Gary Aircaft Corp.

National Labor Relations Board - Board Decisions

May 12, 1971

190 N.L.R.B. 306 (N.L.R.B. 1971)

306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gary Aircraft Corporation and International Brother-
hood of Operative Potters, AFL-CIO-CLC. Cases
23-CA-3591, 23-CA-3660, 23-CA-3671, and 23-
RC-3399
May 12, 1971
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On December 8, 1970, Trial Examiner Harry H.
Kuskin issued his Decision in the above-entitled pro-
ceeding, finding that Respondent had engaged in and
was engaging in unfair labor practices within the mean-
ing of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom
and take certain affirmative action, and also recom-
mending that the representation election held on April
3, 1970, in Case 23-RC-3399, be set aside and a new
election held, all as set forth in the attached Trial Ex-
aminer's Decision. The Trial Examiner further found
that Respondent had not engaged in certain other un-
fair labor practices alleged in the complaint, and
recommended that those allegations be dismissed.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, the brief, and the
entire record in these cases, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, except as mddified herein.
1. We do not agree with the Trial Examiner's finding
that Respondent violated Section 8(a)(1) of the Act by
President A. W. Stewart's soliciting employee Riso to
tell other and less senior employees to vote against the
Union. In our opinion Stewart's request, unaccom-
panied by either a threat or promise of benefit, was not
unlawful.'
2. We agree with the Trial Examiner that Respond-
ent violated Section 8(a)(1) of the Act by granting its
employees an attendance bonus plan and an increase in
the night shift differential. However, we do not adopt
the Trial Examiner's further finding that "by thereafter
withdrawing them," when it realized the implications
of its conduct Respondent again violated Section
8(a)(1) of the Act. The withdrawal was made on the
advice of Respondent's attorney to place the employees
in status quo ante.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Gary Air-
craft Corporation, Hondo, Texas, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order as herein
modified:
1. Delete paragraphs 1(b) and (e) from the Recom-
mended Order and reletter the remaining paragraphs
accordingly.
2. Insert the word "immediately" before the words
"Notify" and "Guadalupe" in paragraph 2(c) of the
Trial Examiner's Recommended Order.
3. Substitute the attached Appendix for the Trial
Examiner's Appendix.
IT IS FURTHER ORDERED that the election held on
April 3, 1970, be, and it hereby is, set aside.
[Direction of Second Election3 omitted from publica-
tion.]
' In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
dresses which may be used to communicate with them . Excelsior Underwear
Inc., 156 NLRB 1236; N.L.R.B. v. Wyman -Gordon Co., 394 U. S. 759.
Accordingly , it is hereby directed that an election eligibility list, containing
the names and addresses of all the eligible voters , must be filed by the
Employer with the Regional Director for Region 23 within 7 days after the
date of issuance of the Notice of Second Election by the Regional Director.
The Regional Director shall make the list available to all parties to the
election. No extension of time to file this list shall be granted by the Regional
Director except in extraordinary circumstances . Failure to comply with this
requirement shall be grounds for setting aside the election whenever proper
objections are filed.
APPENDIX
' The Respondent has excepted to certain credibility findings made by
the Trial Examiner. It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear prepon-
derance of all the relevant evidence convinces us that the resolutions are
incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d
362 (C.A. 3). We find no such basis for disturbing the Trial Examiner's
credibility findings herein.
' Member Jenkins agrees with the Trial Examiner that in the circum-
stances the Respondent's conduct involved herein was violative of Section
8(a)(1) of the Act.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT engage in surveillance of the un-
ion activities of our employees by attending their
union meetings.
190 NLRB No. 61
GARY AIRCRAFT CORPORATION
WE WILL NOT impliedly threaten our em-
ployees with plant removal or closing down and
terminating operations , if the Union prevailed in
an upcoming election.
WE WILL NOT grant benefits to our employees
during an organizational campaign in order to in-
duce them to abandon the Union.
WE WILL NOT discourage membership in the
Union , or any other labor organization of our em-
ployees , by discharging or otherwise discriminat-
ing against our employees in regard to hire, tenure,
or any other condition of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of their right to join or assist a union, to
bargain collectively through representatives of
their choosing , and 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.
WE WILL offer Guadalupe R. Canales immedi-
ate and full reinstatement to his former job, or, if
that job no longer exists , to a substantially equiva-
lent position , without prejudice to his seniority or
other rights, privileges , or working conditions, and
make him whole for any loss of earnings he may
have suffered as a result of the discrimination
against him.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of Inter-
national Brotherhood of Operative Potters, AFL-
CIO-CLC, or any other labor organization.
GARY AIRCRAFT
CORPORATION
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above -named in-
dividual, if presently serving in the Armed Forces of
the United States , of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office , Dallas-Brazos Building , Fourth Floor, 1125
Brazos Street, Houston, Texas 77002, Telephone 713-
226-4296.
307
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY H. KUSKIN, Trial Examiner : This case was heard
at San Antonio , Texas, from September 9 through September
12, 1970. It had its genesis in the efforts of the International
Brotherhood of Operative Potters, AFL-CIO-CLC, herein
called the Union or Union-Petitioner, to become the exclusive
bargaining representative of employees of Gary Aircraft Cor-
poration , herein called Respondent or Respondent-
Employer . The representation proceeding in Case 23-RC-
3399 was initiated by a petition filed by the Union -Petitioner
on February 2, 1970, for an election in a unit of Respondent-
Employer 's production and maintenance employees; it was
followed first by a Stipulation for Certification Upon Consent
Election entered into by Respondent -Employer and the Un-
ion-Petitioner and approved by the Regional Director for
Region 23 of the Board , and then by an election on April 3,
1970, which the Union -Petitioner lost by a vote of 120 to 102,'
and to which it filed timely objections . The complaint in Case
23-CA-3591, which was amended during the hearing , issued
on June 18 , 1970, and was consolidated with Case 23-RC-
3399; the consolidated complaint in Cases 23-CA-3660 and
3671, which was also amended during the hearing , issued on
August 12 , 1970, and was simultaneously therewith con-
solidated further with Cases 23-CA-3591 and 23-RC-3399.
The complaint in Case 23-CA-3591 is based on a charge filed
on June 8 , 1970; the part of the consolidated complaint relat-
ing to Case 23-CA-3660 is based on a charge filed on June
17, 1970; and the part of that complaint relating to Case
23-CA-3671 is based on a charge and an amended charge
filed on June 17 and August 12 , 1970, respectively . The ques-
tions presented are (1) whether the election should be set
aside because of conduct affecting the results of the election;
(2) whether Respondent , in violation of Section 8(a)(1) of the
Act, interfered with, restrained , and coerced employees in the
exercise of their Section 7 rights; and (3) whether Respond-
ent, in violation of Section 8(a)(3) and (1) of the Act, dis-
criminatorily discharged employees Guadalupe R. Canales
and Jesse Carmona on March 13 and June 4, 1970, respec-
tively, for union-connected reasons.' Respondent denies that
it has engaged in any of the unfair labor practices alleged
herein.
Upon the entire record , including my observation of the
witnesses , including their demeanor while on the witness
stand , and after due consideration of the briefs of the General
Counsel and Respondent, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
The amended complaints allege, and Respondent admits,
that it is a Texas corporation engaged in manufacturing,
buying, selling , exchanging , overhauling, repairing , and leas-
ing aircraft and their component parts; that it operates a
facility at Hondo, Texas, which is the only facility involved
herein , where it is engaged in the repair of ground support
engines and that during the past 12 months, which is a repre-
sentative period, goods and materials purchased by it and
' There was one challenged ballot which could not affect the results of the
election
' At the hearing , I granted the motion of the General Counsel to with-
draw the Section 8(a)(5) allegations appearing in the consolidated complaint
in Cases 23-CA-3660 and 3671 I also granted his motion to withdraw
paragraphs 7(e), (f), and (g) of the complaint in Case 23-CA-3591, it ap-
pearing that the allegations in these paragraphs are encompassed in para-
graphs 7(b), (c), and (e) of the above consolidated complaint
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
valued in excess of $50,000 were shipped directly to its
Hondo, Texas, facility from points outside Texas. I find upon
the foregoing, as Respondent also admits, that Respondent is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that International Brother-
hood of Operative Potters, AFL-CIO-CLC, is a labor organ-
ization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Some Background Facts; The Sequence of Events; The
Issues Herein
The Union made an attempt at organizing Respondent's
employees at its Hondo, Texas, facility during 1968 but was
unsuccessful; it lost the Board election held in that connec-
tion in November 1968. The Union's next campaign at this
facility began about a year late;, in December 1969. At that
time, Fidel Sanchez, an international representative and or-
ganizer for the Union, approached some employees, with
whom he had had contact during the prior campaign, about
helping in this new organizational effort. Among those who
agreed to help were employees Carmona and Canales. There-
after each of them got employees to sign union authorization
cards. Carmona and Canales also served with other em-
ployees, whom they helped select, as committeemen on an
in-plant organizing committee. In addition to the committee
meetings held during the campaign, the Union called three
general meetings of plant employees which were held in Janu-
ary, February, and March, 1970, respectively, at the West
End Club in Hondo, Texas, about 1-1/2 miles from the
Hondo plant, and each meeting was preceded by the distribu-
tion of handbills in front of the plant announcing the event.
At the January meeting, Canales was the only employee,
among the approximately 135 employees in attendance, who
sat on the rostrum along with Union Organizer Sanchez and
other union officials. Among those attending the February
meeting was Foreman Frank Gomez, an admitted super-
visory employee.'
It is apparent from the testimony of Assistant General
Manager Charles E. Hutcheson, an admitted supervisor, that
Respondent became aware in short order of the fact that the
Union was making another attempt at organizing the Hondo
plant. He acknowledged that he had discussions concerning
the union activity in the plant with Arturo Barrientes, a
leadman and also an admitted supervisor, starting in Decem-
ber 1969 and until shortly before the latter's discharge on
February 6, 1970.1 More specifically, he testified that, "I
would say maybe seven or eight times he dropped by my office
. he would come to me and say he would like to tell me
how things are going in the plant, that maybe there were guys
agitating over on the assembly line or in the cylinder line,
things like that. Some guys, he said, he knew were passing out
cards in the plant."5 Also according to Hutcheson, he neither
asked for, nor did Barrientes mention, the names of em-
ployees engaging in the prounion activity being reported to
him. Contrary to the above, Barrientes testified that, during
one such conversation, Hutcheson inquired about how the
Union was doing, was it "coming strong or was it weak or
what?", that he then told Hutcheson that "he better watch
' The record fails to disclose whether or not Gomez was handbilled prior
to that meeting.
All dates hereinafter are in 1970, unless otherwise indicated.
On one such occasion, according to Hutcheson, Barrientes told him,
speaking in the context of the Union, that "he [Barrientes] was pretty sure
there was a couple of bad apples in the sheet metal shop."
Canales", and that Hutcheson responded, in turn, "I know.
We know that already." It was also Barrientes' testimony that
Hutcheson "was always on [his] back" to give him, Hutche-
son, information about the Union. Although Barrientes' tes-
timony was somewhat confused at times, and although his
prehearing affidavit to a Board agent, in evidence as General
Counsel's Exhibit 2, admittedly omits many of the details to
which he testified as a witness for the General Counsel, I am
satisfied from all the foregoing, and particularly from Hutch-
eson's apparent receptivity to the information which Bar-
rientes admittedly brought to him on these seven or eight
occasions, that Hutcheson did, as Barrientes testified and also
stated in the above prehearing affidavit, ask Barrientes to
obtain such information and that Barrientes told Hutcheson,
during one of these meetings, that he, Hutcheson, better
watch Canales. I therefore credit Barrientes in this regard.
As already found, on February 2, the Union filed its peti-
tion for an election in a unit of Respondent's production and
maintenance employees at the Hondo plant. On the same day,
Respondent received a letter from the Union demanding
recognition as the bargaining representative of these em-
ployees. Thereafter, at about 3 p.m. of the same day, Robert
S. Bambace, Esquire, who is also of counsel to Respondent
herein, appeared at the plant. He read the Union's letter and
suggested that a meeting be convened of all supervisors. At
the ensuing meeting, according to Bambace, the following
occurred: He inquired as to whether all those assembled had
a copy of the Company's "do's and don'ts,"6 and the two
individuals who answered in the negative were furnished with
copies. He also reminded the assemblage of the contents of
the "do's and don'ts" in general terms, telling them to re-
member three principles in relation thereto, namely, to make
no promises, to make no threats, and always to tell the truth.
