Igloo Corp.

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 641 (N.L.R.B. 1981)

IGLOO CORPORATION
Igloo Corporation and Teamsters Freight, Tank Line
& Automobile Industry Employees Local Union
988, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Help-
ers of America. Case 23-CA-7482
January 14, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On April 8, 1980, Administrative Law Judge
Gerald A. Wacknov issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, the General Coun-
sel filed limited exceptions and a brief in support
thereof and a brief in support of the Administrative
Law Judge's Decision, and Respondent filed an an-
swering brief in opposition to the exceptions filed
by the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Igloo Corporation, Houston, Texas, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
2 The Administrative Law Judge recommended that Respondent be or-
dered to cease and desist from violating the Act "in any other manner."
However, the Board held in Hickmort Foods. Inc., 242 NLRB 1357
(1979), that this broad cease-and-desist language is warranted only in
cases where "a respondent is shown to have a proclivity to violate the
Act, or has engaged in such egregious or widespread misconduct as to
demonstrate a general disregard for the employees' fundamental statutory
rights" Considering Respondent's unfair labor practices in light iof hi,
standard, we conclude that a broad order is not appropriate in this case
Accordingly, we shall order Respondent to cease and desist from violat-
ing the Act in "any like or related manner"
254 NLRB No. 78
1. Insert "In any like or related manner" for "In
any other manner" in paragraph (c).
2. Substitute the following for paragraph 2(a)
and reletter present paragraph (b) as (c):
"(a) Offer Cynthia Kuebler and Jesusa Aguilar
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or any other rights or privileges previous-
ly enjoyed, and make them whole, with interest,
for any loss of earnings they may have suffered
due to the discrimination practiced against them by
paying each of them a sum equal to what each
would have earned, less any net interim earnings,
plus interest, in the manner set forth in the section
of this Decision entitled 'The Remedy.'
"(b) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order."
3. Insert the following as paragraph 2(d):
"(d) Notify the Regional Director for Region 23,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith."
IT IS FURTHER ORDERED that the complaint alle-
gations not specifically found herein be, and they
hereby are, dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represen-
tatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
641
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT solicit the presentation of
grievances from employees in order to dis-
courage them from designating Teamsters
Freight, Tank Line & Automobile Industry
Employees Local Union 988, affiliated with
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of
America, or any other labor organization, as
your bargaining representative.
WE WILL NOT discharge employees because
of their union activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL offer Cynthia Kuebler and Jesusa
Aguilar immediate and full reinstatement to
their former jobs or, if those jobs no longer
exist, to substantially equivalent positions,
without prejudice to their seniority or any
other rights or privileges previously enjoyed,
and WE WILL make them whole, with interest,
for any loss of pay they may have suffered as
a result of the discrimination against them.
IGLOO CORPORATION
DECISION
STATEMENr OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge:
Pursuant to notice a hearing with respect to this matter
was held before me in Houston, Texas, on October 30
and 31 and November 5, 1979.' The charge was filed on
April 10 by Teamsters Freight, Tank Line & Automobile
Industry Employees Local Union 988, affiliated with In-
ternational Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America (herein called the
Union). Thereafter, on July 19, a complaint was issued
alleging violations by Igloo Corporation (hereinafter
called Respondent) of Section 8(a)(3) and (1) of the Na-
tional Labor Relations Act, as amended (herein called
the Act). The complaint was amended at the hearing to
include additional 8(a)(1) allegations. Respondent denies
the commission of any unfair labor practices.
The parties were afforded a full opportunity to be
heard, to call, to examine and cross-examine witnesses,
and to introduce relevant evidence. Since the close of
the hearing, briefs have been received from the General
Counsel and counsel for Respondent.
Upon the entire record and based upon my observa-
tion of the witnesses and consideration of the briefs sub-
mitted, I make the following:
I All dates or ime periods herein are within 1979, unless stated to be
otherwise.
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation with its princi-
pal office and place of business located in Houston,
Texas, where it is engaged in the manufacture and sale of
ice chests and coolers. In the course and conduct of its
business operations, Respondent has an annual gross
volume of business in excess of $500,000 and annually
purchases goods and materials valued in excess of
$50,000 directly from suppliers located outside the State
of Texas. It is admitted, and I find, that Respondent is
now, and has been at all times material herein, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are wheth-
er Respondent discharged two individuals in violation of
Section 8(a)(3) of the Act, and made various statements
to employees violative of Section 8(a)(1) of the Act.
B. The Facts
Guadalupe Vasquez, pursuant to an assignment by the
Union, took a leave of absence from his prior employer
in order to obtain employment by Respondent for the
purpose of organizing Respondent's employees. He was
hired by Respondent as a quality control inspector in
early February, and during his tenure with Respondent
was also paid by the Union.
