Hasa Chemical, Inc.

National Labor Relations Board - Board Decisions

Apr 12, 1978

235 N.L.R.B. 903 (N.L.R.B. 1978)

HASA CHEMICAL, INC.
Hasa Chemical, Inc. and General Teamsters, Chauf-
feurs, Warehousemen & Helpers Local No. 982,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America.
Cases 31-CA-6886 and 31-RC-3707
April 12, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On December 19, 1977, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting letter.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and has
decided to affirm the rulings, findings, l and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order, as modified herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Hasa Chemical, Inc., Saugus, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(d):
"(d) Post at its Saugus, California, place of business
copies of the attached notice in Spanish marked
"Appendix A," together with the attached notice in
English marked "Appendix." 24 Copies of said no-
tices, on forms provided by the Regional Director for
Region 31, after being duly signed by the Respon-
dent's authorized representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material."
2. Add the attached notice marked "Appendix
A" to the Decision of the Administrative Law Judge.
IT IS FURTHER ORDERED that the election held on
February 25, 1977, in Case 31-RC-3707 shall be, and
235 NLRB No. 112
it hereby is, set aside, and the petition therein be, and
it hereby is, dismissed.
I In sec. B, I, of his Decision, the Administrative Law Judge states that
"On about December 18, 1976...." As it appears from the record that the
date "On about December 18, 1976," is an inadvertent error, we hereby
correct it to read "On about January 18, 1977.
2 The General Counsel excepts to the failure of the Administrative Law
Judge's proposed Order to provide for bilingual notices to employees, in
Spanish and English, in view of the number of Respondent's employees who
are primarily Spanish-speaking. We agree with the General Counsel and
shall order that notices be posted in Spanish as well as in English. Northridge
Knitting Mills, Inc., 225 NLRB 1054 (1976).
APPENDIX A
AVISO A LOS EMPLEADOS
FIJADO POR ORDEN DE LA
JUNTA NACIONAL DE RELACIONES DEL TRABAJO
Una Agencia del Gobierno de los Estados
Unidos
No VAMOS a interrogar de manera restringida a
los empleados acerca de sus actividades sindi-
cales.
No VAMOS a solicitar a los empleados para que
firmen una peticion contra la union.
No VAMOS a amenazar a cerrar nuestra planta
si escogen nuestros empleados al General Team-
sters, Chauffeurs, Warehousemen & Helpers,
Local No. 982, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America, para que les representara.
No VAMos a amenazar a llamar a las autori-
dades de la Inmigracion para que sean deporta-
dos aquellos residentes extranjeros ilegales si
escogen nuestros empleados aquella Union para
que les representara.
No VAMos a amenazar a eliminar los sobresuel-
dos si escogen nuestros empleados aquella Union
para que les representara.
No VAMOS a ofrecer ayuda para que formen
una union que sea de la Compania.
No VAMOS a solicitar quejas, ni a dar promesas
para corregir las quejas, ni a dar beneficios para
corregir las quejas, con el proposito de abatir el
numero de los miembros de aquella Union de
Teamsters.
No VAMOS a asistir en la formacion de, o a
reunirnos con, un comite de empleados.
No vAMos a interveniro a restringir en cualquie-
ra manera en el ejercicio de los empleados de
aquellos derechos garantizados por el Articulo 7
de la Ley.
No VAMOS a despedir a, o a discriminar en
cualquiera otra manera contra, cualquier emplea-
do debido a sus simpatias sindicales.
No VAMOS a negar reconocer a, y negociar con,
la General Teamsters, Chauffeurs, Warehouse-
men & Helpers, Local No. 982, International
903
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, como el repre-
sentante exclusivo de negociacion de nuestros
empleados en la unidad cuya descripcion se
encuentra abajo.
VAMOS a ofrecer reinstalacion completa a
Charles Hamlin con pago atrasado e interes.
VAMOS, al ser pedido, a reconocer a, y a
negociar con, aquella Union como el represen-
tante exclusivo de negociacion de nuestros em-
pleados en la unidad de todos los empleados de
produccion y mantenecimiento, los empleados de
embarque y recibir, los empleados de almacen, y
los manejadores de camiones, los cuales estan
empleados por la Compania en su sitio de 23119
Drayton Street, Saugus, California, excluyendo
todos los otros empleados, los empleados clericos
de oficina, los empleados profesionales, los guar-
das y los supervisores, tales como son definidos
en la Ley, con respecto a pago, horas, y otros
terminos y condiciones de trabajo; y, si legamos
a un acuerdo, a incorporar a este acuerdo en un
contracto firmado.
HASA CHEMICAL, INC.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: These
consolidated cases were heard at Los Angeles, California,
on July 20 and 21, 1977.
The charge, first amended charge, and second amended
charge in Case 31-CA-6886 were filed respectively on
March 9 and April 7 and 8, 1977, by General Teamsters,
Chauffeurs, Warehousemen & Helpers, Local 982, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, herein called the Union. The
complaint, which issued on April 19, 1977, alleges that
Hasa Chemical, Inc., herein called Respondent, violated
Section 8(a)(1), (2), (3), and (5) of the National Labor
Relations Act, as amended.
On December 23, 1976, the Union filed a petition for an
election in Case 31-RC-3707. Pursuant to a Stipulation for
Certification Upon Consent Election, an election by secret
ballot was conducted on February 25, 1977, among the
employees of Respondent in an agreed-upon appropriate
bargaining unit.'
The tally of ballots, which was served on the parties
following the election, showed that there were approxi-
mately 27 eligible voters, that 24 ballots were cast, that 11
of the ballots were cast for the Union, that 12 ballots were
cast against the Union, and that I ballot was challenged.
On March 2, 1977, the Union filed timely objections to the
I The bargaining unit was:
All production and maintenance employees, shipping and receiving
employees, warehousemen and truck drivers employed by the Respon-
dent at 23119 Drayton Street, Saugus, California, excluding all other
election, some of which were thereafter withdrawn. In the
remaining objections, the Union alleged that between the
date of the filing of the petition and the date of the election
Respondent engaged in a number of acts that interfered
with the free choice of the employees in the election. On
April 20, 1977, the Regional Director for Region 31
ordered that a hearing be held on the Union's outstanding
objections, and consolidated the unfair labor practice and
the representation cases for the purposes of hearing, ruling,
and decision by an Administrative Law Judge. The
Regional Director found that the issues raised by the
Union's outstanding objections were related to certain
allegations in the complaint and that the same evidence
was involved in both cases. The Regional Director also
ordered that after a decision by an Administrative Law
Judge the representation case be transferred to and
continued before the Board.
Issues
The primary issues are:
1. Whether Respondent violated Section 8(a)(1) of the
Act by threatening employees with loss of benefits and
other reprisals, such as closing the plant and calling
Immigration authorities, if they selected the Union to
represent them; by promising to help employees form a
company union; by soliciting grievances and granting
medical and other benefits to discourage union member-
ship; by distributing beer to discourage union activity; by
soliciting an antiunion petition; and by interrogating
employees concerning union activities.
2. Whether Respondent violated Section 8(a)(2) of the
Act by assisting in the formation of, and by recognizing, a
company union.
3. Whether Respondent violated Section 8(a)(3) of the
Act by discharging Charles Hamlin because of his union
activity.
4. Whether the election should be set aside.
5. Whether Respondent's conduct rendered it unlikely
that a fair election could be conducted, whether Respon-
dent violated Section 8(a)(5) of the Act by refusing to
bargain with the Union, and whether a bargaining order is
appropriate.
All parties were given full opportunity to participate, to
produce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and the Respondent.
Upon the entire record of the case 2 and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a California corporation, with its office and
principal place of business in Saugus, California, is en-
employees, office clerical employees, professional employees, guards
and supervisors as defined in the Act.
2 Errors in the transcript have been noted and corrected.
904
HASA CHEMICAL, INC.
gaged in the business of repackaging and distributing
swimming pool chemicals. It annually purchases and
receives goods or services valued in excess of $50,000
directly from suppliers located outside California. The
complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and the Alleged 8(a)(l) Conduct
Outside the Meetings
1. The interrogation; the antiunion petition; the
threats to call Immigration, to close the plant, and
to eliminate overtime; and the offer of assistance
to establish a company union
a. Factual findings
On or about December 1, 1976, Respondent's employee
Charles Hamlin contacted Union Organizer Manuel Bar-
bosa concerning the possibility of obtaining union repre-
sentation at Respondent's plant. During December 1976,
the Union engaged in an organizational drive among
Respondent's employees. The Union demanded recogni-
tion from Respondent by letter dated December 30, which
was received by Respondent on December 31, 1976.
Respondent had also received a copy of a petition for an
election that the Union had filed on December 23, 1976. At
all times material herein Respondent has refused to
recognize or bargain with the Union. On December 31,
1976, after receiving the Union's written demand for
recognition, Respondent called a meeting of its employees,
at which Respondent's president, Donald J. Wilson, 3 spoke
about the Union. Between that time and the election,
which was held on February 25, 1977, Wilson spoke to the
assembled employees at a number of meetings. Those
meetings are discussed in section B, below. In addition,
Wilson and other representatives of Respondent spoke to
employees outside the meetings.
In early January 1977, Respondent's president, Wilson,
spoke to Hamlin about the Union in the office of
Respondent's plant manager, Metzel, who was also pre-
sent. Wilson asked Hamlin whether Hamlin was for the
Union. Hamlin replied that it did not matter to him and
that he wanted what was best for the Company and the
employees.4
3 The answer admits and I find that Wilson is an agent of Respondent.
4 This finding is based on the testimony of Wilson and Hamlin.
a Wilson placed the conversation "probably early in the game."
s These findings are based on the testimony of Wilson. Emeterio did not
testify.
The answer admits and I find that Pavone is an agent of Respondent.
8 The answer admits and I find that F. Soto is an agent of Respondent.
9 These findings are based on the credible and uncontradicted testimony
of M. Solo. Pavone did not take the witness stand and F. Soto did not testify
concerning this conversation.
Also, in early January 1977,5 employee George Emeterio
volunteered to Wilson the fact that he had signed a union
authorization card. Wilson then asked him whether other
employees had signed the cards, and who had signed the
other cards. Emeterio replied that he did not know who
had signed the cards and that he would rather not tell
Wilson.6
About the end of January 1977, Respondent's labor
consultant, Thomas Pavone,7 spoke to employee Miguel
Soto in Wilson's office. While they were talking M. Soto's
brother, General Foreman Frank Soto,8 joined them.
Pavone asked M. Soto if M. Soto knew anything about the
Union. M. Soto answered that he had heard the employees
wanted the Union and he did not know who the employees
were. Pavone asked why they wanted the Union and said
that the Union was nothing but crooks and all they wanted
was money. Either Pavone or F. Soto said that the Union
would bring in its own people and the employees would not
be able to have any overtime. Pavone said that he could
probably help the employees get another union just for the
workers inside the plant. 9
In early January 1977, Wilson asked Hamlin to come
into Wilson's office. Pavone and F. Soto were there. Wilson
asked Hamlin to sign a petition that had about 12
signatures on it. The writing was in Spanish and F. Soto
read it to Hamlin. F. Soto said that Wilson was going to
take the petition to the NLRB. Hamlin did not testify
concerning the contents of the petition. However, employ-
ee Rojelio Gurrola testified that about a week before the
February 25, 1977, election F. Soto spoke to him in Soto's
office, and showed him a petition that had Hamlin's and
about 15 other employees' signatures on it. F. Soto gave
Gurrola the paper and said that all the employees were
signing it to deny that they had signed for the Union. F.
Soto said that everyone else had already signed and that
Gurrola could sign if he wanted to. Gurrola did not sign at
that time, but 4 or 5 hours later F. Soto again asked him to
sign and he did so. 1
About the middle of January 1977, a number of employ-
ees, including Hamlin, were standing on the patio near
Wilson's office during a break. Wilson walked out of his
office and said that if he lost the "hearing" he was going to
call the Immigration Department and have all the illegal
aliens hauled off. He also said that if the Union did come
in he was going to close the plant, because he could not
afford it. Wilson was talking more or less to himself but
loudly enough so that the employees could hear him. The
employees discussed Wilson's remarks among themselves
and translated them for employees who spoke only Span-
ish. A majority of Respondent's employees are Spanish-
speaking and Respondent has had problems with the
Immigration Department concerning illegal aliens.1'
'0 These findings are based on the credited testimony of Hamlin and
Gurrola. F. Soto did not testify concerning those incidents.
l The findings with regard to Wilson's remarks are based on the
credited testimony of Hamlin. Wilson in his testimony did not specifically
address himself to this incident. Respondent, in its brief, explained the
incident as follows:
With respect to the allegation that Wilson stated he was going to call
(Continued)
905
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Conclusions as to the interrogation and the
antiunion petition
In Struksnes Construction Co., Inc., 165 NLRB 1062
(1967), the Board held:
In our view any attempt by an employer to ascertain
employee views and sympathies regarding unionism
generally tends to cause fear of reprisal in the mind of
the employee if he replies in favor of unionism and,
therefore, tends to impinge on his Section 7 rights. As
we have pointed out, "An employer cannot discrimi-
nate against union adherents without first determining
who they are." [Cannon Electric Company, 151 NLRB
1465, 1468.] That such employee fear is not without
foundation is demonstrated by the innumerable cases
in which the prelude to discrimination was the employ-
er's inquiries as to the union sympathies of his employ-
ees.
In that case the Board held that in a polling situation a
violation would be found unless the purpose of the poll was
to determine the truth of the union's claim of majority; this
purpose was communicated to the employees; assurances
against reprisal were given; the employees were polled by
secret ballot; and the employer had not engaged in unfair
labor practices or otherwise created a coercive atmosphere.
The Board has applied this Struksnes criteria to interroga-
tion cases even where no poll was taken. P. B. & S.
Chemical Company, 224 NLRB 1 (1976); CBS Records
Division of CBS, Inc., 223 NLRB 709 (1976); Lorraine
Urbaurer, d/b/a Kimmel's Shop Rite, 213 NLRB 440, 446
(1974). Interrogation is even more coercive where it takes
place in the situs of authority and by high-ranking officials
of the Company. N.L.R.B. v. Camco, Incorporated, 340
F.2d 803 (C.A. 5, 1965), cert. denied 382 U.S. 926 (1965).
Even "friendly" interrogation can be coercive. As the
Board held in Quemetco, Inc., a subsidiary of RSR Corpora-
tion, 223 NLRB 470 (1976):
A more serious error lies in the premise that a
"friendly" interrogation does not interfere with an
employee's Section 7 rights. An employee is entitled to
keep from his employer his views concerning unions, so
that the employee may exercise a full and free choice
on the point, uninfluenced by the employer's knowl-
edge or suspicion about those views and the possible
reaction toward the employee that his views may
stimulate in the employer. That the interrogation may
be suave, courteous, and low-keyed instead of boister-
ous, rude, and profane does not alter the case. It is the
effort to ascertain the individual employee's sympathies
by the employer, who wields economic power over that
individual, which necessarily interferes with or inhibits
the expression by the individual of the free choice
guaranteed him by the Act.
Immigration and close the plant down if the Union won the hearing,
the evidence demonstrated that Wilson was not speaking to other
employees; that he may have been upset, and that he was merely
muttering to himself. Again, it is submitted that such a remark is similar
to a remark that someone might make in a moment of anger like saying
that they want to kill someone. Had this statement been made
affirmatively to employees then there is little question as to the
violation. However, such was not the case.
In early January 1977, Respondent's president, Wilson,
in the office of Respondent's plant manager, Metzel, asked
Hamlin whether he was for the Union. Also in early
January, Wilson asked Emeterio who had signed union
cards. In late January 1977, Respondent's labor relations
consultant, Pavone, in President Wilson's office, asked M.
Soto whether he knew anything about the Union. Particu-
larly in the context of the antiunion threats and other
unlawful conduct by Respondent, found below, those
interrogations were coercive and violated Section 8(aX1) of
the Act.
In January 1977, both employees, Hamlin and Gurrola,
were asked by high-ranking representatives of Respondent
to sign a petition. That petition was a denial by the
signatory employees that they authorized the Union to
represent them. By asking employees to sign that petition
Respondent was placing them in a position where they
would have to disclose their pro or antiunion sympathies.
The request to sign the petition was a veiled form of
interrogation and as such was violative of Section 8(a)(1) of
the Act.
c. Conclusions as to the threat to call Immigration
and to close the plant
In mid-January 1977, Respondent's president, Wilson,
walked out of his office and said that if he lost the hearing
he was going to call the Immigration Department and have
all the illegal aliens hauled off. In addition, he said that if
the Union did come in he was going to close the plant
because he could not afford it. While Wilson may have
been muttering to himself rather than formally addressing
the employees, he chose to make his remarks under
circumstances where he must have known that they would
be heard by the employees and, in fact, they were heard.
Wilson's threat to close the plant if the Union came in was
not protected free speech but was an impermissible threat
of economic reprisal to be taken solely on Respondent's
own volition. As such, it was a violation of Section 8(aX)(1)
of the Act. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575, 617-620 (1969); Hanover House Industries, Inc., 233
NLRB No. 36 (1977); Boston Pet Supply, Inc., 227 NLRB
1891 (1977); Jimmy - Richard Company, Inc., 210 NLRB
802 (1974), enfd. 527 F.2d 803 (C.A.D.C., 1975).
Wilson's remark that he would call the Immigration
Department to have the illegal aliens hauled away if he lost
the hearing was a threat of reprisal keyed to the employees'
union activity. As such, it was violative of Section 8(a)(1) of
the Act. Cf. Amay's Bakery & Noodle Co., Inc., 227 NLRB
214 (1976).
d. Conclusions as to the threat to eliminate
overtime
In late January 1977, either Labor Relations Consultant
Pavone or General Foreman F. Soto told employee M.
It should be noted that Wilson did not dispute that remark nor the
assertion that Wilson asked Hamlin one day how he felt about the
union.
906
HASA CHEMICAL, INC.
Soto that the Union would bring in its own people and that
the employees would not be able to have any overtime.
Though the threat was couched in terms of what the Union
would do, Respondent was the one that controlled over-
time. Respondent has not shown that the statement was a
reasonable prediction based on objective economic fact. It
was a threat that overtime would be eliminated if the
employees selected the Union to represent them and, as
such, it violated Section 8(aX)(1) of the Act. Helfrich
Vending, Inc., 209 NLRB 596, 602 (1974).
e. Conclusions as to the offer of assistance to
establish a company union
In late January 1977, Pavone told M. Soto that Pavone
could probably help the employees get another union just
for the workers inside the plant. The suggestion that the
employees form a company union, and the offer to help
them in doing so, violated Section 8(a)(I) of the Act.
Hydro-Dredge Accessory Co., 215 NLRB 138, 149 (1974);
GAF Corporation, 195 NLRB 169 (1972).
B. The Alleged 8(a)(1) Conduct and Statements
Relating to the Company Meetings - Facts and
Conclusions
I. The solicitation of the grievances and the
correction thereof
From December 31, 1976, through February 18, 1977,
Respondent had six meetings with its employees on
company property. The meetings took place after work,
and the employees were not required to attend, although
most of them did so. Respondent's president, Wilson,
addressed the employees at each of the meetings except for
one on January 28, 1977, when he simply introduced Labor
Relations Consultant Pavone, who spoke to the employees.
At each of the meetings, Wilson or Pavone spoke in
English and their remarks were translated into Spanish by
either General Foreman Frank Soto or employee Emeterio.
There was a great deal of confusion and conflict in the
testimony of witnesses who tried to describe what hap-
pened at those meetings. However, with regard to the
solicitation of grievances, and the promise of and the
granting of benefits to correct those grievances, there was
substantial agreement.'2
Respondent's president, Wilson, acknowledged in his
testimony that at the first meeting on December 31, 1976,
he told the employees he was shocked about the Union,
and he asked them what the grievances were and why they
turned to the Union. Respondent's general foreman, F.