He then proceeded to ask them questions, such as, whether
supervisors were privileged (1) to engage in surveillance, (2)
to go to a union meeting, or (3) to ask employees whether or
not they had signed cards-the purpose of these questions
being to test them to see whether they got the message. In
addition, he told them that, if they saw employees passing out
union leaflets or wearing union buttons, they were to ignore
the leaflets and buttons, as the employees were to be judged
on whether they were good or bad workers. Barrientes also
testified with respect to this meeting. While he testified that
Bambace (1) told the assemblage, inter alia, that it was "up
to the leadmen to keep the Union out of the plant by telling
the employees that a union wasn 't going to help them any"
and (2) mentioned the last election at which 68 employees
voted for the Union and added that he wanted the leadmen
"to go out and find out who those persons were". He also
testified that Bambace told the leadmen "to go out and tell
the people what ... they thought about a union, if it was
good, bad or whatever it was" and he corroborated Bambace
on the fact that he tested the leadmen by questions to ascer-
tain whether they understood the Company's "do's and
don'ts." In view of all the foregoing, and the probabilities of
the situation, as well as Bambace's denial that he asked the
leadmen and supervisors to ascertain from those who had
voted for the Union in the last election why they had done
so, and his further denial that he told the leadmen and super-
visors that they should interrogate employees about their
intent as to voting for the Union in the next election, and also
in light of the fact that Bambace impressed me as a more
reliable witness than Barrientes, I credit Bambace's version
' This document is in evidence as G. C. Exh. 13. It was distributed to
Respondent's supervisors and leadmen about 3 years before the instant
hearing.
GARY AIRCRAFT CORPORATION 309
and find that the content of the meeting was as testified to by
him.'
The record shows, and Respondent admits, that after the
above talk by Bambace, Barrientes interrogated Respondent's
employees. Respondent- concedes that the interrogation was
unlawful but contends further, in effect, that this was not a
violation of the Act, as alleged (1) because it was in violation
of Bambace's specific instructions and in disregard of the
"do's and don'ts," for which Respondent terminated him on
February 6, a few days later, after an investigation among its
employees revealed that he had engaged in such conduct and
(2) because it thereafter apprised his subordinates of his dis-
charge and of the reason therefor, namely, his violation of
Federal law. The issue thus posed is whether Barnentes'
interrogation warrants, in the circumstances, a finding that
Respondent violated the Act thereby. I shall deal with the
allegation relating thereto more fully hereinafter.
The record shows further that subsequently, about the
middle of the month of February, Vice President A.J. Stewart
and Personnel Manager Joel Gomez made speeches to the
employees in small groups of two or more sessions ' in which
they announced an additional paid holiday on Memorial
Day, an increase in the differential from 5 cents to 10 cents
an hour for employees on the night shift, and an attendance
bonus to be paid every 120 days (each such period being
coextensive with the 120-day periods used for employee wage
evaluation) to any employee who had perfect attendance for
that period. So far as appears, a week or so later, Respondent
had occasion to mention to Bambace that these benefits had
been given, and was advised by him to delay the increase in
the night shift differential and the attendance bonus due to
the receipt of the Union's letter demanding recognition but
to allow the grant of the additional holiday to stand. Where-
upon, within a week, A.J. Stewart and Gomez communicated
the withdrawal and the reason therefor to the employees.'
The amended complaints herein allege that the granting of
benefits as well as the withdrawal of benefits granted were
violative of Section 8(a)(1) of the Act.
Additional 8(a)(1) issues alleged in the amended com-
plaints herein relate to whether during the period between the
filing by the Union of its representation petition on February
2 and the election on April 3, Respondent, through one or
more of the following admitted supervisory personnel,
namely, A.W. Stewart, its president; A.J. Stewart, its vice
president; Guillermo Gutierrez, its vice president in charge of
engineering; Joel Gomez, its personnel manager; Charles E.
Hutcheson, its assistant general manager; Juan Gonzalez and
Frank Gomez, its foremen; and Vernon Muennink, its lead-
man, engaged in one or more of the following acts: interroga-
tion of employees concerning their union activity; threats to
employees of plant closure, of sale of plant machinery, of
reduction in the amount of work for employees, of temporary
layoffs, or of discharge because of their union activity; attend-
ance at a union meeting so as to interfere with the employees'
organizational rights; solicitation of employees to campaign
among other employees to vote against the Union in the
There is testimony by Bambace that Arthur J Stewart, Respondent's
vice president, and Hutcheson, the assistant general manger, also spoke at
this meeting However, the record is devoid of any reference to what they
said at the time
Gomez usually accompanied Stewart when these speeches were made
However, he, alone, spoke to the night shift employees During the former
occasions, Stewart would make the presentation in English and Gomez
would follow with a translation of Stewart's speech into Spanish, if his
questioning of the employees in Spanish revealed that what Stewart had said
was not clear to them
According to Respondent, the withdrawal occurred no more than 2
weeks after the announcement of these benefits
coming election; promises to employees that they would re-
ceive a wage increase if they voted against the Union in that
election; and granting wage increases to employees on or
about the day of that election in order to dissuade them from
voting for the Union. And finally, the amended complaints
present the issues of whether during the period before the
election, namely, on March 13, Respondent discriminatonly
discharged employee Guadalupe R. Canales for union-con-
nected reasons; and whether, subsequent to the election,
namely, on June 4, Respondent discriminatorily discharged
employee Jesse Cannon, also for union-connected reasons.
As to Case 23-RC-3399, one of the consolidated cases
herein, it involves the issue of whether the Union's objections
to the election have merit and warrant setting the election
aside. Insofar as the objections allege coercive interrogation
of employees, surveillance of employees' union activities,
threats to employees of loss of benefits in the event they voted
for the Union and/or assisted the Union in its organizational
efforts, threats to close the plant in the event the employees
voted for the Union, promises of benefits in the event they
voted against the Union, and the granting of wage increases
immediately prior to the election in order to dissuade em-
ployees from voting for the Union, these allegations parallel
those in the amended complaints herein. However, an addi-
tional issue raised by the objections, and not covered by these
amended complaints, is whether Respondent interfered with
the election by posting in the plant only election notices
which, except for the bilingual sample ballot set forth therein,
are in English, when the Regional Director furnished it for
posting both a set of such election notices and another set of
election notices which, except also for the bilingual sample
ballot set forth therein, are in Spanish.
B. Findings of Fact and Conclusions as to the 8(a)(1)
Allegations
1. The allegations of 8(a)(1) in the complaint in Case
23-CA-3591, as amended
Paragraph 7(a) of this amended complaint alleges that be-
tween February 1 and 6, 1970, Leadman Arturo Barrientes
interrogated employees concerning their union membership,
activities, and desires in violation of the Act. As already
found, Respondent admits that subsequent to the meeting of
Bambace and members of management with the leadmen and
supervisors on February 2, Leadman Barrientes, an admitted
supervisor within the Act's meaning, unlawfully interrogated
Respondent's employees, however, it contends that, under
the circumstances, it did not violate Section 8(a)(1) of the Act
thereby. It is apparent from the testimony of Barrientes that,
at some point during the Union's organizational campaign,
he decided to aid the Union in its organizational drive. Bar-
rientes explained his actions, as follows: "At first I didn't, but
they were always on my back, everything I did, they watched
me. I couldn't do nothing because, in the first place, I wasn't
for the Union, but then I started thinking, myself, and I said,
`well, what the hell, I am going to go for the Union because
even if I am not for a union they think I am for a union; so
I had to do it anyway. I had no choice."' Barnentes testified
further, in this connection, without pinpointing the time pre-
cisely, that he got 7 or 8 employees to sign union authoriza-
tion cards, talking to most of them at work and to others in
town, and telling them "it's up to them whether they wanted
to sign or not, but its better for them to sign it because they
would obtain more money and better conditions, and if [he]
were them [he] would sign it."
Respondent introduced credible testimony to show that it
learned through questioning of employees under Barrientes'
supervision that Barrientes had, in fact, questioned them as
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to their feelings or activities regarding the Union." The
record also discloses that, on February 6, Barrientes was
called into the office of Hutcheson, the assistant general
manager, and was told that he was being terminated because
of his interrogation of employees in violation of Federal law
and contrary to the orders of President A.W. Stewart. The
record further shows that the following Monday Hutcheson
convened Barrientes' subordinates and advised them of Bar-
rientes' discharge and the reason therefor. According to Hut-
cheson, he told them that "it had come to our attention that
Barrientes had been questioning them about their union ac-
tivities, about their opinion of a union and how they would
vote in the event of an election, that this was a direct violation
of Mr. Stewart's orders, that Barrientes was aware of this, he
had a copy of these orders, and it had been explained to him
several times, that Mr. Stewart felt their opinion of a union
or how they would vote, this was entirely up to them. This
was a decision they had to make. We would not have our
supervisors spying on them or interfering in any way."
It is apparent from all the foregoing that, in engaging in
this prounion conduct, Barrientes was acting in derogation of
Bambace's instructions on February 2 to him and other
supervisory personnel, and in derogation of the instructions
from President A. W. Stewart, which was set forth in the
"do's and don'ts" distributed to supervisory personnel. It is
also apparent that Respondent acted with reasonable dis-
patch to terminate Barrientes for such conduct and made the
reason for such discharge known to his subordinates, and at
the same time assured them of their right to be free from such
interference by management. Accordingly, as Respondent
did, in this particular situation, take the foregoing steps to
apprise the employees that it did not condone Barrientes'
interrogation of its employees, I am persuaded, and find, that
it thereby effectively disassociated itself in the eyes of the
employees from these instances of interrogation and that it
may not be held responsible therefor. Accordingly, I find
further that the allegations in paragraph 7(a) of this amended
complaint have not been sustained by the record."
The General Counsel contends, in effect, for the first time
in his brief, that Respondent's act of informing the employees
of Barrientes' discharge constituted, under the circum-
stances, a signal or threat of like action against employees for
engaging in Barrientes' activity of talking about the Union,
and that such a finding would be proper, notwithstanding the
fact that the discharge of a supervisor for such activity is
usually not subject to adjudication under the Act. However,
absent any allegation in any of the amended complaints
herein to this effect, and absent any litigation of this issue, I
find it unnecessary to, and do not pass upon, this contention.
Paragraph 7(b) of this amended complaint alleges that, on
or about February 7, Foreman Juan Gonzales interrogated
employees concerning their union membership while he and
they were at a cafe in Hondo, called "Santillano's." In sup-
port thereof, the General Counsel adduced testimony by
Canales that the following occurred about that time: Gon-
zales, a friend of his of about 20 years standing, and employee
Valdemar Sanchez stopped at his house on a Saturday or
10 Employee Manuel DeLeon testified that Personnel Manager Joel
Gomez and other officials called him in for the purpose of asking him
whether Barrientes had questioned him about the Union. Gomez himself
testified credibly that he talked to all of Barrientes' subordinates, individu.
ally, telling them that he was going to ask them some questions about
Barrientes and some of his actions with his employees, that "this in no way
would be held against them", that he would then ask them whether Bar-
rientes had at any time questioned them as to their feelings or activities
regarding the Union, and that, after they responded, he would ask them
whether they would mind signing a statement to that effect.
11 See Cosmodyne Manufacturing Company, 150 NLRB 96.
Sunday evening. He had a few drinks with them and then, at
Gonzales' invitation, they proceeded in Gonzales' truck to
"Santillano's" place. When they got there, Valdemar Sanchez
got out of the truck to go to the restroom but Gonzales and
Canales remained in the truck. During the absence of Valde-
mar Sanchez, Gonzales asked him if he knew that Fidel
Sanchez, the representative of the Union, had been at the
plant. He then replied, "You know, I am the only one that
could put the Union in there."12 Gonzales replied, in turn,
that he was not for or against the Union, because he, Gon-
zales, was a foreman. Valdemar Sanchez was approaching the
truck at this time and Gonzales then said, "Come on, let's
talk about this later." Canales acknowledged, during cross-
examination, that "both Gonzales and he were "half drunk"
at the time. In addition, Valdemar Sanchez, a witness for
Respondent, testified that he did not leave the truck when
they arrived at Santillano's; that they saw that the place was
very quiet and continued on their way; and that, during the
entire time that he was together with Gonzales and Canales,
he did not hear any conversation between Gonzales and
Canales about the Union, nor was the word "union" men-
tioned. Gonzales did not testify in this proceeding. In view of
Canales' admitted state of insobriety at the time, and in view
of the countervailing testimony of Valdemar Sanchez, I am
unable to find that such a conversation did, in fact, take place.
Moreover, even if such conversation did occur, Gonzales did
no more than inquire whether Canales knew that the organ-
izer for the Union had been at the plant, and Canales then
proceeded to brag about his influence among the employees
in union matters, As such, Canales' attribution to Gonzales
would fail to preponderate in favor of a finding of interroga-
tion in contravention of the Act. Accordingly, I conclude,
and find, that the allegations of paragraph 7(b) of the
amended complaint in Case 23-CA-3591 have not been sus-
tained.
