IDAB, Inc.

National Labor Relations Board - Board Decisions

Mar 28, 1984

269 N.L.R.B. 554 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IDAB, Inc. and International Association of Ma- decided to affirm the judge's rulings, findings,
4 and
chinists and Aerospace Workers, AFL-CIO. conclusions and to adopt the recommended Order.
Case 12-CA-9147
28 March 1984
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 11 August 1980 the National Labor Relations
Board issued its Decision and Order in this pro-
ceeding, 1 in which the Board granted the General
Counsel's Motion for Summary Judgment finding
that the Respondent had violated Section 8(a)(5)
and (l) of the Act by refusing to bargain with the
Union previously certified by the Board as the ex-
clusive bargaining representative of a unit of the
Respondent's employees.
2 Upon a petition for
review and cross-application for enforcement of
the Board's Order, the court of appeals remanded
the case to the Board for further consideration con-
sistent with its opinion.3 The court concluded that
the Respondent had made a sufficient prima facie
showing in support of its objections to entitle it to
a hearing on those objections. Specifically, the
court found, inter alia, that affidavits submitted by
the Respondent raised substantial and material
issues of fact as to whether an atmosphere of fear
and violence at the time of the election and/or al-
leged electioneering at the polls destroyed the at-
mosphere necessary for the excercise of a free
choice by the voters. On 27 May 1982 the Board
issued its order remanding proceeding to the Re-
gional Director and directed a hearing for the pur-
poses set forth in the court's opinion. A hearing
was then held before Administrative Law Judge
Howard I. Grossman 14, 15, and 16 June and 7 and
8 September 1982, and 8 February 1983 the judge
issued the attached supplemental decision in this
proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
' 251 NLRB 19.
s On 26 March 1980 the Board adopted the Regional Director for
Region 12's recommendation that the Respondent's objections to an elec-
tion held I November 1979 be overruled in their entirety and that the
Union be certified as the exclusive bargaining representative of the appro-
priate unit.
E3 DS-IDAB. Inc. v. NLRB, 666 F.2d 971 (5th Cir. 1982).
269 NLRB No. 100
4 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the judge's decision, the Respondent's ex-
ceptions, and the record and note the following.
The Respondent contends that the judge erred in considering evidence
that the Respondent attempted to influence the testimony of witnesses in
the hearing. However, the judge's finding of a "proclivity" on the part of
the Respondent to attempt to influence the testimony of the witnesses in
this proceeding, though possibly relevant in some respects, is not an es-
sential element of his credibility findings and we do not rely on it in that
regard. An exception in this respect concerns employee Ugarte, since the
evidence regarding his attempted manipulation of witnesses prior to the
hearing logically and properly was considered by the judge in evaluating
his testimony.
The Respondent further argues that the judge failed to mention certain
testimony of employee Gonzalez to the effect that Gonzalez had heard a
rumor prior to the election that employee Rodriguez threatened employ-
ee Contreras with a gun. Since the judge found that the incident with the
gun never occurred, and that rumors regarding threats did not circulate
until after the election, we conclude that Gonzalez' testimony on this
point was contrary to weight of the evidence and therefore is discredited.
In this regard, we find it unnecessary to pass on the judge's conclusion
that the rumors were not widespread, since we agree with this finding
that they were circulated after the election. We also note that the judge
erroneously referred to witness Mures as a female, and that, contrary to
the finding of the judge, Mures was not still employed by the Respondent
at the time of the hearing. In our view this undermines the judge's credit-
ing of Mures and therefore we disregard the testimony of Mures in its
entirety. The judge relied on Mures' testimony primarily as corroboration
of the testimony of Union organizer Klinakas about Klinakas' instructions
to union sympathizers and of the testimony of Jorge and Gonzalez con-
cerning Jorge's conduct at the polls. With regard to the former, we are
satisfied that since the judge credited Klinakas as to other matters due to
the detailed and plausible nature of his testimony, his testimony regarding
his instructions was equally credible in the absence of Mures' corrobora-
tion. With regard to Jorge's conduct while the polls were open, we find
no reason to disturb the judge's crediting of Jorge's and Gonzalez' testi-
mony, even without the corroboration of Mures, since the contrary testi-
mony of the Respondent's witnesses is inconsistent and conflicting, and
fails to establish objectionable conduct even when considered standing
alone.
Finally, we note that the Respondent is correct in asserting that there
is uncontradicted testimony that employees Cincentes' and Wilk's tires
were tampered with before the election. Since no evidence was adduced
which connected these matters with the election, we find it unnecessary
to pass on the veracity of such testimony. We also find it unnecessary to
rely on the judge's comments at sec. 11,B,6 of his decision that, "consid-
ering Wilk's physical attributes, I consider it unlikely that the union sym-
pathizers would have done anything to his property even if they were of
a mind to do so."
Thus, in view of our examination of the record and of the foregoing,
with the exception of Mures as set forth above, we find that the judge's
credibility resolutions are fully supported by the weight of the evidence
and the reasonable probabilities of the situation. Universal Camera Corp. v.
NLRB, 340 U.S. 474 (1951).
The judge found no factual support for the Respondent's objections
with the exception of observer Gonzalez' wearing a union button during
the polling period. With respect to Gonzalez, a member of the in-plant
organizing committee, we note, as did the judge, that the reviewing
court, citing one of its own decisions, stated that such conduct, "consid-
ered in isolation will not ordinarily be sufficient to invalidate an elec-
tion." EDS-IDAB, Inc. v. NLRB, 666 F.2d 971 fn. 6 (5th Cir. 1982). We
therefore find it unnecessary to consider whether members of the in-plant
organizing committee acted as agents of the Union, and do not rely on
fn. 34 of the judge's decision.
554
IDAB, INC.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, IDAB, Inc.,
Hialeah Gardens, Florida, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Order.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge.
The International Association of Machinists and Aero-
space Workers, AFL-CIO (the Union or Petitioner),
filed a petition in Case 12-RC-5725 on August 20, 1979,
and amended it on August 27, seeking to represent cer-
tain employees of IDAB, Inc.' (the Respondent or the
Employer).2 Pursuant to a Stipulation for Certification
Upon Consent Election, an election was conducted on
November 1, 1979. The tally of ballots indicated that of
appproximately 86 eligible voters, 44 cast ballots for, and
37 against, the Union-Petitioner. There were two chal-
lenged ballots, which were insufficient in number to
affect the results of the election. On November 8, 1979,
the Employer filed objections to conduct affecting the
results of the election.:
On December 18, 1979, the Regional Director for
Region 12 issued his Report on Objections to the elec-
tion in which he recommended that the Board overrule
the Employer's Objections in their entirety, that the Em-
ployer's request for a hearing be denied, and that the
Union be certified as the exclusive representative of all
employees in the bargaining unit set forth in the election
agreement. On January 7, 1980, the Respondent-Employ-
er filed exceptions to the Regional Director's report, ar-
guing that the election should be set aside, or that a
hearing should be held on the objections. Thereafter, on
March 26, 1980, the National Labor Relations Board (the
Board) adopted the Regional Director's recommenda-
' At the time of earlier proceedings herein, the Respondent-Employer's
name was "EDS-IDAB, Inc.," according to the Board's prior reported
decision at 251 NLRB 19 (1980). During the instant hearing, the Re-
spondent-Employer's counsel represented that the corporation had
changed its name to that indicated above, and his motion to amend the
name in this proceeding was granted without opposition upon counsel's
assurance that no Board order which might issue as a result of these pro-
ceedings would be opposed on the ground of lack of notice. Although
the Respondent-Employer's brief shows the abbreviation after "IDAB"
as "INC.," the record and the Board's prior decision state it in lower
case; accordingly, I have used that form herein.
Ibid.
S The Respondent's brief sets forth the text of the objections. In es-
sence they contend that (1) Petitioner's observer at the election, Al Gon-
zalez, wore a campaign button saying "VOTE YES - FOR IAM" and
that the Board agent did not ask him to remove it; (2) Petitioner's agents,
members, employees, and supporters coerced employees with threats or
actions of violence to their persons or property; (3) Petitioner's agents,
members, employees, and supporters loitered in the balloting area during
the election and threatened or coerced employees when they were cast-
ing their ballots; (4) said conduct was so aggravated as to create a gener-
al atmosphere of fear and reprisal making a free choice by the voters im-
possible; and (5) that there was additional objectionable conduct which
affected the results of the election.
tions, and issued a Decision and Certification of Repre-
sentative.
Upon a charge filed on April 25, 1980, by the Union,
the General Counsel, by the Regional Director for
Region 12, issued a complaint on May 6, 1980, alleging
that the Respondent had engaged in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the National Labor Relations Act
(the Act). Upon the General Counsel's filing a Motion
for Summary Judgment, the Board, on August 11, 1980,
concluded that since about April 8, 1980, and thereafter,
the Respondent had refused to bargain collectively with
the Union in violation of the Act. Accordingly, the
Board issued a bargaining order. EDS-IDAB, Inc., 251
NLRB 19 (1980). Thereafter, the Respondent filed a peti-
tion for review of the Board's Order with the United
States Court of Appeals for the Fifth Circuit, and the
General Counsel filed a cross-application for enforce-
ment of the Order. On February 4, 1982, the court
denied enforcement, and remanded the case to the Board
for a hearing. EDS-IDAB, Inc. v. NLRB, 666 F.2d 971
(5th Cir. 1982), reversing 251 NLRB 19 (1980). 4
The court concluded that the Employer had made a
sufficient showing of an atmosphere of fear and violence
during the election to entitle it to a hearing, despite the
hearing the hearsay nature of the evidence. Briefly
stated, that evidence included affidavits from three wit-
nesses 5 to the effect that employee Contreras told them a
prounion employee had lifted his shirt and had shown
Contreras a gun prior to the election, with an accompa-
nying threat in the event that the Petitioner lost the elec-
tion. Another witness" submitted an affidavit that proun-
ion employee Jorge had punched Contreras in the eye,
giving him a black eye. The court's decision noted Con-
treras' unwillingness to affirm or deny these allegations
during the Regional Director's investigation. In addition,
the Employer's evidence included allegations that Jorge
had threatened physical harm to other employees or
their property.
The affidavit of one of the witnesses, Vigil, affirmed
that there were rumors of threats to employees Freyre
and Alemany. Virgil was assigned to investigate and
Freyre told him that he was upset with employees har-
assing others to vote for the. Union. As stated by the
court: "Freyre also told Vigil, 'Off the record-I will
never tell anyone about the threats to me or others be-
cause I have to come back and work with these guys
every day."' Alemany made similar statements, accord-
ing to Virgil's affidavit.
The court also stated the necessity of evaluating evi-
dence of improper electioneering by Jorge, who alleged-
ly sat next to the union observer for 10 to 15 minutes
during the voting and spoke to him. In addition, Jorge
allegedly spoke to employees standing in line to vote,
and was wearing a prounion patch on his overalls. The
4 As indicated, the Respondent-Employer's name is stated differently in
the court's decision.
I Hall, Vigil, and Carmanate. The latter's name appears au "Carmin-
atti" in the record of this proceeding. I have used the spelling given in
the court's decision.
6 Medina.
555
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
court observed that this evidence must be considered cu-
mulatively, together with the evidence of threats attrib-
uted to Jorge, in order to determine whether the atmos-
phere necessary for the exercise of a free choice by the
voters had been destroyed. Finally, the court indicated
the necessity of determining whether any such conduct
by Jorge had been condoned by the Petitioner.
On May 27, 1982, the Board issued its Order Remand-
ing Proceeding to the Regional Director, directing a
hearing for the limited purposes stated in the court's
opinion, and, on June 9, 1982, the Regional Director for
Region 12 issued a notice of hearing.
Pursuant to the foregoing authority, a hearing was
held before me in Miami, Florida, on June 14, 15, and 16,
and September 7 and 8, 1982. On the entire record, in-
cluding a brief filed by the Respondent-Employer, and
on my observation of the demeanor of the witnesses, I
make the following
FINDINGS OF FACT
I. SUMMARY OF THE EVIDENCE PERTAINING TO
SUBSTANTIVE ISSUES
A. The Union Campaign-the Inplant Organizing
Committee
The organizational campaign began with a union meet-
ing in July or August 1979, which was attended by 10 to
15 employees, according to union organizer Anthony
Klinakis. Thereafter, a general meeting attended by 40 to
45 persons was held on October 11, 1979, and another on
October 29, with about the same attendance. Union au-
thorization cards were solicited at these meetings.
