, or,
if these positions no longer exist , to substantially equiva-
lent positions without prejudice to their seniority and other
rights and privileges, and to make them whole for any loss
of earnings they may have suffered from the date of their
i9 Ismael Diaz was released by his doctor for his previously noted injury
on March 4, 1974. He called Foreman Godinas on March 5, 1974, to see
about returning to his job but at that time was advised that no position was
available for him . Accordingly, and although I have found that this
employee was unlawfully terminated on February 18, 1974, any backpay
owing him shall not commence until March 5, 1974.
ORDER20
Respondent, Fort Lock Corporation, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf of
Local 44A, Service Employees International Union,
AFL-CIO-CLC, or in any other labor organization, by
discharging employees, or otherwise discriminating against
them in any manner, in regard to their hire or tenure of
employment or any term or condition of employment
because of their union activity.
(b) Interrogating employees about union activities or
sympathies or the union activities or sympathies of any
other employee.
(c) Threatening to close its plant or to eliminate overtime
and night work if the above-named Union or any other
labor organization succeeds in organizing its employees.
(d) Promising its employees wage increases or other
benefits during an organization campaign in order to
adduce them to abandon the Union.
20 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other
concerted activities for the purposes of collective bargain-
ing or any other mutual aid or protection, or to refrain
from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Juanita Diaz, Ismael Diaz, and Rosario
Padilla immediate and full reinstatement to their former
positions, or, if these positions no longer exist, to
substantially equivalent positions without prejudice to their
seniority or other rights and privileges and make them
whole for any loss of pay they may have suffered as a result
of the discrimination against them in the manner set forth
in the section of this Decision entitled "The Remedy."
(b) Preserve and make available to the Board or its
agents for examination and copying, upon request, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary or appropriate to analyze the amount of backpay
due.
(c) Post at its plant in River Grove, Illinois, copies of the
attached notice marked "Appendix" 21 Copies of said
notice, on forms provided by the Regional Director for
Region 13, after being duly signed by Respondent's
authorized representative, shall be posted of the attached
notice marked "Appendix." 21 Copies of said notice, by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that (1) the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein; and (2) that the election be held
at such time as the Regional Director deems appropriate.
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States - Government
WE WILL NOT unlawfully interrogate our employees
with respect to their union activities or sympathies or
with respect to the union activities or sympathies of
other employees.
WE WILL NOT threaten to close our plant or to
eliminate overtime and night work if the employees
select Local 44A, Service Employees International
Union , AFL-CIO-CLC, or any other labor organiza-
tion, as their bargaining representative.
WE WILL NOT promise to grant our employees wage
increases, bonuses, or any other economic benefits for
the purpose of influencing them to abandon their union
activities.
WE WILL NOT discharge , lay off, or otherwise
discriminate against our employees because of their
union activities.
WE WILL offer Juanita Diaz, Ismael Diaz, and
Rosario Padilla immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent jobs, without prejudice to their
seniority or other rights and privileges , and we will
make them whole for any loss of earnings they may
have suffered because of our discrimination against
them.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights to self-organization, to form, join , or assist other
labor organizations , to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
and all such activities.
21 In the event the Board 's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by FORT LOCK CORPORATION