Paragraph 7(c) of this amended complaint alleges that, "in
early February 1970, the exact date being unknown," Person-
nel Manager Joel Gomez interrogated employees concerning
their union membership, activities, and desires. The General
Counsel relies, in this connection, on Carmona's testimony to
the following effect: About 3 weeks before Barrientes' dis-
charge, he was called into the office where he found Joel
Gomez and two other management representatives, i.e.,
Charles Heilig and Ken Mullins. After some questions by
Gomez as to the kind of leadman Barrientes was and as to
how Barrientes was treating him, Gomez asked him whether
anybody has been talking to him about the Union. He named
three people and identified them as Barrientes, Heilig, and
Gomez. At this, Gomez laughed, saying that he did not mean
to include those in the office. Gomez then continued by ask-
ing whether he knew whether Barrientes was working for the
Union or saw him doing anything for the Union. He an-
swered, in turn, that he did not know, that Barrientes does
his work and he, Carmona, does his own work. At this point,
he expressed concern over the fact that Barrientes was "in all
this trouble," and Gomez answered that he thought that
Barrientes was doing something for the Union. To Gomez'
further questions as to what Barrientes said to him about the
Union, he replied that Barrientes asked him what he thought
about the Union, what was his opinion and how he was going
to vote. He also told Gomez that he asked Barrientes' why
he, Barrientes, was asking these questions, and Barrientes
replied that he had orders to do so from the office. At the
" During cross-examination, Canales denied that he volunteered the
above to Gonzales, saying, "I didn't voluntarily tell him because he was
asking me indirectly about Fidel Sanchez because I psychoanalyzed his
question to me."
GARY AIRCRAFT CORPORATION 311
same time, he also volunteered that other leadmen or super-
visors were asking other employees the same questions as
Barrientes, and he mentioned leadman Barrios and Rubin
Rodriguez and Foreman Frank Gomez" in response to
Gomez' request for names. Gomez indicated that he would
have these named individuals in the office later and asked him
to sign a statement. When he answered that he did not want
to sign it, Gomez replied that he did not have to sign it if he
did not want to do so. Only Gomez, among those present for
management at this discussion, testified in this proceeding.
Gomez gave general testimony as to the nature of his dis-
cussion with Barrientes' subordinates", omitting any mention
of the specifics of his conversation with Carmona and failing
to deny that he asked Carmona for names of the persons who
had talked to him about the Union. The General Counsel
argues that such failure warrants a finding that Gomez did
so inquire and that he did thereby interrogate Carmona in
violation of the Act. However, as I am persuaded by Gomez'
other testimony in the record that the thrust of these inter-
views was to find out what Barrientes was doing, and as
Carmona, himself, testified that the discussion began with
conversation about Barrientes as a leadman, I am unable to
find that the record preponderates in favor of a finding that
Gomez did, differently from his discussion with other subor-
dinates of Barrientes about whether Barrientes was question-
ing them about their feelings or activities regarding the Un-
ion, ask Carmona in a broadside fashion whether anybody
had been talking to him about the Union. Accordingly, I
conclude and find that the allegations of Paragraph 7(c) of
this amended complaint have not been sustained.
Paragraph 7(d) of this amended complaint alleges, in sub-
stance, that Respondent violated the Act through the attend-
ance of Foreman Frank Gomez at a union meeting. There is
testimony by Canales that Frank Gomez attended a union
meeting held during the latter part of February and that,
while there, Frank Gomez conversed with him. Frank
Gomez was not called as a witness in this proceeding and it
does not appear that he was unavailable. On this state of the
record, I credit Canales' testimony and find that Frank
Gomez did attend this union meeting. Respondent defends on
the grounds that (1) "there is not a scintilla of evidence that
the Company ordered or suggested that Leadman Gomez go
to these meetings, if he did go" and (2) "the evidence estab-
lishes that the Union handbilled in front of the Company's
plant on numerous occasions , inviting recipients to union
meetings, and that leadmen were probably handed notices of
union meetings as they were leaving the plant along with the
Company employees (no Company employees engaged in the
handbilling)." As to (1) it is clear that, irrespective of whether
Respondent ordered or suggested that Frank Gomez attend
the meeting, it would be answerable for his conduct in attend-
ing the meeting, under the doctrine of "respondeat superior,
" applicable herein. In this connection, although Respondent
and Canales referred to Frank Gomez as a leadman, I note
that Respondent admitted in its answers to the complaints
herein that his supervisory title was that of foreman. It is also
apparent from the record that Frank Gomez was a high
ranking supervisor, since there were six foremen immediately
subordinate to Hutcheson, the assistant general manager, and
to which foreman about 25 leadmen, also admitted to be
supervisors, were, in turn, subordinate. As to (2), even grant-
ing that the handbill inviting attendance at the meeting was
" As in the case of Barrios and Rodriguez , there is no direct evidence in
the record of any incidents of interrogation by any of these individuals, nor
is it alleged in any of the complaints herein that any of them engaged in
interrogation in violation of the Act
" See fn. 10, supra.
given to Frank Gomez, such handbilling falls far short of an
express invitation to Frank Gomez to attend the meeting.
Accordingly, I find, in view of all the foregoing, that the
attendance by Frank Gomez, a high ranking supervisor, at
the union meeting, without a specific invitation, constituted
surveillance which reasonably tended to interfere with, re-
strain, and coerce employees in their organizational rights
and that Respondent thereby violated Section 8(a)(1) of the
Act.15
Paragraph 7(h) of this amended complaint alleges that on
or about April 1, A. W. Stewart, president of Respondent,
threatened employees with the sale of all the plant machinery
if the Union won the scheduled election on April 3. The
General Counsel adduced testimony by Carmona in this re-
gard. According to Carmona, the conversation occurred one
week before the election and began in the plant lunchroom16
and was continued in the plant proper near the grinders. He
gave the following account of the episode: A. W. Stewart
approached him with a piece of paper in hand and said that
he, Carmona, had been working for Respondent for 3-1/2
years, and had received 85 cents in raises during that period.
A. W. Stewart then asked when his last raise occurred and
he replied, in turn, that it occurred 8 months ago. At this, A.
W. Stewart pointed out that he was asking him, Carmona, for
the amount of the raise and not for its timing and suggested
they "go out by the grinder so [they] can talk." When they
were at the grinders, A. W. Stewart again adverted to the
above-mentioned tenure of 3-1/2 years and added that he,
Carmona, was the kind of man the Company wanted as an
employee. A. W. Stewart followed this by asking whether he
liked his job, and, when he implied that he did, A. W. Stewart
said, "I want you to help me and talk to the new employees,
tell them to work for the Company because you have more
time for this Company." After this, A. W. Stewart began to
talk about the machinery in the plant, saying, "Do you see
all this machinery around here? I owe on it. I am paying for
it, making payments.... Are you making payments? At this,
he replied, "Yes sir, I am making my payments" and A. W.
Stewart interjected, "I am tired of this business going around
here, this union. Anytime I feel like it, I can sell the whole
machinery and retire. Then what will you do?" His answer
was that he would be doing what he was doing before Re-
spondent employed him, namely, look for a job. The conver-
sation concluded with A. W. Stewart saying, "You are pretty
smart, uh?" and with his denying that he was smart. Al-
though A. W Stewart admitted having a conversation with
Carmona during the week of the election, he placed the entire
conversation in the lunchroom, and said it was confined to
whether Carmona had been getting raises at evaluation time.
The occasion for the conversation, according to him, was
that, during his visit to the Hondo plant that day, he heard
from someone, whom he could not identify, that Carmona
was going around saying that he had not been getting such
raises; this caused him to check the matter with someone in
the personnel department, from whom he learned that Car-
mona "had recently had a couple of raises, in accordance with
our regular evaluation procedure." Whereupon, he asked
Carmona "why he had been saying he didn't have a raise
when he knew he had, and that [he, A. W. Stewart], had
checked and [Carmona] had had normal raises." Also, ac-
cording to A. W. Stewart, this ended the conversation. In
evaluating the foregoing, I note the following: Although A.
W. Stewart testified that he had ascertained from the person-
nel department that Carmona had recently had a couple of
raises, Respondent's Exhibit 21, in evidence, which sets forth
" See Colo. Well Service, Inc., 163 NLRB 707, 712-13
" This is also known as the break room.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the results, as shown by Company records, of the evaluations
made in November 1969 when Carmona was due for evalua-
tion, omits Carmona's name from among those who received
raises at that time. It is therefore unlikely, I find, that A. W.
Stewart would have received information to the contrary and
would have made a statement at odds with the actual facts
to Carmona. More likely, I find, is Carmona's testimony that
A. W. Stewart asked him when he had last received a raise
and that he replied that it occurred 8 months ago." I note
further that both Vice President A. J. Stewart and Muennink
placed Stewart in the lunchroom during the entire conversa-
tion with Carmona and immediately thereafter. However,
even so, A. J. Stewart's testimony corroborated Carmona's
testimony insofar as Carmona claimed that A. W. Stewart
and he moved from their initial location to another location
where they "can talk." Thus, A. J. Stewart testified, "There
were a number of people entering the breakroom. And after
he [A. W. Stewart] got Carmona's attention, they walked
over aside, out of the traffic, away from the people, away from
some individuals that were already seated in the break room."
In all these circumstances, I am persuaded that, irrespective
of where this conversation occurred, Carmona's testimony as
to the content of this conversation is more reliable than that
of A. W. Stewart, and I credit Carmona in this regard. Ac-
cordingly, I conclude, and find, in view of the foregoing and
on the entire record, that A. W. Stewart made it clear to
Carmona that the Union's presence in the plant could cause
him to close down the plant and retire, thereby making an
implied threat that this would be the consequence of a victory
by the Union in the coming election. And I conclude, and find
further, that the foregoing conduct interfered with, re-
strained, and coerced Carmona in his Section 7 rights, in
violation of Section 8(a)(1) of the Act.1e
Paragraph 7(i) of this amended complaint alleges that, on
or about April 1, President A. W. Stewart solicited an em-
ployee to tell other and less senior employees to vote against
the Union in the coming election if they wished to continue
their employment. Employee Joe Riso testified, in this regard,
that during the week of the election, A. W. Stewart ap-
proached him at his place of work and said that he, Riso,
"was one of the oldest persons working for the Company, that
[he, Riso], should go around to some of them newer boys that
were working there and try to explain to them that [the
employees] didn't need a union ... there was no sense in
joining the Union when he [A. W. Stewart] done everything
for [the employees] and [they] could talk to him ... anytime
[they] wanted to ... because he always was ... and he was
willing to talk to [the employees]." As to the foregoing, A. W.
Stewart testified that he had "no recollection of talking to
Riso on that particular subject." I note, however, that there
is testimony by Carmona, set forth above, which I have cred-
ited, that A. W. Stewart spoke to him, Carmona, as follows
during their conversation in and about the lunchroom about
a week before the election: "I want you to help me and talk
to the new employees, tell them to work for the Company
because you have more time for this Company." Since Riso's
attribution to A. W. Stewart made to him during the same
period is generally similar to Carmona's attribution to A. W.
Stewart, and since A. W. Stewart could not recall whether he
spoke to Riso "on that particular subject," I conclude, and
" Carmona's evaluation prior to November 1969 as to whether he should
receive a raise would have been in July 1969, about 8 months before the
instant conversation. Although there had been an evaluation of Carmona in
March 1970, he was not aware at the time of this conversation of the results
of that evaluation
1" See discussion, infra, in respect to Gutierrez' remarks to employee
DeLeon about closing the plant
find, that Riso testified more reliably than A. W. Stewart in
this regard, and I credit Riso. Accordingly, I find that A. W.
Stewart solicited Riso to tell other and less senior employees
to vote against the Union, in violation of Section 8(a)(1) of
the Act.
Paragraph 7(j) of this amended complaint alleges that, on
or about April 3, the day of the election, Assistant General
Manager Hutcheson promised employees wage increases if
they voted against the Union in this election. Carmona tes-
tified that he was approached by Hutcheson in the plant
shortly before the election was to start, that employee Mar-
tinez was also present," and that the following then occurred:
Hutcheson said, "Listen, I am going to say it once, and get
it straight in your head. When you go up, climb the coconut
tree, get those two coconuts, on the way down hold on to your
nuts and work for the Company. We don' t want a union
around here. We want to stop it up. You work for the Com-
pany and Mr. Stewart is going to give you more money, Got
it clear?" He answered "Ok, Charley," and the conversation
ended. As to the foregoing, Hutcheson testified that he did
have a conversation with Carmona at the time mentioned by
Carmona. Like Carmona, he said that he opened the conver-
sation with the coconut story. His version of the story was
that he told Carmona, "I am telling you like the hurricane
told the coconut tree: `Hang on to your nuts. This is no
ordinary blow job."' He testified further that he then asked
Carmona to vote for the Company, adding that he, person-
ally, felt that "we didn't need a union at [the Company]; Mr.
Stewart had been giving us many benefits and that they would
continue to increase as the years went by." Since Carmona
admittedly did not know what Hutcheson meant by the refer-
ence to the coconut tree and, as both Carmona's and Hutch-
eson's version of what was said in that connection is ambigu-
ous, I attach no significance adverse to Respondent to that
portion of the conversation. And as to the rest of the conver-
sation, as Hutcheson's version of these remarks does not
exceed permissible bounds, and as Carmona's version is
somewhat ambiguous and falls short of establishing that Hut-
cheson offered him a wage increase if he voted against the
Union, I find that the record does not preponderate in favor
of a finding that Hutcheson's remarks on this occasion con-
travened the Act. Accordingly, I find that the allegations of
paragraph 7(j) of this amended complaint have not been sus-
tained.