Soto, acknowledged in his testimony that at one of the
meetings Wilson asked employees if they had problems,
why they did not let him know what they were. He averred
that at another meeting Wilson asked the employees if
there were any problems or grievances. Employee Herrera
testified that Wilson asked why the employees did not
come to him with their grievances. M. Soto also averred
12 The witnesses had difficulty in pinpointing at which meeting particular
remarks were made. However, as all of the meetings took place within the
critical period between the filing of the petition and the date of the election,
it does not matter at which meeting the remarks were made.
that Wilson asked if anyone had any grievances. Hamlin
testified that Wilson asked if anyone had any complaints
about the way the Company was being run. At various
meetings, employees responded to Wilson's solicitation of
grievances. Among other things, employees complained
about the replacement of leaky boots, and the furnishing of
gloves and glasses. Wilson told the plant manager to order
boots and they were purchased. Wilson told the employees
that he could take care of the gloves, boots, and glasses.
Employees complained about vacations. Later, the vaca-
tion system was changed so that the senior employees had
their choice of time off. Before that time, employees
received vacations on the anniversary dates of their
employment. Employees complained about the lack of
insurance and hospitalization. Wilson testified that he
checked into that complaint and found that many of the
employees were not covered by insurance or hospitaliza-
tion when he thought they had been. Insurance and
hospitalization plans had been in effect for some of the
employees for quite some time. About 20 employees were
not covered by the insurance or health plan.' 3 On about
December 18, 1976, employees M. Soto, Herrera, and
others were allowed to sign group insurance enrollment
cards by Henderson, Respondent's office manager. Re-
spondent backdated the applications to December 1, 1976,
and the 20 employees who did not previously have the
insurance and health benefits were granted those benefits
effective from that date.
The Board has held that the solicitation of employees
regarding the grievances which led them to seek union
representation is not in itself unlawful. Flint Provision Co.,
219 NLRB 523 (1975). However, in that case the Board
found that the solicitation was unaccompanied by any
promise of benefit. In the instant case, the solicitation was
not only accompanied by a promise to correct some of the
grievances but benefits were, in fact, granted to correct
those grievances. While Wilson had in the past asked
employees how things were going, there is no evidence in
the record that prior to the meetings he specifically
solicited grievances. M. Soto credibly testified that before
the company meetings no one from the Company ever
asked him about grievances. As the Board held in Reliance
Electric Company, Madison Plant Mechanical Drives Divi-
sion, 191 NLRB 44 (1971), enfd. 457 F.2d 503 (C.A. 6,
1972):
Where, as here, an employer, who has not previously
had a practice of soliciting employee grievances or
complaints, adopts such a course when unions engage
in organizational campaigns seeking to represent em-
ployees, we think there is a compelling inference that he
is implicitly promising to correct those inequities he
discovers as a result of his inquiries and likewise urging
on his employees that the combined program of inquiry
and correction will make union representation unneces-
sary.
i3 About 6 months before, employee Gurrola had asked General
Foreman F. Soto about insurance, but nothing was done about it at that
time.
907
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Uarco, Incorporated, 216 NLRB 1 (1974), the Board
noted that it was not the solicitation of grievances in itself
that was coercive, but that it was a promise to correct
grievances or concurrent interrogation or polling about
union sympathies that was unlawful. The Board distin-
guished that case from Reliance Electric Company, and held
that any possible inference of a promise of benefit was
specifically negated by an express "no promise" response
to the employees' complaints. However, in the absence of
such negation of an inferred promise, Reliance Electric
Company is still controlling. In Ken McKenzie's, Inc., 221
NLRB 489, 490 (1975), the Board reiterated the standards
articulated in Reliance Electric Company and said:
In applying this rule, we have held that, under the
circumstances described above, the mere solicitation of
grievances, by itself, is coercive and violates the Act
without the necessity of evidentiary proof that the
Employer had indeed made explicit or implicit prom-
ises to adjust grievances.
In the instant case, Respondent solicited grievances at
the employee meetings, promised to correct some of the
grievances (such as those relating to boots), and, in fact,
did correct grievances by granting benefits (such as the
replacement of leaky boots, the change in vacation system,
and the institution of coverage under insurance and health
plans for a number of employees). I find that the solicita-
tion of grievances, the promise to correct them, and the
granting of benefits to correct them all constituted viola-
tions of Section 8(a)(1) of the Act. The Stride Rite
Corporation, 228 NLRB 224 (1977).
2. The offer to help form a company union
Wilson acknowledged in his testimony that at one
meeting he told the employees that they would be better off
with a small group to represent them rather than a third
person such as a union. At another point in his testimony
he acknowledged that in response to an employee's
question he told the employees that he would help them
bring in a company union or a chemical workers' union.
He averred that he also told them he could not talk about it
until after the election and he promised that the day the
election was over, if the Company won, he would start
talking. Wilson's offer to help the employees bring in a
company or a chemical workers' union if they voted out the
Union was made in the context of antiunion meetings in
which he unlawfully solicited grievances. By making that
offer he violated Section 8(a)(1) of the Act. Hydro-Dredge
Accessory Co., supra; GAF Corp., supra.
At another meeting Respondent's labor relations consul-
tant, Pavone, after being introduced by Wilson, told the
employees that he would try to bring in a company union
or a chemical worker's union if the employees voted the
Union out.' 4 Pavone's offer to help bring in a company or
a chemical worker's union was a further violation of
Section 8(a)(l) of the Act.
14 This finding is based on the credited testimony of Hamlin and
Gurrola. Employee Herrera, who testified on behalf of Respondent, averred
that he asked Pavone whether Pavone had any ideas about how the
employees could organize a union, and that Pavone replied that he did and
3. The threatened loss of benefits
Employees Hamlin, Gurrola, and M. Soto testified that
at various meetings Wilson spoke about the loss of such
benefits as overtime, holiday pay, free turkeys, yearly
bonuses, and the privilege of taking trucks home. Wilson
acknowledged in his testimony that he did speak about
such matters, but he put it in a context different from that
averred by those employees. He testified that he told the
employees that in negotiations with the Union wages might
be increased and the Company might therefore be forced
to go to a three-shift operation that would affect overtime.
He averred that he told the employees that most of the
benefits would be bargained for and that possibly the
Christmas bonus and Thanksgiving turkey would be
bargained away in lieu of higher wages or other benefits.
Employee Herrera also testified that Wilson, in speaking of
such things as turkeys and bonuses, said that some benefits
might be lost because the Union might take certain benefits
away and replace them with others. F. Soto averred that
Wilson spoke of the possibility of a third shift if there were
wage increases. Gurrola, who testified on behalf of the
General Counsel, acknowledged that Wilson said that
when the Union won the election, those benefits would
have to be negotiated.
Hamlin, Gurrola, and M. Soto impressed me as honest
witnesses who were doing their best to recall what was said
at the meetings. However, I believe that they were all
capable of misinterpreting complex remarks in which many
matters were discussed. I credit Wilson's testimony to the
effect that he spoke about the possible trade off of benefits
that could flow from negotiations. In that context, Wilson's
remarks concerning the possible loss of benefits did not
violate Section 8(a)(1) of the Act. Cf. Plastronics, Inc., 233
NLRB No. 23 (1977); Stumpf Motor Company, Inc., 208
NLRB 431 (1974).
4. The beer
At some of the company meetings Respondent distribut-
ed free beer to the employees. It was put on the tables
where employees could help themselves. Wilson testified
that on special occasions in the past he had supplied beer
to the employees but that he had not done so for the last 12
or 15 months because there had been a new plant manager
and he did not want to interfere. He further averred that he
supplied the beer because the employees were meeting on
their own time and he thought he should do something for
them. I do not believe that the furnishing of beer was a
significant enough matter to warrant finding a separate
violation.
C. The Alleged 8(a)(2) Violation - Facts and
Conclusions
The election was held on Friday, February 25, 1977. The
following Monday, Wilson called a meeting in the plant
which was attended by most of the employees. He told
that after the election, if the Company won, he would let the employees
know. Herrera's credibility was put in some doubt by his testimony that
Wilson did not talk against the Union. I credit Hamlin and Gurrola over
Herrera. Pavone did not testify.
908
HASA CHEMICAL, INC.
them that the Company had won the election and that he
wanted to keep his promise. He said that if they would pick
a committee he would meet with the committee concerning
employee grievances. He informed the employees that he
had been advised by his management consultant not to do
it but that he was going to do it anyway. He asked the
employees to elect three or four individuals to represent
them.15 Wilson then left and the employees held an
election. By a show of hands the employees elected Manuel
Jiminez, Eduardo Herrera, George Emeterio, and Miguel
Soto to the committee. The committee members spoke to
the employees and made up a written list of grievances.
Within the following week, Wilson met with the commit-
tee members in his office. Wilson read the list and they
discussed the need for boots, gloves, more pay, and
vacation time. Thereafter, the employees received the boots
and gloves and a roster was made for vacations with the
most senior employees having their choice of time off.
Wilson told the committee members to continue talking to
the employees and to see if there were any other grievances
so that he could start to fix everything up.
About a week later, Wilson met with the committee
representatives for a second time. There was a further
discussion of grievances. After the second meeting with the
committee, Wilson received word that the election was in
dispute and that he could not meet with the committee
until after the matter was settled. There were no further
meetings.
Section 2(5) of the Act defines "labor organization" as
"any organization of any kind, or any agency or employee
representation committee or plan, in which employees
participate and which exists for the purpose, in whole or in
part, of dealing with employers concerning grievances,
labor disputes, wages, rates of pay, hours of employment,
or conditions of work." The employee committee dealt
with the Employer as the employees' advocate concerning
grievances. It was a labor organization within the meaning
of Section 2(5) of the Act. N.L.R.B. v. Cabot Carbon
Company and Cabot Shops, Inc., 360 U.S. 203 (1959); cf.
Sparks Nugget, Inc., d/b/a John Ascuaga's Nugget, 230
NLRB 275 (1977).
In C & W Lektra-Bat Co., 232 NLRB 776, 778 (1977), the
Board adopted, in relevant part, the Decision of the
Administrative Law Judge which held:
Respondent provided the forum, the facilities, and the
advice and suggestions which resulted in the creation of
the Employee Committee and the selection of represen-
tatives. This is plainly assistance in support of a labor
organization in contravention of the statute.
Respondent violated Section 8(a)(2) of the Act by
assisting in the formation of the employee committee and
by meeting with it to resolve employee grievances.
15 These findings are based on the testimony of Wilson and M. Soto.
'6 Hamlin testified that he gave notice that he was leaving March I.
Wilson averred that Hamlin told him that he was leaving on February 25,
1977, because the job started about March I. I credit Hamlin with regard to
the date and do not credit Wilson.
it This finding is based on the testimony of Hamlin. With regard to this
conversation Wilson testified: "In my mind, now I knew he wasn't doing a
D. The Discharge of Handlin
1. The evidence
Hamlin was employed as a truckdriver by Respondent
on June 4, 1976. Respondent's president, Wilson, acknowl-
edged in his testimony that Hamlin was an excellent driver.
On or about December 1, 1976, Hamlin called Union
Organizer Manuel Barbosa on the telephone and inquired
about forming a union at Respondent's plant. On Decem-
ber 9, Hamlin went to Barbosa's home and signed an
authorization card. They arranged to hold a meeting with
some of Respondent's other employees at the home of M.
Soto. That meeting was held on December 11 or 12. A
second meeting was held in Newhall Park on December 18,
1976. At that meeting a number of employees signed
authorization cards.
On December 30, 1976, Hamlin told Wilson that Hamlin
was leaving the Company's employ on March 1, 1977,
because he had an opportunity to go into business and run
a hardware store in northern California.16 Wilson attempt-
ed to convince Hamlin to stay, but he was unable to do so.
Wilson told Hamlin that Respondent would get a replace-
ment for him as late as possible and that they would find
some job for him to do until he left.
The petition for an election had been filed on December
23, 1976. On December 31, 1976, Respondent received the
Union's demand for recognition. Thereafter, an election
was scheduled for February 25, 1977.
In mid-February 1977, Respondent hired Ronald Port to
drive a small truck that had been operated by Emeterio.
Emeterio was put on Hamlin's long-haul truck and Hamlin
was transferred to the yard as a mechanic. When he was
told of the transfer, Hamlin spoke to Respondent's manag-
er, Metzel, and said that he had been hired as a driver and
not as a yard mechanic. Metzel replied that he did not give
a damn. Hamlin began working as a yard mechanic.
On February 22, 1976, Hamlin asked General Foreman
F. Soto whether Hamlin could continue working until he
had sold his house trailer. Soto referred him to Metzel, who
in turn referred him to Wilson. Hamlin spoke to Wilson
about 7 p.m., that evening in Wilson's office. Hamlin told
Wilson of his conversation with Soto and Metzel and asked
Wilson whether he could continue working until he sold his
house trailer. Wilson told Hamlin that Wilson was going to
let Hamlin go early, but that if Hamlin did not sell his
house trailer by the following week and if the Union were
defeated, he would consider hiring Hamlin back.17 Wilson
gave Hamlin two checks, which included pay through
February 25, 1977.
The election was held on Friday, February 25, 1977.
Hamlin came to the plant where he voted and acted as the
union observer. When Hamlin came into the plant he
overheard Wilson tell a representative of the Board, "What
is he doing here? I fired him." Wilson testified that when he
satisfactory job in the mechanic's job. I knew that the truck job was filled. I
also had my mind full of the Union election coming up and I said to him,
'Chuck, come back and talk to me next week after the election, will you? I
just don't want to talk about it, but if you will come back on Monday, I will
talk to you.' " I credit Hamlin's assertion that Wilson told him to come
back if the Union lost the election.
909
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
saw Hamlin at the election he was hurt and surprised, and
that he told Labor Relations Consultant Pavone that he did
not understand what Hamlin was doing there, and that
Hamlin was no longer an employee. Respondent chal-
lenged Hamlin's ballot. Respondent won the election by a
vote of 12 to 11.
As of the date of the hearing Hamlin had not sold his
house trailer and he was still in the area. He did not apply
for employment with Respondent on February 28, 1977,
the Monday after the election. Respondent did not make
any effort to contact him at that time. Wilson testified that
some time thereafter he asked his managers to get in touch
with Hamlin, and they told him that they did not know
where to reach him, or that Hamlin had a job. F. Soto
testified that after the election Respondent needed another
truckdriver and that he called Hamlin but did not reach
him. He also averred that a friend of Hamlin's told him
that Hamlin had another job.
2. Respondent's defense
Wilson testified that he believed that most of the
truckdrivers were for the Union but that he did not know
whether Hamlin was for or against it. He also averred that
he did not consider how Hamlin might vote when he
decided to discharge him on February 22.
General Foreman F. Soto testified that after Hamlin was
transferred to repair work he saw Hamlin talk to other
employees and keep them from working. He averred that
he told Plant Manager Metzel that he thought Hamlin was
not doing the job because Hamlin was a short timer, and
that they had better get rid of Hamlin because of his
attitude, and because he was keeping other people from
doing their jobs.
Neither F. Soto nor Metzel ever warned Hamlin about
talking to other employees or about his nonperformance of
his job.
Respondent's president, Wilson, testified that about 10
days before the February 25, 1977, election Metzel and
Frank Soto told him that Hamlin was not doing the job
and was disturbing other employees. Wilson averred that
he suggested that they let Hamlin go immediately and pay
him through February 25 as severance pay. According to
Wilson, Metzel and F. Soto did not act on his suggestion,
so he decided to take care of the matter himself. On
February 22, 1977, Wilson gave Hamlin a check which
included pay through February 25 and told him that he
could go home and do whatever he wanted with the time.
Wilson averred that when Hamlin asked to stay on until he
had sold his trailer, Wilson told Hamlin to come back and
talk to him the following week, after the election. Wilson
testified that he knew Hamlin was not doing a satisfactory
job, he knew that the truck job was filled, and he had his
mind full of the upcoming union election.
3. Conclusions
Hamlin was conceded to be an excellent truckdriver.
Respondent does not contend that it had any problems
with Hamlin's work until shortly before the election.
Hamlin was the Union's key man. He was the one who
initiated the union activity and who arranged for the union
meetings. One of the meetings was at his home.
Respondent harbored a virulent animosity against union
activity. It expressed that animosity by coercively interro-
gating employees, soliciting employees to sign an antiunion
petition, threatening to close the plant, threatening to call
Immigration and have illegal aliens hauled off, threatening
to eliminate overtime, offering to help form a company
union, soliciting grievances, promising to correct griev-
ances and granting benefits to correct them, and assisting
in the formation of and meeting with an employee
committee.
Respondent's defense to the discharge is totally uncon-
vincing. F. Soto's testimony that he was concerned that
Hamlin was not doing the job, and was keeping other
people from working, must be viewed in light of the fact
that neither he nor Metzel ever told Hamlin that they were
dissatisfied with his work. F. Soto averred that he told
Metzel that they had better get rid of Hamlin but neither of
them fired Hamlin even after Wilson (according to his
testimony) suggested that they do so. Wilson averred that
he took the initiative because neither Soto nor Metzel took
his suggestion. Wilson acknowledged that at the time he
discharged Hamlin on February 22, 1977, his mind was full
of the election which was scheduled for February 25, yet he
averred that he did not consider how Hamlin might vote. I
cannot credit Wilson in that regard. Wilson averred in
substance that he was so preoccupied with the election that
he could not consider Hamlin's request to continue at
work, yet that preoccupation did not prevent him from
taking the initiative in ending Hamlin's employment just 3
days before the election. Wilson was prepared to pay
Hamlin through the election but he was not prepared to
allow Hamlin to vote. Wilson testified that he was "hurt
and surprised" when he saw Hamlin at the election. That
reaction indicates that he believed Hamlin was going to
vote for the Union. Wilson testified that he did not know of
Hamlin's union activity until he saw Hamlin acting as an
observer at the election. I do not credit that assertion.
Respondent coercively interrogated three employees con-
cerning union activity. One of those employees was
Hamlin. Hamlin's equivocal answer to Wilson's interroga-
tion, to the effect that he did not care whether the Union
came in or not, in itself was sufficient to apprise Respon-
dent that Hamlin was not pro company. In addition,
Wilson testified that he believed most of the truckdrivers
were for the Union. Wilson's overall conduct strongly
indicates that he believed Hamlin to be pro union. Cf. The
American League of Professional Baseball Clubs, 189 NLRB
541, 549 (1971).
In sum, I find that Respondent, in violation of Section
8(a)(3) of the Act, discharged Hamlin on February 22,
910
HASA CHEMICAL, INC.
1977, in order to prevent him from voting in a Board
election because Respondent believed him to have union
sympathies.' 8
E. The Refusal To Bargain - Facts and
Conclusions
In Boston Pet Supply, Inc., 227 NLRB 1891, 1900 (1977),
the Board adopted the Decision of the Administrative Law
Judge which held:
In N.L.R.B. v. Gissel Packing Co., supra, [395 U.S.
575 (1969)] at 613, 614, the Supreme Court held that a
bargaining order would be appropriate in two situa-
tions. The first is in "exceptional" cases marked by
"outrageous" and "pervasive" unfair labor practices of
"such a nature that their coercive effects cannot be
eliminated by the application of traditional remedies,
with the result that a fair and reliable election cannot
be had." The second is "in less extraordinary cases
marked by less pervasive practices which nonetheless
still have the tendency to undermine majority strength
and impede the election processes." The Court also
held (at 600): "an employer can insist on a secret ballot
election, unless, in the words of the Board, he engages
'in contemporaneous unfair labor practices likely to
destroy the union's majority and seriously impede the
election.' " In Ship Shape Maintenance Co., 189 NLRB
395 (1971), the Board expressed the test to be applied in
terms of whether the lingering effects of the unfair labor
practices rendered uncertain the probability that tradi-
tional remedies could insure a fair election, and
whether the union's majority card designations ob-
tained before the unfair labor practices provided a
more reliable test of the employees' desires and better
protected employee rights than would an election. As
stated in Joseph J. Lachniet, d/b/a Honda of Haslett,
201 NLRB 855 (1973), enfd. 490 F.2d 1382 (C.A. 6,
1974), where a coercive atmosphere is created by the
employer which conventional Board remedies may not
adequately dissipate so that a fair election can be held
with reasonable certainty, a bargaining order is war-
ranted. See also Petrolane Alaska Gas Service, Inc., 205
NLRB 68 (1973).
The parties agree, and I find, that the unit set forth above
is appropriate for bargaining. The parties stipulated, and I
find, that as of the date of the Union's demand for
recognition there were approximately 27 employees in the
bargaining unit and that the Union represented a majority
of those employees. Respondent amended its answer to
admit paragraph 8 of the complaint which alleges that a
majority of Respondent's employees designated or selected
the Union as their representative for the purpose of
collective bargaining with Respondent.
s1 See Shattuck Denn Mining Corporation (Iron King Branch) v. N.L R.B.,
362 F.2d 466, 470(C.A. 9, 1966), where the court held:.
Actual motive, a state of mind, being the question, it is seldom that
direct evidence will be available that is not also self-serving. In such
cases, the self-serving declaration is not conclusive; the tner of fact may
infer motive from the total circumstances proved. Otherwise no person
accused of unlawful motive who took the stand and testified to a lawful
On December 31, 1976, Respondent received the Union's
demand for recognition and on that date Respondent
embarked on a course of unlawful conduct to undermine
the Union's majority status. Respondent coercively interro-
gated employees concerning union activity; solicited em-
ployees to sign an antiunion petition; threatened to close
the plant; threatened to call Immigration and have illegal
aliens hauled off; threatened to eliminate overtime; offered
to help form a company union; solicited grievances;
promised to correct grievances and granted benefits to
correct them; and assisted in the formation of and met with
an employee committee. In addition, Respondent dis-
charged an employee because of his union sympathies. All
of the above conduct, except for the actual assistance in
forming and meeting with an employee committee, and the
correction of some of the grievances, took place between
the date of the filing of the petition and the date of the
election.
While a majority of Respondent's employees authorized
the Union to represent them before the commission of the
unfair labor practices, a majority of those employees voted
against the Union at the election.
The discharge of an employee because of union sympa-
thies is a particularly serious matter. In this case it was
compounded by a threat to close the plant if the employees
selected the Union to represent them, as well as by the
other violations of Section 8(a)(1) set forth above. As the
Board held in Milgo Industrial, Inc., 203 NLRB 1196, 1200
(1973), enfd. 497 F.2d 919 (C.A. 2, 1974):
Contrary to the view of our dissenting colleague, the
threats of plant closure and job loss in the event of the
Union's advent are plainly actions which in and of
themselves are egregious enough under the rule of
Gissel to come within the first category there specified,
of "unfair labor practices of such a nature that their
coercive effects cannot be eliminated by the application
of traditional remedies so that a fair and reliable
election [in this case a fair and reliable rerun] cannot be
had." 395 U.S. at 613-614. In any event, these threats
together with the other conduct described supra surely
bring this case within the second category defined in
Gissel, of "less extraordinary cases marked by less
pervasive practices which still have the tendency to
undermine majority strength and impede the election
processes." Gissel, supra, 395 U.S. at 614. We therefore
find that this is indeed a case where "the possibility of
erasing the effects of [these] past practices and of
insuring a fair [rerun] by the use of traditional remed-
ies," if at all present, "is slight and that employee
sentiment, once expressed through cards could, on
balance, be better protected by a bargaining order."
Gissel, supra, 395 U.S. at 614-615. For these reasons, we
shall, consistent with the Administrative Law Judge's
motive could be brought to book. Nor is the trier of fact-here the trial
examiner-required to be any more naif than is ajudge. If he finds that
the stated motive for a discharge is false, hi certainly can infer that
there is another motive. More than that, he can infer that the motive is
one that the employer desires to conceal-an unlawful motive-at least
where, as in this case, the surrounding facts tend to reinforce that
inference.
911
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommendations, include a bargaining order as part of
the remedial provisions of the order we shall issue here.
[Footnote omitted.]
Respondent's unfair labor practices were extensive in
both nature and impact. A natural consequence of those
unfair labor practices was to instill fear in the employees
and to dissipate the Union's majority status. The employ-
ees can reasonably fear that similar violations will recur
and it is reasonable to assume that the Company's unlawful
conduct did affect the election. A fair election cannot, after
such conduct, be insured by the use of traditional remedies
and the authorization cards signed before the commence-
ment of the unfair labor practices provide a more reliable
test of the employees' desire and better protect the
employees' rights than would an election. Cf. N.L.R.B. v.
Four Winds Industries, Inc., 530 F.2d 75 (C.A. 9, 1976);
Boston Pet Supply, Inc., supra.
In Steel-Fab, Inc., 212 NLRB 363 (1974), the Board held
that in Gissel-type cases a bargaining order could issue to
remedy an employer's 8(a)(1) violations that had dissipated
a union's majority and prevented the holding of a fair
election, and that it would serve no real purpose to find
additionally a violation of Section 8(aX5). However, in
Trading Port, Inc., 219 NLRB 298 (1975), the Board
reexamined its Steel-Fab policy and concluded that an
8(a)(5) finding was appropriate where an employer refused
to bargain with a union while coterminously engaged in
conduct which undermined the union majority status and
prevented the holding of a fair election. The Board also
held that the employer's obligation under the bargaining
order should commence as of the time the employer
embarked on a clear course of unlawful conduct or
engaged in sufficient unfair labor practices to undermine
the union's majority status. In the instant case the unfair
labor practices commenced on December 31, 1976, which
was the same date that Respondent received the Union's
demand for recognition.
I find that on and after December 31, 1976, the
Company violated Section 8(a)(5) of the Act by refusing to
recognize and bargain with the Union. W & W Tool & Die
Mfg. Co., 225 NLRB 1000 (1976); Matouk Industries, Inc.,
230 NLRB 892 (1977).
I also find that Respondent's unfair labor practices
described above which occurred between the date of the
filing of the petition and the date of the election interfered
with and warrants the setting aside of that election. Dal-
Tex Optical Company, Inc., 137 NLRB 1782, 1786 (1962).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
19 It is noted that on February 22, 1977, Hamlin withdrew his notice of
intention to resign. But for Respondent's unfair labor practice, he would
have worked for an indefinite time after March I, 1976. If Respondent can
establish at a backpay hearing that Hamlin would have resigned at some
date thereafter, backpay shall cease as of that date.
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that Respondent discharged Hamlin in
violation of Section 8(a)(3) and (1) of the Act, I recom-
mend that Respondent be ordered to offer him reinstate-
ment and to make him whole for any loss of earnings and
other benefits resulting from his discharge by payment to
him of a sum of money equal to the amount he normally
would have earned as wages and other benefits from the
date of his discharge to the date on which reinstatement is
offered, less net earnings during that period.19 The amount
of backpay shall be computed in the manner set forth in F.
W. Woolworth Company, 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977).20
In view of the seriousness of Respondent's violations, I
recommend that Respondent be ordered to cease and
desist from in any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act.21
It is recommended that Respondent be ordered to
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.
It is further recommended that Respondent be ordered
to recognize and bargain with the Union as the exclusive
collective-bargaining representative of the employees in the
above-described bargaining unit.
In view of the provision for a bargaining order, it is
recommended that the election held on February 25, 1977,
in Case 3 -RC-3707 be set aside and that the petition
therein be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The employee committee is a labor organization
within the meaning of Section 2(5) of the Act.
4. The Company violated Section 8(aXl) of the Act by:
(a) Coercively interrogating employees concerning union
activities.
(b) Soliciting employees to sign an antiunion petition.
(c) Threatening to close its plant if the employees
selected the Union to represent them.
20 See, generally, Isis Plumbing& Heating Co., 138 NLRB 716 (1962).
21 N.LR.B. v. Entwistle Manufacturing Company, 120 F.2d 532, 536 (C.A.
4, 1941); Boston Pet Supply, Inc., supra.
912
HASA CHEMICAL, INC.
(d) Threatening to call Immigration authorities and have
illegal aliens hauled off if the employees selected the Union
to represent them.
(e) Threatening to eliminate overtime if the employees
selected the Union to represent them.
(f) Offering to help form a company union.
(g) Soliciting grievances, promising to correct grievances,
and granting benefits to correct them in order to discour-
age union membership.
5. Respondent violated Section 8(a)(2) of the Act by
assisting in the formation of and meeting with an employee
committee.
6. Respondent violated Section 8(a)(3) of the Act by
discharging Hamlin because of his union sympathies.
7. All production and maintenance employees, ship-
ping and receiving employees, warehousemen, and truck-
drivers employed by the Respondent at 23119 Drayton
Street, Saugus, California, excluding all other employees,
office clerical employees, professional employees, guards,
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining.
8. The Union is the exclusive collective-bargaining
representative of the employees of the above-described
unit.
9. By refusing, since December 31, 1976, to recognize
and bargain with the Union as the exclusive collective-
bargaining representative of its employees in the appropri-
ate unit set forth above, Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
10. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II 1. Except as is set forth above, the General Counsel
has not established by a preponderance of the credible
evidence that Respondent violated the Act.
12. The Company's unlawful conduct between the date
of the filing of the petition and the date of the election
interfered with the election held on February 25, 1977.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 22
The Respondent, Hasa Chemical, Inc., Saugus, Califor-
nia, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Coercively interrogating employees concerning union
activities.
(b) Soliciting employees to sign an antiunion petition.
(c) Threatening to close its plant if its employees select
General Teamsters, Chauffeurs, Warehousemen & Helpers,
Local 982, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, to represent
them.
22 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall. as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
(d) Threatening to call Immigration authorities and have
illegal aliens hauled off if its employees select that Union to
represent them.
(e) Threatening to eliminate overtime if its employees
select that Union to represent them.
(f) Offering to help form a company union.
(g) Soliciting grievances, promising to correct grievances,
or granting benefits23 to correct them In order to discour-
age membership in said Teamsters Union.
(h) Assisting in the formation of and meeting with an
employee committee.
(i) Discharging or otherwise discriminating against any
employee because of that employee's union sympathies.
(j) Refusing to recognize and bargain with General
Teamsters, Chauffeurs, Warehousemen & Helpers, Local
982, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the exclusive
collective-bargaining representative of its employees in the
following unit:
All production and maintenance employees, shipping
and receiving employees, warehousemen and truck
drivers employed by it at 23119 Drayton Street, Saugus,
California, excluding all other employees, office clerical
employees, professional employees, guards and supervi-
sors as defined in the Act.
(k) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer Charles Hamlin immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for his loss of earnings in the manner set forth in the
section of this Decision entitled "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 Order.
(c) Upon request, recognize and bargain with General
Teamsters, Chauffeurs, Warehousemen & Helpers, Local
982, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the exclusive
collective-bargaining representative of its employees in the
bargaining unit set forth above, with respect to wages,
hours and other terms and conditions of employment; and,
if an understanding is reached, embody such understand-
ing in a signed agreement.
(d) Post at its Saugus, California, place of business copies
of the attached notice marked "Appendix." 24 Copies of
said notice on forms provided by the Regional Director for
Region 31, after being duly signed by its authorized
23 Nothing in this Order is to be construed as requiring or permitting
Respondent to rescind any benefits granted to employees.
24 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
(Continued)
913
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by it to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that those allegations in the
complaint as to which no violations have been found are
hereby dismissed.
IT IS FURTHER ORDERED that the election held on
February 25, 1977, in Case 31-RC-3707 be set aside and
that the petition therein be dismissed.
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate employees con-
cerning union activities.
WE WILL NOT solicit employees to sign an antiunion
petition.
WE WILL NOT threaten to close our plant if our
employees select General Teamsters, Chauffeurs,
Warehousemen & Helpers, Local 982, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America to represent them.
WE WILL NOT threaten to call Immigration authori-
ties and have illegal aliens hauled off if our employees
select that Union to represent them.
WE WILL NOT threaten to eliminate overtime if our
employees select that Union to represent them.
WE WILL NOT offer to help form a company union.
WE WILL NOT solicit grievances, promise to correct
grievances, or grant benefits to correct them in order to
discourage membership in said Teamsters Union.
WE WILL NOT assist in the formation of and meet
with an employee committee.
WE WILL NOT discharge or otherwise discriminate
against any employee because of that employee's union
sympathies.
WE WILL NOT refuse to recognize and bargain with
General Teamsters, Chauffeurs, Warehousemen &
Helpers, Local 982, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, as the exclusive collective-bargaining repre-
sentative of our employees in the unit described below.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
WE WILL offer full reinstatement to Charles Hamlin
with backpay, plus interest.
WE WILL, upon request, recognize and bargain with
said Union as the exclusive collective-bargaining repre-
sentative of our employees in a unit of all production
and maintenance employees, shipping and receiving
employees, warehousemen and truck drivers employed
by us at 23119 Drayton Street, Saugus, California,
excluding all other employees, office clerical employ-
ees, professional employees, guards, and supervisors as
defined in the Act, with respect to wages, hours, and
other terms and conditions of employment; and, if an
understanding is reached, we will embody such under-
standing in a signed agreement.
HASA CHEMICAL, INC.
914