Klinakis had more frequent meetings, at least once a
week with smaller groups of employees, for the purpose
of coordinating campaign activities within the plant. Al-
though various employees were utilized for this purpose,
the principal ones were Ildefonso (Al) Gonzalez, Luis
Jorge, 7 Francisco (Pancho) Rodriguez, Victor Ugarte,
and one other. No one was "elected" to this group, ac-
cording to Ugarte-they simply volunteered. Klinakis
testified that he utilized these employees as an organizing
committee within the plant. He instructed them to try to
persuade their fellow employees to accept the Union-Pe-
titioner, but to do so with an "open mind." The union
organizer contended that he told this small group that
the Union was "not coming in there [to] . . . try to por-
tray an image of a bunch of bad guys . . . [or] to bend
anybody's arm to vote for the Union." Former employee
Gonzalez testified that Klinakis instructed his listeners to
campaign for the Union during nonworking hours, but
admonished them not to threaten employees. Employee
Rodriguez, who is fluent in Spanish but understands little
English, affirmed that Klinakis had an interpreter at
these meetings (Rick Haro) who translated the organiz-
er's remarks into Spanish, testimony which was corrobo-
rated by Klinakis. Rodriguez asserted that, according to
the interpreter, Klinakis said that the Union was seeking
better wages and benefits for the workers, but that
J orge's first name also appears as "Louis" at places in the record. I
conclude that the correct spelling is "Luis."
prounion employees could not threaten other employees
in connection with the campaign. Employee Idalberto
Mures corroborated this testimony. The group of four
employees decided to talk to other employees about the
Union"in a nice way," according to Rodriguez.
Santiago Leon, a witness called by the Employer, was
asked whether he was aware of an "in-plant organizing
committee . . . organizing for the Union." The witness
did not understand the question. He was then asked
whether he was "aware of certain employees in the
Company that were working to have the other employ-
ees ... vote for the Union." Leon answered affirmative-
ly, and identified three members of the committee. Klina-
kis testified that the Union did not pay this group of em-
ployees for their campaign activities, and that he did not
authorize them to act on behalf of the Union-testimony
which is corroborated by other evidence in the record.
Victor Ugarte, a witness called by the Employer,
stated that this group was confident at the beginning of
the campaign that the Union was going to win. As the
campaign progressed, they made a decision to "speak
each time more insistently with those who were undecid-
ed." Later, when it appeared that the election was going
to be close, the group "decided to pressure more intense-
ly four or five of the company employees." However,
Ugarte added, the four employees did this on their own,
and neither Klinakis nor any other union official told
them to do so. The four employees also distributed union
literature to other employees.
Ugarte's statements are partially contradicted by wit-
nesses called by the Petitioner. Thus, Gonzalez testified
that the group prepared lists of employees in accordance
with what was believed to be their sympathies, either for
or against the Union, or undecided. With respect to pro-
company employees, the group tried to win them over
by stressing the benefits of union representation. Gonza-
lez denied that there was any discussion of "stronger
measures" against these employees, and asserted that the
group was confident of victory in the forthcoming elec-
tion.
Rodriguez described the activity of the four employees
as voluntary work which was not requested by Klinakis.
Rodriguez called it a "survey" of employee sentiment
about the Union, based on statements made by the em-
ployees at general union meetings. The witness denied
that the results of the survey were based on specific in-
terrogation of individual employees, and acknowledged
that guesswork was involved. Nonetheless, the group be-
lieved on the day of the election that they would get 60
to 70 percent of the votes. Jorge testified that the strate-
gy of the group with respect to procompany employees
was to convince them that the Union would provide
"work protection" and benefits such as seniority.
B. Juan Contreras
1. The alleged gun incident and other alleged
threats
a. The alleged threat
Employee Juan Contreras testified that, between 9 and
II a.m., about a week before the election, Rodriguez
556
IDAB, INC.
lifted his shirt and showed Contreras a gun tucked in his
belt, saying that Contreras knew what to expect if he did
not vote for the Union. This took place in the assembly
area, and Rodriguez, a welder, was working at the time.
Gonzalez, Ugarte, and another employee, apparently de-
ceased, were present according to Contreras. The latter
walked away from Rodriguez and did not say anything.
Ugarte testified that he saw Rodriguez approach Con-
treras during the lunch hour, about 12:30 or 12:40 p.m.8
According to Ugarte, Rodriguez raised his shirt and
showed Contreras a gun. Ugarte did not hear Rodriguez
say anything to Contreras, and did not remember the
date. However, according to Ugarte, he heard Rodriguez
threated Contreras on other occasions. "Practically the
last two months before the election," Rodriguez would
tell Contreras that he knew the latter was procompany
and that it "would be best for him not to come to work
on the day of the election." Contreras, on the other
hand, denied that Rodriguez threatened him on any oc-
casion other than the one involving the alleged gun inci-
dent.
Rodriguez acknowledged that he owns a gun, but
denied that he ever took it to work. He denied that he
showed Contreras a gun or threatened him. The witness
stated that he did talk to Contreras about the election,
but denied that he told the latter to vote for the Union.
"As a matter of fact," Rodriguez testified, "even Juan
Contreras complained about being discriminated
against." Gonzalez, who was present during the alleged
incident according to Contreras, denied seeing any em-
ployee "take out a gun on any other employee."
Victor Ugarte testified that he heard Luis Jorge tell
Contreras that he knew Contreras took information to
the Company, and that Jorge would "go out looking"
for Contreras if the Union lost the election and Jorge
lost his job. Contreras, however, denied that anybody
other than Rodriguez threatened him.
b. The alleged reporting of the Rodriguez threat
As described above, the alleged incident took place be-
tween 9 and 11 a.m., according to Contreras. During the
lunch hour, he tried to find Company President Lou
Kipp in order to report the incident, but Kipp was not
on the premises. It was not until several hours later that
Contreras had an interview with Kipp and other compa-
ny officials. He explained the delay by saying that he
only discussed matters with a "person of the highest
rank." Asked whether he felt that his life had been
threatened by Rodriguez, Contreras replied that he did
not like the way Rodriguez "proceeded," but did not feel
the matter was sufficiently important to bring to the at-
tention of another company official in Kipp's absence. It
was during the afternoon of the same day that Contreras
allegedly reported the matter to Kipp, in the presence of
Personnel Director Arlene Hall and Purchasing Manager
Manuel Vigil. 9 Contreras asserted that he asked Vigil to
loan him the latter's gun but that Vigil declined.
s Gonzalez testified that the lunch period was from 12 to 12:45 p.m.
9 Vigil's name appears as "Vahill" in the record of this proceeding. Al-
though his affidavit with presumably the correct spelling of his name was
forwarded to the court with the record on appeal, the affidavit was not
Company counsel did not call Vigil during the Em-
ployer's case-in-chief, but was allowed to do so during
rebuttal over the objections of Petitioner and counsel for
the Regional Director. Virgil initially testified that only
he and Contreras were present during a conversation
which took place a few days before the election, but
later corrected this to assert that Kipp was also present.
Vigil testified that Contreras claimed Rodriguez had
threatened him with a gun. The purchasing manager as-
serted that Contreras "acted afraid," and asked Vigil for
a gun-a request which Vigil denied. The latter could
not remember whether this meeting took place in the
morning or the afternoon.
According to Vigil's initial testimony, Rodriguez
worked in the welding area, which is distinct from the
machine shop and the assembly area. As Contreras re-
ported the matter, according to Vigil, Rodriguez came
over to Contreras in the assembly area where Contreras
works and the incident tookplace there. On cross-exami-
nation, Virgil acknowledged that, in an affidavit given to
company counsel in December 1979, he stated that Con-
treras reported the incident as having taken place in the
machine shop, to which Contreras had been called by
Rodriguez. Vigil then asserted that the etire area was re-
ferred to as the "machine shop." Hall testified in a simi-
lar manner. Rodriguez, on the other hand, testified that
the welding and assembly departments are separate.
Personnel Director Hall affirmed that in the late after-
noon of October 26 Contreras came to the office "very
red in the face" and "visibly upset." He said that he
wanted to speak to Kipp, and a meeting took place with
Kipp, Hall, and Vigil as interpreter. Contreras said that
Rodriguez lifted his shirt and showed him a gun. This
took place in "the building across the street," which Hall
termed "the inachine shop," or "the production facility."
Hall was asked when it was that Rodriguez had done
this, according to Contreras. "Just in the way he was
acting, it was that day," the witness answered. She then
asserted inability to understand Contreras' "broken Eng-
lish" on this point, although Vigil was present as an in-
terpreter. However, Hall "believed" that Contreras was
relating a threat that had occurred the same day. In an
affidavit given to company counsel in November 1979,
Hall stated that she could not recall whether the threat
was made or 2 days prior to the meeting with Kipp. (U.
Exh. 8.)
At the hearing, Hall testified that Contreras said he
was "concerned about his family." In her 1979 affidavit,
Hall affirmed that Contreras said "he had received no
phone calls at home and that he was only concerned
about his safety in the shop and after the election."
Hall further testified that having a gun on company
property was grounds for "immediate dismissal," and
that it occurred to management that the police should be
called. Kipp instituted an investigation according to Hall,
but "there were no supervisors around that saw the inci-
dent." Further, management was "confused" as to the
offered in evidence in this proceeding. There is no indication in this
record that Vigil ever spelled his name for the reporter. I conclude that
"Vigil" and "Vahill" refer to the same person, and that the former is the
correct spelling.
557
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proper action to take just before the election, and called
company counsel' ° immediately after the Contreras
report. The advice received was to take no action at the
time because of the imminence of the election. Further
according to Hall, there was an element of "confidential-
ity" to the report from Contreras, who did not wish
other employees to know about his meeting with Kipp.
Contreras testified initially that he could not remember
whether he reported the Rodriguez threat to anybody
other than Kipp. On redirect examination and in re-
sponse to a leading question, he testified that he also dis-
cussed it during the evening of the same day with Jose
Carmanate. Contreras said that he could not remember
Carmanate was his supervisor at the time.
The Employer called Carmanate as a witness for the
first time during rebuttal, and, as in the case of Vigil, he
was allowed to testify over the objections of Petitioner
and counsel for the Regional Director. The witness
stated that his title was supervisor of the assembly de-
partment at the time of the events in question, that Con-
treras was in that department, and that he, Carmanate,
was Contreras' supervisor. Some time prior to the elec-
tion, between 6 and 8 p.m., while he was at the shop,
Contreras called him and said that Rodriguez had
"shown him a revolver in his back." According to Car-
manate, Contreras asserted that the incident took place in
the assembly department. Contreres said that he was
afraid, and Carmanate told him to be calm, saying that
he would speak with his superiors about it the next day.
Carmanate advised Contreras to notify him "immediate-
ly" if it happened again, so that "the Company would
have [sic] some action." Carmanate was asked on cross-
examination why Contreras had waited the entire day
before notifying his own supervisor. Carmante's answer
was that Contreras had "supposedly" called him in the
afternoon.
c. Company action against Rodriguez
Rodriguez testified that he was called into the office
after the election by his supervisor, Julio Blanco. Rafael
Castillo, Robin Baker, and Kipp were present, as well as
Blanco. Rodriguez was handed a memorandum dated
November 2, 1979. The memorandum is in English, in
which language Rodriguez is not proficient. It reads as
follows:
It has come to our attention that you made personal
threats against fellow employees on several occa-
sions during the past few weeks. This is an unac-
ceptable behavior and violates not only company
policy but the law. Consider this letter as notice
that effective this date you are being placed on 30
day's probation with the company. If any miscon-
duct occurs within the next 30 days, you will imme-
diately be dismissed. Any future incidents of person-
al threats will be subject to immediate dismissal. [E.
Exh. 9.]
'1 Hall identified the individual called as an attorney other than the
Respondent's counsel in this proceeding.
Castillo told Rodriguez that the latter had "threatent-
ed" people, and that he was on probation for 30 days.
Kipp made similar statements, and Rodriguez denied
them, saying that it was "a lie." Kipp did not specify the
nature of the threats and did not accuse Rodriguez of
having a gun in the plant, according to Rodriguez. The
latter testified taht he did not take the reprimand serious-
ly, since he had "always maintained good conduct at
work." According to Rodriguez, "If I had threatened
somebody a week before the election, why didn't the
Company fire me?"
Neither Kipp, Blanco, Castillo, nor Baker testified
during the proceeding. Accordingly, Rodriguez' testimo-
ny on this issue is uncontradicted.
2. Jorge's alleged punching of Contreras
Pedro Medina was a regional sales manager for the
Respondent when he testified, and was an assistant to the
supervisor of drafting at the time of the election. He tes-
tified that an employee told him that Jorge had punched
Contreras and had given him a black eye. Medina "went
over across the street just out of curiosity," and observed
that Contreras did have a black eye. The witness assert-
ed that he asked Contreras whether Jorge had hit him in
the eye. Contreras "put his head down and just didn't
want to talk," according to Medina. At lunch the same
day, Medina asked Jorge about the matter, and the latter
replied that it was an accident. Medina asked Jorge how
anybody could be punched accidentally. Jorge reaf-
firmed that it was an accident, but was laughing at the
time according to Medina.
Jorge denied punching Contreras, but admitted that he
was involved in an accident with the latter. According
to his testimony, he was sitting in a reclining chair in
Blanco's office when somebody came in the door. Jorge
got up and turned around. As he did so, his elbow hit
Contreras. Jorge apologized, and Contreras said that
there was no problem, that it was an accident. Jorge said
that this took place after the election, although he could
not remember the date of a conversation with Medina
which he had about the subject. Contreras corroborated
Jorge's testimony that Contreras' black eye was the
result of an accidental blow, although he gave a some-
what different version of it. Contreras said that this took
place before the election.
C. Other Alleged Threats and Rumors of Violence,
and Property Damage
1. Alleged threats and rumors of threats to Arsenio
Freyre
As set forth in the court's opinion outlined above,
Vigil's affidavit recites Freyre's alleged statement to
Vigil about harassment by other employees, threats made
to Freyre, and the latter's fear of other employees. Al-
though Vigil was called as a witness by the Employer in
this proceeding, he was not asked any questions about
Freyre.
Victor Ugarte testified that he had a "violent argu-
ment" with Freyre about a week before the election, and
told him that "it was best for him not to come to work
558
IDAB, INC.
on the date of the election." Ugarte also asserted that he
heard Rodriguez make similar statements to Freyre.
Freyre, a witness for the Employer, gave testimony
different from either Vigil's affidavit or Ugarte's asser-
tions. He was asked by company counsel whether he had
ever been threatened prior to the election. The witness
replied that other employees attempted to "convince"
him that he should support the Union, and that he finally
got into an argument with Ugarte over his refusal to do
so. However, all that Ugarte said was that it was "unbe-
lievable" that Freyre would not support the Union.
"There were no threats to my person," Freyre testified,
"but just personal reproaches like, 'You shouldn't have
done that; it's unbelievable that you have done that."'
Freyre denied that anybody, including Rodriguez, Jorge,
or Gonzalez ever threatened him "physically," or "seri-
ously," nor did he hear that the latter employees had
threatened any other employee. Freyre said that he and
Rodriguez were "close" and joked a lot, that a lot of
joking takes place in the plant. "Sometimes you don't
take them seriously but a little bit stays," Freyre stated.
Freyre contended that he heard rumors of threats prior
to the election. Thus, he said that he heard he might be
attacked, and rumors that Pancho (Rodriguez) had made
threats, but nothing about a gun. Freyre further asserted
that he heard threats attributed to Jorge that "cars might
break down." He also contended that one of his tires was
deflated with a bolt stuck in the valve, but acknowl-
edged that this took place after the election.
As set forth above, the court's opinion recites a part of
Vigil's affidavit attributing a statement about threats to
Freyre. After direct and cross-examination of Freyre, I
asked him, through an interpreter, whether he ever told
Vigil, "Off the record, I will never tell anyone about the
threats to me or others because I have to come back and
work with these guys every day.""
The witness initially answered, "Yes, I told him." Peti-
tioner's counsel, who is bilingual, then protested that
there had been "something missing from the interpreta-
tion." I repeated the question, and the witness replied
that he did not remember "exactly that type of conversa-
tion," but that he did make statements "with some per-
sons" that he did not wish to make any "declarations"
because of fear of suffering a "mishap." Freyre seemed
to testify that he only made statements to an "attorney
from the Labor Department." Asked again whether he
made the statements attributed to him in Vigil's affidavit
prior to the election, Freyre answered, "Basically after-
wards if I did because it's not really in my mind because
a lot of time has elapsed." On redirect examination,
Freyre said that he was afraid to make "declarations" be-
cause he had heard "rumors" that he "might be beaten
up, persons from even outside the workshop." On re-
cross-examination he said that his mind was "not too
clear" on statement to Vigil.
2. Alleged threats and rumors of threats to
Guillermo Alemany
As also described in the court's opinion, Vigil's affida-
vit alleges statements from Alemany to Vigil similar to
I Certain errors in the transcript are hereby noted and corrected.
those attributed by Vigil to Freyre. Vigil was not asked
any questions about Alemany during his testimony.
Counsel for the General Counsel represented that he and
the Respondent counsel had made efforts to locate Ale-
many, but were not successful. The General Counsel
submitted an affidavit of Alemany given to a Board
agent, and it was received. 12
The affidavit is dated November 26, 1979, and reads in
relevant part as follows:
I was eligible to vote in the election in November.
Prior to the election, there were no threats of physi-
cal harm or of property damage made to me by any
employee or union official because of the union situ-
ation. I did not hear any threats made to any other
employees. [Bd. Exh. 3]
3. Alleged threats to Santiago Leon
Employee Santiago Leon, a witness for the Employer,
testified that Jorge threatened to break up Leon's car if
the latter did not vote for the Union. Jorge did this
twice, the first time at a union meeting at the Holiday
Inn, and the second time in the plant, according to Leon.
The witness said that he took these statements seriously.
Leon further asserted that one of his tires was slashed a
few days before the election. Ugarte corroborated Leon's
testimony.
In an affidavit given to a Board agent on November
26, 1979, Leon stated that Jorge twice told him that he
would destroy Leon's car if the latter did not vote for
the Union. Other persons heard this, and Leon "thought
it was a joke." He further affirmed in his affidavit that
"nothing ever happened to [his] car." The affiant also
averred that he was not aware of any threats to other
employees. (U. Exh. 3.) Jorge denied having arguments
with or threatening Leon.
4. Alleged property damage sustained by Anthony
Wilk and Gavin Cincentes
Wilk was eligible to vote in the election in 1979, but
was a supervisor in the electrical assembly department at
the time of his testimony. He testified that he favored the
Employer during the union campaign, and that this fact
was known to other employees. Wilk stated that he
found a cement spike in the tire of his car, above the
white sidewall, a few days before the election. He did
not know the source of the spike. Jorge denied that he
put the spike in Wilk's tire. Wilk also stated that he was
not personally threatened, and did not observe any other
employees being threatened about their union sentiments.
Wilk is a man of imposing physique, similar to that of a
professional football player, and was much larger than
any of the other witnesses in the proceeding.
Ugarte testified that Jorge told him that Jorge had let
the air out of the tires of employee Gavin Cincentes, be-
"a The affidavit was received pursuant to Rule 804(bX5) of the Fed.
R.Evid., the requirements of the Rule having been satisfied. The official
transcript does not reflect that the exhibit was received, although my
comments clearly reflect an intention to do so. P. 679 of the official tran-
script is hereby corrected so as to indicate that Rd. Exh. 3 was received.
559
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause of Jorge's belief that Cincentes was procompany.
Jorge denied that he did so.
5. Other evidence pertaining to rumors of threats or
violence
Regional Sales Manager Medina testified that prior to
the election, he heard rumors that "Pancho" had a gun
and was going to kill or hurt some one with it, and that
cars or tires would be damaged. Medina identified the
source of these rumors as supervisor Carmanate,
"Fruma," "George," and "Jorge." Medina "presumed"
that "George" was an eligible voter, but did not know
his last name.
In response to a leading question as to whether she
ever heard rumors of threats or violence "during the pre-
election period," Personnel Director Hall answered "Ab-
solutely," and said that there was employee talk that cars
were going to be damaged, and that one employee re-
signed because his tire valves had been cut off. However,
in another context, Hall was asked when the first time
she learned from Ugarte about preelection threats, and
said that she heard this in August or September 1981.
Asked whether she learned about it from some other
souce prior to that time, Hall asserted that Gonzalez and
Jorge had made similar disclosures to Kipp, but that her
"personal knowledge" of it dated back to 1981.
In response to a leading question, Santiago Leon
claimed that he heard rumors "prior to the election" that
employees had their tires slashed. However, as already
noted, in an affidavit dated in November 1979, Leon said
that he was "not aware of any other threats being made
by employees or by union officials either to me or to
anyone else." (U. Exh. 3.)
In response to a leading question, Anthony Wilk testi-
fied that he heard rumors "prior to the election" that
employees not favoring the Union "might get beat up,"
and that such threats were attributed to "Pancho,"
"Little Al," and Luis Jorge.
Jorge and Gonzalez acknowledged hearing rumors
about an incident with a gun, and that some one had
been threatened, Although Gonzalez on cross-examina-
tion said that he heard this before the election, he was
unable to give the date. Jorge also said that he heard the
rumor, but was uncertain whether he heard it before or
after the election, and denied its truth. Rodriguez, the
supposed culprit, not only denied that he threatened
Contreras with a gun, but also denied ever hearing that
he had done so. As described above, he testified without
contradiction that Kipp did not make this accusation
against him in the postelection meeting concerning Ro-
driguez' 30-day probation. Freyre's testimony about
rumors is summarized above.
The Petitioner presented witnesses who, in general,
testified to the contrary of the Employer's witnesses. Sal-
vatore Chung, a company employee at the time of his
testimony and one of the voters in the 1979 election,
denied that (1) he had observed Jorge, Rodriguez, Gon-
zalez, or Ugarte threaten any employee about procom-
pany sentiments; or (2) he had heard rumors that Rodri-
guez had shown a gun to Contreras about a week before
the election or that Jorge had punched Contreras in the
eye; or (3) that he had heard rumors of threats from
Ugarte or Jorge to other employees or their property.
Renaldo Quirello, also a current employee who voted in
the 1979 election, gave similar testimony, including a
denial of rumors that Jorge threatened damage to San-
tiago Leon's car. Similar denials were voiced by employ-
ees Rolando Arce, Idalberto Mures, Richard Otrara, and
Hugo Almeida, with one exception-Almeida heard
rumors that Rodriguez had shown Contreras a gun.
However, Almeida testified that he did not hear this
until after the election.
6. Company action against Jorge
On November 2, the day after the election, the Em-
ployer gave Jorge a written reprimand identical in lan-
guage to the one given the same day to Rodriguez,
supra, and also placed him on a 30-day probation. (E.
Exh. 13.)
D. The Election on November 1
1. The election area and the parties' observers
The Respondent has two builings in which it conducts
its operations. Building no. I contains the administrative
staffs and other functions, while building no. 2 has the
production facilities. The buildings are separated by a
parking lot. The election was conducted in building no.
1.
The record contains several diagrams of a portion of
building no. I immediately surrounding the election area,
together with testimony which is unintelligible because
of the inadequacy of the diagram to which the testimony
relates or because the testimony is unrelated to any dia-
gram. I conclude that the most accurate portrayal of the
election area is given in Employer's Exhibits 14 and 15,
the latter being a duplicate of Exhibit 14 without certain
notations. These exhibits were submitted on the last day
of the hearing, after several witnesses had already testi-
fied about events taking place within the election area.
The exhibits and other evidence show that most of the
voters came from building no. 2 across the parking lot,
and entered building no. I by means of a ramp leading to
a large door. The line of voters proceeded in a straight
line upon entering the door. Idalberto Mures, an order
dispatcher, testified that there were about 10-15 voters in
line when she voted during the first session. Jorge esti-
mated 8 to 10.
To the right of the line of voters was a storeroom sur-
rounded by a fence which was parallel to the line of
voters. To the left of the voters and at right angles to the
line which they formed were large storage racks about
10 feet in height. There were aisles between the racks,
and the election officials and ballot box were located just
inside the second aisle between these racks. Further into
the building was a walkway which ran parallel to the
storage racks, with working areas, an employee cafeteria,
and restrooms beyond the walkway.
The voting was conducted in two sessions, the first at
2:45 to 3:45 p.m., and the second from 5:30 until 6 p.m.
The Employer's observer was China Alvarez Hung,
while the Petitioner's observer was Gonzalez.
560
IDAB, INC.
The parties stipulated that Gonzalez wore A union
button during the entire election saying "Vote Yes for
IAM."' 3 Union organizer Klinakis testified that he did
not instruct Gonzalez to do so, while the latter stated
that nothing was said to him about the button by the
Board agent. Gonzalez had worn the button for some
time prior to the election. Company observer Hung
signed a certificate that the balloting was fairly conduct-
ed during the first voting session, but refrained from
doing so after the second session upon advice of a com-
pany attorney, who had learned from Hung about Gon-
zalez' button. (U. Exh. 6.)
Regional Sales Manager Medina testified that he went
over to the election area out of curiosity, and saw Jorge
waiting in line to vote. Jorge was "hollering and talking"
to voters. Medina asserted that he saw Jorge walk to the
election table, vote, and then seat himself on a box a
longside the storage rack which was behind the election
table. Medina submitted a sketch together with his pre-
trial affidavit which shows several boxes adjacent to the
storage rack nearest the election table. (U. Exh. 2.)
Medina said that he went to the cafeteria, and returned
10 to 15 minutes later. Jorge was still sitting on one of
the boxes, talking to union representative Gonzalez and
to voters waiting to vote. Medina affirmed that Jorge
was about 7 feet from the voting table, and 7 to 10 feet
from the line of voters, although in his pretrial statement
Medina averred that Jorge was sitting about 2 feet from
the election table. According to Medina's testimony and
the diagram attached to his affidavit, the outermost stor-
age rack was filled with merchandise, and he, therefore,
had to position himself toward the aisle where the elec-
tion table was located in order to observe these events.
Jorge gave a different version. He was in the voting
line during the first session. Although there was some
talk among the voters waiting in line, Jorge did not
recall saying anything. He testified that he was tired, and
sat down on some boxes for 2 to 3 minutes to lace up his
shoes. According to Jorge, the boxes were next to the
fence surrounding the storeroom. This was to the right
of the line of voters, a different location from the area to
the left of the voters adjacent to the storage rack where,
according to Medina, the boxes were located. Shown the
diagram prepared by Medina, Jorge denied that they
were any boxes near the election table. Jorge testified
that he was simply following the flow of the line of
voters. He gave his name to Gonzalez and Hung as the
election observers, and then went to the voting booth
and deposited his ballot. Jorge denied that he went back,
sat down, or talked to Gonzalez. Instead, he left the
building and remained on the ramp outside the entrance
for 5 to 10 minutes, waiting for a friend. He was visible
to the line of voters entering the building, but not to per-
sons at the election table. Jorge did not recall saying
anything to the voters entering the building. When his
friend had finished voting, the two of them went back to
work.
's The Employer's objection lists the text of the button in capital let-
ters. This does not appear in the official transcript, and I have adhered to
the form given in the latter.
Idalberto Mures worked in the storeroom adjacent to
the election area. She testified that at I p.m. on the elec-
tion day she and other employees were ordered to clean
the area between the storage racks where the election
area was to be located. Shown the diagram prepared by
Medina, Mures denied that there were any boxes be-
tween the storage racks. All the boxes had been placed
"inside" (the storeroom). "And those we had no room
for in front we had to place in the back." Mures testified
that Jorge was in front of her in the election line. He sat
down on some boxes "next to the fence," then voted,
and left.14
Mures denied that Jorge spoke to Gonzalez after plac-
ing his ballot in the box, "because the inspector ... pro-
hibited us from speaking to anyone else." Mures, who
continued working in the storeroom after voting, testi-
fied that she did not see Jorge come back into the elec-
tion area. Instead, she asserted that she saw union ob-
server Gonzalez talk to "the inspector," who then spoke
to several persons in the area. These individuals then left,
one of them being "Pete Medina," according to Mures.
Gonzalez gave testimony similar to Mures'. Jorge did
not converse with the union observer, and left after
voting. On the contrary, Gonzalez saw Company Presi-
dent Kipp, Medina, John Green, and others, "just hang-
ing around the door where the people come in to vote."
Green testified during the proceeding, and identified
himself as a former vice president of the Respondent,
and currently president of a company wholly owned by
the same parent company which owns the Respondent.
Gonzalez testified that he complained about the presence
of these individuals to the Board agent, who then caused
them to leave the election area. Further, Gonzalez testi-
fied the Employer's observer did not make a similar re-
quest to the Board agent.
Other evidence on this issue is either contradictory or
tends to corroborate Jorge, Mures, and Gonzales. Thus,
company observer Hung asserted that she saw Jorge
"standing around" after he voted. However, her testimo-
ny was vague as to where Jorge was standing, while her
pretrial affidavit contradicts her testimony and corrobo-
rates Gonzalez' claim of his own complaint to the Board
agent about management personnel in the voting area.
(U. Exh. 7.)1' Personnel Director Hall testified twice
about the matter, but the essence of her testimony is that
she saw Jorge sitting on some boxes "next to the fence"
near the line of voters. Contradicting Medina, Hall as-
serted that the storage racks were not full, and that she
could see through them. Carmante testified vaguely that
saw Jorge sitting for "a long time" on some boxes "near
to the place of the elections," while Santiago Leon gave
similarly vague evidence. On the other hand, the testimo-
nies of Wilk and Chung tend to corroborate Jorge.
The parties stipulated that Jorge wore coveralls on the
day of the election with the union emblem on the front
14 The sense of Mures' testimony is partially distorted by a misplaced
"A" (answer) on p. 595 at I. 9 of the transcript. The record is hereby
corrected so as to delete said "A" and to place it at the beginning of 1.
11II. Further, the period after the word "persons" in I. 10 is stricken and a
question mark is substituted in lieu thereof.
's Hung's name appears as "Iliana M. Alvarez" in the affidavit.
561
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and rear. The emblem is circular, and about 4 inches in
diameter. Inside are representations of a caliper and a try
square, with the letters "A of M" about three-eighths of
an inch high. Extending in a circle around the emblem
near the border is Petitioner's name in letters about one-
quarter inch high. (U. Exh. 9.) Credible evidence estab-
lishes that Jorge purchased the coveralls himself, and
had worn them for some time prior to the election.
3. Anthony Klinakis
John Green, the president of a company related to the
Respondent, asserted that he was "in back of production
area" of building no. 1, where the election was held,
since he has occasion to be "in the plant a dozen times
any time during the day." He said that he was in the
election area three times during the election process.
Green averred that through the rear door of building no.
1 he saw union organizer Klinakis "perhaps two" times
in the company parking lot between the two buildings.
Employees were voting at this time, according to Green.
However, he could not specify the time of day. Green
stated that Klinakis was about 15 to 20 feet from the line
of voters, and that there was no conversation between
them and Klinakis. 6
Klinakis testified that he and Rick Haro arrived at the
plant before the first voting session approximately 15
minutes prior to the scheduled time of a preelection con-
ference. They parked on a street which runs in front of
the Respondent's building no. I and entered that build-
ing. After the conference, Klinakis, Haro, the Employ-
er's attorney,' 7 and three company representatives in-
cluding Kipp and Green went to the voting area, where
the Board agent gave instructions to the observers and
made other arrangements. According to Klinakis, the
union representatives then left through the front of the
building, entered their car, and returned to the union
office. The distance from the Respondent's plant is about
8 to 10 miles, most of it traveled on an expressway, ac-
cording to Klinakis. The trip took 12 to 15 minutes.
The union representatives spent less than 30 minutes in
their office, and then started back to the Respondent's
plant, arriving about 10 minutes prior to the scheduled
close of the first voting session, 3:45 p.m. They again
parked in front of building no. 1, and waited in the re-
ception area until the polls were officially closed. To-
gether with the company attorney, Klinakis and Haro
then went to the balloting area to observe the sealing of
the ballot box. Numerous company officials, including
Green, were "standing around" according to Klinakis.
Klinakis further testified that after the sealing of the
ballot box the union representatives again left from the
building, entered their car, and turned left into a side
street headed west. The side street passes both buildings
so that the Company parking area between them can be
observed from the street. Klinakis saw employees who
had just been released from the day shift congregating in
16 The parties stipulated that Green did not submit any evidence to the
Regional Director during the investigation of the objections to the elec-
tion.
1T Company counsel during the election was an attorney other than
counsel of record during the hearing.
the parking lot between the Respondent's two buildings.
Klinakis stopped the car on the side street, got out, and
talked with the employees for about 20 minutes until
shortly after 4 p.m. Klinakis and Haro then proceeded to
a corner grocery store about half a mile away, where
they had a soft drink and visited with a few employees
who had just left work.
As the second voting session was scheduled to begin
at 5:30 p.m., the union representatives arrived back at the
plant at 5:20 p.m., and again parked in front of the build-
ing according to Klinakis. After observing the beginning
formalities of the second voting session, they returned to
the corner grocery store, then returned to the plant prior
to the closing of the session at 6 p.m., and waited in the
reception room until the official closing hour.
II1. FACTUAL AND LEGAL ANALYSIS
A. The Collateral Issues
1. The new unfair labor practice charge
On July 13, 1982, the day before the first day of hear-
ing in this matter, the Union filed a charge against the
Respondent alleging that it discharged Gonzalez on July
9, 1982, because of his union activities, in violation of
Section 8(a)(3) of the Act, and that it interrogated and
attempted to influence employees concerning their pro-
spective testimony in the instant proceeding, in violation
of Section 8(a)(l) (Case 12-CA-10269, E. Exh. 10).
During the first 3 days of hearing, the Respondent pro-
tested that the Union was attempting to prove the 8(a)(1)
violation before the charge had even been investigated,
while the Union responded that it was merely seeking to
show that the Respondent's witnesses were un-
trustworthy. I sustained the Respondent's objection to
further questions arguably pertaining to the recently filed
charge.
On August 31, during a recess between the third and
fourth days of hearing, the Regional Director approved
a withdrawal of the charge. (E. Exh. 11.) Nonetheless
the parties litigated numerous issues the resolution of
which have some bearing on various credibility determi-
nations.
2. The meeting with Kipp in 1980
Ugarte testified as follows: "In February of 1980 we
had a meeting with . . . [company president] Lou Kipp
. . . and asked him for money to leave the Union."
Ugarte later testified that this meeting took place in
March, and said that "Kipp did not make a deal with
us." Ugarte asserted that Kipp told the employees they
could keep their jobs as long as they did not "start up
any problems" for the Company.
Gonzalez recalled a meeting with Kipp in 1980, and
said it was when the employees were talking about a
strike. He denied offering to drop support of the Union
in return for money, and denied telling Kipp that he
would forget about the Union if Kipp gave him enough
money to go back to Puerto Rico and start his own busi-
ness. Rodriguez corroborated Gonzalez' testimony, deny-
ing that there was any discussion of the employees' drop-
562
IDAB, INC.
ping their support of the Union, or of Gonzalez' demand-
ing "thousands of dollars from Mr. Kipp." He also
denied that there was any talk of Gonzalez' returning to
Puerto Rico. However, Rodriguez acknowledged there
was some discussion of "Victor (Ugarte) running to
Chile at that meeting."
The subject of the 1980 meeting with Kipp comes up
again in connection with a 1982 meeting, and is evaluat-
ed together with other evidence.
3. Ugarte's history and relationship with the
Respondent
According to Ugarte, he came to the United States
from Chile in 1978, and worked for the Respondent. He
further asserted that he returned to Chile in April 1980,
and came back to the United States in February 1981.
However, his signature appears on one of the Employ-
er's exhibits dated May 12, 1980, when he was supposed-
ly in Chile. (E. Exh. 8.) Further according to Ugarte, he
started working in California in February 1981 for a
company related to the Respondent, and later started
working for the Respondent again in Florida.
In August or September 1981, according to Ugarte,
the Respondent loaned him $3000 in connection with im-
migration problems. In late 1981 or early 1982, he told
Company President Lou Kipp and a company attorney
about the alleged preelection threats and violence. Per-
sonnel Director Hall corroborated this latter assertion,
but Ugarte contradicts himself in other testimony, where
he contends that he did not relate the events of the elec-
tion to the Respondent until a later date.
In February or March 1982, Ugarte had to return to
Chile because his visa expired. He received a subpoena
from the Respondent in connection with the current pro-
ceeding, and his air fare and living expenses while in the
United States were paid by Company President Kipp.
Ugarte testified that he still owes $2200 on his loan,
and that the Respondent is not pressing him for repay-
ment. He was asked, "So, it's paid back if you can?" and
he replied, "Evidently." Personnel Director Hall testified
that Ugarte had been paying on his loan, but stopped
when he returned to Chile in 1982. Hall said that the
company loans money to employees on an interest-free
basis, upon a showing of need. Most of these are in the
$200-$300 range, for tools or medical expenses, although
the Company did loan $4000 on one occasion, and, in
connection with a real estate transaction, made a 30-day
"bridge loan" of $20,000 to an employee, according to
Hall. There is other evidence of company loans to em-
ployees.
Taking Ugarte's and Hall's statements at face value, I
conclude that the Respondent has a policy of loaning
money to employees on an interest-free basis. It loaned
$3000 to Ugarte in the latter half of 1981, on which a
balance of about $2200 is still due. The Respondent is
not pressing Ugarte to pay the balance.
4. The warning to Gonzalez
Ugarte testified that in January 1980, i.e., about 2
months after the election, Gonzalez asked him to accom-
pany the latter to the office of Company Official Robin
Baker. Baker told Gonzalez that he was giving him a
warning slip. Ugarte agreed that he asked Baker whether
this was because of Gonzalez' union activities. He con-
tended that Baker answered in the negative, saying that
Gonzalez was "working slowly." Ugarte also testified
that he attended another meeting in January 1980, with
Gonzalez, Company President Kipp, and numerous other
individuals. Ugarte stated that Gonzalez received notice
of a suspension. The witness agreed that he asked Kipp
whether the company action had anything to do with
Gonzalez' union activities. According to Ugarte, Kipp
said "No," adding that the plant supervisor considered
Gonzalez to be working under his usual capacity. Asked
whether Kipp really replied "Maybe, yes" to Ugarte's
question, the latter answered, "No, Mr. Kipp was an in-
telligent person."
Ugarte was then shown a document written in Spanish
which he acknowledged was in his handwriting, and was
prepared in January 1980. (U. Exh. 1.)
As translated by the official interpreter at the hearing,
portions of the document reads as follows:
Victor Ugarte, this employee asked Mr. Robin
Baker if this was being done to Operator Gonzalez
because of his activities with the Union, and Mr.
Baker answered, yes, that it would be stupid to try
to deny it. No more questions were asked.
The employee, Victor Ugarte, asked Mr. L. Kipp if
this was being done by the company because of the
pro-union activities of the employee Gonzalez, at
which Mr. Kipp answered, that maybe, yes. Finally
the company retired its accusations against me and
did not suspend me. '8
At this point, the cross-examination of Ugarte reads in
part as follows:
BY MR. CARILLO:
Q. Is he telling us now that he wrote this, refer-
ring to himself, and that what it states there that he
did is a lie? [sic]
A. Yes.
Q. And you wrote that knowing that what you
were writing was a lie?
A. Yes.
Q. Let me ask you concerning the second meet-
ing [repetition of second paragraph from document
quoted above]. So now, it is your testimony that
what's written there is not what was said and done?
A. Yes.
Q. So when you wrote this, you knew that what
you were writing was a lie?
A. Yes.
In explanation, Ugarte first said that the document was
dictated by Gonzalez. He then stated that the four union
1I An English translation of the entire document is in evidence as G.C.
Exh. 2. There are some minor differences between this version and the
portions translated in the transcript - "Robin Baker" appears as "Robin
Becker," and Kipp's reply of "Maybe, yes" becomes "Perhaps, yes," but
the sense of the two translations is consistent. The document is not
signed.
563
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protagonists-Gonzalez, Jorge, Rodriguez, and himself-
"[took] down notes ... discussed the matter, and decid-
ed and I kept writing and I wrote it down."
Gonzalez contradicted this version. He said that he
had some "little pieces of paper" concerning "discrimina-
tion." He and Ugarte met at Rodriguez' house, and Gon-
zalez gave Ugarte his notes. However, the latter was a
witness to many of the events, and wrote the document
himself. There was insufficient time at the first meeting
to complete it, and Ugarte finished writing it in his own
apartment. Later, according to Gonzalez, he conferred
with Ugarte and the two of them agreed that the infor-
mation related in the document was correct. With some
minor differences, Rodriguez corroborated Gonzalez' ac-
count of the preparation of the document. Ugarte
wanted it in order to prove that the Respondent was dis-
criminating against Gonzalez.
Gonzalez also gave a detailed account of the two
meetings described in the document. The first meeting
took place in the fourth week of November 1979, rather
than in January 1980 as related by Ugarte.' 0 In response
to the management charge of being slow at work, Gon-
zalez replied that he was being given the wrong materi-
als and the wrong information. When Ugarte asked
Baker whether the company action against Gonzalez was
caused by his union activities, Baker said "Yes," and that
it would be "very stupid of him to deny it."
The second meeting took place in January 1980, and
Gonzalez was about to be suspended. When Ugarte
asked Kipp whether this action was caused by Gonzalez'
and union activities, Kipp replied, "Maybe, yes." Gonza-
lez testified: "They didn't suspend me after that ....
They tore up the paper and told me to go back to
work."
Richard Otrara, an employee of the Company at the
time of his testimony, stated that he was present at the
second meeting. Ugarte was taking notes and defending
Gonzalez. According to Otrara's version, it was Gonza-
lez who asked Kipp: "Is it because of the Union why I'm
getting the thirty days?" Kipp replied, "'It could be,' and
he was a little mad and it stopped there. He didn't say no
more." Rodriguez was also present at this meeting. He
did not understand it because it was conducted in Eng-
lish. However, he testified that Gonzalez later explained
it to him, in a manner which is consistent with Gonzalez'
testimony.
I credit Gonzalez' version of these events, except that,
in agreement with the English version of the document,
I conclude that the first meeting took place in the second
rather than the fourth week of November 1979. Gonza-
lez' testimony is replete with detail and is inherently
more probable than Ugarte's. Otrara was wrong on the
identity of the individual who asked Kipp the question
about Gonzalez' union activities-it was Ugarte rather
than Gonzalez-but he corroborates Gonzalez and the
document on the crucial issue of Kipp's answer.
Considering all the testimonial and documentary evi-
dence together, Ugarte's testimony is improbable. Ac-
cordingly, I conclude that he did not tell the truth at the
'9 The English version of the document gives the second week of No-
vember 1979.
hearing about Baker's and Kipp's answers to his ques-
tions concerning Gonzalez' union activities during their
meetings with Gonzalez. It follows that Ugarte's state-
ment, that the answers attributed to Baker and Kipp in
the document that he wrote are not the answers which
they gave, is itself false testimony.2
5. The employees' decision not to strike
Gonzalez testified that the Union held meetings with
the employees after the election, and after the Employer
had refused to bargain with the Union. Union organizer
Klinakis told the employees that the Employer was being
unfair, and urged them to strike. Gonzalez favored a
strike, and attempted to persuade fellow workers to do
so. However, Victor Ugarte circulated a notice to the
Company, stating that the employees who signed it did
not wish to strike. There was no strike. Ugarte testified
that he "passed the paper" around to the employees, and
that "each one of them in their totality [sic] signed that
they did not want to go on strike." 2 '
6. The prehearing meetings of the witnesses-the
meetings with Kipp
a. Summary of the evidence
Gonzalez, Jorge, Rodriguez, and Ugarte had several
meetings about a weeek before the fist day of hearing in
this proceeding, July 14, 1982. According to Gonzalez,
two meetings took place on July 8, the first one during
the middle of the day in Burdine's, a department store in
Hialeah. Ugarte, who had just returned from Chile, said
20 The Respondent argues in its brief that the fact that the charge in-
volving Gonzalez was withdrawn shows that it was without merit, and
that the document Ugarte wrote is incorrect. However, the charge may
have been withdrawn because, in response to the Respondent's objection,
I refused to allow the Union to interrogate witnesses on matters which
arguably may have pertained to a charge still under investigation by the
Regional Director. The investigation may well have been incomplete at
the time the hearing resumed on September 7, 1982. In any event, the
fact that a charge is withdrawn does not establish that it is without merit.
a E. Exh. 8 purports to be a copy of at least a part of the notice, and
is dated May 12, 1980. It consists of two pages, the first page containing
the notice in English and eight signatures. The second page contains the
notice in Spanish, 40 complete signatures, and 2 partial signatures. There
are two columns of signatures, that last in each column being no. 21 and
42, respectively. These are the incomplete signatures, the copying mach-
ing having failed to reproduce the lower portion of each signature. The
exhibit was received conditionally, upon the representation of the Re-
spondent that the original would be produced. The original is not in the
record, although the Respondent contends that the original is in other
Board records.
The signatures include those of Ugarte, Rodriguez, and Gonzalez. The
latter was asked by the Respondent why he signed the petition, if he in
fact favored a strike. Gonzalez replied that he had no choice, since he
would be the only one favoring a strike. Employer's counsel on cross-
examination then pointed out employees who had not signed. Asked
whether he would have been the only one favoring a strike under these
circumstances, Gonzalez answered, "Probably not. That, I do not know."
The Employer argues that this shows that Gonzalez was an un-
trustworthy witness. I do not agree, since Gonzalez was obviously specu-
lating when he gave his reason for signing, and may well have believed
that Ugarte would be successful in getting all employees to sign. In fact,
Ugarte's testimony suggests that he did so, while the document itself is
inconclusive on this issue for the reasons given. In any event, Gonzalez
did not misrepresent a material fact. Rodriguez testified that he signed
the notice because Ugarte told him that it would be better to "wait for
the court" than to go on strike.
564
IDAB, INC.
that he had received a subpoena to testify in the instant
hearing, that he really did not want to attend, but that
his attorney had advised him he was obligated to do so.
Gonzalez testified that he had just returned from vaca-
tion, and knew nothing about the hearing. Ugarte said
that his attorney had told him that the Union had noth-
ing to gain and the Company had everything to win. Ac-
cording to Gonzalez, he asked Ugarte how the Union
could lose if the witnesses told the truth, "because the
Company had a bunch of lies."
Ugarte wanted to see whether the four witnesses could
agree on what they were going to say, "so everything
looks all right." According to Gonzalez' testimony, he
replied that the only thing they were going to say was
the truth. Ugarte asked Rodriguez to admit that he had a
gun, and Ugarte was then going to say that he saw a
gun, but did not know whether it was plastic or real.
The first meeting broke up at this point, since Gonzalez,
Rodriguez, and Jorge were on their lunchbreak, which
was about to run out. As the employees dispersed,
Ugarte told them that he had been "deported" to Chile
Because various individuals in the Union made charges
against him with the immigration authorities, according
to Gonzalez.
Gonzalez testified that the next meeting took place on
the evening of the same day, at Rodriguez' residence.
Ugarte again said that they should "get together . . . so
everything looks all right." He said that he was working
for the Company in the matter, and that the best thing
the employees could do was to "collaborate" with the
Company, which might guarantee their jobs in return.
Ugarte said that he could arrange a meeting with Com-
pany President Kipp, and Gonzalez replied that he had
nothing to discuss with Kipp. Gonzalez gave the same
answer when Ugarte suggested a meeting with the Com-
pany's attorney. There was some discussion of possible
discrimination against other employees, and Ugarte again
suggested a meeting with Kipp. Gonzalez said that he
would think about it.
While at work the next day, according to Gonzalez,
he received a telephone call from Ugarte. The latter said
that he had called Kipp, who wanted to meet with the
employees. Gonzalez replied that he had to consult with
his two fellow workers, and later called back to tell
Ugarte that Rodriguez was busy "at twelve o'clock,"
and could not make the meeting. A few minutes later,
Kipp approached Gonzalez at his work station, spoke
about a meeting, and told Gonzalez not to worry about
"punching out." "I will fix your timecards," Kipp said.
He suggested a Holiday Inn as the meeting place, but
Gonzalez protested that this was inappropriate because
he was in dirty work clothes. Kipp then suggested a
company apartment in Miami Lakes. Jorge and Rodri-
guez agreed, and the employees drove to the address
which Kipp had given to Gonzalez.
According to Gonzalez, during the meeting in the
Miami Lakes apartment, Kipp said that a hearing was
scheduled on July 14 between the Union and the Compa-
ny, and that Ugarte was "working with" the Company
in the matter Gonzalez replied, "You don't have to say
that," and added that he would not be testifying against
any of his coworkers since he would only be telling the
truth. There was some talk of possible discrimination
against other employees, and then Gonzalez asked
Ugarte the nature of his role in the conversation, since
he was no longer a company employee. According to
Gonzalez, Ugarte replied that he wanted a clean record,
wanted to stay in the country and bring his family to the
country, and that the Company had promised to help
him with "jobs and other matters." Gonzalez testified
that he also asked Kipp about Ugarte and received a
similar answer about assistance to the latter.
Ugarte suggested that the employees ask Kipp "for
some type of paper guaranteeing [their] jobs" if they
helped the Company, according to Gonzalez' testimony.
Kipp said that he could give the employees something
like that, but that he had to talk to his attorney "because
he didn't want to leave himself open."
No agreement was reached, but the employees were
supposed to meet again at one of their houses. Gonzalez
did not attend any additional meetings because he said he
was "fed up" Gonzalez was fired a short time later, and
the charge in Case 12-CA-10269 was filed thereafter, on
July 13, the day before the first day of hearing in this
matter.
Gonzalez testified on September 7, subsequent to the
withdrawal of the charge on August 31. Luis Jorge testi-
fied on July 16, prior to withdrawal of the charge. Union
counsel asked him whether he had had any contacts with
Ugarte within the preceding 2 weeks, and Jorge replied
that they met at a shopping center. As noted above, the
Respondent objected to any further questions concerning
the recently filed charge, and I sustained this objection.
Francisco Rodriguez, like Gonzalez, testified after the
withdrawal of the charge. He was not asked any ques-
tions on direct examination about the various meetings
just prior to the instant hearing. However, on cross-ex-
amination by the Respondent, he was asked about the
meeting he had "with Mr. Kipp at the Miami Lakes
apartment, just prior to this hearing." Rodriguez ac-
knowledged that he protested discrimination against
other employees including his daughter at this meeting,
and there is a confusing colloguy between Rodriguez
and the Respondent's counsel as to whether he was
"upset," "unhappy," or "mad" at the Company about
these events. Rodriguez attempted to testify further
about the Miami Lakes meeting, but was prevented from
doing so by the Respondent's counsel.
On further cross-examination, Rodriguez was asked
whether he and Jorge had a meeting with Kipp and
other officials at the Company subsequent to the Miami
Lakes apartment meeting. Rodriguez then described an-
other meeting, with Kipp, Hall, and Vigil. Rodriguez
protested the recent discharge of Gonzalez. He testified
that Kipp replied that "he wasn't doing that for the
Union," but that Gonzalez "had made trouble for the
Company." Rodriguez acknowledged that Kipp did not
tell him what to say at the instant hearing.
Victor Ugarte on cross-examination testified that he
called Rodriguez after his return from Chile, and said
that he wanted a meeting with him, Gonzalez, and Jorge.
Ugarte said that the first meeting took place at Rodri-
guez' house. He ackonwledged that he first met with the
565
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees at Burdine's, but said that "it was not a meet-
ing." In explanation, Ugarte testified that he called Ro-
driguez at work to ask for the meeting, "and they
wanted to know what I wanted a meeting with them for
[sic]. Then we got together at Burdine's from where I
was calling them, and I told them I wanted to meet all
of them in one of their homes and there I would explain
to them what I wanted to speak to them about, and they
agreed."
Ugarte denied telling the employees at Burdine's, or
later, that he wanted to talk about their testimony so that
they would all say the same thing. In fact, he denied
saying anything to them at Burdine's about the subject
which he wished to discuss. He said that he wanted to
meet with them in one of their homes, and it was there
that he would explain the subject of the discussion.
The meeting took place that evening at Rodriguez'
house. Ugarte asserted that he told the three employees
that he had a subpoena to appear and testify, that he was
going to tell the truth, and that this might hurt Rodri-
guez and Jorge. He contended that he told the others
that they knew they tried to get money from Kipp in
March 1980 to abandon the Union.
Ugarte first denied telling the others that he could ar-
range a meeting with Kipp. He acknowledged that job
guarantees from Kipp were discussed, but denied that he
initiated the subject. Rather, he contended it was Rodri-
guez who asked for them and for a meeting with Kipp.
Contrary to his original testimony, Ugarte stated that he
replied to Rodriguez that he believed a meeting with
Kipp was possible. Ugarte testified that he called Kipp
and said that the four of them wanted to meet with the
company president, and this was the way the Miami
Lakes meeting was arranged. Ugarte denied having a
conversation with Kipp prior to the meeting in Rodri-
guez' house.
According to Ugarte, Rodriguez and Jorge were "re-
pentant" at the Miami Lakes meeting because they had
"asked for money to leave the Union." They realized
that the Company did not want to have anything to do
with the Union, and were willing to tell the truth in
return for a written certificate that protected their jobs.
Kipp replied that he could not promise anything, since
the Company could burn down or go broke, and he only
asked them to tell the truth.
Ugarte denied that Kipp said he would try to arrange
something about a written job guarantee with his lawyer,
but would have to make sure that he did not leave him-
self "open." The witness admitted that the subject of
bringing his family to the United States came up, but
contended that it was Gonzalez who raised this subject.
Ugarte affirmed that Kipp told him that he would help
Ugarte if he could, but never said he was going to get
him a job.
b. Factual analysis
Ugarte's testimony is a mixture of improbabilities, con-
tradictions, and historical fiction. Starting with the meet-
ing at Burdine's, which Ugarte claims was not a meeting,
it is improbable that Gonzalez, Jorge, and Rodriguez
would have traveled from the Respondent's plant to a
shopping mall during their lunch hour to meet with
Ugarte, only to receive from him a statement that he
wanted to meet with them later about a subject which he
would not reveal at that time. This message could have
been conveyed more easily on the phone from Ugarte to
one of the other employees while at work. Ugarte in fact
admitted that Rodriguez, during the telephone conversa-
tion, asked him the subject of the meeting.
I credit Gonzalez' account of the meeting at Burdine's,
and find that on July 8, 1982, Ugarte told his former
fellow employees that he wanted to see whether they
could agree on what to say at the forthcoming hearing in
this matter, so that "everything looks all right." He also
asked Rodriguez to admit that the latter had a gun, while
Ugarte said that he was going to testify that he did not
know whether it was plastic.
Ugarte's testimony about the meeting that night at Ro-
driguez' house is equally contradictory. He first denied
saying that he could arrange a meeting with Kipp, and
then admittedly arranged such a meeting the following
day. His testimony that it was Rodriguez who asked for
this meeting is unbelievable. Although Rodriguez did re-
quest the second meeting with Kipp and other officials,
this was to protest the firing of Gonzalez. The discharge
had not taken place at the time the employees were
meeting on the evening of July 8, and it was Ugarte who
initiated this meeting. In accordance with Gonzalez' testi-
mony, I find that Ugarte again said that they should "get
together so everything looks all right," and that they
should "collaborate" with the Company, which might
guarantee their jobs in return.
Ugarte's account of the reason he allegedly gave the
employees on the evening of July 8, 1982, for "collabo-
rating" with Kipp, is a work of creative imagination. He
asserted that the employees tried to get money from
Kipp in 1980 (giving both February and March as the
date of the meeting), in return for abandonment of the
Union, but that Kipp "failed to make a deal." This was
apparently what Ugarte meant by the "truth" which
would "hurt" the other employees. However, any such
prior attempt to obtain money on the part of Gonzalez,
Rodriguez, and Jorge is highly improbable. They were
then in the full flush of a recent election victory, and
were beginning to talk about a strike because of the Re-
spondent's refusal to bargain with the Union. Gonzalez
had just won a personal victory against the Company in
January. Threatened with suspension because of "slow
work," he had compelled the Company to abandon these
plans, in part because of damaging admissions by Baker
and Kipp that the threatened discipline was related to his
union activities. Ugarte, in fact, had been instrumental in
getting these admissions-in January 1980.
However, a short time later Ugarte changed sides, and
was circulating an antistrike notice for signature by em-
ployees. The record does not disclose all the reasons for
Ugarte's change in sympathies, although they apparently
involved trouble with immigration authorities and a
return to Chile. In any event, Ugarte was soon in debt to
the Respondent because of his personal problems. It is
not unlikely, therefore, that in the February or March
meeting with Kipp, Ugarte's possible return to Chile was
discussed, as Rodriguez testified. However, there is no
566
IDAB, INC.
evidence to indicate similar reasons for Gonzalez, Rodri-
guez, or Jorge changing sides.
There is a missing witness to this 1980 meeting-Com-
pany President Lou Kipp, who did not testify. The Re-
spondent's failure to call him as a witness casts doubt on
the veracity of Ugarte's version of the meeting. 22 1
credit the testimonies of Gonzalez and Rodriguez con-
cerning this meeting with Kipp. Therefore, Ugarte's
reason for "collaborating" with Kipp, allegedly given to
the other employees at Rodriguez' home on the evening
of July 8, 1982, is without any factual foundation. I con-
clude that Ugarte never gave any such reason to them.
Ugarte's description of the Miami Lakes meeting is, if
possible, even more incredible. Rodriguez and Jorge
were "repentant" at having tried to get money from
Kipp in return for abandoning the Union-which in fact
they never did-but were now ready to do penance by
accepting job guarantees in return for abandoning the
Union. According to Ugarte, it was these employees
rather than Ugarte who asked Kipp for the guarantees-
despite the fact that it was Ugarte, admittedly working
on behalf of the Company, who initiated the meetings.
Ugarte's testimony that it was Gonzalez who raised the
subject of bringing Ugarte's family to the United
States-rather than Ugarte himself-is improbable. Once
again, the Respondent failed to call Lou Kipp as a wit-
ness, an omission which casts doubt on Ugarte's version
of the Miami Lakes meeting, as well as the meeting in
1980.23
I credit Gonzalez' account of the Miami Lakes meet-
ing with Company president Kipp about July 9, 1982.
Kipp said that a hearing had been scheduled for July 14.
Gonzalez asked Ugarte and Kipp what Ugarte's role was
in the matter, and Kipp replied that Ugarte was working
with the Company. Ugarte and Kipp said that the Com-
pany had promised to help Ugarte with jobs and other
matters, and Ugarte said that he wanted to stay in the
country and bring his family to the United States from
Chile. Ugarte suggested a written guarantee of jobs for
the employees, obviously in return for their giving testi-
mony favorable to the Company in the forthcoming
hearing. Kipp replied that he could give the employees
something like that, but would have to talk to his attor-
ney to make certain that he did not leave himself
"open." No agreement was reached at the Miami Lakes
meeting.
Gonzalez did not attend any further meetings, and was
soon discharged. Rodriguez and Jorge later had a meet-
ing with Kipp and other company officers, at which time
Rodriguez protested the firing of Gonzalez. Kipp ap-
peared to deny that Gonzalez' discharge was related to
his union activities, but said that he had "made trouble"
for the Company. Kipp did not at this meeting attempt
to tell Rodriguez how to testify in the forthcoming hear-
ing.
22 See authorities cited in Pur 0 Sil, Inc., 211 NLRB 333, 337 fns. 3
and 4 (1974).
23 Ibid.
7. Conclusions concerning the collateral issues
The foregoing determinations warrant an inference
that Ugarte was an unreliable witness. Further, Kipp's
appearance at the Miami Lakes meeting, his acknowledg-
ment that he would help Ugarte with jobs and other
matters, and his suggestion that he might give job guar-
antees to the employees in return for favorable testimo-
ny, provided that he did not leave himself "open," are
indications of a proclivity on the part of the Respondent
to attempt to influence the testimony of witnesses in this
proceeding. This proclivity must be considered in
making credibility resolutions on the substantive issues.
B. The Substantive Issues
1. The union campaign
I credit the testimony of Klinakis, corroborated by
Mures, that he instructed union sympathizers not to
threaten other employees. Although Ugarte testified that
the four principal sympathizers decided on their own to
"pressure" certain employees when it appeared that the
result of the election was going to be close, I reject that
testimony, and accept Gonzalez' averments that the four
employees were confident of victory. I also accept his
testimony, and that of Jorge and Rodriguez, that they
agreed to persuade other employees to vote for the
Union with reasoned arguments, rather than with threats.
2. Juan Contreras
Contreras and Ugarte contradict each other as to the
time that Rodriguez allegedly showed Contreras a gun,
Contreras placing it between 9 and 11 a.m., while Ugarte
claimed that it took place during the lunch hour about
12:30 or 12:40 p.m. Contreras said that he was looking
for Kipp during the lunch hour.
The Respondent in its brief argues that this inconsist-
ency is "clearly explainable" by the lapse of 3 years be-
tween the time of the incident and the time of the testi-
mony. This argument begs the question, which is wheth-
er the incident ever happened in the first place. As
shown above, Ugarte was an unreliable witness, and his
corroboration adds little or no probative weight to Con-
treras' testimony for this reason alone, in addition to its
inconsistency. Moreover, Hall's affidavit places the al-
leged incident at still another time-a day or two before
the day Contreras allegedly reported it.
The alleged reporting is equally vague. Vigil could not
remember whether it took place in the morning or the
afternoon, while, as noted, Hall's pretrial statement sug-
gests that the threat took place I or 2 days before Con-
treras reported it.
The place as well as the time of the alleged threat is
uncertain, as Vigil's testimony and pretrial statement
contradict each other on this point. The Employer tries
to explain this inconsistency by pointing to Vigil's and
Hall's testimonies that the terms "production building"
or "facilities," and "machine shop," are used inter-
changeably. This confuses the issue of whether the al-
leged incident took place in the assembly department or
the welding department. Vigil in his initial testimony and
Rodriguez testified that these are separate departments.
567
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Contreras was an assembler, and Rodriguez was a
welder. Vigil testified that Contreras reported that Rodri-
guez came over to the assembly department, while his affi-
davit affirms that it was Contreras who was called over to
the "machine shop" by Rodriguez. To add to the confu-
sion, Contreras said that the alleged incident took place
in the assembly department, and that Rodriguez was
working at the time. How could this be, since Rodriguez
worked in the welding department? I conclude that the
contradiction in the Employer's evidence as to the place
of the alleged gun incident remains unresolved.
The Employer's evidence is also contradictory on the
effect of the alleged threat upon Contreras. Asked
whether he thought his life had been threatened, Con-
treras merely replied that he did not like the way Rodri-
guez had "proceeded," whereas Hall and Vigil said that
he was "afraid" or "visibly upset." Hall's testimony and
pretrial statement also contradict each other on whether
Contreras voiced concern merely for himself, or also for
his family.
The Employer argues that Contreras was in fear be-
cause he refused to cooperate with the Regional Direc-
tor's investigation in 1979, and was a reluctant witness at
the hearing. "The only answer can be that it was fear,
pure and simple," the Employer argues, implying that it
was fear of Rodriguez or other prounion employees.
This reasoning assumes that what Contreras said about
Rodriguez was truthful, and again begs the question. If
what Contreras said under oath was untruthful, then he
may well have been fearful of committing perjury, and
therefore reluctant to testify for this reason. Given the
Employer's established propensity to attempt to influence
testimony in this proceeding, it is at least equally plausi-
ble that Contreras was a hesitant witness because the
Employer was attempting to influence him to testify to
something that was not so.
Other implausibilities in the Employer's evidence are
Contreras' delay in allegedly reporting the event, and the
Company's failure to call the police. Supposedly threat-
ened with a gun, Contreras was willing to report the
matter only to a "person of the highest rank," instead of
to the first supervisor he could find. Hall's explanation
that the police were not called because of the imminence
of the election and the advice of counsel is equally un-
likely. If Contreras had indeed made such a report, the
Employer's inaction would have permitted an asserted
threat of violence to go unchallenged prior to an elec-
tion. Carmanate's reason for the fact that Contreras did
not call him until the evening-Contreras had tried to
reach him in the afternoon-is strangely silent on the
Employer's contention that Contreras had reported it in
the afternoon, to other supervisors. Carmanate, Con-
treras' supervisor, was not informed. Although Kipp al-
legedly conducted an investigation.
The fact that Ugarte asked Rodriguez in July 1982 to
admit that he had a gun just before the election in Octo-
ber 1979, while Ugarte was going to testify that he did
not know whether it was plastic, strongly suggests that
the evidence on this issue has been staged by the Em-
ployer. Even more convincing is Kipp's failure to accuse
Rodriguez of threatening Contreras with a gun when the
Company disciplined Rodriguez the day after the elec-
tion, November 2, 1979.