2. The allegations of 8(a)(1) in the amended consolidated
complaint in Cases 23-CA-3660 and 23-CA-3671
Paragraph 7(a) of this amended consolidated complaint
alleges that at a date unknown during the last 2 weeks of
March, Vice President Guillermo Gutierrez threatened em-
ployees with plant closure if they engaged in prounion ac-
tivity. Employee Manuel DeLeon testified, in this connection,
that, about 2 weeks before the election on April 3, Gutierrez,
an admitted supervisor, approached him at his place of work
and said that, "if the Union come in, we would have a union
at Gary Aircraft and Mr. Stewart could pick up all the tools
or everything out of the Hondo plant and move it up to
Nelson Road [one of the other plants], because he worked for
a lot of unionized companies , you know. That could be
done." To this, he responded that he did not know anything
about it because he had never worked for a unionized com-
pany. During cross-examination , when confronted with his
prehearing affidavit to a Board agent, DeLeon testified that
his affidavit correctly reflects what Gutierrez said on that
occasion, namely, that "[he had] worked for a lot of compa-
" Martinez did not testify in this proceeding
GARY AIRCRAFT CORPORATION 313
nies that are unionized and if the Union happens to come here
and if Mr. Stewart and the Union don't agree to what the
Union wants for you all , he could just shut her down and
move everything to Nelson Road ." Gutierrez testified on
behalf of Respondent but was not questioned concerning any
conversation with DeLeon.20 Accordingly , since Gutierrez
did not specifically deny De Leon 's testimony that Gutierrez
and he had a conversation with respect to what could follow
in the wake of the Union 's success in the coming election, and
since DeLeon impressed me as a more reliable witness than
Gutierrez , I credit DeLeon and find that such a conversation
took place . And I find further that DeLeon 's testimony, dur-
ing cross-examination , accurately reflects what Gutierrez
said on that occasion . I find , therefore , that Gutierrez told
DeLeon that the plant could be shut down and moved if the
Union won the election and Respondent was unable to meet
the contract demands of the Union . The Supreme Court has
recently held that an employer "may even make a prediction
as to the precise effects he believes unionization will have on
his company . In such a case , however , the prediction must be
carefully phrased on the basis of objective fact to convey an
employer 's belief as to demonstrably probable consequences
or to convey a management decision already arrived at to
close the plant in the case of unionization . See Textile Work-
ers v. Darlington Mfg. Co., 380 U .S. 263 , 274, No . 20."21 I am
satisfied that Gutierrez ' remarks to DeLeon do not meet this
test . Thus , Gutierrez made no mention of an actual manage-
ment decision to close or move the plant in the event of
unionization . Nor is there any showing that his remarks were
predicated upon Respondent 's known inability to meet the
union wage scales or other economic demands . Indeed, it is
apparent that no economic demands had as yet been made by
the Union upon Respondent . Accordingly , I find that Gu-
tierrez did not tell DeLeon what he reasonably believed will
be the likely economic consequences of unionization that are
outside of Respondent 's control , but, instead , impliedly
threatened economic reprisal in the form of plant closure or
removal , to be taken solely on Respondent 's own volition. I
find further that Respondent thereby violated Section 8(a)(1)
of the Act.22
Paragraph 7(b) of this amended consolidated complaint
alleges that on various dates in March and during the first 3
days in April , Joel Gomez threatened employees with plant
closure if they continued their prounion activity . Also ac-
cording to the allegations of paragraph 7(d) of the same
complaint , at about those times, Gomez threatened em-
ployees with a work reduction if they selected the Union in
the coming election . The only testimony proffered by the
General Counsel as to the above was given by employee
Adolfo Garcia and was as follows: At one of the meetings
which management had with employees at the plant , at which
he was present , Gomez , the personnel manager, said to the
assemblage , "that Mr . Stewart might be forced to close the
place down if a union took place ... in the form because
. they might not have any more ... contracts or anything
like this." He was unable, however , to identify the meeting at
which this took place , and was also unable to remember what
was said before or after this remark . Gomez denied that he
made any speech wherein he said that the Company might
close the plant and there would not be any contracts or any
30 Gutierrez was asked , however, whether he made a statement to the
above effect to employee Joe Riso and he answered , " I never made such a
statement , so sir "
" N.L R B v. Gissel Packing Company, Inc, 395 U S. 575
" See N.L.R B v Gissell Packing Company, Inc., supra See also James
A Pearson, et al d/b/a Crystal Lake Broom Works, 159 NLRB 429, 435,
and cases cited therein.
work , or that everybody would be laid off. He also denied that
he ever told employees anything to the effect that if the Union
came in there would be layoffs . However , he did acknowledge
that , during one speech , A. J. Stewart and he (in tTie course
of translating A. J. Stewart 's words from English to Spanish)
answered an employee 's question as to whether there would
always be work for the employees, and that they then told the
employees that the Company does government contract work
and that "[the Company 's] being able to stay in business
depends entirely on its ability to get contracts and renew
those contracts ." Gomez also acknowledged that, in the
course of one speech , an employee, after commenting that
other companies in Hondo were unionized and had had
layoffs, asked , "If the union were to come to [the Company]
would [the employees ] have layoffs ," and that A. J. Stewart
and he (after A . J. Stewart had spoken) mentioned layoffs
several times . According to Gomez , the answer to the ques-
tion was , "We cannot predict what is going to happen at [the
Company], but, yes , you are right other companies that have
had unions have had layoffs "; and they commented further
that the Company "never had a layoff in [its] history." It is
apparent from the foregoing that the allegations of paragraph
7(d) of the amended consolidated complaint as to threats of
reduction in hours have not been sustained , and I so con-
clude . And I find similarly as to the allegations of paragraph
7(b) of this amended complaint . Thus , Garcia's testimony
strongly suggests that , as Gomez testified , the comment about
closing down was mentioned in the context of the eventuality
that Respondent , which was engaged in government contract
work , was unable to get contracts and renew contracts with
the government . Accordingly , since Garcia was not a con-
vincing witness , and as Gomez ' version of what was said finds
some corroboration in Garcia's testimony , I credit Gomez'
version . I find that what was said was, in substance , a state-
ment of what Respondent reasonably believed would be the
likely economic consequences , either with or without the
Union , if, for reasons beyond its control , it failed to get gov-
ernment contracts . As such , these remarks did not contra-
vene the Act . 23 Nor do I find any threat violative of the Act
in the testimony given by Gomez as to what was said in
answer to a question about the possibility of layoffs if Re-
spondent 's plant was unionized. The answer was couched in
terms of what had taken place in the past in regard to layoffs
and refrained from predicting what the future might bring in
this area.
Paragraph 7(c) of the amended consolidated complaint
alleges that, on various dates in March and during about the
first 3 days in April , Joel Gomez promised the employees
increased wages , increased bonuses and an additional holiday
so as to induce them to refrain from becoming or remaining
members of the Union or giving assistance to the Union.
Paragraph 7(e) of this complaint alleges that Respondent
then , also in violation of the Act , withdrew the benefits previ-
ously announced , giving as the reason therefor the Union's
efforts to organize Respondent 's employees and the Union's
presence in the plant . I have heretofore found that , about the
middle of February , subsequent to the Union 's filing of its
representation petition and the receipt by Respondent of its
letter requesting recognition , A. J. Stewart and Joel Gomez
made speeches to Respondent 's employees at Hondo, in small
groups consisting of two or more sections, in which they
announced an additional paid holiday on Memorial Day, an
increase in differential from 5 cents to 10 cents an hour for
employees on the night shift, and an attendance bonus to be
paid every 120 days to any employee who had perfect attend-
ance for that period and that , about 2 weeks after these
11 Compare N. L R B. v. Gissel Packing Company, Inc, supra.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefits were announced, the two last mentioned benefits
were withdrawn." As of the time of the withdrawal, the
record shows, the employees had not received these two be-
nefits; thereafter, at the end of May, they did receive the
additional holiday.
Respondent contends in its brief that its conduct in the
foregoing respects did not contravene the Act. In respect to
the benefit of the additional holiday, it asserts that this was
no more than the announcement and implementation of a
predetermined and previously announced benefit and there-
fore does not run afoul of the Act. In respect to the other two
benefits, it maintains that, while they were new benefits and
there was no predetermined decision to grant these benefits,
they were announced pursuant to a consistent practice or
policy of the Company of granting new benefits each year and
were not motivated by any desire or intent to thwart the
Union's organizational attempts. And as to their withdrawal,
it argues that they were not withheld by Respondent as a
reprisal for the employees' union activity nor was there any
conditioning of the future grant of these benefits on the out-
come of the election, but rather, because it was advised by its
counsel, as soon as counsel learned that the benefits were
announced, that, if such benefits were awarded, it would be
charged with interfering with the election and with the organ-
izational rights of its employees under the Act, and it wanted
to avoid any possible violation of law.
In support of its position that the additional holiday had
been predetermined and previously announced in advance of
the instant organizational activity, Respondent points to a
memorandum which was distributed to employees of Re-
spondent's San Antonio plant on or about March 28, 1969,
copies of which were thereafter posted at Respondent's other
two plants, the one at Victoria and the one at Honda.25 The
caption of the memorandum reads "TO ALL SAN AN-
TONIO EMPLOYEES" and says, in relevant part:
Each year since we started in business, we have tried to
add additional employee benefits and this year the
change to the new Victoria Bank plan will really benefit
all of us. In addition, later this year, as soon as we can
get the San Antonio plant to where we are making money,
we plan to add one more paid holiday to our list of holi-
days. More on this later. The last extra holiday we added
was the Good Friday holiday which will be on April 4th
this year and will be a paid holiday to all employees who
work the regular work days before and after a holiday.
[Emphasis supplied.]
Significantly, in explaining why the memorandum was dis-
tributed to employees at the San Antonio plant and only
posted at the Hondo plant, A. J. Stewart testified, "the extra
holiday was in it and there were some other items that we
thought other people might be interested in,26 so it was de-
cided to go ahead and post the notice at the other two plants.
However, obviously from reading the notice it's of main inter-
est to San Antonio personnel, where it was distributed in-
dividually." It is thus apparent, and I find, that there is no
warrant in this record for holding that the additional holiday
for employees at the Hondo plant had been predetermined as
" A. J. Stewart and Joel Gomez fixed the time as the first week of March.
" A. J. Stewart, who testified that he posted the copies at Hondo, did not
know how long they remained posted.
3° Also included in this memorandum were a report on physical improve-
ments recently made at the San Antonio plant a discussion of plans for the
annual picnic for San Antonio employees, a reference to the unsuccessful
effort of "the Potter's Union" at organizing the Hondo plant in 1968, an
expression of concern that two other named unions might attempt to organ-
ize Respondent's plants in the future, and a reference to the Texas Right to
Work Law, making it unnecessary for an employee to join a union to hold
a job.
of March 28 , 1969. Indeed , the above quoted and under-
scored language clearly shows that whether an additional
holiday would be granted to the San Antonio employees had
not yet been finally decided upon but depended upon the
contingency that the San Antonio plant reached the point
where it was making money ; and nowhere does it appear (1)
that , by the time that the additional holiday was announced
to the employees at Hondo , such contingency had, in fact,
occurred , or (2) that the employees at San Antonio had, in
fact , received an additional paid holiday . Furthermore, it
would be straining beyond reason to hold that the mere post-
ing, without more , of a memorandum at the Hondo plant,
which was addressed to Respondent 's employees at the San
Antonio plant and made the addition of another paid holiday
for the employees at the San Antonio plant contingent on that
plant 's profitability , was equivalent to a predetermination by
Respondent and an announcement to the employees at the
Hondo plant that an additional paid holiday was to be
granted to them . It follows therefore , and I find, that Re-
spondent 's announcement to the employees at Hondo on or
about the middle of February of an additional paid holiday
came as a surprise to them . Accordingly , in view of the timing
of the announcement of the grant of the additional paid holi-
day in the midst of the Union 's organizational campaign and
about 2 weeks after the Union had filed its representation
petition relative to these employees , plus the other unfair
labor practices by Respondent found herein , I conclude, and
find, that this announcement of an additional paid holiday
was a promise of benefit to Respondent 's employees in order
to induce them to abandon the Union27 and that Respondent
violated Section 8(a)(1) of the Act thereby.28
As to Respondent 's simultaneous announcement of the
increased differential to the night shift employees and of the
attendance bonus, since it is already conceded in Respond-
ent's brief that these were new benefits and that there was no
predetermined decision to grant them , the only remaining
question as to them is whether their withdrawal by Respond-
ent about 2 weeks after they were granted exonerates Re-
spondent 's similarly illegal conduct in granting them.
The withdrawal of these two grants of benefits occurred
under the following circumstances : About a week or so after
their announcement , Respondent had occasion to mention to
Robert S . Bambace , Esquire, of counsel to Respondent
herein , that three benefits had been granted to the employees.
