General Electric Wiring Devices, Inc.

National Labor Relations Board - Board Decisions

Aug 10, 1970

184 N.L.R.B. 837 (N.L.R.B. 1970)

GENERAL ELECTRIC WIRING DEVICES, INC. 837
General Electric Wiring Devices , Inc. and Interna - TRIAL EXAMINER'S DECISION
tional Association of Machinists and Aerospace
Workers, AFL-CIO. Case 24-CA-2774
August 10, 1970
DECISION AND ORDER
By MEMBERS FANNING, MCCULLOCH, AND BROWN
On March 24, 1970, Trial Examiner Owsley Vose
issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in
and was engaging in certain 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. Thereafter, the Respondent filed timely
exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings made at the
hearing by the Trial Examiner 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
brief,' and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, General Electric Wir-
ing Devices, Inc., Juana Diaz, Puerto Rico, its
officers , agents , successors , and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order.
' In its brief the Respondent excepts to the Trial Examiner's finding that
it discriminated against Martinez by failing to pay him the customary 10-
cent night-shift differential Although the Trial Examiner's finding in this
respect is supported by payroll records introduced into the record by the
Respondent during the course of the hearing , it nevertheless attached to its
brief a payroll statement reflecting that Martinez was in fact paid the dif-
ferential The Respondent also excepts to that portion of the Trial Ex-
aminer's Recommended Order which requires the Respondent to offer to
restore Martinez to his former position, and it contends that subsequent to
the close of the hearing Martinez was terminated from his employment for
cause We find it unnecessary to modify the Trial Examiner's findings and
Recommended Order, as these issues can best be resolved at the com-
pliance stage of this proceeding
STATEMENT OF THE CASE
OWSLEY VOSE, Trial Examiner: This case, heard
at Ponce, Puerto Rico, on January 15 and 16,
1970,' pursuant to a charge filed the preceding Oc-
tober 6 and a complaint issued November 28,
presents the question whether the Respondent
restricted Pedro Martinez' freedom of movement
about the plant and transferred him from the morn-
ing shift to the late night shift because of his union
activities; thereby engaging in discrimination and
interference, restraint, and coercion in violation of
Section 8(a)(3) and (1) of the Act.
Upon the entire record and my observation of
the witnesses, and upon due consideration of the
briefs filed by the General Counsel and the Respon-
dent, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is engaged in the manufacture
of electric wiring devices at its plant at Juana Diaz,
Puerto Rico. During the year preceding the is-
suance of the complaint the Respondent had
shipped to its Juana Diaz plant from off-island
sources more than $50,000 worth of materials and
supplies, and during this same period shipped to
customers off the island in excess of $50,000 worth
of finished products. Upon these facts, I find, as the
Respondent admits, that it is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act, and that it will effectuate the policies of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and
Aerospace Workers, AFL-CIO, hereinafter called
the Union , is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Respondent's Restricting of Pedro Martinez'
Freedom of Movement About the Plant and its
Discriminatory Transfer of Martinez to the Late
Night Shift in Violation of Section 8(a)(3) and (1)
of the Act
1. Background; the nature of the Respondent's
operation
As indicated above, the Respondent manufac-
tures various electrical wiring devices, such as
' Except where otherwise indicated all other dates hei-em refer to the
year 1969
184 NLRB No.97
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relays, switches , and receptacles. These devices are
assembled from metal and plastic parts on assembly
lines. The plastic parts are made in the molding
room on approximately 30 or more presses and
machines which are attended by five or less opera-
tors on each shift . Three shifts work around the
clock in the molding room , the first shift commenc-
ing at 6 a . m. and continuing until 2 p . m., the
second beginning at 2 p . m. and continuing until 10
p.m., and the third starting at 10 p . m. and running
until 6 a.m. The Respondent employs two quality
control auditors to oversee the functioning of the
presses and machines in the molding room, one of
whom is Pedro Martinez, whose transfer from the
day shift to the night shift on October 1 presents
the principal question in this proceeding . Prior to
October 1 , Martinez worked from 7:30 a.m. to 4:30
p.m. and Jorge Maldonado , the second-shift quality
control auditor , worked from 4:30 p.m. until 1:30
a.m. Thus, the shifts of the quality control auditors
covered all but 1-1 /2 hours of the first shift in the
molding room , all of the second shift , and 3-1/2
hours of the third shift.
The quality control auditors check the whole
molding process , observing whether the proper
quality and mixture of molding powders go into the
molds, whether the molds are operating at the
proper temperature and at the proper length of cur-
ing cycle, and whether the molds and machines are
functioning properly from a mechanical standpoint.
If the quality control auditors observe some mal-
functioning in the process which results in defective
parts being produced , their responsibility is to stop
the presses and machines . Quality control auditors
are not expected to repair presses and machines
which are not functioning properly . The Respon-
dent employs mechanics for this purpose , but at the
time of the events here involved had no mechanics
on the third shift in the molding room . The shift
leader on the third shift performed this function.
Quality control auditors keep detailed daily records
of the manner in which the individual presses and
machines are working and specify the kind of faulty
functioning observed. The quality control auditors
use instruments to check the dimensions of the
plastic parts which appear to be improperly formed
or as to which questions are raised in the assembly
process. Another duty of the quality control audi-
tors is from time to time to assist supervisors and
others on the assembly lines in solving production
problems arising out of attempts to use slightly mal-
formed plastic parts. The quality control auditors
would visit the assembly lines on these occasions.
A great many more employees work on the as-
sembly lines than in the molding room . Thus, there
were over 200 assembly line workers on the first
shift , 7:30 a . m. to 4:30 p.m ., and between 14 and
16 on the assembly line on the second shift, 4:30
p.m. to 1 : 30 a.m ., as compared with less than 15
employees on all three shifts in the molding room.
2. The Union 's organizing campaign and Martinez'
role therein
Sometime in August 1969, the Union com-
menced of organizing drive among the Respon-
dent 's employees . There had been previous drives
in both 1967 and 1968 . Martinez was one of the
leading advocates i of the Union among the em-
ployees in the 1969 drive. He was one of the con-
tacts among the employees of Juan Maldonado, the
Union's paid representative in charge of the or-
ganizing campaign. Martinez assisted Maldonado in
distributing leaflets and bargaining authorization
cards among the employees . The signed cards ob-
tained by other union supporters were turned over
to Martinez for delivery to Organizer Maldonado.
Martinez openly distributed union leaflets outside
the plant in the mornings before the assembly line
employees went to work at 7:30, during his lunch
hour , and after work. Martinez also spoke about
the Union to employees in front of the plant on
various occasions over a loudspeaker. On at least
one occasion Martinez was observed doing this by
Pedro Pillot , manager of plant operations, and
Genova Serrano , the supervisor over'the day shift
in the molding department, in which Martinez
worked.
3. The Respondent's initial response to Martinez'
organizing activities
Within a few weeks of the commencement of the
organizing campaign , Martinez was taken by Ismael
Alvarez, the Respondent 's quality control manager,
to the office of Jacobo Calder , the Respondent's
manager of employee and community relations.
There Alvarez and Calder had a conversation with
Martinez. As related by Martinez,
... Mr. Alvarez told me ... that he was aware
that my salary had not been revised in the last
three years and that he realized that I was
upset on account of that ... that they already
had written a letter to the company president
to make a revision in my salary and give me an
increase and besides, I could start working
overtime....
... first they told me that in exchange for that,
the increase in salary and the overtime, they
expected something from me.... I replied that
what they could expect from me they already
had, which was my good work and my good
disposition towards my work . Then Mr. Al-
varez told me that besides that they expected
something else; that I had to drop the union
GENERAL ELECTRIC WIRING DEVICES, INC.
movement, that I was doing inside the Com-
pany, because of the union movement, if it
continued they could not give me the increase
in salary, because after there was a union
movement inside the company, the law
prohibited that the employees should get in-
creases in salary.
I told him I was a man of principle and I
could not defraud in any way the employees
who had signed cards for me and who had
made me their leader and that they had put all
their confidence in me to bring the union into
the shop.
Calder and Alvarez both testified that they did
not have any conversation with Martinez in Sep-
tember about wages or overtime. Their last conver-
sation with Martinez about wages, according to
Calder and Alvarez, was in May when there was a
discussion of a 2-cent raise to bring him to the top
of his grade, grade 4. Martinez also testified con-
cerning an offer from Alvarez of a 2-cent raise in
May, which, he testified, he refused.
The conflicts in the testimony cannot be resolved
without taking all of the facts of the case into con-
sideration. I discuss in part 8, below, my conclu-
sions concerning the resolution of the conflicting
testimony in this case.
On another occasion in September, after the
commencement of the organizing drive, as Mar-
tinez was returning from Alvarez' office with some
plans for some plastic parts, Thelma Torres, an as-
sembly line worker, called him over to her. Mar-
tinez testified that while Torres was asking him
about a personal matter , Employee Relations
Manager Calder approached. Upon seeing Calder,
Martinez excused himself and started walking
towards the molding room . Martinez had to pass
through the laboratory where Visitacion Reyes
worked. Calder caught up with Martinez as he was
greeting Reyes. According to Martinez, Calder said
to him, in the presence of Reyes, as follows:
Pompi [Martinez' nickname], I am fed up with
this matter of the union .... You are all the
time by the assembly line making propaganda
with the girls and many people have told
me. . . . From now on, you are restricted to
your own area of work unless it is with my
permission or my authorization or your im-
mediate boss who is Mr. Alvarez. You cannot
leave the molding room.
Martinez' testimony continues.
I told him, "Mr. Calder, I was not talking
about the union, and you were close enough to
us and you must have realized that it was her
who called me. Besides, you can go to her and
you can ask her what we were talking about."
839
The next day he came. I think it was the next
day, and he offered-he apologized and he told
me, "Pompi, I have just found out you were
not talking about the union. I hope you will ex-
cuse me." That was all.
Reyes testified as follows
cident:
concerning this in-
Well, during the month of September, I only
remember one day on which Mr. Martinez was
coming from the line. He came to my work sta-
tion and while he was trying to talk to me, Mr.
Calder arrived and what I recall Mr. Calder
told him and told him he was fed up with him
on account of the union; that he did not want
to see him around the line; that his place of
work was at molding, to go to molding and
there they continued talking. What they spoke,
I do not know.
Reyes was an observer for the Respondent in the
1967 election There is no evidence concerning
Reyes' disposition towards the Union in the 1969
campaign.
Geraldino Santiago, the Respondent's top super-
visor of the assembly line employees, also testified
regarding this incident, as follows:
I was coming out of the surface wiring to the
relay section. When I was coming, I could see
Mr. Pedro J. Martinez talking to Mrs. Thelma
Torres at one of the machines. At that same
moment, Mr. Calder was going by. Mr. Calder
was approaching that section, Mr. Martinez
left. They continued and then he went to the
machine where Thelma Torres was working
and asked her if there was a problem or
something . She told me she had called Mr.
Martinez to ask something personal . I told her
the personal matters should not be discussed
during working hours. I admonished her. I told
her that in working hours she could not be
talking about personal matters.
Calder's testimony is as follows:
During the walk that I take daily through the
plant , this particular afternoon I went by the
relay section and I noticed that Mr. Martinez
was talking in a kind of joking way, obviously
wasting time, with Mrs. Thelma Torres. I
looked at them and I continued on my rounds.
On my return, approximately five or ten
minutes later, I went by the same spot and Mr.
Martinez was still there talking, making
gestures, laughing. I looked at him. He im-
mediately lowered his head and immediately
he. left that spot. I followed him and at the en-
trance of the molding room, I called him and I
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told him that I was tired watching him waste
time at the plant ; that I was asking him to
remain in his work station at the molding
room. Then he asked me, "Are you restricting
me to the molding room?" And I said, "No, sir,
I am not restricting you to the molding room."
And that was all that happened.
Calder denied mentioning the Union during this
conversation.
This was the first time that Calder had ever repri-
manded Martinez for such conduct , although ac-
cording to Calder 's testimony, he had seen Mar-
tinez on other occasions " talking to other persons
on the line, and obviously in the same manner." On
these prior occasions , Calder testified he had re-
ported this conduct to Martinez' supervisor and his
supervisor had spoken to Martinez about it. As
manager of employee and community relations,
Calder was not responsible for the supervision over
assembly line and molding room employees . Calder
explained his intervention on this occasion by say-
ing that Alvarez, Martinez ' "boss," was not at the
plant . Calder did not state whether Genova Ser-
rano, the foreman of the molding room and Mar-
tinez ' immediate supervisor , was at the plant that
day.
4. The petition for certification , the election
On September 3, the Union filed with the Board's
Regional Director a petition for certification as the
exclusive bargaining representative of the produc-
tion and maintenance employees at the Respon-
dent 's plant . On September 22 the parties entered
into a stipulation for certification on the basis of a
consent election. Pursuant to the stipulation, an
election was held on October 23, which the Union
lost.
5. The Respondent 's transfer of Martinez to the
third shift on October 1; related events
Pursuant to arrangements previously made with
Organizer Maldonado , Martinez assisted Mal-
donado in passing out union leaflets in front of the
plant from 7 to 7:20 a.m . on October 1.
These leaflets , in a series of nine questions
specifically directed to Quality Control Manager
Alvarez, questioned the accuracy of comments
made by Alvarez based on a newspaper article
which attributed certain plant closings to union ac-
tivities, belittled his qualifications for earning his
$20,000 salary, and suggested , based on antiunion
activities allegedly engaged in by Alvarez while
working for other employers, that Alvarez was em-
ployed by the Responde6t to "scare" employees
away from the Union . The leaflets , which were
signed by "Juan L. Maldonado , Representative,
I.A M.," concluded with the following plea:
So that Alvarez doesn 't deceive you the same
way you were deceived during the last election,
VOTE YES
Between 8:30 and 9 that morning , according to
Martinez , Alvarez went to Martinez' desk and
threw one of the leaflets down on it, saying "You
are the one behind this ." Martinez replied , "If you
read it , you must have noticed that it has been
signed by Mr. Maldonado and not by me." Alvarez
mumbled something which Martinez could not un-
derstand and left.
Alvarez testified that he never had any conversa-
tion with Martinez about union leaflets which
referred to him personally . Alvarez admitted, how-
ever , being aware that on various occasions union
leaflets did refer to him personally.
At 2 p.m. that same day, Alvarez summoned
Martinez to his office and without discussion
handed Martinez the following memorandum:
October 1, 1969
To-Pedro J. Martinez-Q. C. Auditor Mold-
ing
Due to the innumerable problems existing on
the third shift of molding we have made the
following decision based on your proven ability
to resolve those problems....
Starting Thursday, October 2, you will report
to work at 10 in the evening , you will have a
recess from 2 to 3 in the morning , and will
finish your shift at 7 in the morning . We hope
that your performance on that shift will resolve
many of the problems affecting us so much.
s/ I Alvarez
1. Alvarez
cc: J. Calder
P. Pillot
Martinez ' undenied testimony is that he protested
that the shift change was a reprisal against him for
having distributed the leaflet and asserted that it
was contrary to company policy to make such a
drastic change in shifts without advance notice.
Martinez ' uncontradicted testimony continues that
he disputed, in a respectful manner , the-assertion in
the memorandum that there were problems on the
third shift which he was needed to help solve,
pointing out that in the past when the situation was
worse because of the turnover among the ex-
perienced men and the lengthy absence of the su-
pervisor due to illness , the Company had not
GENERAL ELECTRIC WIRING DEVICES , INC. 841
changed his shift. Yet now, Martinez went on to
say, after the supervisor had returned and there
were less problems, he was being transferred.
Although the Respondent's "Personnel Practices
Handbook for Employees" makes specific provision
for a 10-percent bonus for third-shift work, Mar-
tinez was not given the third-shift differential. In-
stead Martinez' wages were increased as part of a
general pay increase which was put into effect by
the Respondent on October 1 for all employees.
Martinez' rate of pay as a grade 4 quality control
operator was increased from $1.82 to $1.95 per
hour at this time, an increase of a little over 7 per-
cent. Had the Respondent given Martinez the 10-
percent third-shift bonus, to which he was ap-
parently entitled under the policies stated in the
Respondent's handbook, it appears that his wage
rate would have been increased to about $2.15 per
hour.
The same day that Martinez was transferred to
the late night shift Jorge Maldonado, the quality
control operator on the second shift from 4:30 p.m.
to 1:30 a.m., was transferred to a shift commencing
at 1 p.m. and continuing until 10 p.m. Jorge Mal-
donado was given no advance notice of this change.
Nothing was said to either Martinez or Maldonado
at the time of their transfers about the duration of
the transfers.
On January 7, after the issuance of the complaint
in this proceeding and about a week before the
hearing was scheduled to begin in this case, the
Respondent had the two quality control auditors
swap shifts, with the result that Martinez worked
from 1 p.m. to 10 p.m. and Maldonado worked
from 10 p.m. to 7 a.m.
On one occasion while Martinez was still on the
10 p.m.-7 a.m. shift three employees from the
production area sought to talk to Martinez during
the 10-minute break period. In Martinez' presence,
the guard who was nearby told them:
"You cannot be here. You cannot be talking to
Pompi." They told him. "We are in our
break." And he said, "No, you cannot talk to
Pompi." And he pushed them and he escorted
them to the place where they worked.
This is Martinez' undenied and credited testimony.
On another occasion during the period Martinez
was working the late night shift, he sought during
the day shift to pick up a book which he had left on
his desk in the plant. Alvarez saw Martinez when he
came in and told Martinez, as follows:
I prohibit you to be here in the company un-
less it is during your working hours and your
hours are from 10 at night to 7 in the morning.
Alvarez did not deny or attempt to explain Mar-
tinez ' testimony, above quoted.
6. The Respondent 's explanation for Martinez'
transfer
The Respondent asserts that during 1969 it had
difficulty in achieving satisfactory quality produc-
tion in the molding room and that the problem
reached alarming proportions in September. At that
time, according to Quality Control Manager Al-
varez, Plant Manager Pillot prodded him to do
something to improve the quality of the molded
parts and to reduce scrap. On September 16 Al-
varez had Martinez make an analysis of the parts on
the floor to ascertain their quality. Martinez' re-
port, Respondent Exhibit 1, disclosed, according to
Alvarez, that 20 to-25 percent of the parts were de-
fective. After examining the report and conferring
with Martinez2 and Plant Manager Pillot, he con-
cluded that it was the third shift which was largely
responsible for the poor quality production and that
a reorganization of the shifts of the quality control
auditors to put the Respondent's most experienced
quality control auditor on duty during the third
shift would be the most logical solution to the
problem .3
7. The General Counsel 's contentions concerning
the transfer
The General Counsel points out that Martinez
was the known leader of the union movement in the
plant, that the Respondent first tried to dissuade
him from continuing his union activities by dangling
the prospect of a wage increase and overtime work
before him, and, when this effort failed, restricted
his freedom of movement about the plant, at the
same time making explicit its objections to Mar-
tinez' propagandizing among the girls. When, how-
ever, Martinez persisted in openly engaging in
union activities and distributed union leaflets per-
sonally attacking Alvarez for antiunion actions
while working for other employers, Alvarez reacted
immediately, banishing him to the late night shift,
where he would have hardly any contact during his
shift with the great bulk of the employees who
worked on the day shift. The General Counsel ar-
t Martinez testified that he told Alvarez at this time "that it was most
probably the third shift" which was responsible for the high percentage of
scrap being produced
' The Respondent introduced into evidence in support of Alvarez'
testimony in this regard a memorandum from Alvarez to Plant Manager
Pillot dated September 30, in which he discussed the factors causing the
quality problem on the third shift , including the absence of any supervisor
or quality control operator, and the presence of operators with less seniori-
ty and, therefore , less experience The memorandum concludes with an an-
nouncement of the decision to rearrange the shifts, as stated above
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gues the assignment to the third shift of a quality
control auditor , who was not expected to make
mechanical repairs and whose only recourse when
he observed presses or machines malfunctioning
was to stop them , was not likely to increase the
production of better quality parts. These circum-
stances, among others , the General Counsel asserts,
point to the conclusion that the real reason for
Martinez' transfer to the late night shift was its
desire to put the leader of the union movement out
of circulation during the hours when the great
majority of the employees worked , and that the al-
leged quality problems of the third shift were mere-
ly a pretext for doing so
8. Conclusions
a. The credibility problem
Choosing between the opposing positions as to
the real reason for the Respondent 's transfer of
Martinez to the late night shift requires the resolu-
tion of very serious conflicts in the testimony. This
is a difficult chore for a Trial Examiner at best, but
it is made more difficult in this case because not
only the General Counsel 's principal witness, Mar-
tinez, but also the Respondent's two main wit-
nesses, Alvarez and Calder , appeared willing to
overstate matters when they thought it would be
helpful to their cases. However , after carefully ob-
serving the three witnesses on the stand , I conclude
that Martinez was more frank and had a better
recollection of events than did either Alvarez or
Calder . The final conclusion as to which testimony
was truthful cannot be made without weighing it in
the light of all the known facts and the inherent
probabilities of the various situations.
The first item of sharply disputed testimony con-
cerns the incident of Alvarez and Calder assertedly
offering to seek to obtain for Martinez an increase
in his pay rates and more overtime. In view of the
entire sequence of events in this case I accept Mar-
tinez' testimony concerning this incident . It con-
tains sufficient details to be convincing, and it
would be wholly inconsistent with Martinez'
character as it revealed itself to me on the stand for
Martinez to have made up this incident out of
whole cloth . I cannot accept the testimony of the
Respondent 's witnesses that this incident never
happened . Accordingly , I credit the testimony of
Martinez concerning this incident.
The next incident about which there is a serious
controversy is the one involving Calder's reprimand
of Martinez after his visit to Thelma Torres' work
station and his restricting of Martinez' freedom of
movement about the plant . In his testimony about
this incident Martinez appeared to have a good
recollection of the details . I do not believe that
Martinez would have admitted that Alvarez
apologized to him on the next day unless this were
true . And the testimony about the apology is not of
a kind , in my opinion , which an employee is likely
to make up . Calder's testimony to the effect that he
observed Torres and Martinez talking for 5 to 10
minutes appears to me to be grossly exaggerated.
The Respondent has too many supervisors in the as-
sembly line area for such a disruption of production
to go unnoticed for so long . Supervisor Santiago did
in fact observe Torres and Martinez talking, and
reprimanded Torres for it. Visitation Reyes, who
overheard a portion of Calder's remarks at his work
station, appeared to be a truthful witness and he
corroborated Martinez' testimony about Calder
saying that he was fed up with Martinez because of
the Union . As found above , it was part of Calder's
job to supervise the day-to-day conduct of the
Respondent 's employees . As Calder's testimony
reveals , he ordinarily left such disciplining up to the
supervisors involved . Calder did not explain why he
did not let Supervisor Serrano take care of this
problem on this occasion . Calder's conduct, as at-
tributed to him by Martinez , is consistent with the
Respondent 's later treatment of Martinez in trans-
ferring him to the late night shift . In both instances
the effect of the Respondent 's action was to limit
Martinez' opportunities during his shift ( i.e., during
breaks and lunch periods) to contact assembly line
workers. For all the foregoing reasons I conclude
that Calder on this occasion did express his disap-
proval of Martinez' union activities, as testified to
by Martinez and Reyes, and did restrict Martinez'
freedom of movement about the plant , as testified
to by Martinez . Calder's contrary testimony is re-
jected.
Another portion of the testimony which is in total
contradiction is Martinez' testimony that an hour or
so after he passed out the union leaflets in front of
the plant on October 1, Alvarez confronted Mar-
tinez with one of the leaflets and accused him of
being responsible for the Union' s charges against
Alvarez. Alvarez flatly denied that any such thing
happened . It is understandable that Alvarez would
have reacted in this manner and it is wholly con-
sistent with Alvarez' action against Martinez that
afternoon in transferring him to the late night shift
for Alvarez to have accused Martinez in this
fashion . Considering the conflicting testimony of
Martinez and Alvarez about this incident in the
light of all the circumstances of the case, Martinez'
testimony appears much more plausible and I credit
it.
The final area of controverted testimony in this
case relates to the Respondent 's claim that the
problem of poor quality production on the third
GENERAL ELECTRIC
shift had reached such serious proportions by the
end of September that remedial action had to be
taken immediately. Respondent first called to the
stand Pedro Pillot, who, as manager of all the
operations at the plant, had the least first-hand
knowledge of the details of the day-to-day opera-
tions in the molding room. Pillot testified first con-
cerning the longstanding problem of the poor quali-
ty production in the molding room, and the factors
causing it, such as the absence due to illness of the
molding room supervisor, Serrano,4 the lack of
adequate maintenance which resulted in rundown
equipment, and the loss of experienced operators.
Then, after explaining how he had obtained addi-
tional operators for each shift and additional
mechanics for the department in an effort to solve
these problems, Pillot testified that he was informed
in a memorandum from Alvarez that it was the
third shift which was producing the greater part of
the scrap and that he was reorganizing the molding
room to give more attention to that shift. Pillot, of
course, was referring to Alvarez' memorandum an-
nouncing the reorganization of the molding room
which was purportedly prepared on September 30,
the day before Martinez passed out the leaflets at-
tacking Alvarez. It is apparent from Pillot's
testimony as a whole that he had no first-hand
knowledge of the conditions causing the problems
in the molding room.
The Respondent then called Quality Control
Manager Alvarez as a witness. Alvarez was relative-
ly new in the Respondent 's employ and it is ap-
parent from his testimony that the problems of the
molding room, which was only one of a number of
departments supervised by him, were new to him.
Victor Rivera, a leader in the molding room,
testified that Alvarez "hardly ever comes to the
molding room." I have mentioned in connection
with the Respondent's explanations of Martinez'
transfer Alvarez' testimony that after Pillot spoke
to him in September about the poor quality parts
coming from the molding room, he had an analysis
made by Martinez which showed that approximate-
ly 20 to 25 percent of the parts made were bad, 'and
that he concluded that the third shift was mainly
responsible.5 Alvarez further testified that having
' As found above Serrano returned to work about 2 weeks before Mar-
tineL' transfer
s The Respondent offered the analysis made by Martinez, Resp Exh 1,
to document its claim that the third shift was largely responsible for the
poor quality production in the molding room However, considering the in-
formation on the face of the document in the light of the testimony of Mar-
tinez who prepared it, I am convinced that it does not show simply the
production of the third shift but rather was an analysis of all the parts
available for inspection at the time the inspection was made, regardless of
the shift on which they were made This appears from the fact that the ex-
hibit in part reflects the condition of plastic pieces after they have left the
molding room and have been run through the wheelabrator At such a
stage, according to Martinez , the production of all three shifts have been
WIRING DEVICES, INC. 843
reached this conclusion, he gave consideration to
the factors which possibly could cause the third
shift to be the worst of all. He concluded that "the
most critical shift had no quality control inspector."
The logical solution to this problem, according to
Alvarez, was to rearrange the shifts of the quality
control auditors so as to place the Respondent's
most experience auditor, Martinez, on duty during
the third shift. During the first shift, Alvarez ex-
plained, the Respondent had managerial support to
take over the duties of the quality control auditor.
Consequently, it was decided to place Martinez on
a 10 p.m. to 7 a.m. shift and to have Maldonado,
the other quality control auditor, take a 1 p.m. to
10 p.m. shift. Alvarez' testimony to the effect that
the "most critical shift had no quality control in-
spector" is open to question in view of the un-
disputed fact that Jorge Maldonado, the second-
shift quality control operator, was on duty for the
first 3-1/2 hours of the third shift in the molding
room. In view of the infrequency of Alvarez' visits
to the molding room, his testimony concerning
managerial support appears overstated, for Genova
Serrano was the only supervisor in a position to
give full -time supervision and after the reorganiza-
tion he was having to act in a dual capacity, both as
supervisor and as quality control auditor.
The Respondent failed to call Supervisor Serrano
as a witness . Serrano was the person having the
most intimate first-hand knowledge of the problems
of the molding room and the means of solving
them. As far as the record shows, Serrano was not
even consulted by Alvarez before he decided that
the transfer of Martinez to the third shift was the
solution to the problems of the molding room.
No records were offered by the Respondent to
substantiate the conclusionary testimony of its wit-
nesses that the problem lay primarily in the third
shift. I have carefully considered the records
produced by the Respondent at my request to aid
me in evaluating Respondent's Exhibit 1, but find
nothing in them indicating that there were definite-
ly more problems on the third shift than on the
other two shifts. If anything, they indicate that
problems cropped up helter-skelter, without regard
to sh ift.6
mingled Another indication that Resp Exh I did not reflect the output of
the third shift alone is the fact that it reports in several instances that two
kinds of parts were mixed together When the parts leave the molding room
they are not mixed Under all the circumstances I cannot accept at face
value the designation " Audit of Parts Produced in 3rd shift " which was
placed on the top of both sheets by Alvarez after the report was turned over
to him by Martinez
" I have also scrutinized the daily reports of Jorge Maldonado , the quality
control auditor on the 4 30 p in to 1 30 a in shift, covering most of the
month of September in an effort to determine if there was a discernible pat-
tern of greater difficulty on the first 3-1/2 hours of the third shift than on
the last 5-1/2 hours of the second shift However, I found no such pattern
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Martinez testified that he did not observe any
change in September in the way the three shifts
operated in September from the • way they had
operated in the past . As found above , however,
Martinez did admit to expressing the opinion to Al-
varez that the third shift was probably responsible
for producing a higher percentage of scrap than the
other two shifts. But, as I understand Martinez'
testimony , this was nothing new.
Jorge Maldonado , the other quality control audi-
tor, and Victor Rivera , a leader of one of the shifts
in the molding room , both testified they had not ob-
served any unusual problems cropping up in the
molding room in September which they had not ex-
perienced before.
In resolving the conflicts in the testimony con-
cerning the seriousness of the problem of the third
shift in the molding room in September, several
points stand out. The factors mentioned by Pillot as
being responsible for the problems in the molding
room , the rundown condition of the egipment and
the loss of experienced operators , are conditions
which are common to all three shifts. Since the
shifts in the molding room rotate , the lack of ex-
perienced operators would seem adversely to affect
whatever shift the inexperienced operators were
working on . The fact that the Respondent had
recently installed additional machines , without
promptly adding sufficient extra operators and
mechanics , was another factor causing problems in
the molding room , a problem which was common
to all three shifts.
Under all the cirsumstances I conclude that the
Respondent 's witnesses exaggerated the seriousness
of the Respondent 's difficulties on the third shift in
the molding room i n order to provide an excuse for
its treatment of Martinez.
b. The illegality of the Respondent 's conduct under
Section 8(a)(3) and (1) of the Act
As found above, Martinez was the known leader
in the movement to organize the Respondent's em-
ployees in September 1969. The Respondent first
sought to induce Martinez to abandon his union ac-
tivities by using the "carrot" approach , offering to
try to obtain for him an increase in wages and more
overtime . When this approach failed , the Respon-
dent applied the stick , in the form of a restriction
on his previous freedom of movement about the
plant which severely curtailed his opportunities to
contact the assembly line workers during his free
time . At the same time the Respondent openly ex-
pressed its opposition to Martinez ' organizing ac-
tivities. Not long thereafter , about 3 weeks before
an election was scheduled to be held at the plant
and the same day that Martinez had passed out
leaflets in front of the plant in which the Union Or-
ganizer Juan Maldonado had made extremely criti-
cal comments about Quality Control Manager Al-
varez because of his asserted prior antiunion
record, Alvarez had Martinez transferred to the
third shift without any advance notice . The transfer
was effected but a few hours after Alvarez had con-
fronted Martinez with the leaflet and berated him
for his part in distributing it.
While the Respondent urges that the problems on
the third shift had reached "alarming" proportions
in September , as found above , the Respondent has
overemphasized the third -shift aspect of these
problems. Many of the problems confronting the
Respondent in the molding room at this time were
common to all three shifts. For 4 months or so the
Respondent had been having serious problems on
all the shifts in the molding room due to the
absence of Supervisor Serrano and the various
other factors mentioned above , but the Respondent
had not found it necessary to transfer Martinez. Yet
after Serrano returned to work and could make his
contribution to solving the problems of the molding
room , the transfer of Martinez was assertedly found
to be the most practical solution to these problems.
The new element in the situation in September, of
course , was the union organizing campaign which
was to culminate in an election in a little over 3
weeks, with Martinez playing the leading role in the
campaign . In my opinion the timing of Martinez'
transfer and the precipitate manner in which it was
put into effect suggest that antiunion consideration
played a part.
The arrangement for additional quality control
auditor 's services on the third shift does not appear
to furnish an effective solution to the problems of
the molding room. At the time of the transfer the
Respondent already had a quality control auditor
on the third shift for the first 3 - 1 /2 hours thereof.
By rearranging the shifts and placing Martinez on
duty from 10 p.m. until 7 a .m., with a lunch period
from 2 to 3 a.m., the Respondent merely added the
services of a quality control auditor for an addi-
tional 3-1/2 hours. Both Pillot and Alvarez stressed
the absence of supervision on the third shift as an
important factor contributing to its poor record.
But instead of assigning a supervisor to the third
shift, or at least a mechanic who could repair the
machines which were turning out defective
products, the Respondent merely added a few addi-
tional hours ' coverage of the third shift by a quality
control auditor , who could do no more when he ob-
served a machine turning out defective products
than stop the machine . While the Respondent did
ultimately secure the services of additional
mechanics , none was assigned to the third shift.
The fact that the transfer of a quality control opera-
GENERAL ELECTRIC WIRING DEVICES, INC.
tor to the third shift was somewhat less than a logi-
cal solution to the problems in the molding room
casts doubt on the sincerity of the Respondent's ex-
planation of the transfer of Martinez.
Another circumstance to be taken into con-
sideration in determining the Respondent's true
motive in transferring Martinez is the fact that it
was accomplished by a written memorandum which
was apparently handed to Martinez without discus-
sion. One would expect that a supervisor who was
purportedly transferring a valued employee to a
distasteful assignment in order to help the employer
solve a serious production problem would take the
time personally to discuss the problem with the em-
ployee and would mention offsetting factors which
might render the assignment less distasteful. While
the Respondent now apparently contends that it
was intended from the start that quality control au-
ditors would be rotated on a 90-day basis, Alvarez
failed to mention that the shifts would be rotated.
Nor did Alvarez mention the 10-percent third-shift
differential which might have eased the pain of the
transfer. In fact Alvarez failed to give Martinez the,
10-percent third-shift differential to which he was
apparently entitled under the Respondent's employ-
ment policies. These circumstances cast further
doubt on the Respondent's claim that this was the
transfer of a needed and valued employee, one
whose experience could best help the Respondent
solve its third-shift production problem. Rather it
appears more like a transfer which was hoped to be
so unacceptable to Martinez that it would cause
him to quit.