On March 23, the Union sent a telegram to Respon-
dent advising it that Vasquez and another named em-
ployee were engaging in lawful union organizational ac-
tivity. On the same date the Union sent a letter to Re-
spondent stating, inter alia, that many of Respondent's
employees had indicated an interest in union representa-
tion, and that various employees and representatives of
the Union were then engaged in union solicitation. Re-
spondent replied by letter dated March 26 advising, inter
alia, that Vasquez had been discharged for threatening
his supervisor and providing false information on his em-
ployment application. 2
Cynthia Kuebler began working for Respondent on
September 21, 1977, and Jesusa Aguilar became em-
ployed on January 8, 1978. Thereafter, they became
quality control inspectors. According to the testimony of
Quality Control Supervisor Terry Gifford, both employ-
ees were selected from a group of employees to perform
a specific quality control job, as they were deemed to be
particularly adept at the work. The ability of Kuebler
and Aguilar to speak both Spanish and English was a
distinct advantage, if not a necessity, as the nature of
2 It is not contended that the discharge of Vasquez, discussed below,
w'ls ,illltlV8 Ieof It h Act
642
IGLOO CORPORATION
their work frequently involved inspecting machines and
products, and it was necessary that these two inspectors
communicate with employees throughout the large plant.
Gifford testified that he was in the process of training
them to become lab assistants, and readily acknowledged
that he was well satisfied with their work performance.
Both Kuebler and Aguilar, after discussions with Vas-
quez, signed union cards and became active on behalf of
the Union. On March 22, during lunch, Kuebler asked
Gifford what he thought of the Union. Gifford replied
that he had been in favor of a union at another company,
but implied that his activity had caused his relationship
with other employees to suffer. He added, "If you think
of going into [the] union, just be careful of what you do
and don't let anybody find out, because it can be a pretty
sticky deal." Kuebler replied that she believed a union
would benefit the employees because of the way they
were treated by Respondent.
Joseph Decker was quality control manager at times
material herein, and was Gifford's immediate supervisor.
Decker testified that, on or about March 21, he was
walking through the plant and observed that Aguilar and
Vasquez were engaged in a conversation at a time when
Vasquez, who was also a quality control inspector, was
supposed to be performing a very important inspection
job. Decker not only believed that the two employees
had no work-related reason to be conversing, but that
Aguilar should not even have been in that particular area
of the plant. Thereupon, Decker reported what he had
observed to Supervisor Eloy Gonzales, the immediate su-
pervisor of Vasquez. He instructed Gonzales to speak to
Vasquez about the matter, and told Gonzales to have
Gifford speak to Aguilar about the matter, in accordance
with the practice that reprimands should come from the
employees' immediate supervisors. Thereafter, Gonzales
apparently reprimanded Vasquez. Similarly, Gifford rep-
rimanded Aguilar, instructing her not to engage inspec-
tors in conversation and thus prevent them from doing
their work. Aguilar, according to Gifford, replied that
she had merely stopped to say good morning to Vasquez
and expressed her displeasure with Gifford's admonition.
Decker testified that later that afternoon he received a
call from Vasquez, who proceeded to criticize Decker
for causing Gonzales to reprimand him, Vasquez, for
misconduct, and for Decker's failure to directly confront
Vasquez without an intermediary. Further, Vasquez said
he would "take care of" Decker if he continued to treat
Vasquez or any other inspector in this manner. Decker
explained that he was simply following procedure, and
Vasquez once again threatened to take care of him and
asked whether Decker knew what he meant. Decker said
he understood very well.
The next morning, March 22, Decker advised Person-
nel Manager Sylvia Harper-Ducharme, and Executive
Vice President Tom Nickels of the aforementioned inci-
dent, and recommended that Vasquez be discharged for
threatening him. On March 23, Decker and Harper-Du-
charme discharged Vasquez for threatening two supervi-
sors and falsifying his employment application.3
3 Harper-Ducharme testified that she had rceied a report hat an-
other supervisor had been threatened by Vasquez on the enitg of
March 22. while Vasquez was handbilling outside the plant Moreoer,
On the same date, March 23, at about 10 a.m., Kuebler
and Aguilar were called to a meeting in Decker's office.
Gifford, Decker, and Robert McDougall, quality control
supervisor, who shared this authority with Gifford but,
unlike Gifford, maintained an office in the main office
area rather than in the lab, were present on behalf of
management. Decker stated that the Union was for
truckdrivers, and therefore was not particularly suited to
represent the employees of Respondent. He went on to
state that cards written in Spanish and distributed by the
Union were false or misleading to those employees who
were unable to read the English translation, and men-
tioned that the leadership of the Union could not be
trusted. Decker repeated several times that he did not
want to know if Kuebler and Aguilar were for or against
the Union, stating that the decision was up to them, and
at one point stated that they should be careful in making
a decision.
Kuebler inquired why, in light of Decker's statement
that employees had the freedom to support the Union,
Vasquez had been terminated. ' Decker replied that Vas-
quez had lied on his employment application, and went
on to describe the aforementioned incident involving
Aguilar and Vasquez on March 21, stating that he had
been threatened by Vasquez as he was in the process of
telling Aguilar to leave the area. 5 Decker added that he
had a wife and new baby, and would not tolerate such
threats.
Later that afternoon Respondent held a group meeting
attended by about 200 employees. Kuebler and Aguilar
were working in the warehouse area and listened to the
speech of Jennings Futch, president of Respondent.
Futch spoke in English and the speech was translated
into Spanish. During the course of the speech Futch
stated, according to Kuebler and Aguilar, that the union
cards which the employees signed would not be confi-
dential because the Union or someone would advise Re-
spondent of the names of the card signers. On cross-ex-
amination portions of Futch's speech were read to the
employees, and both agreed that Futch said, "Despite
what the Teamster salesmen say, these cards will not be
kept confidential, because they will be given to the Na-
tional Labor Relations Board by the Union." At a later
point Futch said, apparently after cautioning employees
that their signing of a card may also constitute authoriza-
tion for a dues checkoff, "Please do not sign these cards.
They may not be secret and they may not be confiden-
tial. They are not innocent little pieces of paper because
they may cost all of us a great deal of time and money."
the employment application of Vasquez was found to containl upon Iii-
vCstlgalion. false informatiorn Vasquez testified that he made no thrlals
to an supervisors and denies making a phone call to Decker on March
21 Further. Vasquez testified that he was discharged at or abhlt 45
a.m on March 23. and that the only reason given for the discharge .as
that lie falsified his application. no mention behcig nmade of an\ thr;eatl
Vasquez admits falsifying his applicalion regarding prior empli iment lid
wages i order to gain emploN)mellt itth Respidetllt
I' he record does not reflect h KCaebler had knos ii about the dls-
charge f \V asqutc s which I find, occuArred ornk about 15 linule Prior lto
the metelnig Dccker acknowls edged that Ktiublcr m;ade hihs ilqtl ill the
' Agiar denied that Dec kcr told her In lea cl the rea. hut "asa , nli
qucstioned in dletail about Ihe March 21 ill cat
643
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kuebler and Aguilar also testified that Futch advised
the employees that if they ever had a problem they
could bring it to him or Tom Nickels or any other repre-
sentative of management. On cross-examination it was
brought out and agreed that Futch stated:
You do not need outside salesmen speaking or
trying to speak for you. We have always had an
open door policy here at our company, and if any
one of you wishes to discuss any problems you
have, you are completely free to talk to our people
in personnel, your supervisor, your department
manager, your superintendent, or you can go to
Vince Grebic, our Vice-President of Operations, or
you can even come to my office.
While Kuebler and Aguilar testified that they had never
heard of such a policy, Respondent's supervisors testified
that such a policy has always existed.
Another meeting was scheduled for another large
group of employees immediately thereafter, and as
Kuebler and Aguilar had work to perform in the area
they decided to remain. At this point Gifford ordered
them back to the lab. Kuebler asked why, and Gifford
replied, "Joe Decker's giving you girls funny looks."
Later that afternoon, immediately after work, Kuebler
went outside the gate to talk with Vasquez, who was
again handbilling. Supervisors Gifford and Gonzales
drove through the gate and said good night to her as she
was conversing with Vasquez. Kuebler and Aguiler con-
tinued to actively support the Union until their termina-
tion on March 30.
On the morning of March 30, Respondent received a
letter from the Union, by registered mail, in an envelope
bearing the Union's name:
RE: In Plant Organizing Committee
Dear Sir:
This letter is to advise you and your Company
that the named individuals, as employees of Igloo,
have voluntarily agreed to become part of the "In
Plant Organizing Committee." Each of these indi-
viduals will be exercising their rights under the Na-
tional Labor Relations Act.
Each of them will be actively soliciting Union
support from their fellow workers during non pro-
ductive periods, such as before work, after work,
during lunch and break periods.
Each of them, as well as other employees, will be
wearing various items, such as Union buttons, jack-
ets, T shirts, as a visual display of their intentions
and rights.
I would request that you make knowledgeable to
each of your supervisory employees the National
Labor Relations Act and its meanings and intents;
and, instruct them to not harass or attempt to pre-
vent any employee from lawfully exercising his
rights.
If your Company takes any actions against these
or other employees for exercising their rights under
the National Labor Relations Act, I can assure you
that appropriate actions will be taken to protect the
employees and their rights.
This letter then listed "The Present In-Plant Organizing
Committee" consisting of 17 names, including that of
Aguilar.
Personnel Manager Harper-Ducharme testified that as
a direct result of the threats made by Vasquez, coupled
with reports that employees were being intimidated by
union adherents, the following memo was posted on Re-
spondent's bulletin boards6 on the morning of March 30:
30 MARCH 1979
TO: ALI. EMPLOYEES
FROM: TOM NICKELS
SUBJECT: 'THREATS TO EMPLOYEES
IT HAS BEEN CALLI.ED TO OUR ATFENTION THAT
SOME OF OUR EMPLOYEES WHO ARE UNION SUP-
PORTERS ARE THREATENING OTHER EMPLOYEES IN
AN EFFORT TO FORCE THEM TO SIGN UNION CARDS.
THESE THREATS ARE BOTH ILLEGAL AND IMMORAL
AND IGLOO CORPORATION WILL NOT TOLERATE
SUCH CONDUCT.
ANY EMPLOYEE WHO THREATENS ANOTHER EM-
PLOYEE WIll.. BE TERMINATED).
On the morning of March 30, while Kuebler and
Aguilar were performing their duties in the lab, Aguilar
described the aforementioned memo to Kuebler, which
Aguilar had seen posted on the office bulletin board.
Shortly thereafter at or about the time the employees
customarily took their breaks, Kuebler mentioned that
she was going to make some photocopies of a particular
laboratory analysis form, a routine and regular practice,
and Aguilar said that she would accompany Kuebler to
the office to show her the memo. They proceeded to the
office area, stopped at the bulletin board, and read the
memo. Aguilar then detached the memo from the bulle-
tin board, and the two employees walked to the nearby
photocopy machine where Aguilar ran off two or three
copies of the memo, and Kuebler ran off the necessary
copies of the analysis form. The employees observed sev-
eral individuals in the area. On their way out Aguilar re-
posted the memo on the bulletin board, and gave a copy
to Kuebler.
That afternoon Quality Control Supervisor McDougall
summoned Aguilar to the office area and escorted her
into Harper-Ducharme's office. Decker was also present.
-I he bulletin board in the office area was uncovered, while the bulle-
tin boards located elsewhere were able to be locked he general purpose
office bulletin board contains information about available jobs, announce-
ments regarding promotions. other miscellaneous items, and notices re-
garding the sale of merchandise by employees, which notices would he
submitted by he employees to the personnel department for postilg The
onlN written rule regarding bulletin hoard use by employees is contained
in Responldcnt's cmphloyee manual and soletimes is posted on the bulletin
hoard itself. The rule entitled "Bulletin Hoards," which appears under a
section of the manual entitiled "()n the Job Ielnefits," is as fllows:
BIulletin oards are located in all of the Igloo buildings in Houston
for the genleral inforlmatiln o eiployees All utices will be psted
on tile boards simultaneously tverything to he posted must he ap-
prosed by the I'ersonnel Deparlment Anything which is posted
without approval will be promptly removed.
644
IGLOO CORPORATION
Aguilar testified that Harper-Ducharme asked if she had
taken down the aforementioned memo and had copied it.
Aguilar said she had. Harper-Ducharme asked what she
had done with the copy and Aguilar replied that she
threw it in the trash container in the restroom. Harper-
Ducharme then said that she was being terminated for
stealing company property, and handed her a final pay-
check.
Kuebler was summoned to the office shortly there-
after. The same individuals were present. Kuebler testi-
fied that Harper-Ducharme advised her that she was
being terminated, and Kuebler asked why. Harper-Du-
charme replied, "For stealing company property ....
The notice that was on the bulletin board." Kuebler said
she did not take anything, and didn't run off any copies.
Harper-Ducharme said, "It doesn't matter. You were
with Suzy [Aguilar]." Kuebler asked what difference
that made, and Harper-Ducharme "stammered and stut-
tered" and replied, "Well, I have my orders," and gave
her her paycheck. During the conversation Harper-Du-
charme asked if Kuebler had a copy of the memo, and
Kuebler replied that she had discarded it.
Upon exiting, Kuebler met Gifford who asked where
she had been as she had been assigned certain work to
complete. Kuebler explained that she and Aguilar had
been fired for stealing company property, namely, run-
ning off copies of the memo. Gifford expressed suprise
and said she must be joking. He added, "Now I told you
girls to be very careful with anything that has that five-
letter word . . . union." Shortly thereafter, Gifford re-
ceived a phone call, and thereupon asked Kuebler and
Aguilar for their identification badges, and escorted them
outside the plant gate.
Harper-Ducharme testified that Dee Roland, executive
secretary to Futch, observed the employees in the office
area and watched as one of the employees, then unidenti-
fied, removed the memo from the bulletin board, made
several copies of it on the photocopy, machine, and "sev-
eral seconds later" reposted the memo. Roland reported
this to Nickels, in the absence of Futch, who was on va-
cation, and expressed her "shock." Roland did not know
Kuebler or Aguilar, but described their appearance, and
Harper-Ducharme recommended to Nickels that the em-
ployees be located and discharged. Shortly thereafter
Kuebler and Aguilar were identified as a result of Ro-
land's description. 7
Harper-Ducharme then summoned Aguilar to the
office, and asked her for the copies she had made. Agui-
lar replied that she did not have them, and had thrown
them away. Harper-Ducharme then advised Aguilar that
she was being terminated for leaving her work station,
coming into the office without permission, removing the
memo from the bulletin board without permission, and
photocopying it without permission. Shortly thereafter,
Harper-Ducharme had a similar discharge interview with
Kuebler. 8
Roland's testimony corroborates that of Harper-Ducharme
8 The testimony of McDougall and Decker regarding these two con-
verslations is not entirely consistent with that of Htarper-Ducharme. and
both McDougall and Decker "sere unable to recollect with any specific-
ity swhal Kutehler said in her defense
Harper-Ducharme further testified that after discharg-
ing the employees she called Gifford and instructed him
to obtain their identification badges and escort them out
of the plant. She also instructed an assistant to search for
and retrieve the discarded copies. Two copies were
found in the women's restroom. They had been folded
several times. One copy had been torn up into 26 pieces
and was found in the wastebasket in the quality control
laboratory. 9
When asked what particular rule Kuebler and Aguilar
were violating, Harper-Ducharme acknowledged that
Respondent was not concerned with the cost of the pho-
tocopying paper, but rather that "What we are con-
cerned with is the fact that we need to monitor what is
going on and that those notices remain there for all the
employees to see, both plant and office employees."
Nickels testified that the nature of the particular memo
removed from the bulletin board was not material to Re-
spondent's decision to discharge the employees. Thus,
Nickels acknowledged that if an employee removed a
notice for the sale of an automobile from the bulletin
board, copied it for the purpose of contacting the party,
and immediately replaced it, this too would be cause for
automatic discharge. However, if the employee copied it
in longhand without removing it from the bulletin board,
such conduct would be perfectly permissible. Apparent-
ly, the act of removal is the offense.
Both Harper-Ducharme and Nickels professed that
they were unaware of the union activity of Kuebler and
Aguilar at the time of their termination. Moreover, Nick-
els testified that the letter from the Union containing
Aguilar's name as a member of the organizing committee
did not come to his attention until at or about 2:30 or 3
p.m. on March 30, subsequent to the time that Aguilar
had been terminated. 0 Gifford testified that he, too, was
unaware that Aguilar and Kuebler were actively sup-
porting the Union; that he did not observe Kuebler or
Aguilar talking to Vasquez at the gate before they were
terminated; and that he had nothing to do with the ter-
mination of the two employees and never spoke to
higher management about their union sympathies.
There is a conflict in testimony regarding the matter
of when plant employees are permitted to enter or pass
through the office area. Thus, various supervisors or
managers of Respondent testified that the office area is
essentially off limits to plant employees, while various
employees testified that they enter and pass through the
office area freely for various nonbusiness purposes, in-
cluding the purchase of company shirts, use of the pop
machine, or merely to exit the premises through the
office to the parking lot. Moreover, there is conflicting
testimony regarding the extent to which the work of
Kuebler and Aguilar requires that they enter the office
area. Thus, the two employees testified that photocopy-
ing work, obtaining office supplies, conferring with
McDougall, or performing other required duties necessi-
I hese copies and scraps of paper are included as ehibits herein
I' I do not credit Nickel's testimony in this regard It is highly unlike-
N that it letter of this nature sent h registered mail and hearing Ihe name
of the tInionll on the enelope would not hec hbeen hroughl to the mme-
di;e attc it'tlon of Nickels (or olhr nlr.llldia IIl pr-lliCl
645
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tate their presence in the office area three to five times
per day. In contrast, a composite of the testimony of Re-
spondent's representatives or managers discloses that
while the office area is certainly not off limits to the two
employees, the nature of their work would necessitate
visits to the office only several times per week, primarily
for the purpose of photocopying documents.
Employee use of the photocopying machine for non-
business purposes is likewise subject to conflicting testi-
mony. Harper-Ducharme testified that it was an "unwrit-
ten policy" that the photocopy machine was strictly for
company business, and that use of the machine for per-
sonal matters is forbidden. Nickels testified similarly.
However, there is abundant testimony by past and cur-
rent employees of Respondent, and by Supervisor J. Ra-
mirez who admits participating in certain betting pools,
that during times material herein supervisors and em-
ployees have conducted football and baseball pools,
during working hours, some requiring the sale of 100
chances at $10 each. While cash prizes would sometimes
be awarded, it appears that merchandise such as rifles,
pistols, automobiles, stereos, and television sets were cus-
tomarily awarded the winners. One current employee,
Juanita Vargas, estimated that she was aware of some 15
such pools in 1978, and an equal number in 1979. The
record amply demonstrates, and I find, that it was stan-
dard practice for the individuals conducting each pool to
give each participant a copy of the filled-in form, after
making the necessary copies on the office photocopying
machine. Harper-Ducharme testified that it came "as a
very big surprise" to her that this type of gambling,
which is contrary to a specific work rule' was being
conducted, and Nickels expressed "total shock" upon
being confronted with this evidence. Respondent made
no effort at the hearing to disprove the nature and extent
of the aforementioned pools, but Respondent's managers
generally denied any awareness of the pools or of the use
of the photocopying machine for such purposes. l 2
Aguilar testified that on or about February 27, during
a conversation with Jody Harris, an alleged supervisor,
Harris stated that the Union had a reputation for stealing
money from its treasury, and asked if she had signed a
union card. Aguilar replied that she had signed a card,
and Harris replied, "You know that you can be fired for
signing the union card." Harris added that the Union
was not going to keep these cards confidential, and that
Igloo was going to find out about it. Harris denies the
conversation.
The General Counsel maintains that Jody Harris is a
supervisor, and the following record evidence bears on
this issue. At times material herein Marty Burnell was an
assembly line supervisor over a production line of some
23 employees. In addition, a foreman was assigned to the
line, Alonzo Longoria. At the time of the aforemen-
" Respondent's employee manual, under the heading "Work Rule
Violations" specifies: "(ambling--Any form of gambling or games of
chance during normal work shift/day on company property."
12 I do not credit the testimony of Harper-Ducharme or Nickels in this
regard. Virtually hundreds of copies of pool forms were run off on the
photocopy machine in the office area, which is proximate to the office of
Harper-Ducharme and Nickels, over a substantial period of time. and
their professed ignorance of such matters is highly unlikely under the cir-
cumstances
tioned conversation Jody Harris was a foreman-trainee
on this particular production line, and, although a new
supervisor and foreman have been appointed, Harris'
status has not changed. Harris performs the same work
as other employees on the line and fills in for absent em-
ployees. In the absence of the supervisor, the foreman
performs supervisory duties rather than Harris. Indeed,
Harris is unable to communicate with the employees as
only two or three employees on the line speak English,
and Harris, unlike the current supervisor and foreman,
speaks no Spanish. The record shows that Harris does
not direct employees or evaluate their work. He has no
authority to discipline employees but may bring a possi-
ble rule infraction by an employee to the attention of a
supervisor or foreman.
During Respondent's cross-examination of Kuebler, it
was brought out that Supervisor Jessie Ramirez, the day
following an evening union meeting which had been an-
nounced by notice distributed at the plant gate, asked
Kuebler, "How was it last night?" Kuebler asked what
was he referring to, and Ramirez said, "The meeting of
the Union." Kuebler simply ignored the question and did
not reply.' 3
C. Analysis and Conclusions
1. The discharges of Kuebler and Aguilar
It is abundantly apparent that Kuebler and Aguilar
were discharged as a result of their union activity in gen-
eral and their related association with union organizer
Guadalupe Vasquez. Vasquez was discharged on the
very day that Respondent received notification of his
union involvement, in part for allegedly making a threat
to Quality Control Manager Decker following an inci-
dent in which Aguilar was directly involved. Thus,
Decker caused Aguilar and Vasquez to be reprimanded
by their respective immediate supervisors for allegedly
conversing when they should have been working, and,
moreover, Decker believed that Aguilar should not have
even been in the particular area. Decker thereafter alleg-
edly received a phone call from Vasquez who com-
plained about such treatment toward himself and "other
inspectors" and threatened Decker. 14 Decker reported
the incident to higher management.
Only about 15 minutes following Vasquez' discharge,
Aguilar and Kuebler were summoned to a meeting with
Decker and Quality Control Supervisors McDougall and
Gifford, during which meeting Kuebler took issue with
Decker's statement that the employees were free to sup-
port the Union, by inquiring why Vasquez had been dis-
charged. Later that afternoon, Gifford observed Kuebler
standing outside the plant gate talking to Vasquez who
was handbilling, and the day before, March 22, Kuebler
T he General Counsel's motion to amend the complaint alleging this
as an instance of unlawful interrogation was denied, although Respondent
was advised that it would be considered as bearing on the issue of Re-
sponldent's knowledge of Kuebler's union activity Ramirez denied that
he asked Kuebhler this question
" I find it unnecessary to make a credibility finding regarding this
matter
646
IGLOO CORPORATION
told Gifford that she believed a union could benefit the
employees. ' 5
As a result of the foregoing, it is clear, and I find, that
prior to March 30 Respondent's representatives knew or
strongly suspected the involvement of Kuebler and
Aguilar with Vasquez and the Union. No other interpre-
tation of the facts appears reasonable, and Respondent
has proferred no credible evidence tending to support a
different conclusion. Moreover, I have found above that
Respondent was aware of the contents of the March 30
letter, naming Aguilar as a member of the Union's orga-
nizing committee, prior to the discharge of Aguilar and
Kuebler on the same date.
The memorandum posted on March 30, involving the
union activity at the plant, was a notice specifically di-
rected to employees and was placed on a general pur-
pose bulletin board. There was no showing that any em-
ployee was deprived of an opportunity to read the notice
during the short period of time involved between the re-
moval and reposting of the notice by Aguilar, and there
is no written company rule prohibiting the removal of
such notices for the purpose of copying them. There is
no showing that Respondent had previously disciplined
or discharged employees for removing bulletin board no-
tices or for similar conduct which might be deemed to
be analogous to the employees' conduct herein. Nor is
there any evidence that employees were ever put on
notice or warned that Respondent considered such or
similar conduct, which on its face appears totally innoc-
uous, to warrant any form of discipline, much less dis-
missal.
Moreover, the employees discharged herein were
among the most valuable of Respondent's employees, se-
lected from a larger group to perform a particular job
because of their abilities, and Respondent acknowledges
that they were performing their assigned jobs very well.
It would appear that Respondent would be highly reluc-
tant to discharge such employees absent some compelling
justification, and certainly, absent some ulterior motive,
it is highly improbable that Respondent would seek to
discharge them for the dubious reason advanced herein.
Respondent's employee manual, under the heading of
"Dismissal Policy," states:
Dismissal is defined as the separation of an employ-
ee for just cause. Just Cause shall mean conviction
of a felony, intemperance on the job, misappropria-
tion of company assets, violation of company work
rules, violation of company safety rules and such
other breach of integrity and morals that Igloo may
deem substantial. An employee will be dismissed
only after all facts have been carefully considered
and documented and the action is determined to be
justified. Notice will not necessarily be given an
employee who is dismissed. Severance Pay and Va-
cation Pay will be given in accordance with Igloo's
Vacation Policy.
The facts involving the participation of Kuebler in the
memo-removal incident afford Respondent even less
"just cause" for her dismissal. Thus, Respondent's "in-
15 I credit Kuebler's testimony regarding these incidents
vestigation" of Kuebler's involvement disclosed that
Kuebler had compelling business reasons to enter the
office area and use the photocopy machine, and that
Kuebler did not remove the notice from the bulletin
board, photocopy it, or replace it. Indeed, I find that
Kuebler mentioned these very matters during her dis-
charge conversation," and Harper-Ducharme could
only articulate that Kuebler committed the offense of
being with Aguilar. Nor has Respondent provided any
rationale other than "guilt by association" to justify the
dismissal of Kuebler.
On the basis of the foregoing, I find that the reasons
advanced by Respondent for the discharges of Kuebler
and Aguilar are so unpersuasive, unreasonable, and un-
natural, and are so far removed from any semblance of
justifiability in terms of past practice, as to mandate the
conclusion that the assigned reasons for the discharges
are pretextual. Such considerations, coupled with Re-
spondent's knowledge of the union activity of Kuebler
and Aguiar and their relationship to Vasquez, warrant
the further finding, which I make, that the two employ-
ees were discharged in violation of Section 8(a)(3) and
(1) of the Act. See First National Bank of Pueblo, 240
NLRB 184 (1979); Magic Chef, Inc., 181 NLRB 1136
(1970), enfd. 443 F.2d 374 (6th Cir. 1971); Asheville Steel
Company, 202 NLRB 146, 153, enfd. 487 F.2d 1398 (4th
Cir. 1973).
2. Additional 8(a)(l) allegations
The amended complaint alleges, inter alia, that on or
about March 23 Jennings Futch told employees at a
group meeting that "Igloo will find out who signs a
union card," that "[i]f the employees have a problem,
they should come to management and get it solved," and
that thereby Respondent has violated Section 8(a)(l) of
the Act.
The record is clear that Futch, during the course of an
antiunion speech to large groups of employees, advised
them that they did not need outside salesmen to speak
for them but rather that employees could discuss their
problems individually with various supervisors or manag-
ers, ultimately including Futch himself, because of Re-
spondent's "open door" policy. There is no credible evi-
dence that employees had ever been so advised previous-
ly, and there is no mention of such a policy in the em-
ployee manual. Moreover, Respondent's managers and
supervisors who were questioned about such an open
door policy were able to vaguely recall only a few iso-
lated instances of employees bringing problems to other
than their immediate supervisors. Aguilar and Kuebler
credibly testified that they had never been solicited to
present grievances or advised of an open door policy,
and no employees testified to the contrary. Such an
appeal by an employer who has not previously had a
practice of soliciting employee complaints, but an-
nounces and institutes a policy of this nature in response
to an organizational campaign, is violative of the Act.
Ring Metals Company, 198 NLRB 1020 (1972); Reliance
1o I credit hoth Kubchler and Aguilar regarding their accounts of the
discharge cnvcralilons
647
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Electric Company, Madison Plant Mechanical Drives Divi-
sion, 191 NLRB 44 (1971); Belcher Towing Company, 238
NLRB 446 (1978). The record evidence does not support
Respondent's defense that the announcement of the
policy by Futch was merely a reiteration of a well-estab-
lished policy instituted prior to the advent of the Union.
I therefore find Futch's statement to be violative of Sec-
tion 8(a)(1) of the Act, as alleged.
Under the circumstances, particularly where numerous
employees openly engaged in union activity, I find that
the record evidence is insufficient to show that Futch's
remarks concerning the signing of union cards conveyed
the possibility of adverse consequences by Respondent.
Moreover, contrary to the complaint allegation, it does
not appear that Respondent suggested that it would
become aware of the names of card signers, but rather
that the National Labor Relations Board would be fur-
nished the cards. I shall therefore dismiss this allegation
of the complaint. Cf. Fisher Cheese Company, 238 NLRB
626 (1978).
Finally, it is clear that Jody Harris is not a supervisor
within the meaning of Section 2(11) of the Act, as the
record evidence, detailed above, establishes that Harris
lacks any authority of a supervisory nature. I shall there-
fore dismiss the complaint allegation pertaining to threats
or interrogation by Harris.
CONC.USIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(3) and (1) of
the Act by unlawfully discharging employees Cynthia
Kuebler and Jesusa Aguilar as a result of their activity
on behalf of the Union.
4. Respondent has violated Section 8(a)(1) of the Act
by soliciting the presentation of grievances and announc-
ing a related open door policy in order to discourage
employees from designating the Union as their collec-
tive-bargaining representative.
5. Except as found above, Respondent has not engaged
in other unfair labor practices as alleged.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I recommend that it be required to
cease and desist therefrom and from any like or related
conduct, and to post an appropriate notice, attached
hereto as Appendix.
Further, as it appears that a majority of Respondent's
employees speak and understand only Spanish, it shall be
required that the recommended notice to employees,
infra, be printed in both Spanish and English. Northridge
Knitting Mills, Inc., 225 NLRB 1054 (1976).
Moreover, it is recommended that Respondent make
whole employees Cynthia Kuebler and Jesusa Aguilar
for any loss of pay as a result of the discrimination
against them, and reinstate them to their former positions
of employment without prejudice to their seniority or
other rights and privileges. Said backpay is to be com-
puted in the manner prescribed in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977). See, generally, Isis Plumbing &
Heating Co., 139 NLRB 716 (1962).
Based upon the foregoing findings of fact, conclusions
of law, and the entire record herein, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 17
The Respondent, Igloo Corporation, Houston, Texas,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees as a result of their union
activity.
(b) Soliciting the presentation of grievances in order to
discourage employees from designating the Union as
their collective-bargaining representative.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them under Section 7 of the National Labor Rela-
tions Act, as amended.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer reinstatement to employees Cynthia Kuebler
and Jesusa Aguilar and make them whole in the manner
set forth in the section entitled "The Remedy."
(b) Post at its Houston, Texas, facilities copies of the
attached notice marked "Appendix."' 8 Copies of said
notice, in both Spanish and English, on forms provided
by the Regional Director for Region 23, after being duly
signed by an authorized representative of Respondent,
shall be posted by Respondent immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including where notices
to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other materi-
al.
: In the evenit no exceptions arc filed as provided by Sec 102.4 of
the Rules and Regulations of the National Labor Relations Board, the
finldings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and
become its findings, conclusions and Order, and all objections thereto
shall be deemed waived for all purposes
'8 In the event that this Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted P'ur
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
648