Bambace then advised Respondent to delay the granting of
these two from among the three benefits. Within about
another week , A. J. Stewart and Joel Gomez together, and
Gomez individually, gathered the employees into groups and
retracted the night shift differential and the attendance bonus.
According to Gomez , Stewart and he addressed the em-
ployees as follows:
We have agreed to allow the NLRB to hold an election
here at the plant to decide whether or not the employees
of GAC want to be represented by a labor union.
37 Contrary to Respondent, the record fails to establish a consistent prac-
tice or policy of the Company to grant new benefits each year. All that
appears in this connection is the first sentence in the above quoted portion
of the memorandum. Since this is a self-serving document and since there
is absent any direct evidence of such a policy, I find that the record does
not preponderate in favor of such a finding.
" See N.L.R.B. v. Exchange Parts Co., 375 U.S. 405. See also N.L.R.B.
v. Dothan Eagle, Inc., 75 LRRM 2531, 2534 (C.A. 5), enfg. 174 NLRB No.
120, in which the Court said, in relevant part, "The cases make it crystal
clear that the vice involved in both the unlawful increase situation and the
unlawful refusal to increase situation is that the employer has changed the
existing conditions of employment. It is this change which is prohibited and
which forms the basis of the unfair labor practice charge."
GARY AIRCRAFT CORPORATION
This election will be held on Friday , April 3, 1970.
Everyone will be allowed to vote and we hope you will
vote NO UNION.
Because of the upcoming election , our lawyers tell us
that we will have to make some changes in the announce-
ments we made on February 16 about new fringe
benefits.
Because the holiday was announced almost a year ago,
we will be able to keep it just as we planned . However,
we can not now grant the perfect attendance bonus plan
and the doubling of the night shift differential because of
the recent activity.
Our lawyers say that announcing these benefits after
union activity started , could be taken as a possible bribe
to our employees.
Therefore , so there can be no question of GAC violating
government law, the perfect attendance bonus plan and
the doubling of the Night shift differential can not be
given at this time.
Are there any questions?
It is apparent from the foregoing statement that the burden
of the remarks of A. J. Stewart and Joel Gomez to the em-
ployees was that they could not have the attendance bonus
plan and could not be given the wage increase consisting of
doubling the night shift differential because these benefits
could be considered bribery to reject the Union in the coming
election . I am persuaded that Respondent did not thereby
dissipate the coercive impact of the granting of these benefits
about 2 weeks before . Respondent was thereby telling the
employees that these benefits could not be given because of
the Union 's organizational campaign and tended to empha-
size rather than detract from the message implicit in the
initial grant of these benefits , namely , that it was seeking
thereby to induce them to abandon the Union . I therefore
find, in all the circumstances and on the basis of the entire
record , that , by granting to its employees the attendance
bonus plan and the increased night shift differential in order
to induce them to abandon the Union , and by thereafter
withdrawing them , Respondent violated Section 8(a)(1) of
the Act.29
Paragraph 7(f) of the amended consolidated complaint al-
leges that , during March 1970 , Leadman Muennink threat-
ened employees with temporary layoffs in the event that the
employees selected the Union in the coming election. Em-
ployee Joe Riso testified for the General Counsel in respect
to the above . According to Riso , he had several conversation
" See The Bartley Company, 170 NLRB No 80, which was thereafter
denied enforcement by a divided court in 410 F 2d 507 (C A 6) The instant
situation is, however, a more aggravated one than in the cited case. Thus,
the retraction there took place on the same day immediately after the
promises were made, whereas the retraction here occurred about 2 weeks
after the benefits were announced , even though Respondent was advised to
do so by its counsel , upon learning thereof, about 1 week after they were
announced In any event, I deem myself bound by the Board 's determination
in the cited case See, in the latter connection , Insurance Agents Interna-
tional Union, AFL-CIO, 119 NLRB 768
Montana Lumber Sales, Inc., 185 NLRB No. 12, a representation case,
relied upon by Respondent to support a finding that the withdrawal of these
two benefits did not violate the Act is distinguishable on its facts In that
case, before the union 's petition was filed, fringe benefits were promised to
employees with the understanding that specifics were to be worked out and
relayed to the employees at a meeting the following month At the meeting,
the following month, the union's petition having intervened, the employer
announced the withdrawal of the benefits in order to avoid the appearance
of election interference Here, however , the benefits were first announced
about 2 weeks after the filing of the Union 's petition and were withdrawn
about 2 weeks later
315
with Muennink, his immediate supervisor,30 concerning the
Union, and the general tenor of these conversations was that
he should not join a union because Respondent did not need
one in the plant. In one such conversation, occurring during
the first part of the election week, he asked Muennink why
Universal Rundle, a company which was operating a plant in
the area and had a union, was paying better than Respondent.
Muennink then replied that this was "because they are work-
ing by the piece and the more, the harder they work the more
they make. But here we could never do it because sometimes
we get the motors and sometimes we don't. If the Union ever
comes in then whenever the work slows down we are just
going to have to lay everybody off that we don't need and
keep the few we need." Riso also testified that it was a fact
that sometimes Respondent received engines to work on and
sometimes it did not; and that to his knowledge Respondent
had never had a layoff. Muennink's testimony was considera-
bly at odds with the foregoing. He acknowledged having two
conversations with Riso at Riso's work station 6 weeks and
3 weeks before the election in which there was discussion
about how the Union would fare in the coming election and
that, at the first such conversation, his only comment was
that the employees of another company, Chapman Milling
and Grain, did not vote for union representation, and that at
the second one his only comment was that he hoped that the
employees would vote for the Company in the coming elec-
tion and that one thing that he would like was that every
employee vote. However, he specifically denied threatening
Riso or any other employee that he would be laid off if the
Union came into the plant, and denied having any conversa-
tion with Riso about Universal Rundle. It was his further
testimony that he had meetings with his section on produc-
tion and had said, in answer to a question from an employee,
that there had never been a layoff at Respondent's plant to
his knowledge.
The record establishes that there has never been a layoff at
Respondent's plant. Yet, nowhere does it appear that Re-
spondent has in the past been confronted with a shortage of
work and has nevertheless retained all its employees. It fol-
lows therefore that to mention the fact that layoffs would
occur in such a situation and to add that this would occur
while the Union was in the plant is to fall short of a threat
that, but for the presence of the Union, such layoffs would not
occur. Accordingly, even though Riso impressed me as a
more reliable witness than Muennink, and I credit him rather
than Muennink, I find that his testimony fails to preponder-
ate in favor of a finding that Respondent violated the Act by
the remarks attributed to Muennink. Accordingly, I find fur-
ther that the allegations of Section 7(f) of the amended con-
solidated complaint have not been sustained.
Paragraph 7(g) of the same complaint alleges that Vice
President A. J. Stewart threatened an employee with possible
discharge if he voted for the Union in the coming election.
Riso gave the following testimony in connection with this
allegation: A. J. Stewart approached him at his place of work
about 2 days before the election and said, "You better think
twice before you join a union because if you don't, you might
be looking for a job soon." Riso volunteered at this point in
his testimony that he did not know what A. J. Stewart meant.
With respect to the foregoing, A. J. Stewart could not recall
talking to Riso individually during the week of the election,
recalling only that he talked to him as part of a group during
that week concerning the mechanics of voting during the
election. He also specifically denied making the remark at-
tributed to him by Riso. I am persuaded from all the forego-
10 Respondent admits that Muennink is a supervisor within the meaning
of the Act
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing and particularly in the light of the imminence of the
election that, even granting that A. J. Stewart and Riso did
have a conversation about 2 days before the election, it related
to Riso's voting, as the above allegation asserts, rather than
his joining a union, as Riso testified. In view of this, including
Riso's volunteered statement that he did not know what A.
J. Stewart meant by the remarks A. J. Stewart made to him,
and A. J. Stewart's denial of this attribution to him, I find that
the record fails to preponderate in favor of a finding that A.
J. Stewart threatened Riso either with respect to joining the
Union or voting in the coming election. Accordingly, I find
further that the allegations of Paragraph 7(g) of the amended
consolidated complaint have not been sustained.
Paragraph 7(h) of the same amended complaint alleges
that on or about April 3, the day of the election, Respondent
granted wage increases to employees in order to induce them
to vote against the Union in that election. The General Coun-
sel adduced testimony in this connection by employee Riso.
Riso testified, on direct, that William L. Laughinghouse, his
foreman, approached him at his place of work at 1:30 p.m.
on Friday, April 3, the day of the election; that April 3 was
payday and he usually gets paid, "anywhere from 3:00 to 3:30
[p.m.], right between, sometimes 3:15"; that the election
started at 2:30 p.m. on that day; and that the total conversa-
tion consisted of Laughinghouse saying to him, "We are
going to give you a raise just to show you that we don't need
no union, that the old man does everything he can for us."
Riso also testified that this raise occurred less than 3 months
after a prior raise and was at a shorter interval than custom-
ary." However, Riso gave a somewhat different version of the
content of the conversation during cross-examination, omit-
ting therefrom any reference by Laughinghouse to the Union.
Thus, he testified that "[Laughinghouse] said that [he] was
going to get a raise and that was to prove that the old man
-would always treat us right, and he tries to look after [the
employees] and give a raise as often as he can." He also added
that he did not remember what else was said. In regard to the
foregoing, Laughinghouse testified that on the morning of
April 3 he told Riso that Mr. Stewart had approved his raise
and that he would be getting an increase in that day's pay-
check,32 that Mr. Stewart does everything he can for his em-
ployees, that he, Riso, should keep up the good work, he was
doing a good job, whereupon, Riso thanked him and he left.
Laughinghouse specifically denied that he told Riso that he,
Riso, was getting a raise to show that he did not need a union.
It was also Laughinghouse's testimony that he spoke to the
other men in his section on that day and told them the same
thing he had told Riso, and that this advice to employees
concerning a raise was in accordance with his usual practice.
I note, in the latter connection, that Riso testified that usually
nobody tells the employees in advance about their getting a
raise, "it just comes out in the check" and that he was not told
by anyone when he received a raise in November 1969 that
he was going to get a raise." Noteworthy, too, is A. J. Stew-
art's testimony showing that raises such as the one involved
herein are handled "automatically" as far as the employees
are concerned and that the recipient of a wage increase
becomes aware thereof at the time he gets his paycheck. Thus,
" Riso was in error in this regard, as the interval between this raise and
the prior one was about 4 months and 2 weeks and the usual interval is about
4 months. Riso admitted, during cross-examination, that he does not know
how Respondent's evaluation system with respect to raises works.
" Riso's check was given to him later that day, not by Laughinghouse but
by Mennink, the leadman over Rise. According to Laughinghouse, he usu-
ally gives the checks to the leadmen to pass out.
" It appears that Riso was hired on July 16, 1969, and received his first
raise in November 1969.
according to him, the employees are aware of Respondent's
consistent past practice to evaluate every 4 months employees
who have passed probation, and know when their time for an
evaluation is due, and "if [the employee] knows he is going
to be evaluated on the 30th of the month, he is expecting his
paycheck, evaluation of his raise, to show in his paycheck
right then, as close as he can to the 30th of the month. And
it just solves that-we just automatically do it that way because
it solves (sic) explanations. They expect it there just from the
way the policy is, they know when it's due. This solves many
problems. We have always done it this way. " In view of all the
foregoing, I am persuaded and find that Laughinghouse did
not testify credibly that it was his usual practice to notify
employees whom he supervises of their raises in advance of
the delivery of their paychecks to them by their leadmen.
Notwithstanding my not crediting Laughinghouse in the
above respect, I am satisfied that Laughinghouse's testimony
concerning the conversation itself is more reliable than that
of Riso, and I credit it. I do so in view of the differing versions
thereof given by Riso on direct and on cross-examination,
with the latter version failing to attribute to Laughinghouse
any reference to the Union and conforming generally to the
version testified to by Laughinghouse. Accordingly, in the
light of the foregoing, in view of the fact that the raise to Riso
on April 3 coincided in point of time with the day when a
raise could have been given to Riso under Respondent's pre-
vailing evaluation system for raises, and since the record fails
to establish that the raise would not have been forthcoming
were it not for the presence of the Union on the scene, I find
that Laughinghouse's remarks to Riso did not constitute the
granting of a wage increase in order to induce Riso to vote
against the Union. Rather, it was a permissible attempt on
Laughinghouse's part to remind Riso in advance of the elec-
tion that day of some of the benefits the employees are deriv-
ing under the present plant setup. Accordingly, I conclude,
and find, that Section 7(h) of the amended consolidated com-
plaint has not been sustained by the credible evidence in the
record.