Under all the circumstances of the case, I con-
clude that the Respondent's explanation for Mar-
tinez' transfer was but a pretext, and that it trans-
ferred Martinez to the late night shift in the hope
that the assignment would be so unacceptable to
him that he would quit, thereby removing from its
employ the sparkplug of the union movement, and
failing this, the transfer would substantially reduce
Martinez' opportunity to contact the Respondent's
day-shift assembly line employees who were the
great bulk of the Respondent's workers. The two
incidents which occurred after the Respondent's
transfer of Martinez-the first one involving the
guard's ordering production employees away from
Martinez, although it was a break period for all of
the employees, and the second, involving Alvarez
ordering Martinez out of the plant during the day-
tend to confirm the view that the Respondent's pur-
pose was to keep Martinez isolated from the rest of
the employees.
' In reaching this conclusion I have not overlooked Alvarez' memoran-
dum to Pillot in which Alvarez announced his decision to reorganize the
shifts of the quality control operators , placing Martinez on the third shift
While this memorandum bears the date of September 30, the day before
845
Upon all of the facts I conclude that the Respon-
dent's transfer of Martinez to the third shift on Oc-
tober 1 and also its earlier action in restricting him
to the molding room, except by special order or
permission, constituted acts of discrimination
against him in violation of Section 8(a)(3) and (1)
of the Act.'
CONCLUSIONS OF LAW
1. By transferring Pedro Martinez to the night
shift on October 1, 1969, and by restricting Pedro
Martinez to the molding room, except by special
order or permission, the Respondent has
discouraged membership in International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO, by discrimination in regard to hire,
tenure, terms and conditions of employment and
has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in
Section 7 of the Act, thereby engaging in unfair
labor practices in violation of Section 8(a)(3) and
(1) of the Act.
2. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices, my Recommended Order
will direct that the Respondent cease and desist
therefrom and take certain affirmative action to ef-
fectuate the policies of the Act.
I have found that the Respondent unlawfully dis-
criminated against Pedro Martinez by transferring
him to the late night shift on October 1, 1969. To
remedy this unlawful conduct my Recommended
Order will provide that the Respondent reinstate
Martinez to his former position as quality control
auditor on the 7:30 a.m. to 4:30 p.m. shift, and that
it make him whole for his losses, if any, resulting
from the Respondent's failure to pay Martinez
premium pay for night-shift work, if any was due
him under the Respondent's employment policies in
effect at the time of Martinez' transfer, during the
period commencing with Martinez' transfer to the
night shift and continuing until the Respondent has
restored him or offers to restore him to the day
shift. Interest at the rate of 6 percent per annum
shall be added to any sums due Martinez in reim-
bursement for his failure to receive the night-shift
premium or differential. Isis Plumbing & Heating
Co., 138 NLRB 716.
Martinez' distribution of the leaflets attacking Alvarez, I am convinced
under all the circumstances of the case that this memorandum was not
prepared until after Martinez ' distribution of the leaflets
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings and conclusions and
pursuant to Section 10(c) of the Act there is
hereby issued the following:
RECOMMENDED ORDER8
The Respondent, General Electric Wiring
Devices, Inc., Juana Diaz, Puerto Rico, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in International
Association of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization, by
transferring employees to less desirable shifts, by
restricting employees' freedom of movement about
the plant, or by in any other manner discriminating
against employees in regard to their hire or tenure
of employment or any terms or conditions of em-
ployment.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Offer to restore Pedro Martinez to his
former position as quality control auditor on the
7:30 a.m. to 4:30 p.m. shift in the molding room,
and make him whole for his losses , if any, resulting
from the Respondent's failure to pay him its custo-
mary night-shift differential, in the manner set forth
in the portion of the Trial Examiner's Decision enti-
tled "The Remedy."
(b) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(c) Post at its plant at Juana Diaz, Puerto Rico,
copies of the attached notice marked "Appendix,
together with a Spanish translation thereof."9 Co-
pies of said notice, in English and Spanish, on forms
provided by the Regional Director for Region 24,
after being duly signed by Respondent's duly
authorized representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional -Director for Region 24,
in writing, within 20 days from the receipt of this
Decision, what steps. have been taken to comply
herewith. 10
" 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
" In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals En-
forcing an Order of the National Labor Relations Board "
'" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT transfer employees to un-
desirable shifts, restrict them to their depart-
ments, or otherwise discriminate against any of
our employees in regard to their hire, tenure,
or any terms or conditions of employment,
because of their union activities.
WE WILL NOT in any like or related manner
interfere with our employees' right to join or
be represented by a labor union.
WE WILL restore Pedro Martinez to his
former position as quality control auditor on
the 7:30 a.m. to 4:30 p.m. shift and reimburse
him for his financial loss resulting from our
failure, if any, to pay for third-shift work.
GENERAL ELECTRIC
WIRING DEVICES, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 7th Floor, Pan Am Building, 255
Ponce de Leon Avenue, Hato Rey, Puerto Rico
00919, Telephone 809-765-0404.