On this issue, the Employer attacks Rodriguez, credi-
bility based on an alleged contradiction in his testimo-
ny-he supposedly admitted that Kipp told him the
reason he was being reprimanded, but denied that Kipp
said anything about a gun. The Employer's first state-
ment is a distortion of Rodriguez' testimony, which was
given through an interpreter. Rodriguez' actual testimo-
ny is that Kipp accused him of threatening people, but
gave no specifics, and that Rodriguez denied it. The
Company also accuses Rodriguez of implausibility when
he testified that he was not "mad" or "unhappy" about
the fact that the Employer fired his daughter. This is an-
other problem in linguistics. In the meetings with Kipp
in July 1982, Rodriguez protested the Company's failure
to follow seniority in discharging employees who were
prounion, including his daughter. Instead of saying that
he was "unhappy," he described the Company's conduct
as "not well done."
These quibbles are insignificant compared to the fact
that the Employer did not produce Kipp as a witness to
testify about the November 2, 1979, meeting with Rodri-
quez or any of the other supervisors who were present at
that meeting. I infer from this omission that their testi-
mony would have been adverse to the Employer. 24 Fi-
nally, the written reprimand itself does not accuse Rodri-
guez of threatening Contreras with a gun. These factors
establish beyond any reasonable doubt that Kipp did not
make this accusation on November 2, 1979, and I so find.
Further, the Employer made no specific allegation about
a gun incident in its objections filed 6 days later, on No-
vember 8, 1979.25
It is completely incredible that Kipp would have failed
to make this charge if Contreras in fact had reported the
alleged incident. Indeed, Personnel Director Hall said
that the offense was grounds for "immediate dismissal"-
yet Kipp did not mention it to Rodriguez, limited the
reprimand to the vague one of "personal threats," and
said nothing about a gun incident in his objections to the
election.
I find that Contreras did not, in fact, report that Ro-
driguez had threatened him with a gun, and that no such
incident ever took place. The allegation is an after-
thought, and all the evidence in support of it is con-
trived.
The Employer's other evidence concerning Contreras
is not even supported by Contreras. Whereas Ugarte as-
serted that Jorge also threatened Contreras, the latter
denied that anybody except Rodriguez did so. The Em-
ployer's final absurdity concerning Contreras is its insist-
ence that Jorge punched Contreras and gave him a black
eye, based on the dubious testimony and speculations of
Medina, whereas both Jorge and Contreras agree that it
was an accident. The Employer's brief finally concedes
this point, but then argues that there was a rumor that
Jorge had deliberately given Contreras a black eye, and
2" Supra, fn. 22.
25 Supra, fn. 3.
568
IDAB, INC.
that this rumor, with others, was sufficient to make a fair
election impossible.
Since Contreras and Jorge differ as to the time of the
accidental blackeye, I find that the Employer has not
sustained its burden of establishing that it took place
prior to the election.
3. Alleged threats to Arsenio Freyre
The Employer's evidence again is contradictory. Al-
though Ugarte testified about a "violent argument" with
Freyre, and a threat that the latter had "best not come to
work on the day of the election," he was contradicted
by Freyre himself, who denied any threats, and explicitly
described the reasoned nature of Ugarte's attempts to
persuade him to support the Union. Although Freyre as-
serted that one of his tires had been deflated, the admit-
ted fact that it took place after the election means that it
could haye had no impact upon the voting.
Freyre then strayed into ambiguity, with statements
that neither Rodriguez, Jorge, nor Gonzalez threatened
him "seriously," that he was "close" with Rodriguez,
joked a lot, and that a "little bit stays." This is insuffi-
cient evidence to warrant a finding of a threat. Freyre's
testimony became increasingly confusing the longer he
testified, and I do not credit his assertions about rumors
he would be attacked, or that he was fearful he would be
"beaten up" after the election if he made any comments.
Any such fears after the election, of course, could not
have affected his prior vote.
The Employer argues in its brief that Freyre did
affirm at the hearing that he made the statement to Vigil
which is attributed to him in the latter's affidavit. This
argument is a distortion of the record, which shows that
Freyre could not remember what he said to Vigil, if any-
thing. Although Vigil was a witness, he was not asked
any questions about Freyre. I conclude that Freyre in
fact was not threatened.
4. Alleged threats to Guillermo Alemany
All of the evidence on this issue is hearsay. Although
Vigil's affidavit relates threats to Alemany, and although
Vigil appeared and testified, the Employer chose not to
ask Vigil any questions about the subject. Alemany him-
self did not testify, and his affidavit contains a denial of
the allegation. I conclude that the Employer has not sus-
tained its burden on this issue.
5. Alleged threats to Santiago Leon's car
I cannot credit Leon's testimony that one of his tires
was slashed a few days before the election because in his
pretrial statement he denies that anything ever happened
to his car. Moreover, I do not credit his assertions that
Jorge threatened damage to his car and that he took the
threat "seriously," because (1) Leon affirms in his pre-
trial statement that he though it was a "joke," and (2)
Jorge denies the allegation. The Employer argues that
Leon's pretrial statement is not contradictory because
immediately after saying that he did not take Jorge seri-
ously, Leon asserts he did not know whether he should
do so. This is flimsy evidence and establishes no more
than a possibility that Jorge may have made a joking ref-
erence to Leon's car.
6. Alleged property damage sustained by Wilk and
Cincentes
All that Wilk reported was a spike in the tire of his car
before the election, without any knowledge of the
source. I credit Jorge's denial that he did this. Further,
considering Wilk's physical attributes, I consider it un-
likely that the union sympathizers would have done any-
thing to his property even if they were of a mind to do
so. I place no credence in Ugarte's assertions that Jorge
admitted letting the air out of Cincentes' tires-denied by
Jorge.
7. Rumors of threats
The melange of evidence on rumors presents a prob-
lem in factual analysis.
The Respondent argues that Petitioner's witnesses
should not be credited because they were "pro-union,"
and thus not the "logical targets of the threats." This ar-
gument has no merit. Jorge and Gonzalez were not "the
logical targets of threats"-indeed, they were among
those who allegedly did the threatening-yet they ac-
knowledged hearing rumors. Wilk denied having been
threatened, and because of his size was not a "logical
target" of a threat, but asserted that he heard rumors. A
rumor has been defined as "a story or statement in gener-
al circulation without confirmation or certainty as to the
facts," or as "unconfirmed gossip." 26 As such, it is likely
to be heard by people who are not themselves the sub-
ject of the gossip.
I conclude that there were some rumors of threats, but
that they were not widespread, because so many of the
witnesses denied hearing them. The real factual issue is
the time that they first appeared. In this connection, I
consider Almeida's testimony to be significant-he heard
a rumor that Rodriguez had shown Contreras a gun, but
first heard it after the election. This timing is corroborat-
ed, somewhat inadvertently, by Personnel Director
Hall's testimony that her earliest personal knowledge of
threats dated back to 1981, i.e., after the election. The
most important of the alleged rumors was that Rodriguez
had threatened Contreras with a gun. This, in fact, did
not take place, and Kipp did not mention it on Novem-
ber 2, when he reprimanded Rodriguez. The Employer's
objections to the election, filed on November 8, do not
allege it. It is therefore unlikely that any such rumor cir-
culated prior to November 1, the date of the election.
Also, as noted above, the Employer has failed to estab-
lish that Contreras' accidental black eye took place
before the election.
Although Freyre alleged a deflated tire, he admitted
that it took place after the election. Leon's pretrial state-
ment shows that there was no damage at all to his car.
The remainder of the evidence on the date the rumors
first appeared is a potpourri, except for Medina and
Wilk, who place the beginning of the rumors prior to the
26 American College Dictionary, p. 1062 (Random House, Inc., New
York, N.Y., 1969).
569
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election. I do not credit their statements because Medina
gave exaggerated testimony in general and admitted that
he favored the Company, because Wilk also admitted his
sympathies for the Employer, and because their testimo-
nies on this issue are in conflict with the preponderance
of the credible evidence.
I note that the Regional Director's investigation of the
Employer's objections to the election took place during
the period immediately following the election, that em-
ployees were being interviewed by a Board agent, and,
perhaps, by the Employer. I need not decide this latter
point, however. I find that various rumors of threats cir-
culated among employees for the first time after Novem-
ber 1, 1979, the date of the election.
8. The election
a. Luis Jorge and Ildefonso Gonzalez
Idalberto Mures had the demeanor of a truthful wit-
ness. Since her testimony about the election area was
contrary to that presented by the Employer's witnesses,
Medina in particular, and since she was an employee of
the Company, her statements are "apt to be particularly
reliable." Gold Standard Enterprises, 234 NLRB 618, 619
(1978), enf. denied on other grounds 607 F.2d 1208 (7th
Cir. 1979). I accept her uncontradicted testimony that
she and other employees were ordered to clean the elec-
tion area just before the election, and her denial, cor-
roborated by Jorge, that there were any boxes near the
election table. It follows that there were no boxes near
the table on which Jorge could have been seated, and I
reject Medina's assertions that Jorge sat down on any
such boxes. Instead, as Jorge testified, he sat down on
some boxes near the storeroom fence, adjacent to the line
of voters, and tied his shoes. This testimony is corrobo-
rated by Mures and Personnel Director Hall.
Mures and Gonzalez partially corroborate, and I
credit, Jorge's testimony that he followed the flow of
voters to the election table, did not speak to any of the
voters or to Gonzalez except to give his name, cast his
ballot in the normal manner, and left the building with-
out returning. I reject Medina's contrary testimony, since
he was an unreliable witness, whereas the rest of the tes-
timony is vague and inconclusive.
I also credit Jorge's testimony that he stood on the
ramp outside the door to the polling area for 5 to 10
minutes waiting for a friend. The voters passed by him
into the building, but he did not speak to them. Jorge at
this time was wearing the union emblem, described
above, on the front and back of his coveralls. Although
the emblem would probably have been recognized by a
voter already familiar with it, it would have been diffi-
cult for an individual moving in the line of voters to read
the "A of M" lettering which was printed horizontally
on the emblem, and impossible to read, without close ex-
amination, Petitioner's name which appeared in a circle.
As stipulated by the parties, Gonzalez wore a union
button saying "Vote Yes for I.A.M." The Board agent
did not ask him to remove it.
Further, I credit Gonzalez' testimony, corroborated by
Mures, that he complained to the Board agent about the
presence of representatives of the Employer in the elec-
tion area, that the agent caused them to leave, and that
no similar complaint was made by the Employer's ob-
server concerning Petitioner's agents.
b. Anthony Klinakis
The first voting session was 1 hour in duration, from
2:45 to 3:45 p.m. the Respondent argues that Klinakis'
account of what he did during the first session is "incred-
ible." Thus, according to the Respondent's brief, it is "in-
herently implausible that he made up to a 40-mile round
trip in a total time of 50 minutes or less, merely to visit
his office for an unspecified reason." The Respondent's
arithmetic is faulty-since the one-way distance was 8 to
10 miles according to Klinakis, the round-trip distance
was 16 to 20 miles. It is not implausible that a trip of this
distance, most of it on an expressway in midafternoon in
a metropolitan area, could be made in the approximately
50 minutes which Klinakis gave as the elapsed time. A
sufficient reason for the trip may merely have been to be
out of the area when the employees were voting.
I, therefore, credit Klinakis' testimony that he returned
and parked in front of the building about 10 minutes
before the end of the first voting session, waited, and
then attended the sealing of the ballot box. After these
formalities, the Union agents left the building, started to
drive away, and then stopped to talk to employees just
leaving the day shift in the parking lot between the Re-
spondent's two buildings. This lasted until shortly after 4
p.m., and Klinakis then went to a corner grocery store.
As noted above, the second session was not scheduled to
start until an hour or more later, at 5:30 p.m. The union
agents again returned about 10 minutes before the voting
began, and then went back to the grocery store.
I do not credit Green's assertions that he saw Klinakis
in the parking lot at times when employees were voting.
Klinakis' testimony was much more detailed than
Green's, while the latter was unable to state the time of
day that he saw Klinakis. Moreover, the Employer made
no complaint about Klinakis to the Board agent during
the voting, and did not submit a statement from Green to
the Regional Director during the latter's investigation of
the objections. Finally, Klinakis impressed me as a more
truthful witness than Green.
9. Legal conclusions
As the court has recently stated, the issue in proceed-
ings of this nature is whether the events considered cu-
mulatively tended to interfere with the outcome of the
election. Actions attributable to the Union are more sig-
nificant, while employee actions not so attributable are
entitled to less weight and may not be used by them-
selves to set aside an election. However, they will war-
rant such action "if [they] disrupted the voting proce-
dure or destroyed the atmosphere necessary to the exer-
cise of a free choice in the representation election."
NLRB v. Claxton Mfg. Co., 613 F.2d 1364 (5th Cir.
1980), reversing 237 NLRB 1393 (1978). It is well estab-
lished that the Employer has the burden of going for-
ward with the evidence, and the ultimate burden of
proof. NLRB v. Emerson Electric Co., 649 F.2d 589 (8th
Cir. 1981), enfg. 247 NLRB 1365 (1980).
570
IDAB, INC.
The evidence in this case does not establish specific
acts which would warrant setting the election aside even
if they were attributable to the Union, nor does it estab-
lish, under the other test mentioned by the reviewing
court, a disruption of the voting procedure or a destruc-
tion of the atmosphere necessary to a free choice by the
voters. The most that may be made out by the evidence
of preelection events is that Jorge may have made joking
references about damage to Leon's car, that Gonzalez
may possibly have joked with Freyre in a manner which
the latter considered to be vaguely threatening, and that
Wilk may have found a spike in his tire without knowing
the source. I have not made specific findings that any of
these events happened because of the basic unreliability
of the witnesses. However, even if these acts took place,
it is well established that isolated, innocuous, and joking
remarks, not shown to have caused a change in an em-
ployee's vote,27 are insufficient to warrant setting aside
an election.2 s It is also established that property damage
not linked to the Union does not affect the results of the
election.2 9 As the Court of Appeals for the Eighth Cir-
cuit has stated:
A showing of misconduct prior to an election, with-
out more, is insufficient to deny enforcement of the
Board's order. Interference with the employees' ex-
ercise of a free choice must be present in the record
to such an extent that an inference can be drawn
that the conduct materially affected the election re-
sults.3°
No such inference can be drawn from the record in this
case.
Nor does the record warrant a finding of improper
electioneering by Jorge, Klinakis, or Gonzalez. Jorge did
not "loiter" in the election area, as charged in the Em-
ployer's objections. He stood in line to vote, sat down on
some nearby boxes to tie his shoes, moved with the line
of voters, voted, and left the election area without speak-
ing to anyone except to give his name to the election off-
ficials. As was his custom, he wore a union emblem, de-
scribed above. When outside on the ramp, he waited for
5 to 10 minutes for a friend, but there is no evidence that
he spoke to any of the voters moving past him in the
line. As Murtes credibly testified, the "inspector" had di-
rected voters not to speak to anybody.
The Respondent argues that these facts establish im-
proper electioneering under the standards set forth in the
reviewing court's decision in NLRB v. Readi-Mix, Inc.,
636 F.2d 111 (5th Cir. 1981), reversing 247 NLRB 890
(1980). The court described the facts in that case as fol-
lows:
The undisputed evidence revealed that before the
polls opened, two former Carroll employees wear-
" NLRB v. S. Prawer & Co., 584 F.2d 1099, (Ist Cir. 1978), enfg. 232
NLRB 495 (1977); Fidelity Telephone Ca v. NLRB, 574 F.2d 409 (8th Cir.
1978), enfg. 232 NLRB 839 (1977).
2a NLRB v. USM Corp., 517 F.2d 971 (6th Cir. 1975), enfg. 209 NLRB
956 (1974).
29 Worley Mills. Inc. v. NLRB, 685 F.2d 362 (O1th Cir. 1982), enfg. 252
NLRB 756 (1980); The Seville, 262 NLRB 1282 fn. 2 (1982).
so Worley Mills, Inc. v. NLRB, ibid., 685 F.2d 362 (10th Cir 1982).
ing "Vote Teamsters" signs on their hats and en-
larged reproductions of the ballot with an "X"
marked in the "Yes" box pinned on their shirts, po-
sitioned themselves in the parking lot where the line
of waiting voters formed. This line was approxi-
mately 25 feet from the polls. At one time there
were as many as 45 employees waiting to vote. As
the line of voters passed them by, both men urged
the employees to vote for the union and repeatedly
gestured to the "Yes" box on the ballot pinned to
their shirt. These activities continued throughout
the polling hours. (636 F.2d at 212.]
The court concluded that this constituted improper elec-
tioneering under the Board's rule in Michem, Inc.,al 170
NLRB 362 (1968). In that case the Board set aside an
election where a union official had stood for several min-
utes near a line of voters, and had engaged them in con-
versation. The Board noted the "potential for distraction,
last minute electioneering or pressure, and unfair advan-
tage from prolonged conversations between representa-
tives of any party . . . and voters waiting to cast bal-
lots. .. . The final minutes before an employee casts his
vote should be his own, as free from interference as pos-
sible."
The Board, therefore, announced a "blanket prohibi-
tion" against such conversations as a "preventive device
to enforce the ban against electioneering in polling
places." The Board continued:
We intend, of course, that our application of this
rule will be informed by a sense of realism. The rule
contemplates that conversations between a party
and voters while the latter are in a polling area
[awaiting] to vote will normally, upon the filing of
proper objections, be deemed prejudicial without in-
vestigation into the content of the remarks. But this
does not mean that any chance, isolated, innocuous
comment or inquiry by an employer or union offi-
cial to a voter will necessarily void the election. We
will be guided by the maxim that "the law does not
concern itself with trifles." [170 NLRB at 363.]
Jorge's conduct in this case is not similar to that of the
two former employees in Carroll. He did not speak to
the voters, much less urge them to vote for the Union.
There was no conversation with voters, and Michem is,
therefore, inapplicable, as the reviewing court held in an-
other case where there was a brief confrontation be-
tween a prounion employee and a company observer.
The court noted that "the comments were not 'pro-
longed,' or even a 'conversation."' NLRB v. Klingler
Electric Corp., 656 F.2d 76 (5th Cir. 1981), enfg. 245
NLRB 1247 (1979). Three other circuit courts of appeals
st The spelling appears as "Milchemr" in the court's decision. The
spelling given above is contained in the caption of the case as reported in
Vol. 170 of the Board's Decisions at 362. In subsequent decisions, the
Board has misspelled it as "Milchem." See, e.g., Star Expansion Industries,
170 NLRB 364 fn. 6 (1968), which issued on the same day as "Michem."
and is the next decision printed in Vol. 170. Other cases have repeated
the error.
571
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have made similar rulings in cases involving chance, iso-
lated, or innocuous comments. 3 2
Unlike the former employees in Carroll, Jorge did not
wear a reproduction of the ballot on his clothing, with
an "X" in the "Yes" box. He merely wore his customary
clothing, which had a union emblem on the front and
back. A contention that another election should have
been set aside because a union observer wore a union
logo was labeled "frivolous" by the Court of Appeals for
the Ninth Circuit. NLRB v. San Jose Care Center, 652
F.2d 195 (9th Cir. 1981), denying enf. on other grounds
248 NLRB 1201 (1980). A similar conclusion is warrant-
ed herein with respect to Jorge's emblem.
The reviewing court instructed the Board to consider
Jorge's electioneering conduct cumulatively together
with the evidence pertaining to threats and violence. I
have done so, and conclude that, so considered, the evi-
dence with respect to Jorge's conduct does not warrant
setting the election aside.
Gonzalez, the union observer, had a different kind of
union badge, saying "Vote Yes-for IAM." The review-
ing court, citing one of its own prior decisions, stated
that such conduct, "considered in isolation, will not ordi-
narily be sufficient to invalidate an election."3 3 Howev-
er, it advised the Board that Gonzalez' wearing of the
badge should be considered together with "Jorge's elec-
tioneering conduct at the hearing." As there was no such
conduct, I conclude that the presence of the badge on
Gonzalez' clothing is insufficient to warrant voiding the
election. The court also concluded that there was an
issue as to whether the Union condoned Jorge's "elec-
tioneering conduct." This issue also disappears upon the
development of the facts.3 4
s2 NLRB v. Silverman's Men's Wear. Inc., 656 F.2d 53 (3d Cir. 1981),
reversing on other grounds 250 NLRB 1388 (1980); NLRB v. ULISM Corp.,
supra fn. 28, NLRB v. Vista Hill Foundation, 639 F.2d 479, (9th Cir.
1980), enfg. 239 NLRB 667 (1978). See also NLRB v. Locust Industries,
542 F.2d 1169 (4th Cir. 1976), enfg. 221 NLRB 604 (1975).
s3 EDS-IDAB, INC. v. NLRB, supra fn. 6. The Board has reached a
similar result in other cases, Colfor, Inc., 243 NLRB 465 (1979), in one
instance with judicial approval. Nestle Co., 248 NLRB 732, 742 (1980),
enfd. 659 F.2d 552 (D.C. Cir. 1981).
3' I have not found it necessary to determine whether Gonzalez,
Jorge, Rodriguez, or Ugarte were agents of the Union because they did
not engage in conduct which would require voiding the election under
any standard. However, in the event that reviewing authority reaches a
contrary conclusion, it seems clear that these employees were not agents
of the Union, and that any conduct in which they may have engaged is
not attributable to the Union. The record clearly shows that none of the
alleged conduct-or the actual conduct, such as Gonzalez' wearing of the
badge-was ordered or authorized by Klinakis.
Although Klinakis agreed that he utilized these four employees as an
inplant organizing committee, there is no credible evidence that the other
employees considered them to be agents of the Union. When Santiago
Leon was asked whether he was "aware of an inplant organizing commit-
tee organizing for the Union," he did not understand the question, and
could only understand it when he was asked whether some employees
were trying to get others to vote for the Union. The four employees
were simply union sympathizers, and the Union was not responsible for
their actions. Tennessee Plastics. Inc., 215 NLRB 315 (1974), enfd. 525
F.2d 670 (6th Cir. 1975).
Even viewing the employees as an inplant organizing committee, it is
well established that employee members of such committees are not,
"simply by virtue of such membership, agents of their union for the pur-
pose of making threats or statements." Cambridge Wire Cloth Co., Inc.,
256 NLRB 1135, 1139 (1981), enfd. 679 F.2d 885 (4th Cir. 1982). Accord:
Beaird-Poulan Division, supra. See 247 NLRB at 1380 for the conclusion
adopted by the Board, and for the opinion of the Court of Appeals for
At the conclusion of the first voting session at 3:45
p.m., and the sealing of the ballot box, Klinakis and an-
other union agent entered their car in front of the Re-
spondent's building no. 1, where the voting had taken
place, drove partially around the block, and saw employ-
ees just off the day shift congregating in the parking lot
which separated the Respondent's two buildings. The
union agent stopped and talked to these employees for
about 20 minutes in the parking lot and then left shortly
after 4 p.m. Although there had been a line of voters on
the ramp leading to building no. 1 when the polls were
open, there is no evidence that this line extended any dis-
tance into the parking area. The employees with whom
Klinakis spoke were, as noted, just off the day shift. It is
clear that they were not waiting in line to vote-the
polls had just closed. From the fact that the employees
were leaving work, I infer that they had already voted
during the first voting session. I also conclude that the
parking lot itself was not part of the election area, since
there is no evidence that the line of voters had extended
down the ramp into the parking lot. I, therefore, find
that Klinakis' conversations took place with employees
who had already voted, were not in line to vote, and in a
place which was not the election area. The union agent
left at least an hour before the start of the next voting
session.
The rule in Michem was not formulated to prohibit
conduct of this nature, since, as the Board's decision in
that case clearly shows, it was intended to protect "the
final minutes before an employee casts his vote" [supra,
170 NLRB at 362, emphasis supplied]. The Court of Ap-
peals for the Second Circuit reached this conclusion in
similar circumstances. NLRB v. Newton-New Haven Co.,
506 F.2d 1035 (2d Cir. 1974), enfg. 207 NLRB 822
(1973). In the Beaird-Poulan Division case, where the
Board's Order was enforced by the Court of Appeals for
the Eighth Circuit, the Board agreed that "the Milchem
[sic] rule is irrelevant . .. because the Company failed to
present evidence that any union representative engaged
in a prolonged conversation with any employee waiting
to vote." Beaird-Poulan Division, supra, 247 NLRB at
1387. The Board reached the same conclusion in Nestle
Co., where its order was enforced by the Court of Ap-
peals for the District of Columbia Circuit (Nestle Co.,
supra, 248 NLRB 732 at 742 fn.3), and has consistently
interpreted Michem in the same manner in other cases.3 5
I, therefore, conclude that Klinakis' actions in the park-
ing lot do not justify setting aside the election.
In accordance with my findings above and on consid-
eration of the entire record, I make the following
CONCLUSION OF LAW
Neither the Petitioner nor any other person engaged in
any conduct at any time which would warrant setting
aside the election.
the Eighth Circuit. For a similar opinion from the Court of Appeals for
the Tenth Circuit, see Worley Mills Inc., supra, fn. 29.
SE Boston Insulated Wire Co., 259 NLRB 1118 (1982); Niagara Wires
Inc., 237 NLRB 1347 (1978); Pastoor Bros Co., 223 NLRB 451 (1976).
572
IDAB, INC.
On these findings of fact and conclusion of law and on
the entire record I make the following recommended3
ORDER
I hereby order that the Board reaffirm its previous
conclusion that the Union was properly certified, over-
ruling the objections to the conduct of the election filed
by Respondent-Employer, and that it also reaffirm its
prior conclusion that the Respondent, identified by its
3" If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
573
new name described above,37 violated the Act as previ-
ously determined, and reaffirm its prior Order.
In order to ensure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, it is
further ordered that the initial period of certification be
construed as beginning on the date that the Respondent
commences to bargain in good faith with the Union as
the recognized bargaining representative in the appropri-
ate unit. 38
3" See caption and fn. I supra.
3s See Mar-Jao Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140
NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817; Burnette Construction Co., 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (10th Cir. 1965).