3. The allegation in Case 23-CA-3591 of the
discriminatory discharge of Guadalupe R. Canales
a. The nature and duration of Canales' employment and
the issue raised by his discharge
Canales started his employment with Respondent "almost
four years" before his discharge on March 13, 1970. During
this period of continuous employment, he held about six
different jobs at the Hondo plant, the last of which began in
December 1969 and was in the supply department. He re-
ceived his last raise in January or February 1970. At all times
material herein, William L. Laughinghouse was his foreman
and Wendell Bearmen, also an admitted supervisor, was his
leadman. During the final week of his employment, Canales
received three written reprimands as to his work from Assis-
tant General Manager Hutcheson. Up to this time in his
almost 4-year tenure of employment, Canales had never re-
ceived a written reprimand from Respondent. The first and
second reprimands were received on March 9 and related to
matters occurring on March 6 and March 9, respectively; the
third reprimand was received on March 13 and involved
some work done by Canales on February 26 and March 12.
Canales was terminated at the time of the receipt of the third
reprimand and was then told by Hutcheson that he was doing
so in accordance with the Company's Rules. These rules34
provide, in relevant part, that "An employee receiving three
(3) written warnings (whether or not all are the same rule)
" They are in evidence as Resp . Exh. 14.
GARY AIRCRAFT CORPORATION
within a six (6) month period for violation of Company rules
. will be subject to discharge. The Company may at its
discretion amend discharge to a suspension of not less than
three (3) work days." The issue thus posed is whether, as
Respondent contends, this was the true reason for Canales'
discharge or whether, as the General Counsel contends, this
reason was a mere pretext to mask his termination for his
union activity, to which activity I have previously referred.
Respondent denies any knowledge of this activity. I shall,
accordingly, set forth hereinafter the relevant details:
b. Canales' union activity
On the basis of my findings that Canales was among those
who helped Fidel Sanchez, the organizer for the Union, in the
organizational drive, which was still in progress at the time
of his discharge, namely, getting employees to sign union
cards; serving along with other employees, whom he helped
select , as a committeeman on an in -plant organizing commit-
tee; and attending union meetings, at one of which he was the
only employee sitting on the rostrum along with the organizer
and other officials of the Union, I conclude, and find, that
Canales was very active in the Union and among those in the
forefront of its organizational drive. I have heretofore found
that Barrientes told Hutcheson, in response to the latter's
question as to how the Union was doing, that he, Hutcheson,
should watch Canales, and that Hutcheson answered, "I
know. We know that already." I have also found that Fore-
man Frank Gomez was present at the February meeting of
the Union and spoke with Canales. As I infer and find that
Bamentes was referring to Canales' union activity and that
Hutcheson's answer manifested knowledge thereof, and as
Foreman Gomez had observed and spoken to Canales during
the February meeting of the Union, I reject Respondent's
contention that it had no such knowledge and find to the
contrary.
c. The first reprimand
This written reprimand to Canales covering a segment of
Canales' work on March 6, gives as the reason therefor:
"Violation of Company Rule # 12. Unsatisfactory quality
and/or quantity of work. Employee was sent to hangar four
to check in 14 engines. He took two hours to complete a job
that should have been finished in thirty to forty minutes."
There is no substantial dispute as to the time Canales spent
in doing this work since Canales fixed the time variously as
"between one and two hours" and as "about one and a half
hours." However, Respondent's position that this work
should have taken Canales 30 to 40 minutes, i.e., between 2
and 3 minutes on an engine on average, rather than about 8
minutes per engine, on average, finds support only in Bear-
men's statement that he told Canales that it should have
taken him 30 to 40 minutes and in the statement in the
self-serving written reprimand to Canales to that effect. Thus,
the record is devoid of any comparison of Canales' perform-
ance with that of other employees on work of this type, or of
evidence that Canales was ever told as to how much time he
was expected to take per engine in checking it. As to what was
involved in Canales' assignment the following appears: Each
engine was encased in a wooden crate which was held
together with about five or six wire bands." Access to the
engine is gained through a door on one side. When the door
is closed its upper part rests against three runners which are
fastened to the underside of the lid of the crate, and there may
" The dimensions of the crate, according to Canales, were 8 feet by 4
feet I find that he was implying thereby that the dimensions were 8 feet by
4 feet by 4 feet
317
be up to three nails going through the door and into these
runners. The left side of the door, as one faces the crate, is
always secured to the crate by hooks which are bent over onto
looped ends emerging from the wire bands holding the crate
together.76 In order to open the crate, one has to unbend the
hooks and, if nails have been used, pull away the nails so that
the door can open." In this connection, I credit the testimony
of Canales that some of the crates involved herein did have
such nails in them. Once the crate is open, the checker stands
at the door of the crate, and puts his head inside in order to
locate the number plate on the engine and to read the number
on it and compare it with the packing slip, which the checker
has theretofore removed from the side of the crate, to which
it was affixed. If the numbers match, the checker places his
initials and the date on the packing slip in the space for that
purpose. It is apparent to me from all the foregoing, and I
find, that, in allotting 2 to 3 minutes, on average, to Canales
in order to complete accurately this entire operation, Re-
spondent was making an unreasonable demand upon him. In
addition, I find no warrant in this record for finding that
Canales or any employee with his experience in this type of
work could have met this timetable of Respondent. Indeed,
Canales testified, without contradiction, that he did not take
his coffee break that afternoon, working instead on this as-
signment.
d. The second reprimand
This reprimand, also in writing, gave as the reason there-
for: "Violation of Company Rule #4 .... Reading newspa-
pers, periodicals, or loafing on Company time. At 7:45 this
morning employee was standing around with his hands in his
pockets. There was plenty of work to be done in the ware-
house at this time." According to the testimony of Bearman,
at the time in question a freight truck belonging to a carrier
was stationed outside the warehouse door and its driver was
unloading cartons of merchandise onto Company pallets. He
was standing on the truck checking off the freight as the
transfer took place and a Company forklift truck, manned by
a Company driver and carrying one of these pallets, was on
the point of entering the warehouse. He noticed at that time
that the door was closed and that "Canales was just walking
around there with his hands in his pocket[s]." Whereupon, he
called out to Canales "to get his hands out of hispocket[s] and
get over there and open the door so that [the forklift driver]
wouldn't have to stop and get off from the forklift and open
it and then get back on and drive in." Canales then opened
the door. According to Canales, he had his hands in his
pockets from time to time because his "pants were falling off"
due to loss of weight, and he was lifting them up. He testified
further that it was his job, in situations where Bearmen is
outside on the truck, to stand by the door in order to assure
free passage to the forklift truck when it comes inside with
the merchandise and, while standing by the door, he is to
listen for the telephone. Canales readily acknowledged that
he had no specific instructions from Bearmen to be at the
door, asserting that he was then acting in accord with Com-
pany policy. Bearmen , on the other hand, testified that
Canales should have then been inside the warehouse filling
out requisitions.
It is apparent from the above that Bearmen did not say to
Canales at the time he noticed Canales that Canales was not
supposed to be standing there. It is further apparent that, as
the door was closed, effective movement by the forklift truck
11 A picture of this type of crate is in evidence as Resp Exh 6
17 It would appear that this may be done with a clawhammer or a crow-
bar
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
required that someone be there to open the door. I note, too,
that, Bearmen made only a brief observation of Canales'
standing there with his hands in his pockets and, based
thereon, took action against Canales. Thus, he did not discuss
the matter with Canales before he took the matter up with
Laughinghouse18 nor does it appear that he made it his busi-
ness to ascertain how long Canales had been standing near
the door and how much of that time he had spent in holding
his hands in his pockets.
I am persuaded from all the foregoing, and find, that Bear-
men proceeded in an inordinate hurry on the basis of a brief
observation of the claimed objectionable conduct by Canales
to report thereon to management. Accordingly, I find that,
even granting that Canales should not have been there at the
time, the rapidity of Respondent's institution of action to
discipline him therefor, without confronting him before doing
so, strongly indicates that Respondent was more concerned
with finding fault with Canales than it was with making sure
that Canales' conduct at the time warranted a disciplinary
reprimand.
e. The session of Canales with management on March 9 at
which time he received the first and second reprimand
The record shows that the details of the incident on Friday,
March 6, involving Canales were reported to Laughinghouse,
and the latter, in turn, relayed them to Hutcheson and a
decision was then made to issue a written reprimand to
Canales thereon. However, because of the lateness of the hour
at which the written reprimand was completed, it was de-
cided to wait until Monday, March 9, to present the written
reprimand to Canales. By 8:30 a.m. on March 9, Laughing-
house relayed to Hutcheson the details he had earlier received
from Bearmen of the 7:45 a.m. incident on March 9 involving
Canales. It was then decided that a written reprimand was to
be given to Canales on this incident, too.
A composite of the credited testimony of Hutcheson,
Laughinghouse, Bearmen, and Canales, who attended the
meeting in Hutcheson's office on Marcb 9, establishes that
Hutcheson told Canales about the two written reprimands
and what prompted them, referring, in substance, to what
was set forth in each reprimand; that he then commented that
Respondent could not put up with work of this nature; that
he handed Canales the two written reprimands and said, "I
want you to read them and sign them";" that Canales said
that he felt that he was doing a good job; and that after
reading the reprimands, Canales signed them.
f. The third reprimand
This reprimand covers the claimed improper filling by
Canales of two requisitions for materials, one occurring on
February 26 and the other on March 12. The reprimand reads
as follows: "Violation of Rule # 12: Unsatisfactory quality
and/or quantity of work. Employees job is to fill material
requisitions at the main warehouse. On 2/26/70 Canales is-
sued five each items on M.R. #6951. The M.R. called for
fifty each items. On 3/12/70 Canales issued the wrong
material on M. R. #71057. The M. R. called for 50 lbs. of
#5356 aluminum rod. 1140
With respect to the first requisition, which was marked
"Rush," Canales testified that he correctly issued the 50 items
as requested, and that no one talked to him on February 26
about not issuing enough items. He testified further that Bear-
" Bearmen testified that he called Laughinghouse at 8 o'clock that morn-
ing.
" According to Laughinghouse, these were the words Hutcheson used.
41 The initials "M.R." are the symbols for "Material Requisition."
man did talk to him more than a week later about this requisi-
tion, telling him that he had sent five blocks over there instead
of fifty, and that this was a serious mistake, and that he
should be more careful, but he added that he denied he had
made any mistake. Bearmen's testimony with respect to the
above was as follows: He was alerted on February 26 by Ken
Mullin, the foreman of the supply shop at Hangar 4, that this
requisition had not been filled correctly as only five magneto
blocks had been sent over instead of fifty. Immediately there-
after, he spoke to Canales and Canales said he had sent 50
items as requested. He thereupon took Canales with him and
they checked Respondent's inventory together and found
that there was an excess of 45 such items. At this, he ex-
plained to Canales how important it was, because of periodic
inspection by the U.S. Government, that "these things ... be
kept up."
Assuming, without deciding, that Canales made an error
in filling the requisition, Bearmen's own testimony establishes
that he did not, upon learning thereof on February 26, recom-
mend that Canales be disciplined therefor, notwithstanding
that this was a rush order and that, in his view, Canales had
made a serious mistake. And it would appear that Bearmen
was not thereby according Canales any special consideration.
Thus, Bearmen also testified that, although his department
fills between 25 and 50 requisitions daily and utilizes about
five employees on this kind of work '41 he had never caused
any reprimands to issue to any of them, other than the one
to Canales on March 13, for an error in filling them .41
With respect to the second requisition, Canales testified
that the order in question called for a part with the number
5356; that, in the course of filling it on March 12, he located
boxes with the first of these digits handwritten in ink on the
outside and the remaining three digits stamped in ink; that he
showed Bearmen these markings and questioned whether this
was the right item; that Bearmen told him, "Yes, go ahead
and issue it"; and that he then filled the order for 50 pounds
of aluminum rod with five such boxes, 10 pounds to a box,
and all boxes had the above described markings. In regard to
the above, Bearmen testified as follows: He was alerted to the
error by Canales in filling this requisition by a telephone call
on March 12 from Muennink, the leadman in the welding
booth. The latter reported that he had ordered aluminum rod
numbered 5356 and he had sent rods numbered 356 and he
could not use them. At this, he, Bearmen, telephoned Laugh-
inghouse and told him that he could not put up with this kind
of incompetent help any more and was going to do something
about it. Later that day, when the packages relating to this
order were returned to the main warehouse, he took Canales
and showed him and explained to him the welding rod bin,
and also showed him the M.R. involved herein, pointing out
that it called for a part numbered 5356 and not 356 which he
had issued. As to the returned packages, it was Bearmen's
testimony that there were 10 packages, each containing 5
pounds of aluminum rod, rather than 5 packages, each con-
taining 10 pounds of rod, as Canales testified; and that he
examined their markings and found all but one had the num-
ber 356 typewritten on a printed label which was placed
thereon by the manufacturer, while the remaining one had
the number 356 written thereon in pencil, and had also come
from the manufacturer in that condition .43
" According to Bearmen , Canales was one of the five such employees at
the time in question.
" While Bearmen was somewhat evasive at first on whether there had,
in the past, been situations, as here, where such errors were brought to his
attention, he finally conceded that this was "probable."
" Muennink gave corroborating testimony concerning the description of
these packages.
