Gary Aircraft Corp.

National Labor Relations Board - Board Decisions

Sep 14, 1971

193 N.L.R.B. 108 (N.L.R.B. 1971)

108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gary Aircraft Corporation and International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America (UAW). Cases
23-CA-3672, 23-CA-3702, 23-CA-3733,
23-CA-3733-2, 23-CA-3733-3, 23-CA-3733-4,
and 23-RC-3440
September 14, 1971
DECISION, ORDER, AND DIRECTION
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On March 24, 1971, Trial Examiner Marion C.
Ladwig issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner further recommended that the chal-
lenged ballots cast by 20 employees in Case
23-RC-3440 be opened and counted and that,
thereafter, in the event the Union has not received a
majority of the ballots cast, the election be set aside
and a new election be held. The Respondent filed
exceptions to the Trial Examiner's Decision and a
brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases and hereby adopts the
findings,' conclusions,2 and recommendations3 of the
Trial Examiner.
ORDER AND DIRECTION
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
Gary Aircraft Corporation, San Antonio, Texas, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's recommended
Order.
It is hereby directed that as part of his investigation
to ascertain representatives for the purposes of
collective bargaining with the Employer, the Regional
Director for Region 23 shall, pursuant to the Board's
Rules and Regulations, Series 8 , as amended, within
10 days from the date of this Direction, open and
count the ballots of Eliseo Casanova, James Dodson,
Jesse Dominguez, James Fields, William Gentry,
Ramon Gonzalez, Willis Hensley, Calvin Lissner,
Angel Lopez, Seratin Lopez, Othon Martinez, Robert
Mayen, Pedro Perez, Philip Persyn, Manuel Puente,
Tomas Sanchez, Victorino Sanchez, Eladio Trevino,
Paul Tudyk, and Benito Zuniga and thereafter
prepare and cause to be served on the parties a revised
tally of ballots, including therein the count of said
ballots. If the Petitioner receives a majority of the
valid ballots cast, according to the revised tally, the
Regional Director shall certify it as the exclusive
bargaining representative of the employees in the
appropriate unit. If the Petitioner does not receive a
majority, the following shall become applicable.
IT IS FURTHER ORDERED that the election conducted
in Case 23-RC-3440 on July 10, 1970, be, and it
hereby is, set aside, and that said case be, and it
hereby is, remanded to the Regional Director for
Region 23 to conduct a new election when he deems
the circumstances permit a free choice of a bargaining
representative.
i In the first sentence of the sixth paragraph of section 11, A, of his
Decision , the Trial Examiner inadvertently referred to July 18 rather than
July 10 as the day on which employees Morales and Otero met Personnel
Manager Gomez on his way to the preelection conference This
inadvertence is hereby corrected
2 The Respondent has excepted to certain credibility findings alleging
that the Trial Examiner was biased and prejudiced It is the Board's
established policy not to overrule a Trial Examiner's resolutions with
respect to credibility unless a clear preponderance of all the relevant
evidence convinces us that the resolutions were incorrect Standard Dry
Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 363 (C A 3) We have
carefully examined the record and find no basis for reversing his findings
and reject the charge of bias and prejudice
3 There are no exceptions to the Trial Examiner's findings with respect
to the challenged ballots of James Dodson, Angel Lopez , Pedro Perez,
Philip Persyn, Manuel Puente, Seratin Lopez, Robert Mayen , Eladio
Trevino, Gregorio Torres, Eugene Mireles, Paul Mireles, Robert Pauley,
James Fields, Willis Hensley, Calvin Lissner , Tomas Sanchez, Paul Tudyk,
Eliseo Casanova, William Gentry, Othon Martinez , Victorino Sanchez,
Jesse Dominguez, Ramon Gonzalez , and Benito Zuniga that Union's
Objections 4, 5, and 6, as designated by the Trial Examiner in his Decision,
be overruled, or that the Employer's Objections 2 and 3 be overruled. In
the absence of exceptions thereto, these findings are adopted pro forma.
193 NLRB No. 21
GARY AIRCRAFT CORP. 109
[Direction of Second Election4 omitted from
publication.]
Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
4 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
addresses 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
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner: These consolidated
cases were tried at San Antonio, Texas, on November 2-6,
10-12, and 16-18,1 pursuant to complaints issued on
August 14 and October 6, and an order dated October 6,
consolidating the cases and referring the representation
case to the Board. The six charges were filed by the Union,
respectively, on June 19 (amended July 13), July 20
(amended July 27 and August 12), August 19, August 31
(amended September 8), September 10, and September 16.
The primary issues in the complaint cases are whether the
Company, the Respondent, (a) unlawfully threatened and
interrogated employees during the Union's organizing
drive, (b) discriminatorily discharged nine active union
supporters, before and after the election, and (c) discnmi-
natorily issued reprimands, withdrew overtime, and
assigned more arduous work to employees, in violation of
Section 8 (a)(1), (3), and (4) of the National Labor Relations
Act.
In the representation case , the petition was filed on April
20, an election (directed by the Regional Director) was
conducted on July 10, 39 ballots were challenged, and both
the Company and the Union filed timely objections.
Excluding challenges , the vote was 231 for and 225 against
union representation. All except 10 of the challenged
ballots are in issue , plus the objections.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, the Company, and
the Union, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE UNION
INVOLVED
The Company, a Texas corporation, is engaged in the
repair of airplane engines at its plant in San Antonio,
Texas, where it annually receives goods and materials
valued in excess of $50,000 directly from outside the State.
The Company admits, and I find, that it is engaged in
commerce within the meaning of Section 2(6) and (7) of the
If. THE ALLEGED UNFAIR LABOR PRACTICES
A. Alleged Threats and Interrogation
The Union began organizing the Company's San Antonio
employees in late 1969 and, on February 17, formally
notified the Company of the organizing drive and the
names of employees on the in-plant organizing committee.
An early indication that the Company had adopted a
policy of finding pretexts for discharging active union
supporters was given on February 23, when Leadman Jack
Howard (an admitted supervisor) talked to employee Jesse
Verastegui about the union button he was wearing. As
Verastegui credibly testified, Howard "came over to me
and saw it, and said that I better take the button off or the
people upfront will see it and they will find a way to get rid of
me." [Emphasis supplied.] Verastegui protested, "Jack,
that's my rights," but Howard stated that he could not do
anything about it, "It's the people up front." Verastegui
removed the union button. When Howard was called as a
defense witness, he first answered, "I can't recall," when
asked if he ever had a conversation with Verastegui about a
union button. He then added, "I don't-no, I didn't." I
discredit his denials and find that the threat, about the
Company finding a way of getting rid of Verastegui, was
coercive and violated Section 8(a)(1) of the Act, as alleged.
About April 6, 3 days before Verastegui's discharge,
Howard (as Verastegui credibly testified) came up and
asked, "Jesse, you still strong for the Union?" Verastegui
answered, "Yes, sir, that is the only way we are going to
better ourselves." Howard commented, "Well, I tried," and
walked off. (Howard admitted asking Verastegui "if he was
still strong for the Union," but denied telling him, "Well,
Jesse, I tried." According to Howard, "I probably just
shook my head . . . I don't recall what I said." Finding
Verastegui to have been the more trustworthy witness, I
credit his testimony and discredit Howard's denial.) I find
that Howard's April 6 interrogation of Verastegui, includ-
ing his comment, "Well, I tried," was coercive, particularly
in view of Verastegui's discharge later that week. I therefore
find that the interrogation violated Section 8(a)(1) of the
Act, as alleged.
On July 7, President A. W. Stewart gave an antiunion
speech to employees in the plant, stating (among other
things) that the Union lied to them and urging them to vote
against union representation. After the speech, according to
employee Victor San Miguel, Leadman John Harrison
asked him what he thought about Stewart's speech. San
Miguel responded, "I didn't believe him." Harrison "gave
me a dirty look" and walked off, but returned the next day,
and asked "if I had changed my mind." San Miguel
answered no, whereupon Harrison stated, "Well, if you
vote for the Union that is going to be the biggest mistake of
your life." One day later, on July 9, San Miguel was
discharged, as discussed later. When called as a defense
witness, Harrison related a bitter experience he had had as
a boy with a union in a coal mine. Yet, he testified that he
I All dates are in 1970 unless otherwise indicated
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
never talked to any employees about his coal mine
experience, and did not tell San Miguel that voting for the
Union would be the biggest mistake in his life, but "If I had
said such a thing . . . I would have been expressing to him
my personal experience." Harrison did not impress me as a
credible witness, whereas San Miguel did. I credit San
Miguel's account of the conversations, and discredit
Harrison's denials. Particularly in view of San Miguel's
discharge the following day, I find that Leadman
Harrison's July 8 statement , concerning the "biggest
mistake of your life," was coercive and violated Section
8(a)(1) of the Act, as alleged.
On July 8 and 9, Vice President A. J. Stewart gave an
antiunion speech to about 25 small groups of employees.
Employee Joe Otero (who impressed me as an honest,
forthright witness) credibly testified that at the conclusion
of A. J. Stewart's July 9 speech to his section, Stewart
stated: "In every barrel there are a couple of rotten apples.
In this case there 's two. I also see that the same two are
wearing sunglasses , probably to hide their identity [thereby
referring to Otero and employee Ricardo Morales, both of
whom were wearing sunglasses ]. They are the bad guys.
That is all nght. We will take care of them next week."
Morales (who did not appear to have as good a memory)
recalled the comment about "rotten apples," and testified
that Stewart concluded, "We will deal with them next
week." (On July 16, as discussed below under II,B,5,b, both
Otero and Morales were given reprimands.) When called as
a defense witness, Stewart did not specifically deny having,
after giving his speech to this group, added the comment
about two "rotten apples" wearing sunglasses . (In the
absence of such a specific denial, which would have placed
the "rotten apples" remark directly in dispute, I do not
agree with the Company's argument in its brief that Otero's
and Morales' testimony should not be credited because the
General Counsel failed to call other witnesses in that
section to corroborate their testimony.) The complaint
alleges that on July 9, A. J. Stewart "threatened employees
with discharge for engaging in activities on behalf of the
Union." Although Otero and Morales (who were active in
the organizational effort) were not specifically named by
Stewart, they were the only two employees wearing
sunglasses . And although Stewart did not specifically state
why he considered them "rotten apples," they were the only
two present who were wearing union buttons. And further,
although neither of the employees was discharged the next
week, and only one of them was discharged later (Otero on
September 14), I find that Stewart's remark about taking
care of them next week was an implied threat either to
discharge them or to take other reprisal against them. I
therefore find that the evidence supports the allegation and
that the Company thereby violated Section 8(a)(1) of the
Act by making the implied threat.
At lunchtime on July 18, employees Morales and Otero
met Personnel Manager Joel Gomez outside the break-
room, on his way to the preelection conference. (The two
employees were alternate observers at the election, held
between 2 and 5 o'clock that afternoon.) Morales asked
Gomez for a reservation form for the Company's July 18
employee picnic. Gomez asked what happened to his and
Morales said he had lost it. Then, according to Morales,
Gomez asked, "Isn't the Union going to give you a picnic?"
Morales said, "Yes, provided we win the election." Without
saying anything further, Gomez turned around and started
walking away. Morales overtook him and asked, "Hey,
Joel, aren't you going to give me one?" Gomez answered,
"No," and left. According to Gomez, Morales "asked me if
I could give him another reservation form, and I told him I
didn't have any." Then "I turned and started to walk on,
and Richard called after me, `Hey, you are not going to give
me one?' And again I said, `No,' " and "just kept on
walking." (The next workday, Gomez had additional forms
run off. Although Morales had also repeatedly asked his
leadman for another form, no one gave him one, and he did
not attend the picnic.) Gomez' version does not ring true. If
Gomez had in fact said he did not have any reservation
forms (as Gomez claimed), it seems unlikely that Morales
would have asked him if he was "not going to give me one,"
and that Gomez would have flatly answered, "No" (as
Gomez admitted). I credit Morales' testimony (not
specifically denied by Gomez) that Gomez did raise the
question about a union picnic before telling Morales, "No."
Therefore, as contended by the General Counsel, "Gomez
gave the impression to Morales that he was being denied a
picnic form because of his union activity." Although taking
time to inquire what had happened to Morales' first
reservation form and to ask about whether the Union
would give a picnic, Gomez did not tell Morales that more
forms would have to be run off or that a reservation would
not be required for attending. (Gomez later testified that
other employees went to the company picnic without
reservation.) I find that Personnel Manager Gomez, having
injected the Union into the conversation, did flatly refuse to
give this active union supporter another picnic reservation
form because of his union activity, in violation of Section
8(a)(I) of the Act.
B. Discharges and other Alleged Reprisals
1. Asserted misuse of reprimand procedure
The General Counsel contends that the Company
misused its reprimand procedure, issuing reprimands as
pretexts and for insignificant incidents "in order to rid itself
of the nucleus to the Union's organizational effort," and
wiping out "a significant percentage" of the Union's in-
plant organizing committee and election observers, even
though the Company "did not have any complaints
regarding the work or production of any of the discnmina-
tees." The General Counsel also contends that in order to
justify pretextual discharges, the Company treated as
mandatory the discretionary discharge provision in the
"Company Rules."
The Company contends that its written rules "require a
mandatory discharge" whenever an employee "received
three written reprimands within a six month period," and
denies that any employee was discharged or discriminated
against in violation of the Act.
Contrary to the Company' s position, the Company Rules
do not require mandatory discharge, except where the
violation of a more serious offense is involved. Paragraph A
of the Company Rules provides that an employee receiving
three reprimands in a 6-month period for violating one or
GARY AIRCRAFT CORP. Ill
more of 17 listed offenses "will be subject" to discharge, but
that the Company "at its discretion" may amend discharge
to a suspension of not less than 3 days. Mandatory
discharge is not required unless one of the three violations
in a 6-month period involves a more serious paragraph B
offense (or unless two paragraph B or one paragraph C
offense is involved)
Thus, as clearly stated in its written rules, the Company
has the discretion of assessing only a 3-day suspension for
three reprimands in a 6-month period for violating such
paragraph A "rules" as leaving work station without
permission (rule 2), loafing on company time (rule 4), and
reporting late or being absent three times in a 30-day period
(rules 10 and 11). Yet, despite the clearly discretionary
provision, four of the active union supporters (Estala,
Martinez, San Miguel, and Verastegui) were discharged
after receiving, in 6-month periods, three reprimands
involving only paragraph A offenses. All of them were
experienced employees and one of them, San Miguel, was
considered one of the Company's 20 best employees before
he testified on behalf of the Union at the May 18
representation hearing. The plant was "expanding and
hiring people," and the Company offered no reason for not
merely suspending, in an effort to retain, these valuable
employees-other than the fallacious claim that discharge
was mandatory under the Company rules.
After considering (a) the fact that the Company placed
the obviously erroneous interpretation on the reprimand
provision, (b) the Company's discharge of the four above-
mentioned experienced employees without any other
explanation for the maximum penalty, (c) the fact that the
Company was hostile to union organization and engaged in
other unfair labor practices in its antiunion campaign, and
(d) the early indication, given by Leadman Howard, that
the Company had adopted a policy of finding pretexts for
discharging active union supporters (as discussed above), I
find that the Company deliberately misused the reprimand
procedure as a means of establishing pretexts for the
discriminatory discharge of active union supporters. (In the
absence of appropriate allegations in the complaint, I do
not rule on the legality of Rules 5 and 9, prohibiting the
distribution of literature, and soliciting at any time on
company premises without written permission.)
I now consider whether the General Counsel has proved,
in individual instances, that the Company issued repri-
mands as pretexts and whether each discharge or other
action was discriminatorily motivated.
2. Employee under Leadman Howard
The discharge of Jesse Verastegui, for receiving three
reprimands in a 6-month period, not only illustrates clearly
how the reprimand procedure was misused to eliminate an
active union supporter, but also reveals the identity of one
of the "people up front" whom Leadman Howard had
earlier warned would "find a way to get rid" of Verastegui
if they saw him wearing a union button.
Verastegui, hired in August 1969, was an installation
mechanic in final assembly, where the repaired airplane
engines are assembled. He signed a union authorization
card on February 19, passed out union handbills on the
road leading to the plant, and was assigned to the in-plant
organizing committee on February 22. Leadman Howard
admitted knowledge that Verastegui was "strong" for the
Union.
Before becoming active in the organizational drive,
Verastegui had been absent not only 3, but 4 days in a 30-
day period without receiving a reprimand. It is undisputed
that he made a practice of calling in whenever he was to be
absent. However on February 24, 1 day after Leadman
Howard warned him about wearing a union button and 3
weeks after his last absence, Verastegui was given a written
reprimand for violating rule 11 (three absences in a 30-day
period) for four earlier absences. Thereafter, during the
organizing drive, the personnel office initiated the repri-
mands automatically, following the third absence.
On March 16, Leadman Howard gave Verastegui a
second reprimand for violating rule 11. This reprimand was
for being absent on three additional dates, including March
2 and March 9, when Verastegui went to the dentist. It is
undisputed that on March 2, Verastegui reported for work
at 7 a.m., but clocked out shortly thereafter, when Howard
(seeing his swollen cheek) gave him permission to visit the
dentist. Not having worked as long as 6 minutes, he was
treated as being absent that day. On March 3, Verastegui
showed Howard the stitches in the gum where teeth had
been extracted and Howard gave him permission to return
to the dentist on March 9. Then on March 9, Verastegui
went to the dentist after calling in. Howard testified that
"maybe" Verastegui did ask if he could go to the dentist,
that Verastegui "might have" shown Howard the stitches in
his mouth, and that "chances are he might have" told
Howard that he had to go back to the dentist on March 9.
Yet on March 16 when Verastegui's reprimand came from
Personnel, Howard ignored the fact that he had given
Verastegui permission to be absent on both March 2 and 9
and issued him the reprimand, signing it as Verastegui's
foreman.
About April 6, as previously found, Leadman Howard
asked Verastegui if he was "still strong for the Union," and
upon getting an affirmative answer, commented "Well, I
tried." Later that week, on April 9, Howard gave Verastegui
his third reprimand, for violating rule 16, "Preparing to quit
work prior to specified time ." Verastegui noted that the
date of the infraction was not stated, and asked (as he
credibly testified), "When did I commit the infraction,
Jack?" Howard answered, "Well, I don't know. It come
from up front. " (Emphasis supplied.) Although Howard,
when called as a defense witness, denied this credited
testimony, he revealed the identity of one of the persons
"up front" (the expression he used on this occasion, and
also earlier on February 23, when he warned Verastegui
that he had better take the union button off his shirt or the
people "up front" would see it and "find a way to get rid" of
him). Howard testified that Vice President A. J. Stewart
had authorized the reprimand. (A. J. Stewart's participation
in the reprimand and discharge of other union supporters is
discussed hereafter.) According to Howard, he told A. J.
Stewart, "I caught Mr. Verastegui washing his hands before
lunch and he had been warned about it, and I asked him if I
should give him a reprimand," and Stewart answered, "Yes,
go ahead." (Howard testified that he believed this was the
only reprimand he had given in 1970, except for being late
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or absent excessively.) Howard presented to Verastegui the
third reprimand, and also termination papers reading:
"MANDATORY DISCHARGE-Employee received
three (3) Reprimands within a six (6) month period for
violation of company rule # 11 & 16." Thus the termination
papers emphasized, incorrectly, that discharge was manda-
tory for three violations of these paragraph A rules in a 6-
month period.
While on direct examination as a defense witness,
Leadman Howard testified that, after informing the
company counsel the night before about the circumstances
of the second reprimand (covering three absences, two of
which were excused), he was advised by counsel to offer
Verastegui his job back, provided he brought in a slip from
the dentist. (At the time he testified, Howard had not
contacted Verastegui.) In its brief, the Company contends
that the General Counsel "has not sustained his burden of
proof that Verastegui was terminated because of his union
activity."
I disagree. The Company, after Verastegui was warned
about wearing a union button, belatedly issued him a
reprimand for previously ignored absences, and thereafter
gave him a second reprimand, covering two absences which
were specifically authorized by Leadman Howard. I find
that the Company gave Verastegui both reprimands for the
unlawful purpose of building a case against this active
union supporter. Then less than a month later, after
Verastegui admitted still being strong for the Union, he was
accused of a relatively minor paragraph A rule violation,
given a third reprimand, and summarily discharged on the
false contention that discharge was mandatory. I find that
Vice President A. J. Stewart authorized the discharge
pursuant to a company policy of finding pretexts for
discharging active union supporters, and that the Company
discharged employee Verastegui because of his union
support, in violation of Section 8(a)(3) and (1) of the Act, as
alleged.
3. Employees under Foreman Seery
George Seery was the foreman over the cylinder shop,
PRT shop, heat treating, and welding shop. His credibility
and motivation are involved in the allegations that five
union supporters were unlawfully discharged and/or
discriminated against.
a. Victor San Miguel
Valve grinder Victor San Miguel was selected as one of
the plant 's 20 best employees before he testified for the
Union in the May 18 representation proceeding. One day
before he testified , his picture appeared , along with the 19
others, in the Company 's full-page newspaper ad, under the
caption , "Gary Men. We are proud of them and their many
co-workers ." He had been employed since November 1968,
and had never been given a reprimand-although (as his
credited , undisputed testimony reveals ) he had several
times been late to work as many as three times in a 30-day
period.
After testifying for the Union , he became an active union
leader , signing up employees at the plant , passing out union
handbills, speaking at union meetings , etc. In less than 2
months, the Company gave him a total of four reprimands
and discharged him, after assigning him to three prog-
ressively worse jobs (from valve grinding first to the lesser-
skilled, heavier, "dirtier" job of seat grinding; second, to the
reaming machine, where "little parts of metal would get
under the skin," causing a rash; and third, to the ovens, a
much "hotter, sweatier"fob).
In giving San Miguel his first reprimand, on June 3,
Foreman Seery clearly revealed a discriminatory motiva-
tion. Seery gave San Miguel the reprimand for being late to
work on 3 days, including May 25, although Seery had
given him permission to attend court that day. San Miguel
continued to complain about the unfairness of the
reprimand, until Vice President Juan Mercado-an official
who was not involved in any of the alleged discrimination
against union supporters-canceled the reprimand.
San Miguel was given a second reprimand on June 17 (for
being absent 3 times) and a third reprimand on June 30 (for
loafing, having held up and shown to those around an
antiunion sign which Foreman Seery had brought in to
display)-both reprimands involving only paragraph A rule
infractions. Although there is such conflicting testimony
surrounding the June 17 reprimand, and some surrounding
the June 20 reprimand, I find it unnecessary to discuss them
further in view of the circumstances of San Miguel's
discharge on July 9, the day before the election.
San Miguel continued to pass out union handbills in
front of the plant. On July 8, he began wearing a large
number of union buttons on his cap at work. The same day,
President A. W. Stewart told him to "be quiet" when he
attempted at a meeting to intervene on behalf of two
employees who had reportedly called Stewart a liar. (The
alleged discriminatory discharge of these two employees,
Benito Perez and Joe Gallegos, is discussed next.)
On July 9, Vice President A. J. Stewart (who authorized
the discriminatory discharge of employee Verastegui, as
previously found) personally gave San Miguel his third
(uncanceled) reprimand, telling him that discharge was
mandatory. San Miguel was accused of violating rule 4
(loafing on company time), one of the relatively minor
paragraph A rules. As previously noted, the Company rules
do not require a mandatory discharge for three such
paragraph A rule infractions in a 6-month period.
San Miguel, who had been placed back on valve grinding
that week, did not return to his machine promptly at 11:30
on July 9, at the end of the lunch break. (His testimony is
undisputed that this was the first time Foreman Seery ever
talked to him about not being at his work station on time.)
General Counsel's witnesses , San Miguel and employee
Aurelio Martinez, both testified that at 11:30, San Miguel
was talking to his leadman, Joe Cano. San Miguel testified
that before the 9 o'clock break that morning, he told Cano
he would need some more valves that afternoon and Cano
promised to get him some. At 11:30, he was asking Cano
again about them, and Cano said he had forgotten, that he
would put somebody on them right away. Foreman Seery,
on the other hand, testified that he was watching from a
distance of about 50 or 60 feet and saw San Miguel talking
to Martinez for a minute after the 11:30 bell had rung. The
Company gave no explanation for failing to call its own
supervisor, Leadman Cano. Instead , it called Assistant
GARY AIRCRAFT CORP. 113
Foreman D. Helgeson, who claimed that he personally saw
what happened and observed San Miguel talking to
Martinez. However, he testified that he saw this after the 9
o'clock break (over 2 hours earlier) and he was positive it
did not occur after 11:30. His testimony is also dubious
because Foreman Seery, who claimed that he and Helgeson
later checked on the stock of valves, did not mention
anything in his testimony about Helgeson saying at the time
that he had personally observed San Miguel talking to
Martinez . Inasmuch as (I) San Miguel impressed me as an
honest witness, (2) it is undisputed that Leadman Cano's
desk is near the place where San Miguel was standing at
11:30, and (3) San Miguel's testimony is undenied that he
had spoken to Leadman Cano earlier that day about getting
more valves, I credit San Miguel's testimony that he was
talking to Cano, not Martinez, at 11:30.
However, whether or not Foreman Seery honestly
believed that he saw San Miguel talking to employee
Martinez for a minute after the 11:30 buzzer rang, I find
that the Company's actions demonstrate that it was looking
for a pretext for discharging this union leader, who
previously had been chosen as one of the Company's best
plant employees. Shortly after San Miguel testified for the
Union, Seery had given him a reprimand which Seery knew
was not justified. Then, immediately before the election,
San Miguel was conspicuous in his union support. Without
checking with San Miguel's leadman, Seery reported San
Miguel's brief absence from his work station on July 9 to
Vice President A. J. Stewart who, after getting the
reprimand and termination papers prepared, personally
informed San Miguel, falsely, that his discharge was
mandatory. I find that Foreman Seery gave the June 3
reprimand to San Miguel in an effort to build a case against
him, and that on July 9, Seery was seeking a pretext for
discharging him. I also find that A. J Stewart again used
the charge of a relatively minor rule violation, and the
erroneous contention that discharge was mandatory under
the Company rules, as a pretext After weighing all the
evidence, I find that the Company discharged employee
San Miguel because of his union support and because he
testified on behalf of the Union at the May 18 representa-
tion hearing, in violation of Section 8(a)(1), (3), and (4) of
the Act, as alleged. I also find, as alleged in the complaint,
that soon after he testified, he was assigned "to more
arduous or less agreeable" (and lesser skilled) jobs for the
same discriminatory reasons--and not for training purpos-
es, as claimed by Foreman Seery. I therefore find that such
assignments also violated Section 8(a)(1), (3), and (4) of the
Act.
b. Benito Perez
Benito Perez (hired in May 1969 and discharged on
September 3) was one of the two employees whom
Foreman Seery reported had called President A. W.
Stewart a liar-after Stewart made his speech on July 7,
stating that the Union was lying to the employees . (Stewart
called this group of employees back into a meeting on July
8 to confront anyone calling him a liar and to explain "to
everybody" that anyone 's statement that he told a lie "was
a falsehood ." Perez and the other employee both denied
calling Stewart a liar .) Perez was listed as a member of the
in-plant committee in the Union's February 17 letter to the
Company; he passed out union handbills on the road to the
plant; he was a union observer at the July 10 election; and
he wore several union buttons on his shirt pocket. The
Company's statement in its brief that the General Counsel
"has not established that the Company had knowledge of
Perez' union activities" is apparently inadvertent.
On July 7, Foreman Seery gave Perez a reprimand for
violating rules 4 and 17, loafing, and causing disturbance in
the shop. According to Perez, Foreman Seery saw him
making a "peace sign" to a fellow worker. Seery accused
him of bothering people and loafing around and later told
Vice President A. J. Stewart in Perez' presence that "He has
been making wisecracks in the meetings ." According to
Seery, Perez was talking to another employee after the 9
o'clock break and was about 45 seconds late getting back to
his work station and about 2 minutes getting to work.
However, I note that on cross-examination, Seery testified
that this happened after the 1:30 break, and claimed that
even though Perez saw that Seery was watching, Perez
continued talking, and upon arriving back at his work-
bench, "he is hollering to everybody in the shop" while
preparing for work. I consider this most unlikely, and credit
Perez' version.
On August 24, Foreman Seery gave Perez his second
reprimand, for violating rule 4: "Loafing on company time.
Employee was late returning from lunch break." According
to Perez, he was talking to an employee when the first
buzzer rang (at 11:27), then went to his work area , but went
back for his lunch bag, and was about "a step away" from
his area when the 11:30 buzzer rang. About 1 o'clock Seery
brought the repnmand, and told Perez, "You know you
were late ." Perez answered , "I just came a minute late."
Seery did not respond. According to Seery's testimony,
Perez continued talking for a minute after the 11:30 bell
rang, and was out of his work station about 2 minutes. As
when testifying about the circumstances of Perez' first
reprimand, Seery appeared to be attempting to fabricate
testimony favorable to the Company, rather than relating
what actually happened. I credit Perez' version of this
incident as well and find that the Company issued the July
7 and August 24 reprimands (Perez' first, since he began
working there) for the discriminatory purpose of building a
case against him.
Perez' third reprimand, on September 3, involved faulty
grinding on 19 "Y" stacks (exhaust pipes). According to the
Company, it could not determine whether Perez or another
employee, Vincent Cortez, was at fault, so it gave a
reprimand to both-admittedly knowing full well that such
a reprimand to Perez would result in his discharge . (Perez'
termination papers stated that he received three written
warnings in a 6-month period for violating company rules.)
Having found that the Company was seeking a pretext for
discharging Perez, as well as other active union supporters,
I draw the inference-before consideration of other
evidence-that the issuance of the third reprimand to
Perez, on the asserted suspicion that he might have been
responsible, was discriminatorily motivated.
The other evidence further impeaches Foreman Seery's
credibility and shows that neither Perez nor Cortez
damaged the Y stacks.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For weeks, Perez, Cortez, and other employees had been
removing the wear bands from the Y and T stacks and
grinding the surface smooth. Hundreds of them had been
ground and not a single one was damaged until Monday,
August 31, when two new employees began working in the
department. One of the new employees, Oliver County,
worked in the grinding booth, grinding the Y stacks. The
other new employee, Howard Canellis, worked elsewhere.
Two days later, on Wednesday, September 2, Foreman
Seery was notified that the 19 Y stacks had been rejected by
the government inspector. (This Wednesday was the same
day that the government and company counsel went to the
plant to investigate the Union's August 31 charge that the
Company had been discriminating against Perez, and Perez
gave his second pretrial affidavit.)
Perez testified that Foreman Seery told him that
Wednesday morning , September 2, "Hey, Ben, you cut into
these pipes too much." Perez said nothing. Seery showed
him one of the pipes. Perez asked, "What about Howard?"
Seery responded, "Oh, Howard is doing work perfectly."
("Howard" was the wrong name for the new grinder, Oliver
County.) I note that in Perez' September 2 affidavit, which
the Company introduced into evidence without limitation,
Perez referred to the pipes which were damaged "on or
about August 31" and stated that Seery "came to where I
was working and said: `Hey, Ben, you cut all these pipes
wrong. You are too much out of the pipe.' I did not say
anything . . . because I felt he was trying to blame it on me.
Howard (an employee of about 3 days) also did the
same work . Seery told me that he knew Howard did not do
it because he was doing his work perfect. Nothing else has
been said to me about these pipes." (Perez was discharged
the next morning.)
Foreman Seery clearly was not a candid witness. He
testified positively that the new employee, County, did not
do any grinding on Monday, August 31, yet another
company witness, Leadman Kenneth Jordan, admitted that
County spent 8 hours on that Monday, working in the
grinding booth, "Grinding wear bands," the same as Perez
and Cortez did. When asked if he mentioned anything to
Jordan about whether some of the new employees were
working on grinding the Y stacks, Seery answered, "No, I
left it up to him to find out." Although testifying that he
had Jordan investigate , Seery testifying elsewhere that he
already knew who had done the grinding, having assigned
the grinders himself, so he told Jordan, "Bring [Perez and
Cortez] over here. We will talk to them." I note that while
Jordan openly admitted early in his testimony that County
ground Y-stack wear bands all that Monday, he later
claimed-in an apparent attempt to lessen the impact of
this admission-that County had ground the bands only on
the female end of the Y stacks, not on the flare end where
the faulty grinding had been done. Foreman Seery had
already testified that the same employee grinds the wear
bands on both the flare and female ends. Furthermore,
Jordan admitted that the grinding was done in the same
way on both ends and gave no explanation for his belated
claim that County ground wear bands only where there was
no damage-or why the experienced grinders would do
such a large amount of faulty work, instead of the new
employee. At one point, Seery testified that he believed he
told Jordan "that as far as I was concerned," Perez and
Cortez "couldn't have done it." Although Jordan denied
that he said anything to Seery about County doing any of
the grinding, he admitted that Seery said, "I can't believe
that [Perez and Cortez] would grind like that."
Foreman Seery and Vice President A. J. Stewart gave
conflicting testimony about the incident. Seery was
obviously attempting to conceal what actually happened
when he testified that after Perez and Cortez denied doing
the faulty work, he went to Stewart's office that afternoon,
and told Stewart "we had checked into it and we had two
employees that had worked on it, and he asked me their
names, and I gave him their names, their badge numbers.
And he said O. K.," and that was all the conversation. He
denied recommending that Perez be given his third
reprimand. Vice President Stewart, on the other hand,
testified that he and Seery "collectively" decided to give
reprimands to both employees, after receiving advice from
counsel. Although testifying, "I would not expect a regular
grinder to do this type of work," Stewart testified that he
had "no reason" to make any investigation to determine if
there was a new man there grinding that day, that "Mr.
Seery knows his own crew." At one point, however, Stewart
testified, "We did double-check and I asked George [Seery]
again" and he said "no one else could have worked on it."
Yet, Seery admitted that on that same day, Wednesday,
another employee (D. Leza) was working in the grinding
booth, grinding off Y-stack wear bands (being taught by
himself and Leadman Jordan) and Jordan testified that still
another trainee (H. S. Martinez) was also in the grinding
booth, grinding Y-stack wear bands that Wednesday and
that not only was trainee Oliver County grinding Y-stack
wear bands on Monday, but trainee Leza had been in the
grinding booth, grinding T-stack wear bands (which Seery
admitted was similar work). The company records show
that on Monday, trainee County worked 8 hours on the Y
stacks, and trainee Leza worked 8 hours on the T stacks.
Thus, although there were three trainees in the grinding
booth that week, grinding wear bands on Y and T stacks,
and despite the unlikelihood that experienced grinders
Perez or Cortez would have suddenly turned out 19 badly
damaged stacks after having done the work properly for
weeks, the Company contends that it believed that either
Perez or Cortez did the damage. Having considered the
Company's conflicting testimony about the incident, I find
that the Company either was aware that trainee County
(mistakenly referred to as "Howard") had done the faulty
work on his first day on the job, or that the Company was
content to accept Seery's dubious charge against Perez and
Cortez-without making an investigation-in order to have
a pretext for discharging Perez.
I, therefore, find that the Company, having given
employee Perez the two reprimands on July 7 and August
24 in order to build a case against this active union
supporter, gave him a third reprimand on September 3, and
discharged him, because of his union support, in violation
of Section 8(a)(3) of the Act. This finding of a discriminato-
ry motivation is supported by the credited, undenied
testimony of former employee Ruben Cortrares, who
testified that earlier, Foreman Seery told him that if Perez
"wasn't working good, or if he didn't want to do what I told
GARY AIRCRAFT CORP. 115
him to do when I was showing him how to work on stacks,"
to let Seery know, that "he was going to try to get rid" of
Perez, "that he was making too much trouble for the
Company " (Perez' September 2 pretrial affidavit, another
company exhibit, stated, "Rubin Contras told me about the
time I got moved to the exhaust work that Seery had told
him that he was going to try to fire me ")
c. Joe Gallegos
Cylinder grinder Joe Gallegos, who was hired in May
1969, solicited other employees at the plant to sign union
authorization cards, passed out union handbills on the road
leading to the plant, and wore a union button which
Foreman Seery had noticed. Also, he was the second
employee accused by Seery of calling President A. W.
Stewart a liar after Stewart's July 7 speech. (The
discriminatory discharge of the other employee, Perez, is
discussed immediately above.)
Gallegos had never been given a reprimand . On Monday,
July 20 (2 weeks after President A. W Stewart called the
special meeting to confront Gallegos and Perez), Gallegos
had been on the night shift only 2 days, working on a new
job, installing guides. Gallegos testified (as corroborated by
employee Aurelio Martinez) that shortly after they began
working that day, Gallegos was talking to Martinez about
which cylinders to send through the line. (There was no rule
against talking while working.) Foreman Seery passed by,
saw them talking, and did not say anything. Later,
according to Gallegos, Seery called Gallegos over to his
desk and told Gallegos he had a reprimand for him.
Gallegos asked why and Seery said because he was loafing,
talking to Martinez. Gallegos protested, stating that he was
talking to Martinez about work. Seery said he had to get out
production and Gallegos began explaining that they were
putting out 50 cylinders on the night shift as compared to
45 on the day shift. Seery became angry, accused Gallegos
of making a scene, and told him to go ahead and sign the
reprimand. Gallegos refused and Seery said, "You are
fired." Gallegos started walking off and, as he passed by
Martinez , told him , "Well, I have been fired ." (Martinez
testified that as Gallegos walked by, "he said he was fired.")
Then Seery asked Gallegos for his badge and told the
guard , " I just let this man go. See that he leaves." The
following Friday, July 24, when Gallegos came for his
paycheck, the clerk in the personnel office did not have it
and referred Gallegos to Personnel Manager Gomez.
Gomez told Gallegos that Seery had not told him that he
was fired but had said, "Fine" (when Gallegos refused to
sign the reprimand ) and that Gallegos had walked off.
Gallegos responded, "0. K., if he didn't fire me why did he
take my badge?" Gomez did not answer, but left and
returned with Vice President A. J. Stewart, who also stated
that Seery had not fired him but had said, "Fine." Gallegos
said, "No, sir, he fired me." Stewart said, "Well, there is
nothing we can do about it," and told the secretary to write
down on his termination papers, "Walked out." (Emphasis
added.) Gallegos was then given his final paycheck.
According to Foreman Seery, Gallegos was not talking to
Aurelio Martinez as they were working, but Gallegos was
standing in the aisle, talking to another employee,
Edmundo "Al " Martinez , who was on his way home.
(Elmundo Martinez did not testify. ) Seery also testified that
Gallegos refused to sign the reprimand and "got all up in
the air," became "real belligerent ," used profane language,
and was "real loud." Yet Seery testified that he merely told
Gallegos, "Fine," to go back to work . He further testified
that he saw Gallegos leaving, caught up with him , asked for
his badge, and gave the badge to the guard. (There is no
specific denial, either by Seery or the guard, of Gallegos'
testimony that Seery told the guard, "I just let this man
go.")
The Company contends that although Personnel Manag-
er Gomez had issued the reprimand (at Seery's request) on
Monday, both Gomez and Vice President Stewart were
completely unaware that Gallegos was away from the job,
without permission, - from Monday until Friday. The
Company offered no explanation for this purported lack of
communication between the foreman and the two officials,
concerning what would have been (under the Company's
evidence) a serious paragraph B rule violation (inasmuch as
rule 34 prohibits unauthorized absence for 3 consecutive
working days). Stewart , as production manager, spends
most of his time in the plant. Both Seery and Gomez
testified that after Gallegos arrived on Friday to pick up his
paycheck, Seery told Gomez over the telephone that
Gallegos had not been fired, and Gomez testified that he
told Gallegos he still had his job . Even though Gallegos'
testimony indicated that Stewart was already aware of what
happened and Gallegos testified that Stewart said , "there is
nothing we can do about it," Stewart did not testify about
this matter.
Although there was nothing in the demeanor of either
employee Gallegos or Personnel Manager Gomez which
would assist in resolving their credibility , Foreman Seery
again appeared to be willing to fabricate testimony to
support the Company 's cause. In the absence of corrobora-
tion from either Elmundo Martinez or the guard to support
Seery's version of what occurred on July 20, I credit
Gallegos' version (corroborated in significant part by
Aurelio Martinez). I therefore find that when Seery
received Gomez' approval to give Gallegos his first
reprimand , without first inquiring about the subject of
Gallegos' conversation with Aurelio Martinez , Seery was
again attempting to build a case for discriminatorily
discharging an active union supporter . And relying on
Gallegos' testimony, I find that Seery did, upon getting
angry, discharge Gallegos, take his badge , and tell the
guard , "I Just let this man go. See that he leaves."
Furthermore , having considered the manner in which
Foreman Seery and Vice President A. J. Stewart acted
together in discriminating against other active union
supporters and the fact that Personnel Manager Gomez
approved the issuance of the July 20 reprimand to Gallegos,
I find it implausible that this incident (involving the
continued absence of an active union supporter for 3
consecutive days) would not have been brought to the
attention of both Stewart and Gomez . I therefore draw the
inference that the Company-realizing that Foreman
Seery's discharge of Gallegos ( 10 days after the election,
and while other union charges against the Company were
pending) might be unsupportable-fabricated the defense
that Gallegos had merely walked off the job. Accordingly, I
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credit Gallegos' testimony of what occurred when he
arrived for his paycheck 4 days later and find that the
Company did not offer him back his job, but that instead,
A. J. Stewart said that he had walked out and "there is
nothing we can do about it" I, therefore, find that the
Company discharged him for his union support, in
violation of Section 8(a)(3) and (1) of the Act.
d. Joel Estala
Joel Estala was hired in May 1969 and discharged on July
20, the same evening Joe Gallegos was discharged. Like
discriminatorily discharged Benito Perez, his name was
listed as a member of the in-plant organizing committee in
the Union's February 17 letter to the Company. He wore a
union button at the plant, attended most of the union
meetings, and passed out union handbills. I reject the
Company's contention that the General Counsel intro-
duced no evidence of company knowledge of his union
activity.
On July 16, Foreman Seery transferred Estala to the night
shift because (in Seery's words), "we needed his experience
to train the men . . on the night shift, and plus new men
. . . to do the rework on the 3350" engines Despite the fact
that Estala had never been given a reprimand except for
being late and absent, and was needed to train night shift
employees, Seery gave him a reprimand on July 20 for
being out of his work area shortly after the shift began, and
summarily discharged him. Even assuming that Seery was
truthful in testifying that he saw Estala away from his work
station 4 minutes after the 3.30 starting bell rang (contrary
to Estala's testimony that he was on his way after the bell
rang to pick up a cylinder, and so advised Seery), I find that
Seery issued him the reprimand, without prior warning, for
this relatively minor Paragraph A rule violation (Rule 4,
loafing), and assessed the maximum penalty of discharge
(for 3 reprimands in 6 months), pursuant to the Company's
policy of finding pretexts for discharging active union
supporters, in violation of Section 8(a)(3) and (1) of the Act.
e. Vincente Paredes
Vincente Paredes is a quality control inspector, working
in the cylinder shop where Seery is the foreman. Although
Paredes is under separate supervision, the General Counsel
contends that beginning June 4 Foreman Seery caused a
decrease in Paredes' overtime work.
Paredes attended the May 18 representation hearing with
employee San Miguel who, as found above, was discrimina-
torily discharged on July 9. Paredes did not testify (as San
Miguel did), but he sat at the counsel table with the Union.
The company records show that for 10 consecutive weeks
before June 4, Paredes had been working overtime in the
cylinder shop-working 3 or more 10-hour days during the
week and/or working on Saturday Paredes testified (before
these records were produced at the trial) that one day he
was working past the 3:30 quitting time. His inspector
leadman, Raul Enriques, notified him that he would have to
go home because Foreman Seery did not want that many
inspectors working overtime; however, "if I wanted to stay
and work overtime he would go home and then the next day
he would stay and I could go home, and just rotate with the
leadmen on the overtime." Then Seery came up and said,
"Rudy, tell him no more overtime, that is all." As already
found, on June 3, the day before this, Seery began building
a case for the discriminatory discharge of San Miguel, by
giving him a reprimand for being late on 3 days, including 1
day when Seery had given him permission to go to court.
Later Paredes saw Enriques and Seery talking, and then
Enriques returned and told Paredes no more overtime, after
explaining that "he had asked Seery why he didn't want me
to work overtime, and George Seery answered, `You know
why.' " Paredes testified that his overtime was cut, but that
the three other cylinder-shop inspectors, Enriques, Ruben
Gonzales, and G. T. Moreno (actually it was J. C. Garcia
until Moreno replaced Garcia on July 6) continued to work
overtime. After about 2 or 3 weeks, "they needed me real
bad, so they asked me to stay overtime." But after Paredes
had accumulated about 5-1/2 hours overtime, Leadman
Enriques came to him and said that Foreman Mireles was
told by somebody who came through the cylinder shop
"that there would be no more overtime for me." Again his
overtime was cut for several weeks. (The company
supervisors, Leadman Enriques and Foreman Mireles, did
not testify. Foreman Seery denied the conversations with
Enriques.)
When the Company's records were produced, they
corroborated Paredes' testimony, which I credit over
Foreman Seery's denials. On June 4 (when Seery told
Enriques, "tell him no more overtime"), Paredes worked 8.7
hours. For the next 2 weeks, Paredes' time was cut to 8
hours a day, with no Saturday work, whereas Enriques, R.
R. Gonzales, and J. C. Garcia continued to work 10 hours
almost every day, with some Saturday work. Then on June
25, after Paredes had accumulated 6 overtime hours
(instead of the 5 1 /2 hours as he estimated), his overtime
was again cut off (but not the overtime of the other
inspectors) until July 10, when he began working overtime
again. In the meantime, on June 19, the Union had filed a
charge, alleging that since about June 4, the Company had
been discriminating against Paredes and San Miguel
because of their testimony and union support. (Paredes'
overtime was restored on July 10, the day of the election,
when company counsel was at the plant.)
I find that the Company decreased the amount of
Paredes' overtime work because he appeared at the May 18
representation hearing on behalf of Union and because of
his union support, in violation of Section 8(a)(1) of the Act,
as alleged.
4. Employees under Foreman Gentry
a. Patrick Cunniff
Machinist Patrick Cunniff, who was hired in January
1969 and discharged on May 20, was listed as a member of
the Union 's in-plant organizing committee in the Union's
February 17 letter to the Company. (As already found, the
Company discriminatorily discharged two other in-plant
committee members listed in that letter , Benito Perez and
Joel Estala , as well as Jesse Verastegui, who was appointed
to the committee on February 22.) On page 14 of its brief,
the Company contends that "there is no dispute as to the
Company's knowledge of [Cunniff 's) union activity," but
GARY AIRCRAFT CORP.
on page 47, the Company contends that the General
Counsel "has not established that the Company had
knowledge of Cunniff's union activity." I reject the latter
contention.
Early in February, Cunniff wore a union button at work
for 3 days, until his leadman, Cline Arnold, told him that
Foreman Edward Gentry (in Cunniff's words), "is p-----o--
[unhappy] about that button you are wearing." (Cunniff
impressed me as being an honest witness, and I discredit the
denials by Arnold and Gentry.) Shortly thereafter, on
February 11, Cunniff received his first reprimand and a 1-
day suspension for damaging some engine parts on a lathe,
at a total cost of $157.64. I find that the General Counsel
has failed to prove that this reprimand and suspension were
discriminatorily motivated.
Cunniff's second reprimand was received on February
19, only 2 days after he was listed as an in-plant
committeeman in the Union's February 17 letter. The
reprimand was for violating rule 2, "Leaving work station
without permission." Leadman Arnold, a company witness,
testified that upon returning to the area from the back,
where he had been doing a special job, he saw Cunniff
"coming back from the toolcrib." Foreman Gentry "asked
me where he had been, and I told him that I didn't know,
that I had just finished my job in the back." Gentry "told
me to . . . find out if he had permission. I told him that he
didn't have permission from me. And so Ed Gentry said
that he didn't ask him, so he had a reprimand prepared."
Although the written rule read, "Leaving work station
without permission," the practice had been for employees
to notify another employee upon leaving to go to the
toolcrib. Arnold testified that if an employee needed a tool
or part from the toolcrib, when neither the leadman or
foreman was present, the employee should tell "the next
senior man, more or less." (Cunniff credibly testified that
he told another employee where he was going.) Without
first checking to determine if Cunniff had notified
anybody, and without having announced that the practice
would be changed and the written rule strictly enforced,
Gentry went to the personnel office for the reprimand. I
find that the Company was seeking a pretext for
discharging this active union member and issued the
February 19 reprimand for this reason.
On May 19, Cunniff was working on the evening shift. In
the absence of a leadman, Foreman Gentry had assigned
Cunniff to act as the night leadman Gentry testified that
during this shift, he was making his round and saw, from a
distance, Cunniff go into the aisle and start talking to
employee Derrell Cox. "So I stopped and watched them.
And in between 5 and 10 minutes Derrell headed for the
door [on his way home] and Pat come back into his section.
I continued my rounds." The next morning, May
20-without saying anything to Cunniff-Gentry went to
Personnel, requested a reprimand (for violating rule 4,
loading), and issued it and termination papers (for three
reprimands in 6 months) to Cunniff. The next day he
presented a written memo to Cox for him to sign,
explaining (in Cox's words), "that the paper would be used
if the UAW had an argument over the termination of Pat
Cunniff." The prepared memo said nothing about what
Cox and Cunniff were discussing, and Gentry testified at
117
the trial that he did not have any idea what they talked
about. Cox, a company witness who was an assistant
leadman at the time, testified that "We were discussing the
day's work," and that Cunniff "explained a few problems
that he had." Cunmff credibly testified that the men under
him were all busy, that he did not have anything to do at the
time except watch them, and that he was watching them
while talking to Cox. (Although acting as night leadman,
Cunniff had not been granted supervisory authority.)
I find that the Company, having been discriminatorily
motivated in issuing Cunniff his second reprimand, and
having issued him this third one under these circumstances
without any investigation, discharged him because of his
union support, in violation of Section 8(a)(3) and (1) of the
Act.
b. Ascencion Martinez
Employee Ascencion Martinez' testimony is undisputed
that his foreman, Gentry, and his leadman, Victor
Alejandro, saw him passing out union handbills during the
week of the election . (As previously found, the Company
discriminatorily discharged employees Estala, Gallegos,
Perez, San Miguel, and Verastegui, who passed out
handbills.) Martinez also distributed union authorization
cards and talked to employees in the plant about the Union.
He was a union observer at the July 10 election.
If Martinez' testimony is credited, the grounds for his
discharge were clearly pretexts. According to him, Foreman
Gentry gave him a reprimand on the morning of the
election for going to the restroom without permission
(violating rule 2), even though he and others in that
department (as observed by both Gentry and Leadman
Alejandro) had made a practice of going to the restroom,
about 10 feet from Martinez' work station, without saying
anything to either the leadman or the foreman. Martinez
protested that the other employees went to the restroom
without permission , but Gentry said , "That is the company
rule and you are going to have to go by the rules." Martinez
then began obtaining permission before leaving, even
though the others in the section continued to go to the
restroom without permission. (This testimony is undisput-
ed.) On August 17, Leadman Alejandro was absent and
Gentry was away from his desk when Martinez needed to
go to the restroom. Martinez waited 5 or 10 minutes, then
told employee Reyes Coronado, and also employees Emilio
Munoz and Joe Mesa on the way, that if Gentry came and
asked where he was, to tell Gentry he had gone to the
restroom. Returning, "I asked Mr. Munoz and Mesa if they
had seen Gentry around. They said no. So I went back to
my working area," also asking Coronado on the way. (None
of these employees testified.) About 3 hours later, Gentry
gave Martinez his third reprimand (for violating rules 2 and
4, leaving without permission and loafing), and discharged
him. (His first reprimand, dated April 20, was for three
absences in a 30-day period.) Thus, according to this
testimony, Gentry singled out Martinez, and reprimanded
him without prior warning. Then when Martinez was
attempting to comply with the written rule and talked to
other employees (to have them inform Gentry where he had
gone and to check if Gentry had inquired), Gentry gave
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him a third reprimand and discharged him, again without
making any investigation.
Foreman Gentry gave a different version. According to
him, he asked Leadman Alejandro where Martinez was on
July 10; Alejandro said he did not know; so "At that point I
went to Personnel and asked for a reprimand"-without
first investigating. Gentry testified that when he showed the
reprimand to Martinez, and Martinez protested, saying he
was looking for parts and that "he didn't think it was right
I told him to look his rules over." (Alejandro did not
testify.) Even if the incident happened this way, I would
find that the decision to give the reprimand under these
circumstances, without prior warning and without any
investigation, would be for the same unlawful reason as his
earlier reprimand to Cunniff in another section for going
without permission to the toolcrib. However, I do not
believe Martinez was fabricating his positive testimony
about having to start getting permission before going to the
restroom, and I credit Martinez' version, which also
established that the Company was discriminatorily moti-
vated in giving the July 10 reprimand.
According to the Company's brief, the August 17
reprimand "was not for going into the washroom but was
for stopping by the work station of another employee on
the way back from the washroom and engaging him in
conversation during working hours." But the supporting
evidence is not convincing. Foreman Gentry and Prod-
uction Supervisor Maynard Berg testified that they were
watching from another section. Gentry claimed that when
Martinez was returning from the restroom, "He was
standing there shooting the breeze with Munoz for two or
three minutes"; whereas Berg testified, "we just started
looking over there for a little while to see how long he
would be there" and he was there "four or five, six
minutes." However, it appears obvious that if Martinez had
not been accused at the time of going to the restroom
without permission and that if his only offense was
stopping on the way back and talking, he would have been
reprimanded only for loafing, not both for loafing and
"Leaving work station without permission." Furthermore,
if Martinez had been "shooting the breeze" with Munoz for
2 or 3, or 4 or 6 minutes (instead of stopping only long
enough to inquire if Gentry had been around, as Martinez
testified), there would have been reason for Gentry to have
investigated, to determine why both employees were
loafing, instead of proceeding to request Martinez' final
reprimand without any investigation. I therefore credit
Martinez' version, and find that again the Company was
seeking a pretext for discharging an active union supporter
and discharged him because of his union support, in
violation of Section 8(a)(3) and (1) of the Act.
5. Other employees
a. Lloyd Wright
Employee Lloyd Wright was another employee who
passed out union handbills before the election . He wore a
union pencil holder on his pocket, solicited employees to
sign union cards, and attended union meetings. He was also
a union observer at the election (like Ascencion Martinez
and Benito Perez , who were discriminatorily discharged,
and like Vincente Paredes, who was deprived of overtime,
as found above). I reject the Company's contention that the
General Counsel has failed to establish the Company's
knowledge of Wright's union activities.
On September 4, Wright was discharged, being accused
of violating rule 43, threatening a company representative
(a paragraph C offense requiring mandatory discharge).
That morning, when Wright was reporting to work, he took
offense at guard Melvin Oldham's shouting at him, "Hey,
hey," ("like I am, you know, a cow, horse, or something"),
instead of calling him by name, when he was not wearing
his company badge in the proper place. As credibly testified
by Oldham (who impressed me as an honest witness),
Wright "told me that I was ignorant and I didn't know how
to talk to anybody. . . . Then he told me he was going to
get me later." (I do not credit Wright's testimony that he
did not make the latter statement to Oldham.) Wright
clocked in and "turned around and hollered back to me
that he was going to tell A. J. I told him that was his
privilege." (Wright, as well, testified that after he punched
in, he told Oldham that he was going to tell Vice President
A. J. Stewart on him, and Oldham said he did not care. I
discredit the conflicting version given by employee Garland
McGarity.) Wright went on to work and, about 8 o'clock,
started toward the classroom. (He was a member of the
Federal MA-4 program, for the unskilled, hard-core
unemployed.) Guard Oldham saw Counselor Sal Olivas,
who had come to tell the employees that there would be no
class that day. Oldham asked "what is that colored man's
name," and started telling him about the trouble he had had
with Wright not wearing his badge in the proper place.
Then, as Oldham credibly testified, Wright walked up and
told Olivas, "This policeman here is picking on me."
Oldham said, "I am not picking on the man. . . . I had
trouble with him three weeks ago because he didn't show
his badge and now this morning he started the same thing
over again.. . . [H]e said I was ignorant, that I didn't know
how to talk, and he was going to get me later." As company
witness Olivas credibly testified, Oldham also stated that
Wright had said "he was going to report" Oldham "to A. J.
Stewart." Oldham left and Olivas asked Wright what
happened and where was his badge. Wright said that he had
pinned his badge on his pants because he had forgotten his
belt. Olivas asked him what else happened, and Wright
said, "Well, that is it," and that he wanted to talk to A. J.
Stewart when he came in." Olivas promised to tell Stewart
as soon as he saw him, and told Wright to return to work.
About 10:30 that morning, Olivas read Wright a statement,
saying that he had threatened the security guard, and told
him that he was discharged. Wright asked if Olivas was
going to let him see Stewart and Olivas said no, "to come
on." As they were leaving, they came across employee
Valentine Lerma (who entered the plant with Wright that
morning), and Wright said he hadjust been fired "because
the security guard had said that I had threatened him."
Lerma told Olivas that Wright "didn't say nothing like
that," and Olivas (in Wright's words) "turned around and
looked at him, puzzles a while, and told me to come on."
They went to the office, where Personnel Manager Gomez
and Wright's foreman were present, but Olivas said nothing
to Gomez about eye witness Lerma's statement that there
GARY AIRCRAFT CORP. 119
had been no threat . Wright refused to sign his termination
papers and again asked to see A. J. Stewart , but Olivas said
no, "I am taking you off the premises."
In the meantime, Counselor Olivas telephoned Personnel
Manager Gomez and reported (as Olivas credibly testified)
"what Mr Oldham had told me." (Gomez testified that
Olivas reported Oldham's saying that Wright had threat-
ened, "I will get you later ," but failed to mention that
Olivas also reported what Wright had said he was going to
do, that "he was going to report" Oldham "to A. J.
Stewart .") Then , as Olivas further testified , Gomez asked if
anybody witnessed this and Olivas said, "I will check."
Olivas again talked to Oldham and asked him if anybody
had witnessed the incident , and Oldham said , "Yes, the
other security guard" (Dave Williams). Olivas asked
Williams if he had witnessed an incident that morning and
Williams said he had. (Williams did not testify.) Without
asking Williams what he had heard, and without making
any further investigation , Olivas again telephoned Gomez
and "1 told him that Mr . Williams had witnessed the
incident ." Then (in Gomez' words ), "I told Sal that I would
take care of it," and "I had termination papers typed up."
The question is whether the Company discharged Wright
because he said to the guard , " I am going to get you later.
I am going to tell A . J. Stewart on you ," or as merely
another pretext for discharging an active union supporter.
After considering all the evidence and circumstances,
including ( 1) the fact that Wright passed out union
handbills and was a union observer, and the Company
discriminatorily discharged other such union supporters,
(2) the convincing proof that the Company was seeking
pretexts for such discharges , and (3 ) the fact that the limited
investigation demonstrated that the Company was not
attempting to determine if an actual threat was made, but
was merely seeking some support for a summary discharge,
I find that the real reason for the discharge was Wright's
union support and that the discharge violated Section
8(a)(3) and ( 1) of the Act.
b. Joe Otero and Ricardo Morales
Joe Otero and Ricardo Morales were employed on the
same day and often worked together in the preservation
department . Both passed out union handbills (as did the
discriminatorily discharged employees Gallegos, Martinez,
Perez, San Miguel , Verastegui , and Wright), and were
alternate union observers at the July 10 election. Both
received reprimands on April 22 and July 16, and Otero
was discharged on September 14
On the morning of April 21, there was a bomb scare at the
plant and the Company announced that the 11 o'clock 30-
minute lunch period would be canceled and that the
employees would take their lunch between 12:30 and 1:30,
outside the plant . (The report was that the bomb was timed
to explode at 1 o'clock.) Before noon , about 25 or 35 of the
employees left the plant early. All except 20 of the 600 or so
employees returned to work at 1:30. These 20 employees
(including Otero and Morales) were given written repri-
mands on April 22 and suspended for I day for violating
rule 23 (a paragraph B rule), for "Leaving the facility during
working hours without permission in writing ." Contrary to
the General Counsel , I find that he has failed to prove that
Otero's and Morales' reprimand and suspension were
discriminatorily motivated or were violations of Section
8(a)(1) of the Act.
On July 8, 2 days before the election (and at a time when
both Otero and Morales were passing out union handbills
outside the plant), Otero emphasized his union support by
wearing a large number of union buttons on his hat at work.
On July 9 (as found above under II, A), Vice President A. J.
Stewart singled out Otero and Morales by referring to "a
couple of rotten apples . . . wearing sunglasses," and
stating, "We will take care of them next week ." A week
later, on July 16, Otero was looking for a small oil pan
which was required in his work. Looking where he had
found such pans before , he found one outside the door on a
dolly. It was underneath some large oil pans, being cleaned
by two employees . As Otero credibly testified , he asked
them to give him a hand, to lift out the small one , and they
did so as soon as they finished the pan they were washing.
When he returned with the pan , Leadman Roberto
Martinez (who had been watching him through the door)
told him, "That is going to cost you." Otero asked, "For
what?" and Martinez answered , "For talking ." Otero
explained , " I was just asking if they would give me a hand"
to get the pan . Otero returned to work , having been gone
(he estimated) about 4 minutes . Later, Martinez took Otero
to see Vice President Stewart and Foreman Mullins.
Stewart accused him of "loafing around and cutting up."
Otero said, "No, sir. I have been working." Stewart said, "I
have thirty signatures that state that you have been loafing
around." Otero asked him where they were, but Stewart did
not reply. (I discredit Stewart's denial that he referred to 30
signatures.) Foreman Mullins spoke up and said that he
had timed Otero the day before and Otero had spent twice
too much time (30 minutes for a 15-minute job) putting a
sling on an engine . Stewart said he was giving Otero two
reprimands , one for loafing and the other for taking too
much time , and told Otero he was suspended for 2 days,
Friday and Monday: "and Tuesday I could return to work,
if I wanted to."
Foreman Mullins and Leadman Martinez gave conflict-
ing testimony concerning the accusation that Otero was
loafing on the job. Mullins testified that Martinez reported
Otero was talking to the two employees that morning
between 4 and 5 minutes; whereas Martinez testified that he
observed Otero "just standing there talking to them" about
10 or 15 minutes. (Neither Mullins nor Martinez impressed
me as a candid witness. ) Mullins also testified that 2 days
earlier, he helped Otero and Morales for about 30 minutes
on a 2 1 /2-hour engine job, and later found that they had
not finished the engine in 4 hours , but did not say anything
to them at that point . When asked why he did not take
some action then , he gave the dubious reply (as if not
knowing what to answer), " I believe in giving a man an
opportunity to prove himself ." I find instead that, even
assuming Mullins believed Otero and Morales were taking
longer than they should in doing their work, he did not
warn them of a written reprimand, nor take any action at
the time , for a discriminatory reason. Having considered
the fact that Vice President Stewart (who participated in the
discharge of other active union supporters ) had commented
the preceding week that "We will take care of [the two
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
`rotten apples'] next week ," and told Otero about having 30
signatures proving that he had been loafing, I find that the
Company was attempting to build a case for discharging
Otero and gave him the two reprimands at one time for that
purpose. I also find that the reprimand given to Morales a
few minutes later (for working too slow) was likewise
discriminatorily motivated.
Otero received his final reprimand on September 14. He
had not reported to work on Saturday, September 12 Both
before and after that date , an unexcused absence on a
scheduled workday was not grounds for discharge-even
when an employee had been requested to work overtime.
(Vice President A J. Stewart testified , "The policy is that if
a person is asked to work overtime and does not show up,
he will be denied overtime for a reasonable length of time.")
On Monday morning, as credibly testified by Otero,
Foreman Mullins asked him why he had not showed up
that Saturday. Otero said he did not know that it was a
working day. Mullins asked , "Didn' t [pusher ] Harold
[Miller ] tell you? Everybody in the plant knew that last
Saturday was a working day I told you last Saturday,
myself." Otero insisted , "No, sir, nobody told me Saturday
was a working day I didn't know about it" Personnel
Manager Gomez issued Otero a reprimand for "Failure to
report to work on a scheduled work day" (which is not a
violation of any written rule) and for "Dishonesty," and
explained to Otero ( in Gomez' words) "that he had received
three reprimands within a six -month period, and that under
our company rules this called for a mandatory discharge,
and this is why he was being terminated."
There is much conflicting testimony about whether or not
Otero was notified on Friday about Saturday being a
workday. After weighing all the testimony , I find that Otero
(who, as previously indicated, impressed me as an honest,
forthright witness) was telling the truth when he denied
being notified . Furthermore , I consider it most unlikely, as
argued by the General Counsel in his brief, that "if Otero
was going to make up an excuse for not coming to work
Saturday and Mullins had actually told him to come to
work Saturday, Otero would have told Mullins, the person
to whom he had to make an excuse, that no one had told
him to come to work." Having found that Foreman Mullins
was not a candid witness and that the Company had issued
Otero two earlier reprimands to build a case against him, I
find that the Company gave Otero this final reprimand for
a previously nonchargeable offense, and for "Dishonesty"
on a false charge that he was not telling the truth, as a
pretext for discriminatonly discharging him, in violation of
Section 8 (a)(3) and (1) of the Act.
III. THE REPRESENTATION PROCEEDING
A. Challenged Ballots
In the July 10 election, the employees voted 231 for and
225 against union representation , with 39 challenged
ballots. I overrule 10 of the challenges , on the basis of the
agreement by the Company and the Union at the trial on 5
of them (James Dodson, Angel Lopez, Pedro Perez, Philip
Persyn, and Manuel Puente) and the concession in the
Union's brief that there is insufficient evidence to support
the other 5 (Jesse Dominguez , Ramon Gonzalez, Seratin
Lopez, Robert Mayen , and Eladio Trevino). I sustain the
challenges to four ballots : the ballot cast by Gregono
Torres, who was not on the payroll during the eligibility
period and the ballots cast by three summer students
(Eugene Mireles , Paul Mireles , and Robert Pauley), who
had no reasonable expectancy of continuing employment.
Crest Wine and Spirits, Ltd., 168 NLRB 754. The remaining
25 challenges involve 11 persons whom the Union contends
were supervisory leadmen and 14 employees whom the
Union contends were on temporary transfer from the
Company's Victoria plant.
1. Alleged supervisors
The officially-designated acting leadmen , leadmen, and
senior leadmen not only direct the work , but also have the
authority and responsibility of filling out evaluation forms
every 4 months, evaluating the employees working under
them and making recommendations on wage increases. The
Union introduced considerable testimony , indicating that
most of the 11 alleged supervisory leadmen performed
various duties of leadmen. However , with the exception of
one of them (Cecil Hunter ), the company records show that
they had not been so designated. Five of them (James
Fields, Willis Hensley, Calvin Lissner , Tomas Sanchez, and
Paul Tudyk) were inspectors under the quality control
department . Sanchez had been offered a leadman position
at the Company's Hondo plant , but had chosen to transfer
to the San Antonio plant , where he was not promoted to
leadman until August. The official department roster, dated
June 1, listed Fields, Hensley, Lissner, and Tudyk as
inspectors , not leadmen . Evaluation forms made out for
Fields, Lissner , and Tudyk before the election showed them
as "potential" leadmen . The only basis for alleging Hensley
to be a leadman was the mistaken testimony to that effect
by Vice President A. J. Stewart at the May 18 representa-
tion hearing . I credit Quality Control Manager Howard
Burke's testimony that none of these five inspectors was a
leadman at the time of the election . (By the time of trial,
Fields as well as Sanchez had been promoted to leadman.)
Five of the remaining alleged leadmen (Eliseo Casanova,
William Gentry , Othon Martinez , Victonno Sanchez, and
Benito Zuniga ) performed certain duties which leadmen
perform, and some of them had been referred to as leadmen
from time to time. However , I credit the testimony by
company witnesses that none of them had the authority to
evaluate other employees and make wage recommenda-
tions. Casanova , Martinez , and Sanchez were shown as
"potential" leadmen on pre -election evaluation forms, and
Gentry (a relative of Foreman Edward Gentry) was not
designated as acting leadman until September 22. Zuniga
credibly testified that he was a mere mechanic, with no
authority to evaluate employees working with him. I
therefore overrule these 10 challenges.
The remaining alleged leadman was Cecil Hunter, who
was promoted to leadman on November 21, 1969. He was
admittedly a leadman in the preservation department until
March 16, when he was transferred to the toolcrib, where
credible evidence shows he was in charge of two to three
employees , and ordered the tools for both the toolcnb and
toolroom . Contrary to Vice President A. J. Stewart's
testimony , the company records indicate that he was not
GARY AIRCRAFT CORP. 121
demoted from leadman. His March 30 evaluation form
showed that, 2 weeks after his transfer, his classification
remained "Leadman." (Although Stewart also claimed that
Hunter was then under a leadman, the space for the
leadman's signature was left blank on the evaluation form,
which was signed by the foreman.) Hunter's continued
supervisory status is also indicated by the credited,
undisputed testimony by former Leadman Edward Si-
fuentes that after Hunter's transfer to the toolcrib, Hunter
was going to write up a reprimand against a machinist for
not wearing his badge at the toolcrib when Production
Supervisor Maynard Berg "had to go over there and talk to
Cecil Hunter to keep him from giving" the machinist the
reprimand. I discredit Vice President Stewart's testimony to
the contrary and find that Hunter remained a supervisory
leadman. I therefore sustain the challenge to his ballot.
2. Alleged temporary employees
On June 1 and 8, 14 Victoria employees (Domingo
Benitez, Robert Guerra, Courtney Hungerford, C. E.
Kingston , Bob New, Alejandro Perez, K. R. Plant, Thomas
Pulido, James Ramirez, Lupe Salazar, Martin Torres,
Alford Williams, Fred Williams, and James Williams) were
transferred from the Victoria plant to the San Antonio
plant , 120 miles away. All 14 of them were offered, and they
accepted, temporary housing in the barracks at the former
Hondo Air Field, which the Company leases. On July 2, the
Company issued its monthly publication, "The Gary
Aircraft Flyer," which contained a signed , front-page
article by President A. W. Stewart, stating in part:
Recently, several truckloads of equipment were pur-
chased for the Victoria plant where facilities for engine
overhaul work are being installed. Temporarily, some
personnel from Victoria are working at the San Antonio
plant training for future engine work at our Victoria
plant. [Emphasis supplied.]
It is undisputed that before these Victoria employees
arrived, Foreman Fred Bennett told mechanic Manuel
Pena (as Pena credibly testified) that "people from the
Victoria plant" would be sent to the San Antonio plant to
"be here temporarily," and "that I was going to try to teach
them what I knew about the engines so when they would go
back they would know how to build it . . . and as far as he
knew they were going to take this particular contract back
. . .to Victoria."
On July 13 and 24 (following the July 10 election), 7 of
the 14 Victoria employees were transferred back to the
Victoria plant. The remaining seven were also transferred
back, four in August and three on September 8. (Three of
them were again working in San Antonio at the time of
trial.) The Union contends that they were temporary
employees in the San Antonio plant at the time of the
election. The Company contends that they were permanent
employees of the San Antonio plant.
President A. W Stewart testified that he did not know
what the Victoria employees were told at the time they were
transferred , but that he instructed the plant manager of the
Victoria plant that "all folders should be turned over to San
Antonio Personnel so that they could be established on the
San Antonio payroll." When asked about his July 2 front-
page article saying that they were working in the San
Antonio plant temporarily, he testified that this was a
"morale-builder," that "I have to admit when I wrote this I
couldn't tell whether these people . . . would be up here for
a month or a year. All I can say is they hopefully would be
able to come back to Victoria, but they were permanent,
they were basically permanently transferred on our
records " When questioned about their transfers back to
Victoria, he testified that some were transferred back
temporarily, and regarding those still there, "All I can say is
that our plans have changed, and at the time back in May and
June we did not plan to transfer as much engine work to
Victoria as we have had to do. So this may be why some
people have gone back that was not contemplated to put
back at the time." (Emphasis supplied.) Thus, according to
President Stewart, he wrote in the July 2 "Flyer" that the
Victoria employees were "temporarily" in the San Antonio
plant "training for future engine work at our Victoria
plant," but actually the employees had been transferred to
San Antonio permanently (or "basically" permanently),
and "we did not plan to transfer as much engine work to
Victoria," but "our plans have changed," and this "may" be
why some of the employees were transferred back although
"not contemplated" at the time. I discredit this explanation
as an afterthought. From his demeanor on the stand, he did
not impress me as a forthright witness. Having considered
the temporary nature of the housing for these 14 employees,
the undisputed testimony by mechanic Pena, and President
Stewart's unequivocal front-page article written at the time,
I find that the transfers were temporary. I therefore sustain
the challenges to these 14 ballots.
B. Union Objections
1. Wage freeze
The notes which President A. W. Stewart used in making
his July 7 speech to different groups of employees state in
part:
ONLY TWO RESULTS: 1. COMPANY WINS .. .
Evaluation procedures, pay raises, everything continues as
always.
2. UNION WINS: a) Wages, all benefits frozen. b)
Company decides to accept or protest election. If
Company files complaint, complaint takes 3 months. If
Company loses, it then meets with union outsider to talk
about contract. How long? Another three months to three
years - Wages frozen by law If and when contract is
signed, are wages and benefits better than now? Not
necessarily. We decide-not Union. [Emphasis and
punctuation supplied.]
In its employee booklet on "Policies & Practices," the
Company states under "Employee Evaluations," that new
employees are reviewed after 90 days, at which time they
may receive a pay increase , and that every 4 months
thereafter, "you will be evaluated and recommendations
made for pay increase if warranted." The Company
followed this practice.
I find that the July 7 speech clearly threatened that if the
Union won the election, the Company would discontinue
all evaluation increases during contract negotiations, falsely
stating that such a wage freeze was required by law. I
further find that the impact of the threat was magnified by
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the statement that contract negotiations would last from 3
months up to 3 years, whereas if the Company won the
election, the evaluation procedures and pay raises would
continue. I therefore sustain the Union's Objection I and
find that the speech contained a threat of reprisal which
interfered with the employees' free choice of representation.
2. Discharge of union leader
In its Objection 6, the Union alleged that the Company's
July 9 discharge of employee Victor San Miguel intimidat-
ed the employees in the July 10 election. This discharge
came in the context of Vice President A. J. Stewart's July 8
and 9 speeches, in which Stewart denied (as shown by the
notes he used) that if the Union won the election, the
Company would have to hire back "some former employees
terminated for violating company rules." As found above,
the Company had misused its reprimand procedure,
discriminatorily issuing repeated reprimands for violating
relatively minor company rules as pretexts for discharging
active union supporters. Before the Union filed its petition
on April 20, the Company had thereby discriminatorily
discharged employee Verastegui on April 9, when he
continued his strong union support after being warned that
he had better take his union button off "or the people up
front will see it and they will find a way to get rid of you."
On May 20, following the filing of the petition, the
Company had also discriminatorily discharged another
member of the Union's in-plant organizing committee,
employee Cunniff, who had been told by his leadman that
his foreman was "p- o- [unhappy] about that button you
are wearing." In the meantime, after testifying for the
Union at the May 18 representation hearing, employee San
Miguel had become a leading organizer. Under these
circumstances, I find that his discharge interfered with the
employees' free choice. I therefore sustain this objection.
3. "Vote No" badges
In Objection 7, the Union alleged that company
supervisors intimidated employees by insisting that they
wear "Vote No" buttons. These badges were admittedly
distributed by the Company to its supervisors. Employee
Jesse Hernandez credibly testified that on July 10, he saw
Foreman Ed DeHoyos (a supervisor) pass out "Vote No"
signs to Leadman Pete Alcozer (a supervisor), who went
around "pinning the signs on the employees . . he would
grab the pin and say, `Here, put this on," and pin it on the
employee's shirt." (This testimony is undenied.) Such
conduct has been held to be coercive, inasmuch as the
individual employee, being confronted by such actions on
the part of his supervisor, must "announce his choice" by
either accepting and wearing the badge or rejecting it.
Kawneer Co., 164 NLRB 983, 994-995, enfd. 413 F.2d 191,
192 (C.A. 6 1969); Garland Knitting Mills of Beaufort, 170
NLRB No. 39 (1968), enfd. in pertinent part, 414 F.2d 1214,
fn. 4 (C.A.D.C. 1969). Here the conduct would be
particularly intimidating, following the discriminatory
discharge of employees Verastegui and Cunniff after they
had been warned about wearing union buttons. I find that
the supervisor's conduct interfered with the employees' free
choice in the election. I therefore sustain the objection.
4. New holiday
A year earlier, in March 1969, the Company wrote the
employees a letter, stating in part that "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 holiday to our list
of holidays." On May 22, 7 weeks before the election, the
Company announced in its "Progress Report News" that
"Next Saturday is Memorial Day (also Mr. Stewart's
Birthday) and is a Company Holiday." In view of the 1969
notice that another holiday would be added, I overrule
Objection 9, alleging that the Company awarded the
additional holiday in an effort to influence the employees'
votes.
5. Discriminatory restrictions
In Objection 10, the Union alleged that for 2 weeks
before the election, the Company required employees
wearing union buttons to obtain permission to go to the
restroom while not requiring other employees to do so. The
evidence does not support this objection. Although
discriminatee Ascencion Martinez credibly testified (see
II,B,4,b above) that he was required to get permission to go
to the restroom while other employees were not, this
occurred between July 10 and the time he was discharged
on August 17-not during the 2 weeks preceding the
election. The evidence shows that in a number of other
sections, the practice for all employees was to tell another
employee, not necessarily a supervisor, when going to the
restroom. I overrule this objection.
6. Other objections
In Objection 2, the Union alleged that the Company's
election-day distribution of facsimiles of ten dollar bills
which had the appearance of having "shrunk" was
objectionable. The fake bills read "Vote No" on one side
and on the other: "Do you want your pay check shrunk? If
UAW had its way it would require you as a member to
PAY a part of your wages each and every month. Vote No
for Gary Aircraft." However, in view of the Company's
repeated reminders that under Texas law, union member-
ship could not be a requirement for holding a job, I find
that there was no implied threat that the employees would
be required to pay union dues as a condition of
employment. I therefore overrule the objection.
Before the election, the Company displayed a glass
container bearing signs reading, "$40,000.00," and "One
Year's Union Dues from this Plant's Employees." The
Union has shown no basis for a finding that such a display
of money, to dramatize the Company's propaganda that the
Union was merely seeking dues money, interfered with the
employees' choice at the election. I therefore overrule
Objection 3.
On July 8 and 9, Vice President A. J. Stewart stated in his
speech to the employees that it was very important that
everyone vote, and that in order to encourage everyone to
vote, the Company was giving away two (black and white)
television sets. Employees were given raffle tickets as they
left the voting area. The Union having failed to show how
this, under the circumstances, interfered with the employ-
GARY AIRCRAFT CORP. 123
ees' free choice, I overrule Objection 5. Elgin Butler Brick
Co., 147 NLRB 1624, 1627
Neither has the Union shown how the Company's
campaign literature interfered with the employees' choice. I
therefore overrule Objection 12.
When the first group of voters arrived near the
counselors' office, they waited for about 5 minutes in the
walkway, before being told to go outside the building and
line up near another entrance, leading to the voting area.
While they were inside the building, in the walkway, a
foreman and two or more company officials were standing
nearby, but not saying anything to the employees.
Thereafter, the voting line was limited to 25 and supervisors
did not go near it Under these circumstances, I agree with
the Company that its supervisors neither kept the voting
under surveillance nor engaged the employees in conversa-
tion . I therefore find that the Board's rule in Milchem, Inc.,
170 NLRB No. 46 (1968), was not violated, and overrule
Objection 14.
There being no prejudice shown, I also overrule
Objection 4 (regarding the Company refusing to allow
union observers to accompany the company representatives
releasing employees to vote), Objection 13 (regarding the
Company's refusal to allow discharged employee San
Miguel to be a union observer), and Objection 15
(concerning the Board agent allowing the Company to
strike from the eligibility list the names of terminated
employees). I likewise overrule the remaining Objections 8
and 11, for lack of evidence.
C. Company Objections
1. Union letter
On or about July 7 (3 days before the election), the Union
mailed the employees a letter which read, in part:
The Company . . . will probably have a mass (captive
audience) meeting for everyone on the job the day
before the election. They may even give everyone a 254
raise the day of the election and pay early to try to get
you to vote against Your Union. We understand they
did this at the Hondo Plant in the union election there.
Don't be fooled! Vote a big "YES" for the Union
Friday!
There had been an election at the Company's Hondo
plant, but the Union had not been on the ballot. Although
alleging in its Objection I that the information contained in
the letter "as to such wage increase was false and
misleading," the Company did not give detailed informa-
tion about how many of the Hondo employees had received
election-day increases, and in what amounts. Vice Presi-
dent A. J. Stewart testified no across-the-board increases
was given, but that a "certain number" of the Hondo
employees were given increases in their election-day
paychecks "due to their normal evaluation process .. .
effective almost two weeks pnor to the election." He
testified (without supporting records) that none of the
increases was as much as 25 cents an hour, but "I do not
know" how much the increases were. He "estimated" that
20 or 25 employees received the increases . He did not testify
when the Company first learned about the Union's July 7
letter, testifying only that he was first given a copy on the
evening of July 10. The evidence shows that the Union had
attempted to organize the Hondo plant and had unsuccess-
fully appealed the Regional Director's dismissal of a charge
that the Company had discriminatorily discharged two
Hondo employees. There is no specific evidence on whether
the Union deliberately misstated the amount or extent of
the election-day pay increases.
The evidence does not support the contention in the
Company's brief that the Union distributed by mail the
letter to the voters "on the day of the election," precluding
the Company from making an effective reply. The letter
was dated July 7, and the Company and the Union
stipulated that it was mailed "on or about" that date. Two
days later, on July 9, Vice President Stewart gave an
antiunion speech to the employees. He did not specifically
deny that he and the Company knew the contents of the
letter by that time. However, even assuming that none of
the election-day pay increases at the Hondo plant
amounted to as much as 25 cents an hour, and assuming
further that there was insufficient time to notify the
employees that the Hondo election-day increases were
smaller evaluation increases and not a 25 cents across-the-
board increase, I find that the Company has failed to prove
that the alleged "false and misleading" information would
tend to interfere with the employees' free choice in the
election. The July 7 letter warned the employees to beware
of being "fooled" by such election-day activity. This
warning was received by the employees in the context of the
Company telling them that the Union was lying to them,
and that "all they want is just your dues." Both the Union
and the Company were denigrating the other's motives, but
there is no showing that such campaign propaganda, on
either side, interfered with the employees' free choice. I
therefore overrule the objection.
2. Other objections
The Company contends that "the Union's unmeritorious
challenges delayed the voting process of other eligible
voters and prevented numerous eligible voters from casting
their ballots in the election." However, 18 of the Union's 31
challenges (and one of the Board agent's eight challenges)
have been sustained, and there is no evidence that any
employee was prevented from voting. I therefore overrule
the Company's Objection 2.
There is no evidence to support Objection 3, alleging that
the Union appealed to radical prejudice. I therefore
overrule it.
At the pre-election conference on July 10, the Board
agent, at the Company's request, struck from the eligibility
list the names of employees who had been terminated,
including the name of San Miguel who had been discharged
the day before. Although it is the Board's practice to
challenge the ballots of persons whose names have been
struck, and the agent instructed both the company and
union observers to inform him if any such person appeared
to vote, apparently none of the observers did so and San
Miguel was permitted to vote without challenge. However,
in view of the foregoing finding that San Miguel was
discriminatorily discharged, he was entitled to vote. There
being no showing that the error in allowing San Miguel to
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vote without challenge was prejudicial, I overrule Objection
4
D. Concluding Findings
Having sustained 19 of the 39 challenges, I find that the
remaining 20 challenged ballots should be opened and
counted. Having overruled the Company's objections, but
having sustained three of the Union's objections to
company conduct which I find interfered with the
employees' exercise of a free and untrammeled choice in
the July 10 election, I further find that the Union should be
certified if it has received a majority of the valid votes when
the opened ballots are counted, but that the election should
be set aside and a new election conducted in the event the
Union has not received a majority.
CONCLUSIONS OF LAW
1. By discharging Patrick Cunniff on May 20, Joel
Estala and Joe Gallegos on July 20, Ascencion Martinez on
August 17, Joe Otero on September 14, Benito Perez on
September 3, Jesse Verastegui on April 9, and Lloyd Wright
on September 4, because of their support of the Union, the
Company engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(3) and (1)
and Section 2(6) and (7) of the Act.
2. By assigning more arduous and less agreeable work
to Victor San Miguel, and by discharging him on July 9,
because he supported the Union and gave testimony on its
behalf, the Company violated Section 8(a)(1), (3), and (4) of
the Act.
3. By decreasing the amount of overtime assigned to
Vincente Paredes and by refusing to give Ricardo Morales
a picnic reservation form and on July 16 discriminatorily
issuing him a reprimand, because of their union support,
the Company violated Section 8(a)(1) of the Act.
4. By coercively interrogating, warning, and threatening
employees, the Company violated Section 8(a)(1) of the
Act.
5. The Company did not violate the Act by issuing
reprimands to Joe Otero and Ricardo Morales on April 22
for leaving the plant without written permission.
THE REMEDY
In order to effectuate the policies of the Act, I find it
necessary that the Respondent be ordered to cease and
desist from the unfair labor practices found and from like
or related invasions of the employees' Section 7 rights, to
take certain affirmative action, and to post appropriate
notices.
The Respondent having discriminatorily discharged nine
employees and reduced another employee's overtime, I find
it necessary that it be ordered to offer the discharged
employees reinstatement, with backpay computed on a
quarterly basis, plus interest at 6 percent per annum, as
2 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 , 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
prescribed in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716, and to
pay Vincente Paredes for his lost earnings , the amount to be
computed in the same manner.
Upon the foregoing findings of fact , conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 2
ORDER
Respondent, Gary Aircraft Corporation, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for supporting International Union, United
Automobile, Aerospace and Agricultural Implement Work-
ers of America (UAW) or any other union.
(b) Discharging or otherwise discriminating against any
employee for giving testimony under the Act.
(c) Threatening any employee with discharge or other
reprisal for supporting or voting for a union.
(d) Coercively interrogating any employee about union
support or activity.
(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Patrick Cunniff, Joel Estala, Joe Gallegos,
Ascencion Martinez, Joe Otero, Benito Perez, Victor San
Miguel, Jesse Verastegui, and Lloyd Wright immediate and
full reinstatement to their former jobs or, if their jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges
and make them and Vincente Paredes whole for their lost
earnings, in the manner set forth in the section of the Trial
Examiner's Decision entitled "The Remedy."
(b) Notify immediately the above-named discharged
employees, 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.
(c) Preserve and make available to the Board or its
agents, upon request, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(d) Post at its plant in San Antonio, Texas, copies of the
attached notice marked "Appendix."3 Copies of the notice,
on forms provided by the Regional Director for Region 23,
after being duly signed by an authorized representative of
the Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicuous places, includ-
3 In the event that the Board 's Order is enforced by a Judgment of the
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."
GARY AIRCRAFT CORP. 125
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of the receipt of this
Order, what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
IT IS ALSO FURTHER ORDERED that Case 23-RC-3440 be
remanded to the Regional Director for Region 23 to open
and count the ballots of Eliseo Casanova, James Dodson,
Jesse Dominguez, James Fields, William Gentry, Ramon
Gonzalez, Willis Hensley, Calvin Lissner, Angel Lopez,
Seratin Lopez, Othon Martinez, Robert Mayen, Pedro
Perez, Philip Persyn, Manuel Puente , Tomas Sanchez,
Victorino Sanchez, Eladio Trevino, Paul Tudyk, and Benito
Zuniga , and to issue a revised tally of ballots and a
certification of representative if International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW) has received a majority
of the valid votes cast . In the event the Union has not
received a majority, the election conducted on July 10,
1970, shall thereupon be set aside and a new election shall
be conducted when the Regional Director deems that
circumstances permit a free choice by the employees.
Joel Estala Benito Perez
Joe Gallegos Victor San Miguel
Ascencion Martinez Jesse Verastegui
Lloyd Wright
WE WILL pay Vincente Paredes for lost overtime.
WE WILL NOT discharge any employee for supporting
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), or any other union.
WE WILL NOT issue any reprimand, withdraw
overtime, assign harder work, or otherwise discriminate
against any employee for supporting or testifying for a
union.
WE WILL NOT threaten or discriminate against
employees for wearing union buttons or passing out
union handbills.
WE WILL NOT coercively question you about union
support or union activity.
WE WILL NOT unlawfully interfere with our employ-
ees' union activities.
Dated By
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after
trial, that we violated Federal Law by issuing reprimands to
active union supporters in order to discharge them
unlawfully, and by otherwise interfering with our employ-
ees' right tojoin and support a union:
WE WILL offer full reinstatement, with backpay plus
6 percent interest, to all these employees:
Patrick Cunniff Joe Otero
GARY AIRCRAFT
CORPORATION
(Employer)
(Representative) (Title)
We will notify immediately the above-named dis-
charged employees, if presently serving in the Armed
Forces of the United States, of the right to full reinstate-
ment, 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, 4th Floor, 1125 Brazos Street,
Houston, Texas 77002, Telephone 713-226-4722.