GARY AIRCRAFT CORPORATION 319
Granting, without deciding, that Canales was to blame for
the error in filling this requisition, I am nevertheless satisfied,
and find, that Bearmen again exhibited a hastiness in taking
disciplinary action against Canales. Thus, he contacted
Laughinghouse before he spoke to Canales about the error,
just as he had done 3 days before, on March 9, in respect to
initiating the reprimand to Canales for the episode during
which Canales held his hands in his pockets. This hastiness
is further underscored by the fact, as found above, that nei-
ther Canales nor any other employee had ever before been
reprimanded by Bearmen for making an error in filling an
order. In all these circumstances, I conclude, and find, that
Bearmen was more concerned with finding fault with Canales
than he was in making sure that the conduct involved war-
ranted a disciplinary reprimand.
g. The session of Canales with management on
March 13 at which he received the
third reprimand and was terminated
As already found, Laughinghouse was told by Bearmen
during the afternoon of March 12 about the error by Canales
in filling the requisition for aluminum rods earlier that day.
He was also told by Bearmen at that time about the error by
Canales in filling the requisition for magneto blocks on Feb-
ruary 26." Laughinghouse thereupon took this matter to
Hutcheson and a decision was made to reprimand Canales
and also to terminate him, as this was to be his third repri-
mand in a 6-month period. Thereafter, on March 13, at about
10:30 a.m., Canales was brought to Hutcheson's office.
Present were Hutcheson, Laughinghouse, and Heilig. A com-
posite of the credited testimony of Canales, Hutcheson, and
Laughinghouse establishes the following:` Hutcheson told
Canales about the fact that he was being reprimanded for
errors in filling the two requisitions, that this was the third
reprimand in a 6-month period, and that he had no alterna-
tive but to terminate Canales.46 At this, Canales jumped up
from his seat and in a loud voice accused management of
"just trying to throw chickenshit at [him] because they knew
[he] was working for the Union." Hutcheson, in turn, denied
that he knew anything about Canales' working for the Union
and that he did not care "one way or the other." Hutcheson
then sought to get Canales to sign both the reprimand and the
termination papers but Canales refused. Whereupon, Hut-
cheson ordered him terminated. Canales has not worked for
Respondent since that time.
h. Conclusions
It is apparent from my findings above that Respondent's
stated reasons for the three reprimands are suspect. Thus, in
regard to the first reprimand, Respondent fixed an unreasona-
ble amount of time within which Canales should have com-
pleted his checking of the engines. And as to the second and
third reprimands, Respondent manifested, by the haste with
which it proceeded to take action adverse to Canales, that it
was more concerned with finding fault with Canales than it
was with making sure that his conduct, in fact, warranted a
disciplinary reprimand. Noteworthy, too, is the fact that er-
rors in filling requisitions, the conduct involved in the third
reprimand, had, according to Bearmen, never before called
forth a written reprimand. Also significant is the fact that,
although Hutcheson indicated to Canales at the time of his
discharge that Respondent had no alternative but to dis-
" It does not appear that Laughinghouse was aware of this error
" Heilig did not testify in this proceeding
" I note, however, that the rule in question, set forth in relevant part
heretofore, does provide an alternative of suspension for no less than 3 days
charge him, the Company rule, which was applied in this
manner, also allows for the use of discretion in such cases and
for the substitution for discharge of suspension for no less
than 3 days. In all these circumstances, including the facts
that Canales was active in the Union; that Respondent had
knowledge thereof; that, so far as appears, Respondent had,
except for these three written reprimands, all administered
within one week, not issued a written reprimand to Canales
during his tenure of employment of almost 4 years; that
Respondent exhibited an union animus, as shown by the
unfair labor practices already found herein; and that Canales
was terminated in the midst of the Union's organizational
campaign, I conclude, and find, that the asserted reason for
Canales' termination, i.e., the three written reprimands
within a 6-month period, was a pretext to mask Respondent's
termination of Canales because of his union activity. I find
further that Respondent thereby violated Section 8(a)(3) and
(1) of the Act.
4. The allegation in consolidated Cases
23-CA-3660 and 3671 of the discriminatory
discharge of employee Jesse Carmona
a. An overview of the events immediately preceding
Carmona's discharge and the resulting issue
Carmona had three and one half years of employment
tenure with Respondent at the time of his discharge on June
4, 1970. For the period since November 1969, he worked in
Section 32 where his usual work was the Konverkoting of
parts for airplane engines. Louis R. Perkins, Sr., was his
foreman and Rubin Rodriguez was his leadman. Rodriguez
served as a conduit in relaying Perkins' orders to the em-
ployees in this section and was in charge in Perkins' absence.
On the critical day, Carmona was assigned by Rodriguez to
unload engine parts from carts into the appropriate bins in
Section 31, the rework section. Some of those parts were for
the bins near the place where employee Julian H. Alvarez was
working. While in that vicinity, Carmona and Alvarez en-
gaged in conversation. As they were talking to each other,
they were observed by Hutcheson, who was then touring the
section. According to Hutcheson, he observed them from a
distance for 2 or 3 minutes in such conversation. The record
shows that he thereupon walked over to them and made
inquiry as to what they were talking about; that both of them
answered that they were talking about their work, namely,
that Alvarez was explaining to Carmona what a reclamation
tag looked like and that, when a part had such a tag, it was
not to be placed in the bin but was to be returned to Section
32; that Hutcheson accused them of "goofing off," of standing
there 2, 3, 4 minutes, and of not, so far as he could see,
accomplishing anything; and that he added that if they had
any questions about parts in this section, such questions were
for the leadman. In this latter connection, Carmona, in effect,
conceded that employees were under instructions not to inter-
fere with the work of other employees, when, as in his own
case, they were in another section; and that if they had any
questions about the work, such questions were to be directed
to the leadman. The upshot of this episode was a decision by
Hutcheson to reprimand Carmona and Alvarez for loafing on
the job. However, whether Carmona and Alvarez deserved to
be reprimanded for loafing is, in view of subsequent develop-
ments, a peripheral matter. Thus, later that day, Perkins, on
instructions from Hutcheson, escorted Carmona to Hutch-
eson's office. While en route, Carmona engaged Perkins in
conversation. According to Carmona, he then said to Per-
kins, "Charlie Hutcheson probably have a good reason to
take me to his office. Either one of two things going to happen
... I am going to get a reprimand or get fired." Perkins'
version was substantially different. According to him, Car-
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mona asked him what this was all about ; his reply was that
they would just have to wait and find out when they get to
the office; and then , as they continued walking, Carmona
said, "Well, I'm going to tell you one thing, it better be good
or only one of us is going to walk out of there." Perkins made
no reply thereto.47 In Hutcheson 's office, as will appear here-
inafter in greater detail , Perkins mentioned the above conver-
sation after Hutcheson had virtually finished taking up the
matter of Carmona 's written reprimand and after this had
brought forth some criticism by Carmona of Hutcheson and
him in their managerial ' roles.45 The discussion between Hut-
cheson and Carmona then changed course and dwelt upon
whether Carmona had made the remarks attributed to him
by Perkins and what he meant by his remarks. The conse-
quence of this latter exchange was a decision to discharge
Carmona under Rule 43 of the Company 's Rules," for threat-
ening supervision . That rule calls for mandatory discharge in
situations involving "threatening , cursing, slandering or oth-
erwise showing disrespect toward supervision , military, com-
pany or customer representatives ." The issue then , taking
into account the facts that Carmona was active in the Union
and that Respondent admits having knowledge thereof, is
whether , as contends , it discharged Carmona for uttering a
threat in violation of a Company rule, or whether , as General
Counsel contends , in effect , the claimed violation of the rule
was a pretext to mask Carmona 's discharge because of his
union activity . I shall now proceed to treat with the signifi-
cant aspects of this discharge.
b. Carmona 's union activity
Carmona , like Canales , was one of those who assisted Fidel
Sanchez, the organizer for the Union , in the organizational
drive, and helped him in the formulation of an in -plant organ-
izing committee and in the selection of committeemen from
among the employees . Carmona accompanied Sanchez on
visits to the homes of employees in an effort to get them to
sign union authorization cards and also turned over signed
authorization cards to Sanchez . He attended all regular meet-
ings of the Union , as well as the in -plant committee meetings,
taking an active part therein . In addition , he was one of the
two observers for the Union at the election on April 3.
c. The first session in Hutcheson's
office on June 4
As already noted , Carmona was escorted to Hutcheson's
office by Perkins , at Hutcheson 's request . In the office at the
time were Hutcheson and Ed Koshina , the production
manager . The record establishes that Hutcheson initiated the
business at hand by telling Carmona that he was going to give
him, as well as Alvarez, a reprimand because they had wasted
two minutes of Company time in conversation that morning;
and that Carmona denied the accusation , maintaining that
Alvarez and he were talking about parts , and refused to sign
the written reprimand when he was requested to do so by
Hutcheson . At this point, according to the uncontradicted
testimony of Hutcheson and Perkins , Carmona became criti-
cal of the way he was being treated . According to Perkins,
Carmona called him a "sorry foreman" and accused him of
cursing people and of conniving ways to get rid of Carmona.
According to Hutcheson , Carmona said that he "didn't like
°" According to Perkins, they were then "in the midst of the plant and
a lot of people."
" Perkens' explanation of his timing was, "I didn't tell it to anybody until
after Mr. Hutcheson got through with his business. That is what I was called
in there for."
" There is undenied testimony by Hutcheson that each employee is given
a copy of these rules at the time he is hired.
the way the foremen had been pushing him, the way [he,
Hutcheson] had been cursing people. Both Hutcheson and
Perkins agree that Perkins thereupon interrupted, saying,
"Charlie [Hutcheson] I have got to tell you something that
happened on the way up to the office." After Perkins related
his version of the conversation with Carmona, as described
heretofore, Hutcheson began to question Carmona about this
attribution to him by Perkins. According to Carmona, the
exchange between Hutcheson and him was as follows: Hut-
cheson asked him whether he had said to Perkins, "this better
be good or only one of us is coming out of there." He an-
swered that "[he] didn't say it that way."50 Hutcheson then
asked him what he meant and he answered that he meant that
"one of two things happen every time somebody comes to the
office, you get a reprimand or you get fired." He acknowl-
edged also that, when asked by Hutcheson, what he meant by
the statement attributed to him by Perkins, he answered,
"What do you think I meant?", and that he could have been
asked the same question a second time and he could have
given the same answer. Both Hutcheson and Perkins gave
mutually corroborative testimony as to this exchange. Each
of them testified that Carmona admitted that he had made the
remarks attributed to him; that Hutcheson then asked what
Carmona meant thereby; that Carmona answered, what did
you think I meant?"; and that the question was put to Car-
mona again by Hutcheson and Carmona gave the same an-
swer.
d. The interlude between the first and second
session in Hutcheson's office
After the above exchange, Hutcheson asked Perkins to take
Carmona to the reception area and stay there with Carmona
until called by him. While in that area , Perkins and Carmona
had a short conversation. According to Carmona, he said to
Perkins, "this is it"; and Perkins replied either "You had it
coming," or "if it is, Jesse, it's your own fault." Perkins, on
the other hand, testified to the following: Carmona said,
"Well, I messed myself up, but good this time," and he an-
swered, "Well, Jesse, you have got nobody to blame but
yourself."
e. The second session in Hutcheson's office
At Hutcheson's request, Carmona was brought back to his
office. Present during the session were Hutcheson, Perkins,
Koshina, Kellenbarger, a personnel man, and Carmona. Ac-
cording to Carmona, Hutcheson addressed him and said,
referring to some papers, "This is your termination papers-
you are no more employed at Gary. Turn in your badge"; in
addition, Hutcheson started reading from these papers and
said, "We have got you on Article 43, threatening the Com-
pany, no respect for the Company." At this, also according
to Carmona, he interjected that, if he has no respect for the
Company, Hutcheson and others (namely Perkins and Fore-
man Schuehle of Section 31) were to blame for having set a
bad example by using profane language in front of employees,
and he pointed out, in this connection, that Hutcheson had
used profanity on one occasion in front of another employee
and him during a discussion about his work. Hutcheson then
asked him to sign the termination papers but he refused. Both
Hutcheson and Perkins also testified as to what occurred at
this sessions' Their testimony which was, in large part, mutu-
50 At another point, Carmona said that he answered, "I am not saying
that you are saying that."
" It was stipulated that, if Koshina were called as a witness, his testimony
concerning this session and the first session would be the same as their
testimony.
GARY AIRCRAFT CORPORATION 321
ally corroborative was as follows: Hutcheson asked Carmona
again if he had made the remarks attributed to him by Per-
kins, and Carmona answered in the same way as before. At
this, Hutcheson told Carmona that he had violated a serious
rule of the Company, namely , Rule 43, and read the rule to
him. Hutcheson then said that he had no alternative but to
terminate Carmona, and handed Carmona the termination
papers, asking Carmona to sign them but Carmona refused.
f. Conclusions
I am persuaded that, if made, the statement attributed to
Carmona, namely, "it better be good or only one of us is going
to walk out of there," could, in the circumstances, reasonably
have been understood to constitute a threat to supervision
and, as such, rendered Carmona subject to mandatory dis-
charge under Company Rule 43.52 The critical issue here is
whether the statement was, in fact, made. Carmona's tes-
timony, at first, was to the effect that, after the above remark
was attributed to him by Perkins in Hutcheson's office and he
was asked by Hutcheson whether he had made the remark,
he disavowed making the remark. However, it was his further
testimony that he answered, when asked what he meant by
the above remark, "What do you think I meant?" Since this
answer by Carmona subsumes his having made the remark,
it tends to contradict his earlier testimony. In contrast to this
seemingly ambivalent testimony is the mutually corrobora-
tive testimony of Respondent's witnesses that Carmona first
admitted the attribution and then, when asked what he meant
thereby, answered, "What do you think I meant?" As this
quoted answer by Carmona is a more logical sequitur to an
admission than to a disavowal of the attribution, I am per-
suaded, and find, on the basis of the logic as well as the
probabilities of the situation, that Respondent's witnesses
testified more reliably than Carmona and that Carmona did
admit making the remark attributed to him by Perkins."
In light of the foregoing, it cannot be gainsaid that, at the
time of Respondent's decision to terminate Carmona, a valid
reason grounded in Carmona's uttering a threat to super-
vision in violation of Company Rule 43 existed for taking
such action. However, this must be measured against the fact
that Carmona was active in the Union, that Respondent was
aware thereof, and that Respondent had engaged in other
unfair labor practices, as found therein, and manifested
thereby an union animus.54 On balance, and particularly as
Carmona admitted making the threat to supervision and as
Respondent acted consistently with its rules, which had
theretofore been made known to Carmona and which man-
dated discharge in such a situation, I am satisfied that the
record does not preponderate in favor of a finding that Re-
spondent discharged Carmona because of his union activity.
Accordingly, I conclude, and find, that the allegations of the
amended consolidated complaint that Respondent dis-
cnminatonly discharged Carmona in violation of Section
" Hutcheson testified, in this connection, that the remarks were "to
[him] a plain threat toward [a] supervisor," and that "[he] thought it was a
very obvious threat "
" While I take cognizance of the testimony of Carmona and Perkins as
to the short conversation between them during the interval between the first
and second sessions in Hutcheson's office that day, I draw no implications
adverse to Carmona therefrom and place no reliance thereon in making the
above finding Thus, while Carmona, according to his own testimony, appar-
ently foresaw that he was headed for discharge, that testimony, as well as
Perkins' version of what Carmona said, falls short of an admission by Car-
mona that he had made the statement attributed to him
" I am not persuaded that the record preponderates in favor of a finding,
as contended, in effect, by the General Counsel, that there was a meaningful
change of attitude for the worse toward Carmona after the election on April
3, at which he was one of the two observers for the Union
8(a)(3) and (1) of the Act have not been sustained by the
record."
Upon the basis of the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By the following conduct which interfered with, re-
strained and coerced employees in the exercises of the rights
guaranteed in Section 7 of the Act, Respondent has engaged,
and is engaging , in unfair labor practices within the meaning
of Section 8(a)(1) of the Act:
(a) Engaging in surveillance of the union activities of
its employees by attendance at a union meeting.
(b) Soliciting the aid of employees to tell other em-
ployees to vote against the Union in an upcoming elec-
tion.
(c) Impliedly threatening employees with plant re-
moval or closing down and terminating operations, if the
Union prevailed in an upcoming election.
(d) Granting benefits to its employees during an or-
ganizational campaign by the Union in order to induce
them to abandon the Union.
(e) Granting benefits to its employees during an organ-
izational campaign by the Union and thereafter with-
drawing them in order to induce them to abandon the
Union.
4. By discharging employee Guadalupe R. Canales on
March 13, 1970, because he engaged in union activity pro-
tected by the Act, Respondent has discriminated in regard to
the hire or tenure of employment of its employees, and is
engaging in unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (1) of the Act.
5. Respondent has not discriminated against employee
Jesse Carmona in violation of Section 8(a)(3) and (1) of the
Act nor has it violated Section 8(a)(1) of the Act in any
respect not found herein.
IV FINDINGS AS TO THE UNION'S OBJECTIONS
TO THE ELECTION IN CASE 23-RC-3399
It is apparent from my findings heretofore with respect to
the allegations in the amended complaints herein that Re-
spondent-Employer contravened the Act during the critical
period between the filing of the petition in Case 23-RC-3399
on February 2 and April 3, the day of the election. It neces-
sarily follows therefrom that there is merit in those objections
by the Union to the above election which have their counter-
part in these sustained allegations. Accordingly, I find merit
in, and would sustain , objections 1(b) relating to unlawful
surveillance, 1(d) relating to threats to close the plant in the
event the employees voted in favor of the Union, and 1(e)
relating to promises of benefits in order to affect the results
of the election, and I also find without merit, and would
overrule, objections 1(a) relating to coercive interrogation
and 1(c) pertaining to threats of loss of benefits for supporting
the Union and/or voting in favor of it, and objection 2 per-
taining to the giving of wage increases immediately before the
election so as to dissuade employees from voting for the
Union.
" I find it unnecessary to pass upon, and do not decide, whether Carmona
was, in fact, loafing during the morning of the discharge and whether Re-
spondent properly sought to reprimand him therefor For, I am satisfied that
a finding in the negative on these issues would not derogate from my conclu-
sions above that Carmona's discharge did not violate the Act
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There remains for consideration objection 3, which reads
as follows:
The majority of eligible voters are Spanish speaking
Americans, many of whom do not read English. For that
reason arrangements were made with the Regional
Office to have the Notices of Election prepared in both
Spanish and English. Such notices were prepared in both
Spanish and English and were sent to the parties with
instructions to the Employer that such notices were to
be posted in suitable and conspicuous places in and
about the Company's property. Nevertheless, the Em-
ployer only posted those notices which were printed in
English with the results that many employees were de-
nied the opportunity to understand the purpose of the
election or the assurance contained in the notice that the
election was to be a secret ballot election conducted
under the supervision of the National Labor Relations
Board.
The record shows that, after entering into the consent elec-
tion agreement, the Union, without the knowledge of Re-
spondent-Employer or its attorneys, unilaterally requested of
a Board agent that election notices be posted in English and
in Spanish. Thereafter, in the letter of transmittal from the
Regional Director to Respondent-Employer there were in-
cluded four election notices in English (except that the sam-
ple ballot set forth therein was in both English and Spanish),
four election notices in Spanish (except also for the bilingual
sample ballot therein), a certificate of posting, and an election
check sheet. The latter indicated that two notices were to be
posted by Respondent-Employer in suitable and conspicuous
places and that two extra notices were to be used in the event
of mutilation, loss, etc. Respondent-Employer thereupon
posted two of the English election notices in conspicuous
places in the plant. Respondent-Employer's explanation for
posting only the English notices is that the eight notices sent
to it with the letter of transmittal were so arranged that the
four English notices were on top and the four Spanish notices
were underneath, and that Company officials pulled the top
two notices and posted them. In this connection, there is
testimony by Bambace, of counsel for Respondent-Employer
herein, that, in his capacity as legal representative of Re-
spondent-Employer in the election proceedings, he received
a copy of the letter of transmittal but it contained no election
notice in Spanish; its contents were an election notice in
English and an election check sheet. The record also shows
that shortly before the election there went out from the Union
to all the employees appearing on the list of employees, fur-
nished by Respondent-Employer to the Union in accordance
with Board directions, a handbill with one side in English and
the other side in Spanish, which set forth graphically and in
words the mechanics of the election procedures; urged a
"yes" vote for the Union; and explained what a "yes" vote
means, as follows:
You are telling the U. S. Government to certify the
UNION. This gives the union the legal right to REPRE-
SENT US. It gives all of us the opportunity to work
together for better wages-better conditions-and real
security. A "YES" vote does not mean you are voting for
any person. A "YES" vote is not a vote against the
company or your boss. A "YES" vote is a vote for your-
self and your fellow workers.
In addition, all but three of the eligible employees voted and,
of these three, one employee did not vote because he was in
the hospital at the time. Further, there is no evidence what-
ever of any employee claiming that his ballot, as marked, did
not express his true intent.
In light of all the foregoing, I am persuaded that the failure
of Respondent-Employer to post election notices in Spanish
is insufficient ground for sustaining this objection. Thus, Re-
spondent-Employer had no advance knowledge that notices
in Spanish, as well as in English, had been requested or were
being provided; the election notices which were posted did
contain a sample ballot in both English and Spanish; the
Union's leaflet to its employees explained the mechanics of
the election procedures both in English and in Spanish; the
vast majority of Respondent-Employer's employees voted,
and, so far as appears, no employee who voted has since
claimed that his ballot, as marked, did not express his true
intent; and the tally of ballots signed by the observers for both
parties certified that the election was fairly conducted. It
follows therefore, and I am satisfied, that the conditions un-
der which the election was conducted were adequate to assure
the effective and informed expression by all employees of
their true desires.56 Accordingly, I recommend that objection
3 be overruled.
Recommendation Respecting the Election
As I have found merit in objections 1(b), 1 (d) and 1(e), I
find that this objectionable conduct by Respondent-
Employer, as well as the unlawful discharge of Canales, all
occurring, as they did, subsequent to the Union's filing of its
representation petition herein but before the election, were
sufficient to taint the atmosphere so that a free and fair elec-
tion could not be held. I therefore recommend that the results
of this election be set aside and a new election be conducted
at a time to be determined by the Regional Director.
The Remedy Respecting the Unfair
Labor Practices Found
Having found that Respondent has engaged in unfair labor
practices within the meaning of Sections 8(a)(1) and 8(a)(3)
of the Act, I shall recommend that it cease and desist there-
from and that a broad order issue designed to protect its
employees.
Having found that Respondent violated Section 8(a)(3) and
(1) of the Act by discharging Guadalupe R. Canales, I shall
also recommend affirmatively that Respondent offer him im-
mediate and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any loss
of earnings he may have suffered as a result of the discrimina-
tion against him by payment to him of a sum of money equal
to that which he would have earned as wages from the date
of such discrimination to the date of Respondent's offer of
reinstatement, less his net earnings during such period, with
backpay and interest thereon to be computed in the manner
prescribed by the Board in F. W. Woolworth Co., 90 NLRB
289, and Isis Plumbing & Heating Co., Inc., 138 NLRB 716.
RECOMMENDED ORDER57
Upon the basis of the foregoing findings of fact and conclu-
sions of law, and upon the entire record in the case, I reccom-
mend that:
?4 See, in this connection, Thomas A. Nelson d/b/a Trio Metal Cap Com-
pany, 168 NLRB No. 105.
" In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 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.
GARY AIRCRAFT CORPORATION
A. Respondent, its officers, agents, successors and assigns,
shall
1. Cease and desist from:
(a) Engaging in surveillance of the union activities of its
employees by attending union meetings.
(b) Soliciting the aid of employees to tell other employees
to vote against the International Brotherhood of Operative
Potters, AFL-CIO-CLC, herein called the Union, in an up-
coming election.
(c) Impliedly threatening employees with plant removal or
closing down and terminating operations, if the Union pre-
vailed in an upcoming election.
(d) Granting benefits to its employees during an organiza-
tional campaign in order to induce them to abandon the
Union.
(e) Granting benefits to its employees during an organiza-
tional campaign and thereafter withdrawing them in order to
induce them to abandon the Union.
(f) Discouraging membership in the Union, or any other
labor organization of its employees, by discharging or other-
wise discriminating against its employees in regard to hire,
tenure, or any other condition of employment.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to join or
assist a union, to bargain collectively through representatives
of their own choosing, and to engage in other concerted
activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any and all such
activities.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Offer to Guadalupe R. Canales immediate and full
reinstatement to his former job, or if that job no longer exists,
to a substantially equivalent position without prejudice to his
seniority or other rights and privileges, and make him whole
for any loss of earnings he may have suffered as a result of
the discrimination practiced against him, in the manner set
forth in the section of this Decision entitled "The Remedy."
323
(b) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports and all other records necessary in
determining the amount due as backpay.
(c) Notify Guadalupe R. Canales, if presently serving in the
Armed Forces of the United States, of his right to full rein-
statement, upon application, in accordance with the Selective
Service Act and the Universal Military Service and Training
Act of 1948, as amended, after discharge from the Armed
Forces.
(d) Post at its plant in Hondo, Texas, copies of the notice
attached, marked "Appendix."58 Copies of said notice, on
forms provided by the Regional Director for Region 23, after
being signed by a representative of Respondent, shall be
posted by Respondent immediately upon receipt thereof and
be maintained for 60 consecutive days thereafter in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the said Regional Director, in writing, within 20
days from the date of the receipt of this Trial Examiner's
Decision, what steps Respondent has taken to comply here-
with.59
(f) It is further recommended that the amended complaints
be dismissed insofar as they allege violations of the Act not
found herein.
" In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a judgment of the United States Court of Appeals
enforcing an order of the National Labor Relations Board "
" In the event that this Recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify said Regional Director, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith "