Impact Industries, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1987

285 N.L.R.B. 5 (N.L.R.B. 1987)

IMPACT INDUSTRIES
Impact Industries, Inc. and International Union of
Automobile , Aerospace and Agricultural Imple-
ment Workers of America (UAW). Cases 33-
CA-4847, 33-CA-5177, 33-CA-5186 , and 33-
RC-2608
30 July 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
CRACRAFT
On 25 March 1982 Administrative Law' Judge
Harold Bernard Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and a motion to reopen the record, and the
General Counsel filed an answering brief and an
opposition to the motion.
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 briefs and has
decided to affirm the judge's rulings, findings, l and
1 In its exceptions, the Respondent asserts that the judge's credibility
resolutions, findings of fact, and conclusions of law are the result of bias.
After a careful examination of the entire record, we are satisfied that this
allegation is without merit There is no basis for finding that bias and par-
tiality existed merely because the judge resolved important factual con-
flicts in favor of the General Counsel's witnesses. As the Supreme Court
stated in NLRB v. Pittsburgh Steamship Co., 337 U.S 656, 659 (1949),
"ITlotal rejection of an opposed view cannot of itself impugn the integri-
ty or competence of a trier of fact " Furthermore, the Board's established
policy is not to overrule an administrative law judge's credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect Standard Dry Wall Products, 91 NLRB
544 (1950), enfd 188 F.2d 362 (3d Cir 1951) We have carefully exam-
ined the record and find no basis for reversing the findings.
In adopting the judge's findings that the Respondent interrogated its
employees in violation of the Act, we have analyzed these allegations in
light of Rossmore House, 269 NLRB 1176 (1984 affil 760 F.2d 1006 (9th
Cir 1985), and Sunnyvale Medical Clinic, 277 NLRB 1271 (1985), both of
which issued subsequent to the judge's decision We are satisfied that the
various interrogation violations are established within the framework of
those decisions. In agreeing with her colleagues that the judge's findings
of unlawful interrogations should be adopted, Member Cracraft finds it
unnecessary to rely on Sunnyvale
We note that Ben Gattorna was not hired as the Respondent's director
of industrial relations until February 1980 and thus, contrary to the
judge, we find he could not have discussed changes in the Respondent's
vacation policy "well before" the change was made in March 1980.
Nonetheless, we agree with the judge for the other reasons on which he
relies that the March 1980 vacation plan change violated the Act
2 In its exceptions, the Respondent contends that its president, Becker,
did not violate the Act when he reminded employees of the "open door
policy" because Becker at no time promised to remedy any grievances
We reject this contention. The judge expressly found in fn 22 of his deci-
sion that there was no preexisting policy by which employees were invit-
ed to see President Becker directly. Under the circumstances, such solici-
tation of grievances carries with it an implied promise of likely resolution
and, therefore, constitutes a violation of the Act
The judge found that Supervisor Herb Smith told employee Debra
Johnson that if the Union got in the doors would be closed and that bar-
gaining would be from scratch, and asked her why she wanted the Union
in. In crediting Johnson's testimony over that of Smith, the judge found
that Smith failed to deny Johnson's account In affirming the judge's find-
ing in this matter, we find it unnecessary to rely on his finding that Smith
failed to deny and rely only on his finding that Johnson's demeanor was
5
conclusions as modified, 2 to modify his remedy, 3
and to adopt the recommended Order as modified-'
the more creditable and that there were inconsistencies in Smith's testi-
mony
Employee Pamella Wilson testified that in late April Herb Smith told
her and Richard Pike that Becker would shut down the plant before he
would give the employees what they wanted Smith testified that he had
a conversation with them sometime in May Based on the discrepancy as
to the dates, the judge found that Smith failed to deny Wilson's testimo-
ny. The record reveals, however, that Smith specifically denied making
the alleged statements at any time Thus, we find there is an unresolved
credibility conflict. Employee Felipe Gonzalez testified that Supervisor
Oleson asked him why he wanted the Union. The judge found that
Oleson did not deny the alleged interrogation, The record reveals that
Oleson denied ever having a conversation with Gonzalez about the
Union Similarly, therefore, we find there is an unresolved credibility
conflict with respect to this alleged unlawful interrogation Employee
Randall Rebhorn testified that, at an employee meeting, Becker told the
employees that bargaining would be from scratch The judge found that
Rebhorn's testimony was uncontradicted, However, employee Maria
Wilson was present at the meeting,and testified that Becker never said
that bargaining would be from scratch Again, we find an unresolved
credibility conflict In each of these three instances, in light of the unre-
solved credibility conflicts, we do not pass on the merits of the allega-
tions. As we have found other similar violations of Sec 8(a)(1), findings
on the instant allegations would be merely cumulative and would have
little effect on the Order and remedy
In its exceptions, the Respondent contends that undocumented aliens
are not employees within the meaning of the Act and, therefore, not enti-
tled to reinstatement or backpay. Due to the passage of the Immigration
Reform and Control Act of 1986 and the lack of record evidence regard-
ing the status of the discrinunatees, an issue may arse concerning the Re-
spondent's backpay and reinstatement obligations. The Respondent may
present any evidence that bears on this issue at the compliance stage of
this proceeding.
In Hoschton Garment Co., 279 NLRB 565 (1986), the Board reaffirmed
the principle that "an employer's mere observation of open, public union
activity on or near its property does not constitute unlawful surveil-
lance." In agreeing with the judge that the Respondent unlawfully cre-
ated the impression of surveillance of its employees' handbilhing on its
premises, we emphasize his findings that the Respondent engaged in
"well-nigh continuous scrutiny of employee handbilhng" over a substan-
tial period of time and for discriminatory reasons expelled employee leaf-
letters from its property. Thus, the Respondent's conduct went beyond
the "mere observation" permitted by Hoschton Member Babson con-
curred in Hoschton Garment. In finding an impression of surveillance vio-
lation in this case, he expressly relies on the judge's conclusions that the
employee handbilhng was more closely observed than other employee
nonwork activities had been; that the Respondent's officials engaged in
conduct out of the ordinary in watching the handbiling by, inter alia, as-
suming positions closer to the employees, and that laid-off employees
were expelled from company property contrary to what had occurred
previously
3 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U S.C. § 6621. Interest on amounts accrued prior to 1 January
1987 shall be computed in accordance with Florida Steel Corp, 231
NLRB 651 (1977).
4 In finding that a broad cease-and-desist order is necessary to remedy
the violations herein and that the Respondent has demonstrated a procliv-
ity to violate the Act, the judge cited Impact Die Casting Corp, 199
NLRB 268 (1972) We find it unnecessary to rely on that case In our
opinion the violations committed herein are adequate to support a broad
order
The judge found that the Respondent violated the Act by publicly re-
primanding and issuing written warnings to employees who engaged in
union or protected concerted activities, but he inadvertently failed to
order that the Respondent cease and desist therefrom We have corrected
that portion of his recommended Order and notice accordingly
285 NLRB ' No. 2
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We agree with the judge that a bargaining order
is warranted to remedy the Respondent's extensive
and pervasive unfair labor practices. We find, as
did the judge, that by 19 February 1980 the Union
obtained signed authorization cards from a majori-
ty of the Respondent's 118 unit employees. We find
that the Union obtained cards from 106 unit em-
ployees, including 35 of the 36 Spanish surnamed
employees, prior to demanding recognition on 17
March 1980. We also find-that the Respondent re-
peatedly violated Section 8(a)(1), (3), and (5) of the
Act.
In determining whether a bargaining order is
warranted to remedy the Respondent's misconduct
in this case, we apply the test set out in NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969). There, the
Court identified two categories of cases in which a
bargaining order would be appropriate. The first
involves "exceptional cases" marked by unfair
labor practices that are so "outrageous" and "per-
vasive" that traditional remedies cannot erase their
coercive effects with the result that a fair election
is rendered impossible. The second category in-
volves "less extraordinary cases marked by less
pervasive practices which nonetheless still have the
tendency to undermine majority strength and
impede the election processes." The Supreme
Court stated that in the latter situation a bargaining
order should issue where the Board fords that "the
possibility of erasing the effects of past practices
and of ensuring a fair election . . . by the use of
traditional remedies, though present, is slight and
that employee sentiment once expressed through
cards would, on balance, be better protected by a
bargaining order." Id. at 613, 614-615.
In the case before us the judge did not clearly
place the Respondent's conduct in either category.
We believe that the Respondent's unfair labor prac-
tices fall into at least the second category.
When the organizing campaign surfaced, the Re-
spondent immediately embarked on an antiunion
campaign designed to discourage its employees
from supporting the Union and engaged in numer-
ous violations of the Act in its effort. These include
interrogations; threats of plant closure, discharge,
and loss of benefits; solicitation of grievances;
promises of wage increases and other benefits;
grants of improved vacation, break periods, and
lunch benefits and of an employee incentive pro-
gram ; creation of the impression of surveillance of
union activities; public reprimand of an employee
because she engaged in protected concerted activi-
ty; and discharge of 13 employees out of a unit of
118 employees. The unlawful conduct did not
cease with the Union's loss of the 16 May election.
Some of the most serious violations, including the
discharges, occurred while the Union's objections
were pending.
It is clear that the Respondent's unlawful con-
duct struck at the very heart of the employees' or-
ganizational efforts. The Respondent unlawfully
discharged fully 11 percent of its bargaining unit.
Several of the violations were committed by Re-
spondent's president, Carl Becker. Clearly, an em-
ployer's unlawful conduct is heightened when it is
committed by the highest-level management offi-
cial. Certain of the violations were committed by
Becker at meetings of large groups of employees
and therefore widely disseminated among the entire
work force. Threats of the kind found herein have
a profound impact on employees. Because it is not
the Board's policy to require the unlawfully grant-
ed benefits, such as those given by the Respondent
herein, be rescinded, they are particularly lasting in
their effect on employees and difficult to remedy
by traditional means.
In light of the violations found herein, we con-
clude that the possibility of erasing the effects of
the Respondent's unfair labor practices and of con-
ducting a fair election by the use of traditional
remedies is slight. Requiring the Respondent
simply to refrain from such conduct will not eradi-
cate the lingering effects of the violations. Corre-
spondingly, an election would not reliably reflect
genuine, uncoerced employee sentiment. Given the
swiftness with which the Respondent reacted to
the organizational effort and the postelection viola-
tions, the likelihood of the Respondent again en-
gaging in illegal conduct is clearly present. We
conclude that the employees' representation desires
expressed here through authorization cards would,
on balance, be better protected by our issuance of a
bargaining order than by traditional remedies. Al-
though there has been some turnover in the units
and a significant passage of time since the viola-
tions occurred, in light of the circumstances of this
case, particularly the seriousness of the violations
and their impact on the entire unit, to withhold a
bargaining order here would reward the Respond-
ent for its own wrongdoing. Accordingly, we
adopt the judge's recommended Order, as modified
below, and require the Respondent to' bargain with
the Union as the duly designated representative of
the employees in the appropriate unit. Kona 60
Minute Photo, 277 NLRB 867 (1985).
5 In its motion to reopen the record, the Respondent seeks to introduce
evidence regarding turnover. We deny the Respondent's motion because
the evidence sought to be adduced would not require a different result
See Sec. 102 48(d)(1) of ,the Board's Rules and Regulations Long-Airdox
Co, 277 NLRB 1157 (1985)
IMPACT INDUSTRIES 7
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Impact Industries, Inc., Sandwich, Illi-
nois, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied [see also 293 NLRB No. 99].
1. Insert the following as new paragraphs 1(q)
and 1(r) and reletter the present paragraph 1(q) as
paragraph 1(s).
"(q) Publicly reprimanding employees because
they engaged in protected concerted activities.
"(r) Issuing written warnings to employees be-
cause they engaged in union activities."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT make any changes in employment
conditions without first according the Union notice
of the changes and an opportunity to bargain about
the changes before they are implemented.
WE WILL NOT discharge, layoff, refuse to
employ, or otherwise discriminate against you in
regard to your hire, tenure of employment, or any
other term or condition of employment because of
your union and/or protected concerted activities.
WE WILL NOT submit lists of our Hispanic em-
ployees' names to the Immigration Service for an
illegal alien status review because of their union
support.
'WE WILL NOT inform our Hispanic employees
that they no longer have jobs or request that they
contact the Immigration Service concerning their
alien status because of their union support and ac-
tivities.
WE, WILL NOT cause the constructive discharge
of employees by requesting that the Immigration
and Naturalization Service investigate the alien
status of known illegal aliens because of their selec-
tion of and support for the International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), or any
other union.
WE WILL NOT threaten employees with notifica-
tion to the Immigration and Naturalization Service
because of their selection or support of a union.
WE WILL NOT threaten you with discharge or
any other adverse actions because you join or assist
a union or engage in other union activities for the
purpose of collective bargaining or other mutual
aid or protection.
WE WILL NOT inform you that you will be
denied wage increases because of your union ac-
tivities.
WE WILL NOT inform you that we do not like
your wearing union insignia at the plant in order to
discourage union support and activity.
WE WILL NOT inform you that other employees
were promised wage increases if they supported us
in order to discourage your union support.
WE WILL NOT attempt to create in your minds
the impression that we are engaging in surveillance
of your union activity.
WE WILL NOT harass or reprimand you if you
complain about your rates of pay.
WE WILL' NOT issue reprimands or otherwise dis-
cipline you for engaging in union or protected con-
certed activities.
WE WILL NOT solicit complaints and grievances
from you or promise or infer satisfaction of your
grievances in order to discourage you from select-
ing a union as your collective-bargaining represent-
ative.
WE WILL NOT threaten to take away any of your
existing benefits or make unspecified threats of re-
prisal because you have joined, assisted, or support-
ed the Union.
WE WILL NOT unlawfully interrogate you con-
cerning your own or other employees' union activi-
ties, sympathies, and desires, or voting intentions in
a Board election.
WE WILL NOT threaten to close if you should
assist, associate with, or choose a union as your
bargaining representative.
WE WILL NOT promise you benefits in order to
discourage your participation in union activity.
WE WILL NOT award increases in economic or
other benefits to you for the purpose of discourag-
ing you from becoming or remaining members of a
labor organization, although nothing herein con-
tained should be construed as requiring the Em-
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployer to revoke any benefit it has heretofore
granted.
WE WILL NOT grant you additional paid vacation
leave in an attempt to induce you to refrain from
becoming or remaining members of the above-
named Union or from giving any assistance or sup-
port to it or any other labor organization.
WE WILL NOT authorize longer breaktimes to
you to discourage your union activity.
WE WILL NOT implement a length of service
awards plan to induce you to refrain from union
activities and support.
WE WILL NOT reinstitute a paid lunch hour for
any employees to discourage their union activity.
WE WILL NOT publicly reprimand you because
you engage in protected concerted -activities.
WE WILL NOT issue you written warnings be-
cause you engaged in union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, meet with
and bargain collectively in good faith with the
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America (UAW), as the exclusive collective-bar-
gaining representative of all our employees in the
appropriate unit and, if any understanding is
reached, embody such understanding in a written
agreement. The appropriate unit is:
All full-time and regular part-time production
and maintenance employees employed by us at
our facility located at 1212 East Sixth Street,
Sandwich, Illinois, but excluding all other em-
ployees, office clerical employees, professional
employees, guards, foremen, and supervisors as
defined in the Act.
WE WILL offer reinstatement or have already re-
instated our employees named below to their
former or substantially equivalent positions without
prejudice to their seniority or other rights and
privileges; and WE WILL make each of them whole
with interest for all loss of pay and benefits caused
by their unlawful discharge or constructive dis-
charge.
Irene Ruiz Daniel Ramirez
Pam Fruit Romerico Calderon
Dehlia Perez Pedro Diaz
Augustin Nunez Delipe Gonzalez
Silvia Gonzalez Oscar Gonzalez
Victor Nunez Raphael (Rene) Gonzalez
WE WILL remove all records and references per-
taining to their unlawful discharges from the per-
sonnel files of the above-named employees.
WE WILL remove all records and references
from the personnel file of L. Jolene Kitzky pertain-
ing to the reprimands issued to her.
IMPACT INDUSTRIES, INC.
David M. Somers, Esq., Will J. Vance, Esq., Deborah A.
Fisher, Esq., for the General Counsel.
Sam Witwer, Jr., Esq. and Dennis Claessens, Esq., of Chi-
cago, Illinois, for the Respondent.
Stan Eisenstein, Esq., of Chicago, Illinois, for the Union.
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD JR., Administrative Law Judge.
These cases were tried before me on February 3,' 4, 5, 17,
18, and 19, 1981, in Yorkville, Illinois, following consoli-
dation of the captioned unfair labor practice" and repre-
sentation cases for trial on complaint allegations that
Impact Industries, Inc.2 (Respondent) engaged in numer-
ous violations of Section 8(a)(1), (3), and (5) of the Act
in response to the Union's organizational campaign, both
preceding and following the Board-conducted election in
Case 33-RC-2608.3 Respondent filed a timely answer de-
nying allegations contained in the consolidated com-
plaints. The parties were accorded full opportunity to ex-
amine and cross-examine witnesses, introduce relevant
evidence, present oral argument, and to file briefs.
Preliminary Procedural Issue
At the outset in proceedings a motion was duly made
and granted for the sequestration of witnesses including
discriminatee Irene Ruiz. Thereafter, in the course of fur-
ther discussions, the Union designated Ruiz its sole rep-
resentative at hearing and, in that capacity, she was al-
lowed to remain in the courtroom after testifying and
once Charging Party's originally designated representa-
tives were called away on other matters and had left the
hearing. My decision to allow Ruiz to remain at that
juncture was based on the right of the Charging Party to
have a representative at the hearing and the view that
such right- outweighed the considerations that are nor-
mally held to require on occasion even a witness who is
an alleged charging party discriminatee and thus a
"party" to absent herself under the guidelines set forth in
Unga Painting Corp., 237 NLRB 1306 (1978), at periods
of time as described in the decision. Because Respondent
had argued against Ruiz' presence, inter alia, as a source
from which witnesses ; many of them Mexican aliens,
i The case invol'ving Sandwich Brass & Aluminum, Case 33-CA-4874,
alleging violations of Sec 8(a)(1) and (2) of the Act settled at trial with
my approval and accordingly was severed from these proceedings
Respondent's name appears as amended
The tally of ballots shows that 49 votes were cast for representation,
59 against, and that 24 votes were challenged, subsequently, a number of
the challenges were sustained (15), and thereafter challenged ballots were
no longer determinative of the outcome in the election The Union's
timely filed objections to conduct affecting the election were consolidat-
ed with the complaint cases See G C. Exhs 1(b) and 1(tt) (second sup-
plemental decision on challenged ballots and objections, order consolida-
tign cases and directing hearing).
IMPACT INDUSTRIES
might be signaled-in general terms of course-regard-
ing their testimony, I took care to observe whether such
was the case during the hearing. Ruiz remained impas-
sive, still, and mostly averted her eyes from witnesses
throughout and her demeanor was devoid of any staring
at witnesses', signals, or hint thereof. Respondent on
brief does carry forward any objection to the ruling,
which is adhered to as a matter of law, and on the fur-
ther ground that no prejudice befell Respondent. Boiler-
makers Local 732 (Triple A South), 239 NLRB 504
(1978), Magic Pan,,242 NLRB 840 (1979).
Issues
The issues are:
1. Whether Jan Spears, Herbert Smith, and Larry Vil-
lareal are supervisors or Respondent's agents as defined
in the Act.
2. Whether Respondent granted employees extended
breaktime, improved vacation benefits, a paid lunch
period, tuition payments, and implemented an employee
incentive awards program on May 12 to discourage em-
ployee support for the Union.
3. Whether Respondent made promises of improved
working conditions and other benefits to discourage em-
ployee support for the Union.
4. Whether Respondent solicited grievances from its
employees and promised to resolve employee complaints
in order to discourage support for the Union.
5. Did Respondent engage in interrogation and surveil-
lance or create the impression of engaging in surveillance
regarding employees' union activities and voting inten-
tions in further violation of Section 8(a)(1) of the Act?
6. Did Respondent reprimand employee Jolene Kitzky
on October 23 because of her union or protected activi-
ties?
7. Did Respondent Official Carl Becker disparage em-
ployee Deborah Johnson in February 1980 because she
engaged in activity protected by the Act?
8. Whether Respondent threatened employees with a
loss in benefits and plant closing if employees selected
the Union as their bargaining representative.
9. Whether Respondent, through Veldon Oleson, in-
vestigated the alien status of employees in order to dis-
courage their support for the Union.
10. Whether Respondent reported its employees to the
United States Immigration and Naturalization Service
(INS) because of their support for the Union.
11. Whether Respondent, through Jan Spears, threat-
ened employees with discharge for bearing invalid alien
registration cards in order to discourage them from sup-
porting the Union.
12. Whether Respondent, through Herb Smith, in-
formed employees they were denied wage increases due
to union activities.
13. Whether Respondent, through Larry Brock, threat-
ened an employee with discharge for discussing the
Union.
14. Whether Respondent, through Veldon Oleson,
threatened an employee with deportation in September
in order to discourage support for the Union.
15. Whether Respondent warned employee Betty
Ferris not to wear a union button.
9
16. Whether Respondent notified employees Raphael
Gonzalez, Augusta Nunez, Saul Nunez, Oscar Gonzalez,
Manuela Fabela,4 and Felipe Gonzalez, in October, No-
vember, and December 1980 to report to INS, thereby
constructively discharging them in violation of Section
8(a)(3) of the Act.
17. Whether Respondent notified employees Dehila
Perez, Silver Gonzalez, Victor Nunez, and others5 that
they were discharged as illegal aliens in October and No-
vember 1980 in violation of Section 8(a)(3) of the Act.
18. Were Linda Anderson, Pamela Fruit, and Irene
Ruiz discriminatorily discharged in violation of Section
8(a)(3) of the Act?
19. Did the Respondent unlawfully refuse to recognize
and bargain with the Union as the exclusive bargaining
agent for its employees thereby violating Section 8(a)(5)
of the Act?
20. Whether the objection to conduct affecting the
outcome of the election in Case 33-RC-2608 have
merit?6
21. Whether a bargaining order remedy is warranted.
On the entire record in this proceeding, including my
observation of the witnesses, and well-prepared briefs
filed by the General Counsel for Respondent, I make the
following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is engaged in manufacturing aluminum
and zinc castings at its plant in Sandwich, Illinois. Annu-
ally, Respondent purchases products valued in excess of
$50,000 directly from sources outside the State of Illinois
and sells products valued in excess of $50,000 to custom-
ers located outside Illinois. I find, as admitted, that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
Admittedly, the Union is a labor organization within
the meaning of Section 2(5) of the Act, and I so find.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent began operations at Impact Industries,
Inc., in Sandwich, Illinois, where it makes aluminum and
zinc die castings, in early 1961. Sometime in the follow-
ing 5 or 6 years Respondent began employing Mexican
aliens as a substantial part of the work force, and contin-
ued this practice to the times involved herein, including
a The General Counsel's motion to drop Manuela Fabela, Hermalinda
Molina, Lorenzo Molina, and Juan Castillo, each of whom by amend-
ment had been added to the complaint as constructive dischargees, was
granted.
5 By amendment at hearing the following names were added Romer-
ico Calderon, Pedro Diaz, and Daniel Ramirez
6 By the time of the hearing in this case, as a consequence of various
withdrawals by the Union, the' remaining objections for determination
consisted of portions of Objections 4 and 8 dealing with alleged unlawful
layoffs and other threatened reprisals against employees based on their
"union activities "
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this trial. Down to the time of events in this case Re-
spondent's practice of doing so was unmarked by any in-
cident at the plant itself involving the United States Im-
migration and Naturalization Service and Respondent's
Mexican employees.7
In 1975, after its work force expanded to 200,employ-
ees, Respondent implemented a major reduction-in-force
down to 55, only to thereafter experience a steady in-
crease in business to the point when, in 1979, it planned
an expansion in its work force to 250 employees, includ-
ing an expansion of the plant itself, construction begin-
ning in July-August 1979. By the time of events relevant
the plant consisted of 8 departments manned by 118 em-
ployees.
B. The Union's Organizational Drive Begins-
February
The Union's organizing effort for the employees at
Impact surfaced on February 17, 1980;5 that is to say the
first overt appearance by the Union occurred then, when
International Representative Richard Marco met with 12
or 13 employees on the organizing committee, including
Marisio Nunez Sr., Irene Ruiz, Debby Johnson, Betty
Ferris, Joan Schmidt, Cathy Austin, Denise Duffy, Do-
mingo Carrillo, Maurice Flores, Samella Wilson, and
Jolene Kitzky, each of whom signed a union authoriza-
tion card and took several cards back to the plant to cir-
culate among employees. Again on February 24, at a
second meeting, Marco met this time with 48 employees
present and thereafter meetings continued twice weekly
beginning in a trailer and later the local VFW hall.
Marco testified without contradiction that he secured
signed authorization cards from 106 Impact employees,
including 35 of the 36 Spanish-surnamed employees prior
to filing a representation petition on March 17. The par-
ties stipulated that the Union possessed a majority of
valid signed authorization cards at relevant times, their
stipulation is discussed below, but it is instructive to note
also ;that the record shows the Union possessed 93 cards
by February 19, securing the remaining number, 13, be-
tween then and March 17.9
It is germane to note that only 6 days before the
Union's interest in organizing Impact's employees sur-
faced at the February 17 meeting, Respondent's presi-
dent, Carl Becker, circulated a memorandum to Employ-
ees of Impact, dated February 11 (G.C. Exh. 10(a)),
which, inter alia, promised "a better work atmosphere
such as locker rooms, showers, a comfortable break
room . . . improved wages and benefits, and . . . a
worthwhile and secure [pension] program." Becker, who
admittedly preferred to deal with individual employees
directly rather than through a collective-bargaining rep-
resentative, denied any knowledge of the Union's organi-
zational interest when he issued the strongly upbeat list
° On a single occasion in the past the record indicates some difficulty
for Respondent in manning shifts after an INS raid in the area that in-
volved aliens, some of whom worked for Respondent
s All dates refer to 1980 unless otherwise noted
s This is based on Marco's uncontradicted detailed testimony as sup-
ported by G.C. Exh 52. It is hereinafter found, however, that the evi-
dence supports the conclusion that the Union's majority was procured by
March 17, the date of its demand for recognition.
of promised benefits the week before the Union' s meet-
ing.'O Becker, on February 27, also approved designs for
a logo thereby paving the way clear for a newly institut-
ed incentive awards plan for Impact employees, dis-
cussed below.
C. Respondent's Initial Reaction to the Union Drive
On February 28, 4 days after the second union meet-
mg, Respondent's management met with outside counsel
for advice on how to oppose unionization by its employ-
ees, and were given a "do's and don'ts" list to guide the
Respondent's officials. Respondent officials also were ad-
ministered tests consisting of questions designed to ascer-
tain whether the "do's and don'ts" advice was getting
through to them. In the course of the election campaign
between February and May Respondent conducted some
20 meetings with supervisors in connection with cam-
paign efforts designed to oppose unionization for its em-
ployees. Had the reportedly good advice rendered to Re-
spondent by learned counsel in so thorough going a
manner been followed in all respects there would have
likely been no need for the present litigation to arise but,
as shall be demonstrated, such was not the case.
Thus, in late February, employee Betty Ferris, a trim
operator on second shift, testified that Chief Inspector
Veldon Oleson talked to Ferris about a union button
Ferris was wearing, identifying Ferris as a union organiz-
er sometime between 2:38 and 3 p.m., telling her that,
"Carl (chairman of the board and president of Impact,
Carl Becker) isn't going to like it." Oleson did not deny
making this remark, testifying merely that he could not
recall doing so, and I find that such comment by an ad-
mitted supervisor constituted a threat of unspecified re-
prisal against employee Ferris for engaging in support of
the Union violative of Section 8(a)(1) of the Act. E. I.
duPont & Co., 257 NLRB 139 (1981).
Employee Irene Ruiz, also an employee organizer, tes-
tified straighforwardly that Oleson also apporached her
in late February while she was inspecting parts and
while she was wearing a UAW sticker on her shirt that
contained the words, "UAW for pension benefits" asking
her if she believed the Union could get better benefits
than what employees already had. When Ruiz replied
that she did, Oleson responded, "Well, if the union is
voted in, there'll . . . be cutting out benefits that you al-
ready have, such as . . . bonuses, overtimes . . . paid
lunch period." I found Oleson's testimony, denying such
comments to Ruiz less reliable than Ruiz' account.
Oleson was guarded, even unresponsive during much of
his testimony during which he was sometimes unable to
recall important events and testified pursuant to leading
questions. Accordingly, I conclude Respondent, through
Oleson, threatened employee Ruiz with loss of employee
benefits if employees voted the Union in, thereby violat-
ing Section 8(a)(1) of the Act. Hamilton Avnet Electron-
ics, 240 NLRB 781 (1979).
10 There is no allegation in the complaint that the issuance of G C
Exh 10(a) on February 11, or recirculation just before the election on
May 16 constituted an unlawful promise of new benefits
IMPACT INDUSTRIES
D. The Union 's Demand for Recognition and Filing
of a Representation Petition-March
By letter dated March 12 addresed to Carl Becker, Im-
pact 's president , the Union requested recognition as bar-
gaining representative in a bargaining unit stipulated by
the parties to be appropriate . In the course of the hearing
it was further stipulated that the date this demand was
made on Respondent was March 17, the date-the Union
also filed a representation petition in Case 33 -RC-2608.
Events surrounding these occurrences show stepped-
up activity by Respondent in the midst of the Union's
drive to organize Impact employees. This activity by Re-
spondent took two forms : ( 1) the conduct of alleged Su-
pervisor Herb Smith , and (2) changes in employee work-
ing conditions and benefits, both in March.
1. The status and conduct of Herb Smith
Herb Smith acted as the working supervisor in the ma-
chining department, overseeing some 18 operators, in-
cluding employee Samella Wilson . Smith reported to
work at 6:30 a .m., a half hour before other employees,
and assigned employees to different jobs based on his
judgment about which employee was best qualified to do
the work . To reach these decisions, Smith considered the
employee 's experience , the quality of the employee's
work , and the complexity in the assignment . He then
would make the assignment and make sure the employee
performed the work correctly by overseeing the per-
formance throughout the day.
Smith evaluated employees for promotions and, in the
case of Wilson, recommended for a promotion, which,
despite opposition by the production manager,' was
granted after Smith pursued the matter further on Wil-
son's behalf. Wilson testified without contradiction that
Smith was introduced by General Foreman Don Lipper,
Smith 's only immediate supervisor, who it should be
noted, wag also responsible for two or three departments,
finishing, trim , and machining , as the employees' supervi-
sor and the one to see about any problems as well as the
one to take orders from . Wilson testified that Smith filled
out the job cards , put employees to work , and handled
employee questions while walking around overseeing the
employees ' work. She testified he told her when to
report back to work , which machine to run, and that she
explained any lateness to him, notified him about sick-
ness , that he evaluated her work , and put her in for
wage increases , and that Smith worked out of a supervi-
sor's office where, according to Wilson , she could find
him several times a day when she took job cards there
for him.
Although the average pay in this department was $5 or
$5.50 per hour, Smith testified he received "around" $7
per hour and that when he arrived in the department at
6:30 a.m . Lipper was not there , although the job prior-
ities were already set. He admitted that he performed
job-assigning duties, and transfer of employees among
machines, without consulting with Lipper, and further
that he "pretty much ran his own department ," monitor-
ing, parts worked on by employees for quality and
watching employees work . Smith further admitted the
only time he ran a production machine was during
11
breaktime or when there was -a sample part to be made
or when he was training someone.
The fact that Smith also shared in most of the same-
employment benefits as accorded other hourly paid em-
ployees, and that he did not possess other clear indicia of
supervisory authority in no way detracts from that he
clearly possessed and executed the authority to assign
work based on his independent judgment , directed em-
ployee in the performance of such work, evaluated them,
and effectively recommended employee wage increases,
transferred employees among machines, and generally
ran the department with considerable autonomy in such
respects . The fact that in addition employees looked on
Smith as a supervisor given his daily role in running the
department and his location in the supervisor 's office
only adds further confirmation to the finding, which I
make, that Herb Smith is a supervisor as defined by the
Act. New Jersey Famous Amos Cookie Corp., 236 NLRB
1093 (1978).
Samella Wilson testified that in early March during the
afternoon, Herb Smith told her in the machining depart-
ment that if anyone had any grievances they were to
come and tell him and he would then tell them to Don
Lipper. Wilson testified that she relayed Smith 's direc-
tion to other employees . In contrast to Wilson's sketchy
testimony on the point, Smith testified that during such
period of time he recalled a conversation with Wilson
when she had mentioned to him that Impact did not
have a formal grievance procedure and he had replied to
that comment that if she had any problems she should see
him or a foreman and it would be taken care of. Smith
testified further that he said this to every employee at
past employee review times. Although the General
Counsel recalled Wilson in rebuttal she was not asked to
deny Smith's version of events in any detail whatsoever,
and his account therefore stands as credited . According-
ly, I find, in this instance at least, Smith 's responsive
comment to Wilson did not amount to a prohibited solic-
itation of grievances by Respondent but was intended to
serve merely as a reminder or counter to Wilson's flat as-
sertion that there was no formal grievance procedure.
Wilson also testified that Smith told her, sometime in
late March, during a conversation in the machining de-
partment one afternoon that there would be no more pay
increases until union activities were over . In like vein,
employee Debra Johnson testified that during the same
month , when she asked Smith if she would get her wage
or performance review , he replied , "he didn't think so
because he said all raises and promotions would be
frozen because if we got it it would look like Carl
Becker was trying to buy our vote." Employee Ruiz tes-
tified she overheard Smith, during the same month, tell a
toolroom employee in the new lunchroom that if the
Union got in they would be taking away something and,
further, that they were going to cease the increases in
wages until the union matter was resolved . Ruiz also tes-
tified she overheard Smith outside the inspection room
during the same month tell an employee from the ma-
chining department that he had been speaking to Becker
and Wilson and that , if the Union was voted in, that he
was going to close the plant down.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
For his part, Smith testified regarding Wilson's report-
ed conversation that he could not remember saying there
would be no pay raises because of the union election but
did recall responding to a Wilson comment that a 5-cent
wage increase was small that "possibly [it was] because
they was afraid that if they gave raises the Union would
think that they were bribing them." Smith's inability to
recall, and therefore his failure to deny, Wilson's testimo-
ny would normally result in there arising a tendency to-
wards crediting Wilson's account fully. However, once
again, the General Counsel did not seek in rebuttal to
deny Smith's once again fuller account of the context for
his alleged comment. Moreover, I regard Smith's efforts
to avoid creating certainty about the comment when the
temptation was present to favor his employer, an indica-
tor of truthfulness about this incident. However, this
does not mean Smith's admitted comments; which he
made both to Wilson and, admittedly to employee John-
son, viz, that "possibly [it was] because they was afraid
that if they gave raises the union would think that they
were bribing them," are free from sinister import for em-
ployee rights under the Act. Smith did not recall the
third occasion, also in March testified to by Ruiz, when
he reportedly told an employee from the toolroom,
within Ruiz' earshot, that employee wage increases
would be ceased until the union matter was resolved, but
did not deny doing so. I consider Smith's reported com-
ments, whether expressly, specifically, or indirectly in
some versions, attributing a stoppage in employee wage
increases to employee union activities to constitute un-
lawful threat of retaliation by Responent because em-
ployees exercised their rights to engage in activities seek-
ing representation by the Union, conduct clearly viola-
tive of Section 8(a)(1) of the Act. Hamilton Avnet Elec-
tronics, supra, High Energy Corp., 259 NLRB 747 (1981).
I consider it totally irrelevant whether Smith was offer-
ing an opinion gleaned from a course in labor law, or
whether Johnson in fact received an increase later; the
fact remains employees were informed that the exercise
of Section 7 rights could occasion the withdrawal of
wage increases at the beginning in the union organiza-
tional campaign.
Smith also testified, regarding Ruiz' account, that he
did not recall a conversation outside the inspection de-
partment with an employee wherein plant closure was
discussed. Unlike earlier testimonial disputes involving
Smith and other witnesses presented by the General
Counsel, where I did not view Smith's inability to recall
the comments attributed to him, because he offered a
more complete and detailed context for their arising, as a
basis for crediting the opposing witnesses (who were not
presented in rebuttal to Smith's more complete version
of the accounts), this situation is one wherein it is reason-
able to suppose, in my view, that Smith, if he in fact
made no such comment threatening a plant closure if the
Union was voted in, would be able to recall that he did
not do so and hence deny making any such comment.
But not only was Smith unable to recall something that,
given its dramatic import on in his position would be
able to do-after all he was able to recall many of the
specifics in other conversations with employees the same
month-but also Smith testified, on cross-examination
that, "I'm not real sure I didn't have a conversation
about closing the plant with employees if the Union won
the election." Elsewhere in this decision, it shall also be
noted that Smith admitted telling employees something
not too far removed-at least in terms of the remark's
import; namely, that Respondent, if it could not afford
the Union's demands, would go out of business. I am
persuaded by the preponderance of evidence on this
point, especially Smith's failure to deny making the com-
ment and virtual admission under cross-examination,
when he testified that he was not sure he did not have
such a conversation, that he in fact did make such a
statement as overheard and reported by employee Ruiz.
It is therefore concluded that Respondent, through
Smith, threatened employees in March with a plant clo-
sure if the Union was voted in, thereby further violating
Section 8(a)(1) of the Act. Arrow Automotive Industries,
256 NLRB 1027 (1981); High Energy Corp., supra.
It is undenied that in early March Smith confronted
Pamela Fruit, final inspector in the inspection depart-
ment, while Fruit was in the machining department and
inquired into Fruit's knowledge concerning union activi-
ties. Fruit testified she was wearing a union button at the
time and that Smith approached her while she was
checking parts, glancing at the union button , and asking,
"Union, huh?" Smith, according to Fruit's undenied ver-
sion, then asked Fruit to tell him how the union meetings
were going, to which Fruit replied it was none of his
business. Given Smith's role in the Respondent's well-or-
ganized antiunion campaign only partially outlined
above, as well as further similar efforts by admitted su-
pervisors to unlawfully inquire into employee union sen-
timent and activities, outlined below and occurring after
March, Smith's comments and questions to Fruit must, be
evaluated in the context of the other events found to
have occurred, and in such context draw a coercive tex-
ture from those events, I find Smith's questioning of
Fruit concerning her union activities to constitute unlaw-
ful interrogation of an employee in violation of Section
8(a)(1) of the Act. Lamar Outdoor Advertising, 257
NLRB 90 (1981).
2. Respondent changes break periods and vacation
benefits in March
Respondent implemented a change in break periods on
March 10, whereby employees were afforded a full 10
minutes for rest purposes before being required to begin
returning to their work stations, by contrast with the ear-
lier system whereby they were required to begin return-
ing to work stations after about 7-1/2 minutes' rest.
(G.C. Exh. 56.)11 Respondent also announced a change
in its vacation plans on March 13 consisting of using an
employee's own hiring or anniversary date to signal start
and completion of a year's period for purposes of vaca-
tion accrual time rather than blanketing all employee va-
cation accrual benefits under or around a single arbitrary
fixed date, viz, June 8. (G.C. Exh. 58.) The result was to
i i The announcement described the change as an additional 5 minutes
Credible testimony by witnesses for both sides indicate the change was as
described hereinafter
IMPACT INDUSTRIES 13
allow vacation benefits accrual years=credited years or
actual yearly periods from date of hire, which avoided
arbitrary loss of otherwise creditable time when employ-
ees' vacation benefits were pinned to the concept of a
year worked from the fixed arbitrary date even though
the employee might have a full year since employment.
It is clear that pursuant to both changes employees en-
joyed improved benefits; in the first instance longer
break periods, 12 in the second a more liberal system for
accruing vacation benefits.
The General Counsel contends that these changes are
benefits instituted to discourage employee support for the
Union. Respondent contends that the origins for both
changes antedate the union campaign and were in re-
sponse to (1) employee complaints regarding the short-
ness in break periods after the plant extension was com-
plete in February and (2) a response to a suggestion by
tool-and-die maker Keith Whittlinger in 1968, which he
typed up in August 1979. He initiated the suggestion on
his own when hired in December 1978 believing the
policy at Impact was outdated, and discussed the propos-
al with, among other mangaement officials, Vaughn Rice
and Ben Gattorna, concededly well before the change
was implemented.
As counsel for Respondent skillfully and effectively
argues, both these changes' seem rooted in past cultiva-
tions, well before the Union's appearance on the scene,
but the inquiry into the lawfulness for their implementa-
tion in March 1980 requires more than a look at their
chronological beginnings, but must also include an eval-
uation of the purported reasons for the timing of their
implementation, to see if, when compared with actual-
ities, those reasons ring true. This is because it is rare
that an employer bent on influencing employees to reject
union representation in collective-bargaining will trumpet
his motive for implementing benefit increases, so that if
there is to be any effective realistic analysis into such al-
leged violat ions the commission of such unlawful acts
must frequently be ascertained based on valid inferences
read from viewing circumstances in their totality, as for
example, by inferring such a motive when the purported
justification advanced has a hollow ring.
In this case Respondent asserts it acted to increase
breaktimes in response to employee complaints that it
would take longer after a plant expansion for employees
walking time to the newly located break area and return.
However, it is undenied that not only did the Respond-
ent increase the actual breaktime from 7-1/2 to 10 min-
utes but also dispensed entirely with a mandate in the ear-
lier-used final bell altogether-the mandate that required
employees to be back at work when the final bell rang.
This resulted in greater elasticity in employees' free
time-some far more than others depending on the dis-
tance of their work stations from the break area, and the
employee's own speed in returning to work, for it is
e)ea^liii^e^ was no defined system 13 in place for moni-
toring compliance with the new system's liberal return
time provision.
Regarding the change in Respondent's vacation benefit
plan it is likewise clear that no reason resting on proba-
tive evidence or logical argument explains why Respond-
ent took from December 1978 until March 1980 to an-
nounce and implement so substantial a change in its usual
vacation plan bestowing more liberal accrual terms on
employees facilitating their qualification for benefits. Just
the previous February 11 Respondent's president and
chairman of the Board had exhaustively catalogued what
reasonably appeared to be an up-to-date shopping list of
promised, new benefits. (G.C. Exh. 10(a).) This was a
lengthy, thoughtful document, somewhat sweeping in
scope and detailed in depth, yet no mention is found of
either the substantial change and improvement in vaca-
tion benefits or the increased breaktime-yet locker
rooms, showers, and a comfortable breakroom are, inter
alia, presented as promised new benefits. The question
spotlighted by these proven circumstances, and brought
into even sharper focus, as it were, by Respondent's
sometime unlawful campaign tactics against employee or-
ganizational efforts is why it went beyond its own assert-
ed rationale and gave employees more breaktime than
the complaints had sought, indeed even a kind of open-
ended time to return to machines instead of just 2-1/2
more minutes-and why in the case of vacation benefits,
it implemented previously unheralded increases in such
benefits, both implementations occurring during the
advent in the Union's organizational drive.
When one reads with what care Respondent otherwise
planned its every action in this record in other respects,
noted below, one is struck with the speed by which Re-
spondent pushed into place the new far-reaching break
period, eschewing any significant trial period testing time
by which actual time required for employees movement
to and from breaks could be ascertained in favor of be-
stowing the new advantages. Likewise the unexplained
timing for suddenly dusting off a vacation plan sitting on
the shelf since 1978 and putting it into effect looms as
significant in ascertaining Respondent's motive. The only
reasonable explanation emerging from the above, given
Respondent's unpersuasive reasons and failure to account
for the timing in granting the new benefits, is that Re-
spondent, as will appear even more fully below, sought
to discourage growing employee support for the Union's
representation by granting vacation and breaktime bene-
fits on the heels of the advent in the Union' s organiza-
tional drive thereby violating Section 8(a)(1) of the Act.
Apple Tree Chevrolet, 237 NLRB 867, 872 (1978);
Rodeway Inn, 228 NLRB 1326, 1327 (1977); and see also
J. P. Stevens & Co., 247 NLRB 420, 421-433 (1980). In
short, the Respondent failed to show that its actions
were governed by permissible factors-in this case fac-
tors other than the Union's organizational drive then un-
derway-or that its actions in either instance were part
of "an already established company policy" that it did
12 Not only could employees wait a full 10 minutes before returning to
work, but also unlike the earlier procedure there was no "final bell" by 13 Respondent's then Production Superintendent Robert Wilson testi-
which time they had to be back at work which made "return" time more fled merely that "we police it so that employees are expected to move
elastic. back promptly to their machine" but did not describe how this was done
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not deviate from "upon the advent of the Union." Ameri-
can Sunroof Corp., 248 NLRB 748 (1980).
E. Representation Hearing-April Events
Hearing on the Union's petition occurred on April 2.
Among the Union's witnesses was employee Pam Fruit
who along with employee Steve Ruiz, was laid off short-
ly afterward on April 8 or 9, the two joining the ranks of
unemployed with counion supporter Linda Anderson,
laid off on March 18. Those three layoffs are discussed
below, after this inquiry into further April occurrences
requiring consideration.
According to employees Debra Johnson and Samella
Wilson, Herb Smith continued making threats similar to
those found to have been made by him in March, de-
scribed above. Thus, Wilson testified that sometime in
April, Smith was talking to Wilson and employee Rich-
ard Pike14% in the machining department in the afternoon.
Wilson recalls there was a discussion underway concern-
ing wages and that Smith said, "that if the union did get
in, Carl would never give us what we would be asking
for, and he would shut the place down first."
Wilson's account placed this conversation in late April.
Despite this, counsel for Respondent directed Smith's at-
tention when he was called to testify to "sometime in
May," asking whether Smith recalled " a " conversation
with Wilson and Pike during that month. Smith went on
to testify about such "a" May conversation. Had counsel
first established that this was, in fact, the same conversa-
tion described by Wilson-as by stipulation, or his own
witness' testimony to such effect (say, by testifying that
this was the only such conversation with the two that
occurred, if such was the case, and it occurred in May),
or by some other basis for a reliable determination to be
made that such was the case-then Smith's testimony
would be relevant and required consideration as a re-
sponse to Wilson's account. As it is counsel simply failed
to tie Smith's testimony to Wilson's and the former's cre-
dibly rendered account therefore stands undenied. Be-
cause Respondent counsel left untouched the General
Counsel's witness' placement of the conversation in
April, there was no burden on the General Counsel to
take off after an issue that he had not placed before the
tribunal , viz, the issue of whether there was some other
conversation between Smith, Wilson, and Pike. Wilson's
account is therefore credited and I find that by such
threat through Smith, Respondent violated Section
8(a)(1) of the Act. Mark I Tune-Up Center, 256 NLRB
931 (1981).
Debra Johnson testified to a conversation with Herb
Smith, also in April, during which Smith told Johnson
that, "If the Union got in the doors would be closed and
that we would bargain from scratch." Johnson recalls
that Smith had asked her by her machine "something"
about why she wanted the Union in. Johnson had re-
plied, "Well, hopefully won't we get more pay and a
pension plan?" Whereupon Smith replied as described
above. Respondent counsel, when it came his turn to
question Smith about Johnson's testimony that Smith had
said , "If the Union got in the doors would be closed and
14 Pike was not called to testify
that we would bargain from scratch," instead asked
Smith, regarding part of such testimony "Q. When, if
ever did you tell Debbie Johnson, that the company
would close its doors in regard to the union campaign?"
and Smith replied he had never said that. Counsel left it
at that. Because Smith failed to deny making the state-
ment about closing in the specific manner attributed to
him by Johnson, this leaves Johnson's highly credible
testimony about the threatened door closing totally
intact. It is further indicative of the reliability in John-
son's account of events over Smith that Smith, in fact, at
first denied being able to recall at all any conversation
with Johnson about door closing yet professed certainty
that he had not mentioned that subject -in the next
breath. On cross-examination, as noted above, Smith
changed from not recalling some conversation in which
he allegedly spoke to employees about plant closing if
the Union won the election, to denying that he made
such statements, to a still further change that he was
"not real sure." Johnson's overall testimonial demeanor
before me, in open court, was matter of fact, straightfor-
ward, and highly reliable. Her account of the plant clos-
ing and bargaining from scratch threats by Smith, which
presented to employees the loss of existing benefits and
worse, any employment at all, if the Union got in, is
therefore credited over Smith's account, including his
denial of making a statement that bargaining would be
from scratch. By such threats Respondent, through
Smith, violated Section 8(a)(1) of the Act.15 Robert
Bosch Corp., 256 NLRB 1036 (1981); Mark I Tune-Up
Center, supra; Arrow Automotive Industries, supra. Thus,
unlike the facts in Bosch, in which the test for gauging
the legality of such comment is set forth, the comment
here was linked expressly to a loss of benefits and thus
violated Section 8(a)(1) of the Act.
During the same time in late April employees Oscar
Gonzalez and Pedro Garibay testified that Chief Inspec-
tor Veldon Oleson questioned them concerning their
15 Respondent submitted a statement on this occurrence taken from
Johnson by Respondent counsel in the Company's personnel office and
marked R Exh. 9 in which Johnson purportedly denies the allegations
described above At the hearing, Johnson under examination by counsel
for the General Counsel recanted from the Respondent's statement as fol-
lows: "[Johnson] had said something [to Company counsel] about Herb
-Smith's saying that the wages would be frozen , and he says-be kept
going to different things, and I told him-I said, "He [Smith] also said,
that the doors would be closed if the union got in " And he went on to
say, "Don't you mean that he could have meant if 50 people walked out,
that all he had-to do was hire back 10 people, and then he could hire 40
new people to take their place And told him I didn't know." Johnson
was asked if she knew the statement denied Smith had said the plant
would be shut or that Smith told her that She replied she was nervous
and did not think she read it correctly, but when she read it over it was
not true. When asked why she signed it with such understanding, John-
son replied, "I was nervous. . I was just scared I was afraid of losing
my job." Johnson further testified that Respondent counsel proposed she
sign another paper about whether someone "had told me about that
doors would be closed and I told him I couldn't sign it because it wasn't
true . because Herb Smith had told me that the doors would be closed
if the union got in." Given Johnson's uncontradicted account of the cir-
cumstances surrounding her statement preparation and execution , includ-
ing her steadfastness regarding Smith 's threats and what must surely be
understood to be a natural reluctance, to refuse the company counsel's
request to sign such statement, I do not regard 'R Exh . 9 as detracting
from the probative value in Johnson's testimony
IMPACT INDUSTRIES 15
union sentiments . Gonzalez stated that the two were
standing near the machines-Gonzalez was a metal parts
machine operator on the second shift-and that while
discussing the shortly forthcoming election Oleson asked
him to tell him "which of the two [Gonzalez] was going
to vote for" and Gonzalez told him that he was going to
vote for the Union. Garibay, a partsman working under
Olesoif, testified that in this same period of time Oleson
asked him, "what did I want, the Union or the Compa-
ny" and Garibay also told him the Union Regarding the
Gonzalez conversation Oleson , on direct examination,
could not recall whether he had a conversation with
Gonzales about the Union, stating only he "may have,"
but denied asking Gonzalez who he was going to vote
for. Under cross-examination Oleson testified only that
he would not have asked how Gonzalez intended to vote,
thereby retracting from his earlier testimony on direct
that he did not ask him. Oleson also admitted he had no
independent recollection or specific memory of the con-
versation.
Regarding Garibay, Respondent 's questioning of
Oleson, even considering that counsel had been cau-
tioned on several occasions about leading questions, was
circuitous. Counsel asked Oleson, "When, if ever, did
you ask an employee at the Company who he or she was
going to vote for in the union election? Oleson answered,
"I never asked that." Oleson was then asked whether he
recalled any conversations about the Union with Pedro
Garibay and Oleson replied, "I-the only time I talked
to Pedro was about work. I did not get along with him
that well." Respondent counsel then led Oleson strongly.
"Q. And you never had any conversations with him
about the Union?" Even under this strong lead Oleson
temporized, "A. I would not have, no." I found Oleson's
testimonal performance , marked by leading questions and
surprising certainty about conclusions where the factual
predicates for such conclusions were anything but cer-
tain , and in some instances were without any foundation,
and his responses to simple question complex or unre-
sponsive , to be unreliable and tended to cloak, rather
than reveal the truth. The straightforward unchanged
testimony by Gonzalez and Garibay is therefore credited,
and it is concluded that Respondent, through Oleson un-
lawfully interrogated employees to disclose who, in one
instance the employees intended to vote for, and in the
other, to tell the supervisor, who he wanted-the Union
or the Company. Such conduct coerced employees in
their exercise of rights guaranteed under Section 7 of the
Act in violation of Section 8(a)(1) of the Act, for, as
shall be seen , these were no "isolated" innocuous acts of
such questioning, which cropped up again later in the
campaign , but occurred in a pervasive atmosphere of the
unlawful conduct from which these incidents derive sin-
ister impact. Lamar Outdoor Advertising, supra.
F. Events Close to the Election on May 16-Service
Awards Plan Benefit, and Other Restraint and
Interference
1 The service awards plan
Within 1 week of the election day's Respondent in-
stalled a display case in the corridor leading to the em-
ployee's cafeteria from the employees' plant entranceway
(R. Exhs 40, 41) The case displayed three watches, cer-
tificates, two women' s rings, and other items of jewelry
that thenceforth could be awarded employees based on
length of service with the Respondent. The awards to be
given employees included an emerald-studded lighter,
emerald gold-filled cufflinks, emerald attached to gold-
filled choker chain and bracelet, gold-filled money clip,
and vest chain with attached sapphire, bracelets and
other similar chains, emerald-crested gold-filled belt
buckle, jeweled golden rings , and diamond studded
watches. (R. Exhs. 36-39.) Respondent's president Carl
Becker signed purchase orders reportedly on March 1,
1980, which totaled on that initial order alone nearly
$4000. (R Exhs 36-39.) After the "samples" arrived, in
batches, they were kept in the personnel office until, ac-
cording to Becker, the saleswoman for Josten's Compa-
ny, the gifts' supplier and plan originator, Mary Murphy,
suggested and requested a display be set up in the corri-
dor where employees could see the program's benefits,
Murphy assertedly being moved by "good merchandising
efforts" on her part and Murphy's request being the Re-
pondent's predicate for such action. Becker, who testi-
fied that the whole idea originated in early April, late
May 1979, and just progressed naturally to its implemen-
tation the following year, testified merely that he "saw
no reason to wait until [after] the election before setting
it up." He admitted further that no formal announcement
had been made because, "I think it should have been
generally known, because we used plant people to help,
select the jewelry design-it was an ongoing program
for a number of months , and a lot of people knew about
it " On cross-examination Becker could only identify 2
employees out of 135 production employees who "knew
about it," but stated he believed, although not positively,
that the two consulted with others One of the two,
Bonnie Cohoon, made a lead operator in fall of 1980, tes-
tified she and "3 other women and 2 other men" looked
at possible service award designs in the process of being
approved in October or early November, "prior to
1980," and that she "spread the word," although to what
extent, and about what, at that time she did so was not
revealed. 17
It remains a fact, however, that Respondent did not
mention so grand a new benefit as the service awards
plan as being in the wings on February 11 when it de-
voted attention to a catalog of pending new employee
18 Based on undemed testimony that it was after the date the samples
arrived , May 9, that the samples were later moved from personnel to a
display case location in the corridor after Murphy made such a sugges-
tion , and the cross -examination of Becker who later admitted it was the
week before the election when the awards were disclosed
17 Employee Tom Johnson , employed for over 6 years, testified that to
his knowledge there was no such plan until the display was set up
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
benefits in Becker's memorandum of progress to employ-
ees before the advent of the Union's campaign, and yet it
would seem a natural occasion to do so were the plan
implemented only 3-1/2 months thereafter, and in the
planning stages since April or May 1979, then in fact
scheduled for a May installation Murphy testified she
sought a May 9 delivery date because of her payment
needs in the fiscal year basis followed by her employer
in paying her for the sales she made. Respondent takes
the position it went along with Murphy's request, Becker
testified about the timing in further cross-examination,
"[there] was no reason to hide it, no purpose in not put-
ting them up" and that he was "not concerned about
impact on employees' voting choice."
There is no doubt that Respondent knew about the ac-
tivities of its employees in support of union representa-
tive and the Union's campaign at the time Respondent's
president signed the purchase orders for the awards as
shown thereon, viz, March 1, certainly, it was further
obvious to Respondent that so richly endowed a pro-
gram would constitute a substantial benefit to its employ-
ees, that the record fails to clearly establish was thereto-
fore known to them, when the plan was put into place
de facto the week before the election without any formal
announcement beforehand-action uncharacteristic of
Respondent's other institution of new employee benefits
described above. For Becker to testify he saw no reason
to hide it, and that he had no concern for the possible
impact on employees' voting decisions when setting up
the glittering jewelry and certificate display 1 week
before the election strains credulity beyond the breaking
point. Furthermore, even accepting Becker's protesta-
tions, Respondent could certainly not rely on a mere re-
quest by an outside salesperson from another firm as con-
stituting a "legitimate business reason" for the timing in
such action, yet it advanced no other possible cause for
implementing the plan at the time it chose to do so Re-
spondent professed a careful concern to do what was
lawful, in its campaign to oppose the Union, securing a
list of "do's and don'ts" and substantial legal advice for
its supervisors Yet Respondent, who owed no duty to
Josten's or its salesperson to honor any request for a
May delivery date, and clearly owed no such duty based
on any legitimate business reason to honor Murphy's re-
quest for a display of the jewelry and gifts virtually on
the eve of the election, did so anyway-at the same time
committing unfair labor practices, including unlawfully
granting other improvements in employment conditions
designed to interfere with employees' rights under Sec-
tion 7 of the Act. Based on the foregoing, I conclude
from a preponderance in the evidence, including, though
not limited to, the absence of a legitimate business reason
for the timing in Respondent's action, i 8 that a basis
exists to infer improper motive and improper interference
with employee rights from the grant of the service
awards program the week before the May 16 election,
such result following from the Board's recently restated
standard in such cases Lake Development Management
18 The Respondent's asserted reasons, moreover, as noted do not ring
true either, and thus provide further basis to infer a wrongful motive on
its part Purity Supreme Supermarkets, 256 NLRB 940 (1981)
Co., 259 NLRB 791 (1981), and cases cited therein Such
inference is made herein, and it is therefore concluded
that Respondent, by establishing such plan, through
which, it should be noted, employees were in fact given
actual awards about 1 week after the election, thereby
violated Section 8(a)(1) of the Act
2 Other restraint, coercion, and interference
As election day, May 16, grew closer Respondent's ef-
forts to influence the outcome increased Felipe Gonza-
lez die cast operator under Veldon Oleson testified that
Oleson approached him at work in early May and had a
talk with him about the UAW asking him "why did I
want a union, or did I want a union," Gonzalez recalling
further that Oleson questioned him further asking him to
tell him what kind of problems Gonzalez had to want
the Union. Oleson was unable to recall any talk with
Felipe Gonzales about the Union and could not, there-
fore, deny Gonzalez' account. Crediting Gonzalez' un-
contradicted testimony19 it is concluded that Oleson did
question Gonzalez concerning his sentiments towards the
Union and in connection therewith asked Gonzalez what
problems he had "to want the Union." The record indi-
cates Oleson was campaigning against the Union handing
out papers to Gonzalez containing "Spanish saying
things like the Union promises me things but it doesn't
keep its promises." It is evident as well from the earlier
findings herein involving Oleson in unlawful conduct to-
wards employees, that this occurrence was no casual or
isolated contact between supervisor and employee but
part of a pattern of interrogation 20 and, also, solicitation
of employee grievances carrying an implied promise to
redress the grievances without the employee needing the
Union's representation, the latter conclusion borne out
not only by Oleson's pointed reference to what Gonza-
lez' problems were "to want the Union," but also the
findings detailed elsewhere that Respondent sought to
solicit grievances on other occasions as well. By such
conduct, I find Respondent violated Section 8(a)(1) of
the Act. Swanson-Nunn Electric Co., 256 NLRB 840
(1981).
19 Gonzalez testified he was able to understand English "a little" and
based on his responses to me and other demonstrated sufficient ability to
have been able to understand Oleson's question
20 Thus employee Manuela Fabela credibly testified that around elec-
tion time Oleson came to him at his machine with an interpreter he called
Theodora, who worked there and asked him what he thought about the
Union, and whether he thought it was a good thing for the Union to
come in or not Fabela also said Theodora told him the Union really did
not help people Oleson does not deny questioning Febela nor did "Theo-
dora" testify It is concluded that this additional interrogation of employ-
ees also violated the Act Employee Oscar Gonzales testified that in early
May Oleson talked with him about the election near the machines asking
him which of the two he was going to vote for and Gonzalez told him
that he was in favor of the Union Oleson denies asking Oscar Gonzalez
literally about the Union but admits maybe having a conversation about
the Union with him Dehila Perez testified Oleson asked "us" several
times in the late April early May period what the employee voting inten-
tions were I find these consistent employee accounts credible against
Oleson's unpersuasively rendered, guarded, and incomplete denials Ole-
son's further interrogation of employees clearly constitutes unlawful in-
trusions into their rights under the Act to "keep their own union prefer-
ences and sympathies to themselves so that they may exercise a full and
free choice on whether to select a union or not " Raley's Inc, 256 NLRB
946(1981)
IMPACT INDUSTRIES
Employee Tom Johnson, a sander in de-burr depart-
ment testified that during a conversation between Don
Lipper, foreman over machining and secondary oper-
ations-which includes de-burr-and several other de-
partment employees, Lipper advised employees that if
the Union got in, "We'll have to bargain from scratch"
or "'negotiate" from scratch. During cross-examination
Johnson elaborated when questioned further concerning
Lipper's comments that Lipper had stated, "everything
we've worked for that we have at the factory now will
be totally lost and we'd have to bargain from scratch."
When Respondent counsel put Lipper on the stand he
led Lipper at a crucial point asking whether, "Q. During
that conversation, did anyone use the term, `bargain from
scratch' to your recollection," and otherwise simply beat
around the bush rather than getting at the heart of John-
son's testimony. Thus, Lipper was asked about what was
said, and had difficulty remembering what employee
Mary Beale had asked, saying it was "something involv-
ing benefits with the company" whereupon counsel led
Lipper by telling him "Q. She asked you about-what
would happen to fringe benefits if the union won the
election?" "A. Okay I told her that benefits were a nego-
tiable item." Lipper also said an employee Bonnie
Cohoon made the statement "bargaining from scratch."
Lipper at no time in his testimony before me flatly
denied making the statement attributed to him by John-
son testifying merely that the following day in a conver-
sation with Johnson he said he had not made the state-
ment, but that Bonnie Cohoon had done so. For her part,
Cohoon testified that Johnson was not even present at
"that conversation,"21 but nevertheless recalls that
Lipper said anything we got after the Union did happen
to get in would have to be negotiated between the Com-
pany and the Union. Another employee, Mary Beale,
present at some undisclosed portion in the discussion,
said she asked if everything would be taken away, or do
we go on as we are, and that Lipper said it would be up
to the people involved-the negotiations. Counsel then,
despite being cautioned on several prior occasions led
the witness by asking, "Do you recall Mr. Lipper ever
having used the phrase `bargain from scratch'?" Beale re-
,plied no-which did not amount to a denial, and was
clearly unable to recall to any substantial degree what
else was said; and by whom, during the discussion. Ac-
cordingly, while testimony by Lipper, Beale, and
Cohoon was offered in response to Johnson's reliably
rendered account, such testimony-consisting of what
was said at different portions (or even the same, inter se
those three participants) was not shown to go to the por-
tion of the discussion described by Johnson whose direct
account concerning what he, heard Lipper say therefore
stands undenied. In short, the testimony of the three "op-
posing" witnesses, for all that was adduced by Respond-
ent's counsel, failed to go beyond sidestepping Johnson's
testimony, which is therefore credited. Accordingly, I
find that Respondent through Lipper threatened employ-
ees with loss of existing employment benefits if the
21 Cohoon's testimony, offered by Respondent, can in no way there-
fore be taken as contradicting Johnson's because for all that appears she
testified about a different portion in the talk.
17
Union became the employees' bargaining representative,
thereby further violating Section 8(a)(1) of the Act.
Robert Bosch Corp., supra.
The General Counsel contends that Respondent also
threatened a plant closing if the Union won the election,
during a speech by Carl Becker on May 13 to a portion
of second-shift employees in the cafeteria. In support
two witnesses were offered, Delia Perez and Victor
Nunez. Perez testified she heard the employee translator
selected by Becker to translate his remarks state, "Per-
haps if the union won, the plant may_ be shut down," but
on cross-examination Perez changed this testimony and
said the translator quoted Becker as saying "that probably
the factory would be shut down" and the General Coun-
sel did not bother to address the obvious difference in
these two versions on redirect examination, so that only
by speculation can it be determined whether Perez had
(1) difficulty recalling what was actually said, (2) wheth-
er Perez was moved to embroider her testimony on cross
beyond that rendered on direct, or (3) whether she had
difficulty at her admittedly low level of fluency in the
English language describing just what she had heard the
translator say. In any of the three instances flowing from
Perez' unrehabilitated and unexplained variation in testi,
mony, on this point at least there is a reasonable basis to
credit her account. Moreover, although the General
Counsel blankets the testimony of Nunez in with that of
Perez on brief claiming the latter confirmed the former
such writing can only be based on zeal alone, which is
no substitute for proof. Thus, it is not shown that Nunez
was even describing the same meeting as described by
Perez. Nunez testified' he heard Becker say, "if the Union
got in, they could close the doors." He repeatedly denied
that there even was a translator translating Becker's
comments thereby failing to tie his testimony about
Becker's comments at a "meeting" to the meeting de-
scribed by Perez, wherein it is undisputed a translator
was present. Moreover, Nunez testified, when asked on
direct examination what Becker's exact words were in
English about closing the doors that, "A. I'm not really
sure. I don't speak English and I don't understand every-
thing either." When asked how, in the absence of a
translator, he knew what was said he replied, "Because I
understand a little. With the little I understand, I knew
more or less what he was saying." I found no basis in the
record to conclude that in other May 13 speeches to em-
ployees Becker communicated such a threat-denied by
several employer witnesses at such other meetings, and
further viewed Nunez' testimony unconnected to that
rendered by Perez and therefore uncorroborated, as well
as linked to no specifically detailed meeting, or reason-
ably elaborated context for that matter as merely leaving
big voids left unfilled or totally ignored by the General
Counsel. A witness' understanding "more or less" on a
disputed issue is not, in short, the kind of probative evi-
dence I deem sufficient to carry a burden of proof and
Nunez' testimony being left at that," it is concluded that
the General Counsel failed to prove by a preponderance
of the evidence that Respondent, through Becker at the
May 13 meeting with employees, threatened a shutdown
if the Union won.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This does not alter the finding, supra, that employees
were earlier confronted by supervision with such threat-
ened action that tends to support Nunez' further, uncon-
tradicted testimony that during the preelection period
Mexican employees "were saying in the factory that if
the Union came in, they would close the factory and a
lot of people were frightened by it."
It is also alleged by the General Counsel that at an-
other of the meetings on May 13 attended by Randall
Rebhorn and about 30 employees on the second shift be-
tween 5:30 and 6:30 p.m., Carl Becker solicited employ-
ees to bring their grievances to him for resolution. Reb-
horn testified that "He [Becker] said that if we had any
grievances to come and ask him and he would try to
take care of them-that we didn't have anything to get
by the Union that we couldn't get by ourselves." Reb-
horn also testified that Becker had never asked him if he
had any grievances before this.
On brief Respondent counsel alleges that the testimony
of employees Whittlinger, Thorn, Cohoon, and Maria
Wilson "overwhelmingly" shows that Becker made no
such statements and that Becker was careful not to devi-
ate from the prepared script or flip charts.
However, Becker admitted that after each speech he
conducted a question-and-answer period that was some-
times "extensive," though he testified he avoided "any-
thing" to do with grievances. Such a response to Reb-
horn's specific allegation can only be considered a gener-
al denial, rather than as addressing the specifics in Reb-
horn's assertions. How also can Becker assert he avoided
"anything" to do with grievances given the testimony of
Respondent's own witness Keith Whittlinger, who testi-
fied that Becker told about 20 employees that day at a
first-shift meeting that the Company had an "open door
policy," that maybe it had not worked as well as it
might-"maybe complaints were not reaching him due to
press of business on him." Whittlinger noted that several
"things" were brought up to Becker by employees that
Becker then "noted."
Another employee witness offered by Respondent
itself, Barbara Hudson, an active member of an antiunion
employee committee at Impact, also described one of the
May 13 meetings at which Becker spoke during cross-ex-
amination:
Q. And, during that meeting, isn't it correct that
he suggested or asked employees-or told them to
bring problems to him?
A. He always did.
Q. Okay, And what did he say at that meeting
about that particular subject?
A. He said if we had a problem we could always
come right to him and ask him about it.
Q. Did he say, directly to him?
A. He said if we couldn't get satisfied, to go right to
him and he'd look into whatever our problem was.
Another Respondent witness Jacob Dawson Thorn at-
tended a 4 p.m. meeting on that same day, May 15.
Thorn testified, inter alia, "The-I remember Mr. Becker
saying that he always had an open door and that anytime
anybody had any problems, that they were more than
welcome to come and consult with him about any prob-
lems that they might have." Bonnie Cohoon, yet another
Respondent witness, testified that at the meetings she at-
tended on May 13 at 8:30 or 9 a.m. Becker "restated
policy as far as open door . . . . He wanted to empha-
size that, you know, he had always had an open door
policy and would continue to do so, and that nothing-
and that you could bring your problems to him."
It is concluded from this strong preponderance in evi-
dence, including the uncontradicted testimony of Reb-
horn and Whittlinger, as further confirmed by Respond-
ent's reports of an unprecedented play or emphasis being
given to an allegedly preexisting open-door policy22
coupled with repeated invitations to employees to bring
problems directly to Becker-invitations that the record
shows were accepted at that meeting and thereafter, as
noted below, that Respondent actively and strongly
urged employees to bring their problems to management
for resolution as "we [employees] didn't have anything
to get by the Union that we couldn't get by ourselves."
It is crystal clear that Respondent's motive in doing so
was to render futile the exercise of Section 7 rights in
the eyes of its employees through the device of impliedly
promising to resolve their problems without the presence
of a bargaining representative, conduct clearly violative
of Section 8(a)(1) of the Act. Swanson-Nunn Electric Co.,
supra, and High Energy Corp., supra.
a. Respondent's president tells employees bargaining
would be from scratch
Randall Rebhorn testified further about events at the
meeting between 5:30 and 6:30,p.m. on May 13 when
Becker addressed assembled employees from a portion of
the second shift. Rebhorn testified under cross-examina-
tion by Respondent's counsel that sometime during Beck-
er's speech and question-and-answer period, at which
time Rebhorn stated Supervisors Vern Oleson and Loyd
22 There is an indication that as late as August 1979 there was no
clearly established grievance handling machinery in place at Impact, cer-
tainly nothing such as Respondent , through Becker, was referring to as
an open-door policy by which employees were invited to see him direct-
ly on May 13, 3 days before the election Rather, it appears employees
attended safety meetings where suggestions and grievances could arise.
Employees Wlutthnger wrote management that a separate committee and
a different forum "are required to adequately provide the employees with
an opportunity to voice their ideas and/or criticism-a structured and
standard outlet," on August 8, 1979, in a letter including his suggestion
for vacation plan changes (R Exh 25 )
Contrary to Respondent counsel's argument on brief that there was no
response to such'alleged grievance solicitation therefore such was proof
that no solicitation occurred, there is, indeed, proof of employees re-
sponses First, employee witness Whittlinger, offered by Respondent, tes-
tified without contradiction that employees raised several things, which
Becker noted Also, the following day employee Paul Clausel raised
problems he had regarding financial matters and Becker responded to
them, offering Clausel tuition reimbursement pursuant to what the record
shows to be consistent established policies. The General Counsel does not
argue on brief that this exchange constituted unlawful conduct, and I
credit Becker over Clausel's uncertain account that he did not ask Clau-
sel to vote for the Company or promise him a position in accounting
Third, shortly after the election a group of employees, presented a sup-
ported complaint over lunchtime scheduling directly to Becker for reso-
lution under circumstances discussed below and indicating they were
prompted to do so, inter aha, due to the reported solicitation of griev-
ances by Becker on May 13
IMPACT INDUSTRIES
Priebe were present, an employee whom Rebhorn identi-
fied as Ron Slaten asked Becker "where we would start
bargaining if the union won the election. He just asked
from what point we would start bargaining with the
union-the company would start bargaining." I asked,
"And what was the company's response, or Mr. Becker's'
response? He responded "From scratch," Respondent's
counsel then went on to elicit from Rebhorn the names
of Priebe and Oleson as being present on that occasion.
Counsel returned to the point later in cross-examination
in an effort to shake Rebhorn's testimony but made no
headway. Further, in addition to Rebhorn remaining
steadfast on the point, none of the witnesses called by
Respondent was shown to be present at the meeting
Rebhorn described so that their testimony does not di-
rectly deny or contradict Rebhorn. Significantly, Loyd
Priebe, a company supervisor, was not called by Re-
spondent to deny Rebhorn's testimony although Rebhorn
placed Priebe at the scene; nor did Respondent attempt
to question Supervisor Oleson about Rebhorn's testimony
although the latter was also placed by Rebhorn at the
meeting. Employee Ron Slaten did not testify although
neither party reported Slaten's unavailability.
It is concluded from the foregoing credible testimony,
considered more reliable than Becker's generalized deni-
als, and in the absence of any other contradictory evi-
dence, that during a May 13 speech and discussion ses-
sion between Becker and employees the former informed
employees to the effect that if the Union won the elec-
tion bargaining would be from scratch thereby implying
that employees would lose their existing benefits regain-
mg only such of those benefits that could be bargained
for successfully by the Union. Such, threatened loss of
benefits tied to the emergence of the Union's employees'
bargaining agent is clearly violative of Section 8(a)(1) of
the Act because of its plainly coercive effect on the exer-
cise of employees' rights under Section 7 of the Act.
Robert Bosch Corp., supra, Hamilton Avnet Electronics,
supra.
b. Promise of Benefits
Within 10 days of the May 16 election, according to
testimony by employees Delia Perez and Victor Nunez,
Perez' uncle, Marisio Nunez Sr., a foreman and admitted
supervisor for Respondent told them at their home that
"if they voted for the company Carl Becker said he
would help us-that we would help him by voting for
the company and later on he would help us." Perez said
they told Marisio they were voting for the Union. Victor
Nunez' account is essentially the same as Perez. Marisio
Nunez Sr. was not called by Respondent to deny the
foregoing credible accounts nor during examination as a
witness called by the General Counsel pursuant to Fed-
eral Rules Civil Procedure 611(c) did Respondent seek
such a denial from him. I consider Respondent's conten-
tion that because the employees, in response, admitted
they intended to vote for the Union the promise of help
in the, future carried no coercive weight to be without
merit. It is well established that it is the intent or design
in such promise of benefit geared to influencing an em-
ployee's voting intention that is the sine qua non of a
violation and not the perceived or imagined or actual
19
subjective response of the employees that is controlling.
Arrow Automotive Industries, supra; Pace Oldsmobile, 256
NLRB 1001 (1981).
It is therefore concluded that by making a promise of
undefined benefit in the future if employees voted for the
Company and against the Union, Respondent, through
Nunez Sr., further violated Section 8(a)(1) of the Act.23
c. Surveillance
The General Counsel on brief contends that the Re-
spondent engaged in conduct creating the impression
that employees ' union activities were under its surveil-
lance, and that therefore Respondent unlawfully inhabit-
ed the exercise of employee rights under Section 7 of the
Act. There is substantial undenied or credited evidence
that employee distribution of union literature , pamphlets,
and the like was observed by management officials for
substantial periods of time and on several occasions in
April and May just before the election . Some of these
occasions can be passed over with the observation that
no more than curiosity , or a kind of natural interest in
going-on emerges from the testimony at first glance.
Thus employee Pam Fruit testified that on April 25,
while distributing union literature , she noticed three
company officials, Manufacturing Vice President Hebel,
Director of Industrial Relations Ben Gattorna, and
Veldon Oleson watching her and employee Linda An-
derson from the personnel office about 20-25 yards
away, but did not say for how long nor describe any-
thing specific they were doing. Likewise, employee
Linda Anderson first testified merely that while passing
out literature on April 29 she saw the "personnel manag-
er" (unidentified by her) looking at "us" but did not say
for how long or what "they" (her later reference to
those doing the looking) were doing . Respondent's offi-
cers, however, are described as going beyond passive
roles as mere spectators as time progressed . Thus, em-
ployee Debra Johnson testified without specific denial by
Production Superintendent Robert Wilson24 that during
the period late April, early May, Wilson and two other
officials , Supervisor Don Lipper and Keith Becker, qual-
ity control manager, watched Johnson and employees
Kitzky and Samella Wilson distribute union literature
inside the corridor leading to the cafeteria , some 10 or 15
feet from them for about 10 to 15 minutes . Johnson testi-
fied that the company officials stood close -to the cafete-
ria window watching them and that the three usually sat
down at a table in the cafeteria rather than stand at the
window or in some instances take their coffee to their of-
fices. Keith Becker did not deny Johnson's testimony;
Lipper admitted to watching the employees for 3 min-
utes. Employee Jolene Kitzky also testified to being
watched on an undisclosed number of occasions by
Lipper and Becker in the same period, the two standing
13 Respondent's further assertion that a conversation months later be-
tween Nunez Sr and Larry (Thorn) Villareal retrospectively shows an
inconsistency in the account of Perez and Victor Nunez is beside the
point as the above finding is limited to the version of Perez and Victor
Nunez only, Villareal was not present at such earlier conversation
24 Wilson merely testified he had not changed usual habits during the
election period.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in front of the cafeteria door, about 20 feet away, from
the start of the employees' distribution of literature until
a few minutes before the start of when it ceased.
Outside the plant, while employees Anderson, Pam
Fruit, and Randall Rebhorn were distributing literature
on May I in the employee parking lot Linda Anderson
testified she saw Supervisor Norm Fritz, Vice President
George Hebel, and Supervisor Veldon Oleson in the per-
sonnel office windows and that Fritz came outside and
spoke to Anderson and Pam Fruit stating that the two
"were no longer employed and had to leave the property-
. . . the company insurance does not cover you."25 The
two left and went to the plant.
Superintendent Wilson testified that on an occasion
during employee leafletting he observed Irene Ruiz pass-
ing out literature on the sidewalk approaching the build-
ing from the parking lot about 15 to 20 feet from the
door. Wilson, who also testified he had observed Ruiz
doing this on another occasion from the window of the
industrial relations manager's office, testified, "I felt she
had no reason to be there. She was not an actively em-
ployed person." Accordingly, Superintendent Wilson
went to Ruiz and asked her to leave. Ruiz did so.
On May 7, 8, or 9, employee Randall Rebhorn testified
he saw Gattorna and Wilson looking out the personnel
office window while he, Ruiz, and others were passing
out literature some 50 feet away. Rebhorn testified that
he saw them looking through the window for about 20
or 30 minutes, repeating these actions for a few days.
Gattorna was not called to testify. Wilson, who testified
that, "I suppose every time employees handed out litera-
ture I saw them," testified further that he did not
"recall" seeing Rebhorn do so but did recall specifically
seeing employees Debbie Johnson and Samella Wilson
distribute literature.
On May 9, 7 days before the election, the quality con-
trol manager and Carl Becker's son, Keith Becker, ap-
proached employee Pam Fruit in the parking lot. Fruit
was an active union supporter, member on the organiz-
ing committee, and had passed out union cards. On this
day Fruit was engaged in handbilling. Becker ap-
proached Fruit and asked her if she would get off the
property and Fruit replied she was an eligible voter and
had been told she could handbill. Becker told Fruit again
he wanted her off the property and Fruit told him she
guessed he would have to call the police whereupon
Becker said he guessed that is what he would do and,
"stormed off . . . really upset."
It may well be, as Respondent counsel suggests appro-
priately, that some of these earlier incidents indicate
more curiosity than intentional surveillance-Respondent
officials not being shown in the first two incidents to
have acted in an out of the ordinary manner or to have
been shown as taking down names and the like. But later
events in the end of April and the 2 weeks before the
election, in my view, manifest both more than mere curi-
osity by Respondent officials in employee handbilling ac-
25 Fruit mistakenly placed this conversation on April 25 but Ander-
son's testimony that Fruit, surprised, asked Fritz, "We're no longer em-
ployed" indicates the occurrence placed by Fruit on April 25 most prob-
ably refers to May 1-it is so found. Had it been April 25 then Fruit
would not have been surprised on May 1 to hear such news
tivities and conduct which, to say the least, is far from
ordinary given this record. The period of time that had
elapsed from the start in the Union's campaign in Febru-
ary and the incidents described above in late April and
early May during which, it is reasonable to assume,
handbilling activity would have lost any initial allure as
an occurrence inciting great interest militates against the
view that it was mere curiosity that led Respondent's of-
ficials to spend so much time watching the handbilling.
In addition, the absence of any proof contradicting the
testimony concerning the unusual conduct of Respond-
ent's officials in the cafeteria "watching" of employee
handbilling leads to the conclusion that Respondent did
do something out of the ordinary when its officials more
closely observed the activity by repositioning themselves
near the cafeteria door window and keeping employees
under scrutiny the entire time, while before these occur-
rences such officials would sit down as others did during
coffee, or take it in their office.
The record, moreover, is without any evidence what-
soever that employees-temporarily laid off, on vacation,
holiday, or off shift or between jobs at Impact for that
matter were ever prohibited from being on the employ-
ees' parking lot, adjacent sidewalks, or near the entrances
merely because "company insurance did not cover them"
or because any official ever "felt they had no reason to
be there." This leads to the conclusion that Wilson's and
Franz' reasons for excluding employees Fruit and Ander-
son when the two were seen handbilling are not rooted
in any established practice but amount in fact, for all that
appears, to be a departure from the ordinary-not to
mention as well, the presentation of a false reason for ex-
cluding them, warranting an unfavorable inference as to
what the real 'reasons were. These considerations tie in
with, and must therefore be considered in any analysis of
the motive for, the substantial amount of watching of
employee handbilling that occurred. That the Respond-
ent's actions arising from its well-nigh continuous scruti-
ny of employee handbilling included as well, the expul-
sion of a long-term employee, employee Pamela Fruit,
when she too was detected by Respondent to be engaged
in handbilling on pain of the police being called, leaves
no room for doubt that Respondent's conduct created
the impression of keeping employee handbilling activities
under close surveillance. This conclusion rests on the
substantial evidence that employee handbilling was
openly and more closely observed than other nonwork
activities of employees are shown to have been in the
past; that Respondent officials engaged in conduct while
watching employee handbilling that was out of the ordi-
nary such as assuming closer positions to them and keep-
ing them under scrutiny, and by expelling employees
from company property outside the plant after the latter
had been engaged in handbilling, thereby in sum creating
the impression that such activity was under Respondent's
daily surveillance. By such conduct it is concluded Re-
spondent violated Section 8(a)(1) of the Act.
Although the conduct found unlawful may not fit ex-
actly into the usual mold of conduct creating the impres-,
sion of engaging in surveillance, employees confronting
the described conduct on all the occasions involving
IMPACT INDUSTRIES 21
handbilling would reasonably assume from the recurring
reactions by Respondent thereto, including its supervi-
sors getting closer for a better look, watching for sub-
stantial periods, and evicting them from company prop-
erty, that such activities had been placed under surveil-
lance. 7-Eleven Food Store, 257 NLRB 108 (1981).
d. Impact's president admonishes employee Johnson
Employee Debra Johnson, a machimst working under
Herb Smith's immediate supervisor and the overall -su-
pervision of Foreman Don Lipper, testified that some-
time in late February or early March, in a conversation
with Lipper concerning the employees' wages at Impact,
she mentioned a newspaper article that referred to an in-
tended donation of money by Impact to a memorial
swimming pool. Johnson recalls she told Lipper, "Well,
if Carl Becker can pay the money out for a swimming
pool, why can't he pay his employees a little bit more
money?" Johnson's remarks were reported to Impact
President Carl Becker. The very next day Becker admit-
tedly was upset and angry "since we were being accused
of a lot of different things then" sought out and accosted
Johnson at her machine in view of other employees,
shaking his finger about an inch from Johnson's face, and
speaking in a very loud tone of voice. Becker told John-
son, according to the,latter, who was wearing a UAW
button at the time, inter alia, that she "shouldn't com-
plain because if the swimming pool does take place my
kids would benefit from it." Johnson testified she was
frightened by Becker's outburst and angry state as well
as embarrassed by his conduct within view of.her co-
workers and friends,26 so she told him (recalling to her-
self, she says, advice at a UAW meeting not to discuss
such matters during working time) that she could not
discuss such things on company time. Becker in a similar
angry vein yelled in an even louder voice that he could
talk to her anytime he wanted to. Johnson recalls that at
some point-either out on the floor or in a nearby super-
visor's office where the conversation continued-she
mentioned again that if Becker could afford to make the
donation to the swimming pool "why can't he afford to
pay his employees more money." Becker testified with-
out denying-even admitting-his angry behavior to-
wards Johnson, but pointed out he had a social acquaint-
anceship through company picnics with Johnson and was
upset over her statement, that Impact had pledged a
higher figure to thee, pool than the contingency amount
actually pledged.
There was no evidence introduced by Respondent
tending to show what "other things" Impact was being
accused of in late February and early March or what ex-
actly precipitated such anger by Becker as would lead
him to single out a union activist on the plant floor to
confront her in so loud and abusive a manner about a
matter that he could have easily corrected in private
with her, directly or indirectly-or by a public clarifica-
tion in the newspaper-which in fact occurred later. Nor
26 Coworker Samella Wilson, one of the employees seeing the con-
frontation, corroborates Johnson's description of Becker's conduct,
adding Becker 's voice was raised, that he acted upset , and was flushed
while shaking a finger in Johnson's face.
does Becker's reference to a "social"-based acquaintance-
ship by any reasonable stretch of imagination render in-
nocent a company's very chief executive openly singling
out for angry admonition on the plant floor an employee
who had merely addressed a question about wages to a
foreman. The effect on the exercise of employees'- rights
to engage in such a clearly protected activity as ques-
tioning an employer's wage rates for its employees is
clearly coercive and therefore Becker's conduct towards
Johnson violated Section 8(a)(1) of the Act. Arrow Auto-
motive Industries, supra.
G. Respondent's Postelection Conduct
1. Reinstitution of paid lunch
In late January or early February prior to the union
organizational drive-as noted by Respondent counsel on
brief-Respondent changed the inspection department
employees lunch benefit, taking away completely the 20-
minute paid period and in its place substituting a 30-
minute unpaid period resulting in a requirement that the
employees arrive at work earlier and stay longer. The
step was taken after an assessment revealed the desirabil-
ity of creating an overlapping presence of inspectors on
ongoing and offgoing shifts who could then communi-
cate with each other concerning problems in production
on their respective runs. There is considerable evidence
that the change caused employees to complain about dis-
ruption in their personal family routines, babysitting and
transportation problems included, leading to a petition
against the change being presented-which was denied,
although a delay was granted until early February to
accord employees time to accommodate plans.
Employee Barbara Hudson testified that the employees
again presented a petition to Respondent to revert to the
former work schedules and lunch periods in June after
the election. Hudson testified the employees presented
the petition to Carl Becker in the cafeteria. The record
shows that Becker looked at the petition and indicated
that he was unaware of the problems but saw no reason
why the inspection department could not return to the
old schedule, signing the petition, and approving the
return to the former system on the spot.
There can be little doubt on this record that Becker's
swift action dispensing with a system that Respondent
had put into place after first reaching the judgment that
it was important to do so despite possible repercussions,
then kept in place even in, the face of strong and well-
supported employee complaints, arose from concerns
that are suspect in that they appear rooted to antiunion
considerations rather than normal plant operational ob-
jectives. It is already found that on May 13, only a short
number of days before this occurrence, Becker unlawful-
ly solicited grievances from employees impliedly promis-
ing to resolve such grievances. Employer Hudson, an an-
tiunion employee campaigner, admitted on examination
that she had decided to take this problem to Becker in
part based on Becker's comments inviting grievances at
the May 13 meeting. It has been demonstrated as well
that Respondent took the original action for what it con-
sidered valid operational reasons, fortifying the sound-
22 DECISIONS OF THE NATIONAL LABOR, RELATIONS BOARD
ness in its original decision by rejecting employee com-
plaints against the move prior to its employees' organiza-
tional efforts. After the election, of course, timely objec-
tions to Respondent's conduct affecting the election out-
come were on file in the Board's Regional Office as
known to Respondent, which it follows, was on notice
that a question concerning representation of its employ-
ees still existed. Notwithstanding this, Respondent's
president granted on the spot a substantial change revert-
ing to a former work schedule and paid lunch period ad-
mittedly without any significant consultation or reflection
as to objective or operational reasons why the changed
system was instituted and defended against the same em-
ployee complaints earlier in a single grand gesture. The
swiftness in this action by Becker, who admittedly was
"unaware of the problem" and hence it is reasonable to
suppose would ordinarily have investigated the situation
further unless some consideration other than an objective
operational one was in mind, is explainable only by con-
necting the granting of the petition with Becker's earlier
unlawful promise to resolve employee grievances
"brought directly to him." The occasion was too good
an opportunity to fulfill such promise before employees
in the cafeteria to pass up. The very fact that Becker, as
he admitted, saw no reason why the department could
not return to the old schedule would normally, in my
view, result in Becker's checking nonetheless why the
change had been made in the first place before reaching
any decision except that, as demonstrated, he was moved
by prohibited considerations having to do with discour-
aging employee support for the Union. I so find and
therefore conclude Respondent violated Section 8(a)(1)
of the Act. Edward A. Utlaut Memorial Hospital, 249
NLRB 1153 (1980).
2. Respondent's threat against union talk
Employee Domingo Villareal, a die caster supervised
by Larry Brock, second-shift foreman in the die casting
department, testified he had a conversation with Barbara
Babcock in the lunchroom during breaktime about the
Union in early July. Villareal testified that he said to
Babcock he did not understand why the Company did
not recognize the Union; and that, in reply, Babcock told
him, "You better shut up and not talk about a union in
this company." Ten minutes later, after Brock, Villareal's
foreman, had been told by Chuck Adams that Villareal
was in the shop "harassing employees and making them
mad"-reportedly mentioning Barb Babcock's name but
"nothing [being] said about the Union," Brock went to
Villareal and according to the latter said, "Domingo,
you better not talk about a union in this company be-
cause they fire you." Brock testified, on the other hand,
he said nothing about the Union and only said, "Some of
the employees are getting mad. Chuck has informed me
of it, and would you be careful, you know, whatever it
is." Brock further asserted he was not sure at the time
what Villareal had been talking about.
Babcock openly campaigned against the Union and it
is therefore reasonable to infer she would be opposed to
Villareal's comments and that her complaints about an-
other employee harassing her would be attended to, as
did not deny Villareal's testimony. It is further instruc-
tive to note that if Brock's guarded and sketchy descrip-
tion of events is accepted, he did not even bother to in-
quire of Adams or Babcock to any extent whatsoever or
in what manner and by what comments Villareal was re-
portedly "harassing employees and making them mad."
Nor, according to Brock, did he even bother to inquire
from Villareal himself what the latter had been saying
when he instructed him to be careful because "Chuck
has informed me of it." Brock's account, that he received
such serious reports and warned Villareal to be careful,
without once knowing any details of what he was warn
-ing Villareal not to do is beyond belief, leaving Villar-
eal's account the only reliable description of events. It is
therefore concluded that Respondent through admitted
Supervisor Brock, threatened an employee with dis-
charge if he talked to employees about the Union, there-
by further violating Section 8(a)(1) of the_Act.
3. Offer of wage increase
Villareal also testified that during a conversation with
Marisio Nunez Sr., also an admitted foreman, in Septem-
ber Nunez told him that, "You know, in the Holiday
Inn, Carl Becker and Joe Pilgrim said, `Marisio, talk to
your family, vote for the company and I give another
25¢ worth."' Nunez Sr. did not deny making the remark
to Villareal and whether Pilgrim or Becker deny making
the comment to Nunez, or, whether Becker ever was
present at a meeting in the Holiday Inn with Nunez Sr.
is beside the point as Nunez, while communicating the
message of a wage increase in return for employees
voting for the Company, was speaking in the representa-
tive capacity of a supervisor while the question concern-
ing representation and the Union's campaign were still
extant so that such promise was not sterile of import. I
find that Nunez' communication of a promise of benefit
if employees voted for the Company unlawfully in-
fringed employee exercise of Section 7 in violation of
Section 8(a)(1) of the Act. Pace Oldsmobile, supra.
4. Written warning of Jolene Kitzky
The record shows that during the fall numerous Mexi-
can alien employees of Impact were terminated -under
circumstances leading to the complaint allegations that
Respondent by such actions violated Section 8(a)(3) of
the Act. During this period, on October 23 employee
Jolene Kitzky; who knew about these terminations as did
other employees, was issued a written warning presented
on October 22 by her foreman Don Lipper for, as al-
leged by Lipper, spreading rumors-to employee Cathy
Austin-that all Mexican employees would be fired soon,
including telling a specific employee Maria Wilson (Elia
Mendoza) that she would be next; and further telling one
employee Vickie Pender that her sister was transferred
by Lipper because the latter did not like her. On the
stand and in an "interview" with Lipper Kitzky denied
this conduct27 and Respondent did not call either Austin
the undenied accounts suggest is what did happen. She 27 Kitzky admitted she "relayed" the message concerning Wilson.
IMPACT INDUSTRIES
or Pender to corroborate Lipper's account. In addition,
when she testified, Maria Wilson stated that Kitzky had
merely told her that a "Sam and Leon Wilson [probably
Samella Wilson] told her I was going to get fired next."
Nevertheless, in an interview with Kitzky the next day
Lipper accused Kitzky of "sprouting rumors," that is,
starting the rumors and, despite Kitzky's admitted denial
thereof issued a written warning to her which he had al-
ready prepared the day before discussing the matter with
Kitzky at all. (G.C. Exh. 60.) Under the Respondent's
admitted rules a written warning can be a -prelude to
other steps leading to discharge and Kitzky was warned
about such possible result, but the revealing factor in
Lipper's issuance of a warning--at this point-is that Re-
spondent's procedures normally require issuance of an
oral warning before the written warning. Lipper simply
viewed the occurrences as multiple violations warranting
the written warning.
On cross-examination Lipper admitted he knew of no
employee who' had ever been issued a written warning
and there is other testimony that the rule against gossip-
ing, had never been enforced, although Impact started
operations in 1961 and this was not the first time an em-
ployee had, as known to Respondent, repeated rumors
concerning terminations. Kitzky, as admittedly known to
Respondent, was one of the most active union adherents,
serving on the employee organizing committee, wearing
a union button, openly distributing union literature and
soliciting employees to sign union authorization cards.
Respondent's animosity towards such efforts generally is
clearly shown by its course of conduct prior to the
action against Kitzky,- action that was allegedly pursuant
to a long dormant rule never shown to have been en-
forced ' before; taken in conflict with settled company
procedures calling for an oral warning beforehand, and
administered without prior investigation into the employ-
ee's own position on the circumstances, without any
compelling need demonstrated for such haste, or for ig-
noring the employee's own version completely before
preparing the disciplinary warning. Finally Respondent
failed to corroborate at this hearing the basis for Lipper's
action as detailed by his own testimony. It is manifest
from these facts and the absence of a legitimate or per-
suasively advanced justification for the action, that
Kitzky's discipline has been demonstrated by a prepon-
derance in the evidence showing her union activity. Re-
spondent's knowledge thereof and its continuing animus
in the postelection period outlined above and to be ad-
dressed further below, to result directly from antiunion
discriminatory considerations in violation of Section
8(a)(3) of the Act. Nor was there persuasive evidence
Respondent would have warned Kitzky even absent her
union activities, further indicating the unlawfulness in its
action. Wright Lines, supra.
H. The Termination of Linda Anderson, Irene Ruiz,
and Pamela Fruit
1. Linda Anderson
Anderson worked in trim press first shift from Septem-
ber 1979 until laid off in a work reduction on March 18
by Superintendent Bob Wilson, who told her she would
23
be called back as soon as things picked up. Impact's past
history, a statement made by Impact President Becker to
employee Tom Johnson, and undenied company policy
itself strongly establish that Wilson's assurances were
heavily in accord with Respondent's experiences recall-
ing employees on layoff, its policies in such regard, and
the forecasts in Anderson's case of Respondent's very
own operating officials. Because Anderson was offered
and declined another shift position her records were
"marked . . . voluntary layoff rather [than] transfer"
(G.C. Exh. 26D) and she was asked to sign a "waiver."
(G.C. Exh. 66.) The waiver, according to Personnel Ad-
ministrator Janet Spears, a partially admitted agent for
Respondent, was to show, "She accepts a layoff by
virtue o 'igning that document-its not deemed a quit"
Spears admitted, "that at no time did she [Anderson] in-
dicate to me she had quit." On further cross-examination
Spears also admitted, "No one instructed me to assume
she had quit" and still further that, to her knowledge "no
other employee had been fired or deemed quit [sic] be-
cause of denial of unemployment compensation." Most
revealingly concerning later events Spears testified as
follows: "Q. No one ever told you that Linda Anderson
would not be recalled, did they? A. No."
Yet, allegedly on April 11, in face of all the above un-
denied facts concerning Anderson's layoff, including spe-
cific undenied testimony that Anderson was not in-
formed by Wilson or anyone that if she were denied un-
employment compensation she would be considered sep-
arated from employment from Impact, Jan Spears auto-
matically terminated Anderson when Respondent learned
from the unemployment compensation bureau that An-
derson was denied compensation, marking Anderson's
records "Unemployment denied considered quit/ter-
mmated" on April 11. (G.C. Exh. 26D.)28
Anderson was an active well-known union adherent,
had signed a union card on February 19 (G.C. Exh. 65)
around the time Respondent, it is fair to infer, had notice
of employee union activity generally, and had engaged in
numerous activities supporting the Union including pass-
ing out union literature in Respondent's parking lot
under the guise of Impact officials in mid-April and May.
Despite considering that Anderson had quit, Respond-
ent failed to notify her of this fact and, at a preelection
conference in May, took the position merely that she had
no reasonable expectancy of recall. After a phone call in
December, when Anderson was told she had not been
offered rehire over a junior employee hired earlier in
September to a position Anderson had held and Ander-
son later protested in a January letter that she had been
promised recall to such position by Wilson, Respondent
28 Together with an abundance of undemed testimony concerning
Spears' status as a personnel administrator , or personnel supervisor, set
forth in numerous company letters, notices, memorandum, and other
records, in which Spears emerges clearly as an authoritative company
representative, held out as such in Respondent's dealings with other orga-
nizations and its employees themselves , as well as numerous instances
wherein Spears' signature is affixed over her title and she in writing or
orally acted to separate employees, and initiate employee warnings in Re-
spondent's disciplinary system, I find Spears' independent action, termi-
nating Anderson, is ample proof of her status as a supervisor and agent of
Respondent as defined in the Act, and such is found
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
checked into the matter. As a result of checking out An-
derson 's assertions , Respondent learned that Wilson had
indeed promised Anderson recall and , labeling Spear's
action an "oversight,"' offered her recall and backpay.29
It is clear in this record that Respondent cannot be
said to have discriminatorily listed Anderson as
quit/terminated on April 11 for the simple reason that
the record contains no proof that Anderson engaged in
any open union activities prior to that time or that Re-
spondent had any knowledge concerning Anderson's ac-
tivities whatever they may have been up until that time.
The General Counsel argues further that Respondent
should be ' considered to have discriminatorily terminated
Anderson merely because at the preelection conference
in May Respondent took the position, for pposes of
voting eligibility, that Anderson (and others) had no rea-
sonable expectancy of recall when , in his view, the poli-
cies and past experiences of Respondent 's business indi-
cated this was not the case . However reasonable this as-
sumption may be, the Respondent 's counsel 's advice to
Respondent to take the position it did can hardly be
equated with proof that Respondent had permanently
terminated Anderson or them as of that date for, as shall
be seen, except in Anderson 's case such individuals were
still considered and generally treated as being eligible for
recall by Respondent after the election; and, concerning
Anderson, it was only the April 11 listing of her as a
quit/terminated that led to her not being offered recall
after the election-not any arguable coverage under the
description of "no reasonable expectancy of recall."
Moreover , there is no proof Respondent 's counsel, when
he took this position on eligibility, had knowledge of An-
derson's listing as a quit or terminated.
Also, it is clear that Spears bypassed Anderson in Sep-
tember when she hired the junior employee pursuant to
the April 11 classification of Anderson as a "quit/-
terminated," which classification was not shown to be
unlawful.
Therefore, the only other time when Respondent could
be considered to have unlawfully terminated Anderson
was when in December she called and Spears told her
she had not been recalled over another employee be-
cause she was considered to have been a "quit/-
terminated "
After a letter from Anderson protesting this and point-
ing to Wilson 's assurances, Respondent checked out the
matter and, learning that Wilson did make such a prom-
ise, acknowledged the oversight, offering her reemploy-
ment. It should be further noted that even on the occa-
sion of her original layoff Respondent first offered An-
derson the same paying work in two job offers , which in
my view also militates somewhat against any discrimina-
tory intent . Since the April 11 action by Spears, as un-
supported as it may seem , is not linked to discriminatory
motive, and the May "action " is merely Respondent's
position on voting eligibility, counsel for the General
Counsel has failed to demonstrate by a preponderance in
the evidence that Anderson was unlawfully terminated in
29 Respondent did not deny Spears ' authority to classify Anderson as a
terminated employee and list her as such in its personnel records and it is
clear Spears acted on her own authority in doing so.
violation of Section 8(a)(3) of the Act.30 Some of the re-
sponsibility for Anderson 's plight in this entire period in
a sense must rest on Respondent's shoulders , to be sure,
because if it had notified Anderson it was listing her as a
"quit-terminated" on April 11 she would have had the
opportunity to present her argument regarding the
Wilson promise at that time , thereby the September
hiring of a junior employee might well have been pre-
ceded by a job offer to Anderson first, rather than later
in January 1981 after Anderson learned (for the first time
in December) why she had been bypassed for employ-
ment . 31 At the same time, had Anderson monitored her
job status even once between May and December by
calling in to Spears the same result may also have ensued
though she reasonably could consider such action futile
given Respondent's position on her voting eligibility and
Fritz' order to leave the parking lot because she was no
longer employed.
2. Irene Ruiz and Pam Fruit
Ruiz, a quality control inspector on the second shift,
and Fruit, a final inspector in the inspection department,
were laid off in an economically caused reduction-in-
force on April 8 and 9, respectively. Thereafter, on Oc-
tober 14, Ruiz was terminated when she failed to re-
spond to an October 6 dated letter of recall, and Fruit
was, by letter dated October 15 informed that because
she had not formally responded to a letter dated October
6 from Impact regarding reemployment by October 13
that the Company had reinstated another employee.32
Conceding the cause for layoffs generally at this time
was a valid economic one, the General Counsel argues
that the conversion of the laid-off into terminations of
Ruiz and Fruit constituted discriminatory discharges vio-
lating Section 8(a)(3) of the Act.
Both Ruiz and Fruit were especially active prounion
supporters , members on the employee organizing com-
mittee, handbilling on occasions during the election cam-
paign, including several occasions after their layoffs,
wore union buttons , passed out union cards, and attended
union meetings , and Ruiz, in addition, served as a union
observer at the election . 33 There is no dispute over the
fact that Respondent knew about their activities. Re-
spondent , in addition, has been found to have harbored
and expressed animosity towards the Union, and employ-
ee activities in support of the Union, including the hand-
billing , activities described above involving , inter alia,
Ruiz and Fruit , the former being ordered off the prem-
ises by Foreman Fritz and the latter being asked off by
Chief Inspector Keith Becker on pam of the police being
called.
30 Supervisor Fritz' exclusion of Anderson (and others) from their
parking lot literature distribution on May 1 as "they were no longer em-
ployees" insofar as Anderson is concerned was not shown traceable to
anything other than the mistaken , but not demonstrably unlawful, listing
of her on April 11 as "quit/terminated "
31 Anderson was not replaced until that September
32 There is no dispute over the fact that this letter to Fruit amounted
to her termination from employment 11
33 The record also shows that Fruit testified for the Union at the rep-
resentation hearing and was present at the preelection conference to be a
union observer.
IMPACT INDUSTRIES
Against this backdrop concerning the two in particular
(also described further hereinabove) and Respondent's
broad-based violations of employee rights, its treatment
of Ruiz and Fruit arouses more than mere suspicion. In
the first place, when Fruit was laid off she asked Keith
Becker `about possibly bumping a less senior employee
and Becker falsely replied that "they don't bump at
Impact" notwithstanding that the record shows-and
that it is undenied- that there is bumping within depart-,
ments. Second, even though the economically laid-off
employees clearly were informed that they would be re-
called when worked picked up, Foreman Fritz ordered
Ruiz and others off the plant parking lot as they were no
longer employees, and Becker expressed disinterest in
Fruit's claim of being an eligible voter when ordering
her off the property, in both instances Respondent mani-
festing unusual animus towards the presence of these em-
ployees on its property. Moreover, it is further instruc-
tive of Respondent's motives in the case of Ruiz that
Personnel Supervisor Spears noted on her personnel
record that she was not recommended for reemployment
because she "Would rather talk than work-low quanti-
ty," (G.C. Exh. 29) yet Respondent offered no evidence
of any prior complaints regarding Ruiz, leaving Spears'
handling of Ruiz' recall (and as shall be seen of Fruit's as
well) highly suspect.
Spears admittedly knew that Ruiz could still be in Mis-
sion, Texas, when she mailed Ruiz a letter on October 6
to Sandwich, Illinois, and thus reasonably should have
awaited a reply beyond the October 14 date and investi-
gated the real possibility, indeed probability, that this
was the case, rather than assuming Ruiz' "vacation" had
ended since the time Spears sent her check to the Texas
address and that Ruiz had returned to the Illinois ad-
dress, was simply not interested and did not care if she
was terminated. After all, the stakes for Ruiz, as reason-
ably should have been realized by Spears, were high and
consisted of employment itself. For Spears' part, there
was no particularly strong countervailing consideration
resting on any economic justification for not waiting or
investigating to some extent at least what Ruiz intended
to do. It is true that Spears told an interested applicant,
Barr, to wait until October 17, but Respondent, without
checking further, hired employee Barr, on October 14-
only 8 full days after the letter had been mailed to Ruiz
and more than 6 days before she received it. In any event
as far as the case of Ruiz is concerned, Respondent
merely listed no response to the recall letter on her
records, not that another employee had been hired and I
consider under the described circumstances that Spears
would normally have considered the delay in Ruiz' re-
sponse attributable to Ruiz' possible presence in Texas
and awaited a reply for a longer period or sent a letter
there rather than rushing to judgment that she was not
interested and terminating her, except that she was moti-
vated by Ruiz' union loyalties and conduct to terminate
her discriminatorily from Impact's employment thereby
violating Section 8(a)(3) of the Act. I so find.
In Fruit's case, it is even more clear that Respondent,
through Spears, intended to avoid rehiring her though
going through the motions of offering recall. Fruit testi-
fied that Spears contacted her by letter dated October 6
25
asking her to "contact the Personnel Department imme-
diately concerning your reemployment with Impact In-
dustries." (G.C. Exh. 62.) Such letter on its face is clear-
ly no offer of rehire to any specific position. Fruit re-
sponded promptly by telephone on October 8 and testi-
fied without denial by Spears that the latter spoke of
there being a "possible" opening in the inspection depart-
ment, though she was "not sure." Fruit asked about
backpay and Spears laughed. Fruit asked about seniority
and was told she would keep her old seniority as well as
being on the first shift. Fruit also testified that she would
have been available then. As a followup to the conversa-
tion, Fruit further testified that she sent a letter dated
October, 14 to Spears, who had not given Fruit a dead-
line for responding , telling her that she was interested in
the job, but that by letter dated October 15 Spears in-
formed her, "Since you did not favorably respond to Im-
pact's letter concerning reemployment by October 13,
1980, the Company reinstated another employee." (G.C.
Exh. 64.) Spears testified that during the conversation on
October 8 Fruit did not respond definitely and told her
she would check and get back to her, Spears telling her
to do so as soon as possible, but admittedly having said
there was only a "possible opening" and, as Fruit testi-
fied, she said "there was no definite opening." Yet,
Spears testified that when she called Fruit, "there was an
opening at the time." I find that notwithstanding Spears'
knowledge that an actual opening existed for which
Fruit was eligible, Spears hid this fact from Fruit and in-
tentionally low-keyed the tenor in her call to Fruit stat-
ing she was not sure and even that there was no definite
opening for the only reason appearing in this record that
could possibly explain such manner and that is Respond-
ent's continuing animus towards Fruit for her highly
active role on behalf of employee efforts seeking repre-
sentation. Having conveyed the message in such terms, it
was unreasonable for Respondent to pretend thereafter
that it did not receive a "favorable" response from Fruit
when it only allowed 6 days to elapse before filling the
job with another employee, who dropped by the office
on October 13, 5 days after the Fruit-Spears telephone
call. Even without the view that Fruit was lulled into
not responding swiftly-(and on that note it is clear she
responded with swiftness on October 8 to Spears' Octo-
ber 6 letter, thereby manifesting a strong interest in re-
employment) it would be natural for Fruit, laid off since
April 9, to reflect on Spears' reference to a possible job
opening before committing herself to returning after
more than a 6-month long absence to a decidedly un-
friendly location, to put it mildly. These observations are
all reasonable inferences from the evidence credited in
this record and were reasonably known to Respondent
or imputed to it, and I therefore conclude Respondent's
offer of recall to Fruit was so administered as to enhance
a delay in her response-a response which, even assum-
ing it was not intentionally caused to be delayed, was
still in the context shown a timely response to Respond-
ent's offer. Respondent's rejection thereof, I find,
emerges from the only possible cause demonstrated and
that is Fruit's union activity.
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent's action, amounting to rejection of Fruit
for the position filled by another employee on October
14 therefore constitutes a discrimination against Fruit in
violation of Section 8(a)(3) of the Act. The findings re-
garding both Fruit and Ruiz follow from application of
the instructive guidelines set forth in the Board's Wright
Line decision,34 also applied in the following section
treating Respondent's conduct towards its Mexican-alien
employees. Thus, the General Counsel established prima
facie cases that the two were discriminatorily discharged
and, for the reasons noted, Respondent failed to rebut
same, for it is shown by a preponderance of the evi-
dence, including reasonable inferences, that Respondent
treated the two in an unlawful manner and Respondent
failed to establish any basis for finding its treatment of
them would have been the same even aside from their
union activity.
I. Respondent's Conduct Towards Mexican Aliens
The General Counsel" alleges Respondent discharged
Romerico Calderon, Daniel Ramirez, Delores Perez,
Sylvia Gonzalez, Victor Nunez, and Pedro Diaz because
of their support for the Union; and that Respondent con-
structively discharged Felipe Gonzalez, Oscar Gonzalez,
Saul Nunez, Augustin Nunez, and Raphael (Rene) Gon-
zalez for the same reason and to discourage employee
support for the Union.
Respondent admits that employees in the former group
of Mexican-aliens were discharged after it received
notice from the Immigration and Naturalization Service
(INS) that those persons were illegal aliens not author-
ized for employment on various dates between July or
August and November, and gave such reason, through
Personnel Supervisor Jan Spears, to each such employee.
Regarding employees in the latter group, the record
shows that after Spears notified Oscar Gonzales to appear
at INS on December 4 for an appointment, he appeared
at Impact on that day to pick up his check and turn in
his glasses, testifying without denial that Spears had told
him if he did not get a paper from INS (clearing his
status) he should turn in his helmet and glasses. He
worked no further, quitting employment. Regarding
Felipe Gonzalez, around October 6, Spears told him
through an interpreter he had to report to INS giving
him a copy of a notice. (G.C. Exh. 70.) He testified he
quit out of fear the INS would check into his status.
Raphael Gonzalez testified, as admitted, that Working Su-
pervisor36 Villareal, on October 10, told Raphael Immi-
gration was coming and the latter left (quit) also out of
fear of the INS procedures. Spears testified she signed
Raphael's termination slip after he did not call in for 3
days, on October 14, and that she had sent his name in to
INS with other-Mexicans, receiving a notice back from
INS on September 20 stating that- it had no record on
him, giving him an appointment. Spears told Raphael
34 251 NLRB 1083 (1980)
as After a series of amendments to the complaints.
36 Because the issue regarding this incident is whether Respondent
caused Raphael Gonzalez to quit, it is irrelevant whether Larry Villareal
was a statutory supervisor or not at the time, because admitted Supervi-
sor Oleson admits telling Larry Villareal this (and later Oscar Gonzalez)
and Villareal admits telling Raphael Gonzalez
and, according to Spears, Raphael never came back. Al-
though neither Augustin nor Saul Nunez testified, Re-
spondent's records indicate that Spears made an appoint-
ment for Saul at INS headquarters -after being notified
INS had no record on him, and that INS notified Re-
spondent that Augustin was not authorized for employ-
ment. Spears testified she told Saul the Company had
checked his alien number and that INS "showed" no
such number and that she gave him an appointment to
report to INS on October 1 or 2. She testified Saul quit,
never showing up again after working the day after the
appointment. Regarding Augustin, Spears testified that
INS notified Respondent that Augustin was not author-
ized for employment but that, to her knowledge at least,
he did not know this because she had not told him. Ad-
mittedly, other employees, Mexican aliens, were told
about such status about the same time and Augustin was
reported to have told another that he was "quitting and
returning to Mexico," without elaborating further.37
Thus, as has been demonstrated, Respondent admits
discharging six employees Delores Perez on October 14,
Sylvia Gonzalez on October 14, Romerico Calderon on
October 20, Pedro Diaz on November 14, and Victor
Nunez and Daniel Ramirez on November 6 because of
their alien status, and the record demonstrated that five
quit: Oscar Gonzalez on December 4, Saul Nunez on Oc-
tober 2, Felipe Gonzalez on October 6, Raphael Gonzales
on October 14, and Augustin Nunez early October, when
Respondent's contacts with INS foreseeably forced them
to terminate employment with Impact out of fear gener-
ated by respondent-secured appointments for them to
report to INS headquarters, a fear by the way that was
heightened by Spears' warning that unless, in relevant in-
stances, the employee did clean up the legality in status
they would be discharged. An unlawful alien could not
help with such limited options but consider his or her
position hopeless and likely would be thereby coerced
into quitting by such unlawfully motivated threat. Sure-
Tan, Inc., 246 NLRB 788 (1979); Sioux Products, 257
NLRB 316 (1981); LaMousse, Inc., 259 NLRB 37 (1981).
The General Counsel alleges that Respondent brought
INS into the picture hoping to rid itself of an identifiable
block of prounion supporting employees, and there is no
question that 35 of 36 Mexican employees showed their
support for the Union by signing authorization cards, a
fact known by Marisio Nunez Sr., an admitted supervi-
sor. Further, based on unlawful interrogation, noted
above and including interrogation of Mexican aliens
Gonzalez, Garibay, and Febela by Oleson, surveillance
of employee leafletting, inter alia, leafletting engaged in
by Mexican aliens Adolfo and Domingo Carrillo, ques-
tioning of Mexican aliens Delia Perez and employee rela-
tives by Supervisor Marisio Nunez Sr., who, I find, con-
trary to his unpersuasive and uncredited denial, informed
Joseph Pilgrim, Becker's assistant in labor relations that
"all the Mexicans wanted the Union," and Brock's threat
against Domingo Villareal for talking about the Union it
37 The record supports a reasonable inference that both Saul and Au-
gustin's quitting arose from notification or information that, in Saul's
case,-he was to report to INS and, in Augustin's case, that he was not
authorized for employment by INS
IMPACT INDUSTRIES
is further concluded that, in fact, Respondent knew the
Mexican aliens were a group 99 percent active in support
of union representation.
Because it is clear that the Mexican-aliens as an em-
ployee block were nearly entirely prounion, that Re-
spondent, as compelling evidence shows, had knowledge
concerning the loyalty towards the Union, including the
voting intentions specifically of many of them via Mari-
sio Nunez Sr., and as well, that Respondent harbored
and manifested towards employees a settled animus
against their efforts to seek representation in collective
bargaining, in a cavalcade of unlawful actions, there re-
mains only the matter of considering Respondent's as-
serted cause for bringing INS into the picture in the first
place, for the General Counsel has clearly established a
prima facie case in support of this allegation.
In fact, as late as December 10, 7 months after the
election and, while the election objections above were
still pending, it is found as undenied by Respondent's su-
pervisor Marisio Nunez Sr. that he informed two Mexi-
can aliens, Domingo Villareal and Javier Cadera, that if
the Union won the election, or "got in," management
was going to close down, thereby further violating Sec-
tion 8(a)(1) of the Act. Respondent's contention through
Nunez Sr., that this was accompained by levity is factu-
ally not credited and legally irrelevant. Swanson-Nunn
Electric Co., 256 NLRB 840 (1981).
In such context, together with germane additional
comments, Respondent's defense must be viewed as pale.
Respondent's position that the firm was acting pursu-
ant to a long-established policy against hiring illegal
aliens when it contacted INS in August was based on in-
conclusive, weak, unconvincing evidence. Thus, Re-
spondent relies on an INS brochure, "found" in a depart-
ed supervisor's desk, as evidencing a past policy; but
does not produce the official, relies on Oleson's incom-
plete, patchy recollection of discussions with such offi-
cials concerning prior "screening" efforts, Impact Presi-
dent Carl Becker in decidedly equivocal testimony on
such a central issue which would have been within his or
another chief executive's knowledge "assumed" that
Impact followed such a procedure of screening employee
applicants, and Respondent relied on five exhibits-only
two of which involve green cards to otherwise "prove"
the existence of such policy of checking green cards in
the past 19-year. history of Impact's hiring of Mexican
aliens.
Spears testified the whole thing started when a simple
question concerning the age of an employee arose and
despite that employee's presence and availability INS
was brought into the picture because presidential assist-
ant Pilgrim got to "wondering" how many other em-
ployees might have green cards that were invalid; green
cards being photograph-bearing identification or registra-
tion cards issued by INS and serving as prima facie proof
of lawful presence in the United States. Pilgrim then te-
lehoned INS, Spears said, whereupon one thing led to
another. The fact that Spears testified she never spoke to
Becker, the firm's president, about thereafter launching a
plantwide in-depth screening through INS at Pilgrim's
request, and the fact that Pilgrim was never offered by
Respondent to explain the basis for such a decision being
27
made at`the top level of management tends quite strong-
ly to render Respondent's assertions in this entire ques-
tion unworthy of belief. 7-Eleven Food Store, 257 NLRB
108 fn. 30 (1981). Becker put distance between himself
and the whole matter when on the stand, assuming this
and assuming that. Pilgrim, the executive who, at least
we learned, figured importantly in deciding to join Oper-
ation Cooperation despite foreseeably grave possible con-
sequences for 40 or more Mexican alien employees, a
goodly portion of an entire production shift, was not
provided to testify why Respondent leaped from one
telephone call about a possible underaged employee
known to Respondent-and who could have with rea-
sonable assistance from other employees cleared up the
whole matter-to deep, not strong, daily, on the spot,
participation by Spears in a voluntary program that
could have deeply disturbed the entire production oper-
ation and caused disturbances among employees. Re-
spondent discussed the number of factory exit doors with
INS officials preliminary to a raid against its own em-
ployees; Respondent knew the grave consequences of
such action for its Mexican alien' employees if the INS
were successful. Assuming Respondent had decided to
do such a thing, viz, to simply get rid of unlawful aliens
for innocent reasons, for the first time in its 19-year his-
tory of lightly at best, checking green cards of prospective
employees who were Mexican aliens, (1) it is undenied
that Respondent had never made so thoroughgoing a
screening or launched so heavily formalistic and govern-
mentally led inquiry before either as to prospective or
current employees, and (2) it seems reasonable to sup-
pose Respondent would at least first ;give its employees
notice of some kind about so drastic a change in enforce-
ment policy to facilitate employees' departure before the
long arm of the law was brought instantly into place.
Having enjoyed the fruits of employing Mexican aliens
since 1961, it does not seem reasonable for Respondent,
in the midst of a hotly contested union organizational,
drive by Mexican alien employees and others, to sudden-
ly put into place and enforce in a machine-like precision
manner a program implacably designed to root out ille-
gal aliens, just because there was a question about one
employee possibly being underage, unless some other
motive fueled Respondent's resolve. Besides the question
of intimidation involved by the spectre of a raid by Gov-
ernment agents and possible incarceration of employees,
Respondent knew would emanate from its course of con-
duct, it must have foreseen as well that grave hostility
would be engendered among its community of Mexican
alien employees who were in the country validly at the
sight of the treatment dispensed to their less-fortunate
coworkers, relatives, and friends.
As noted, this was a voluntary program, yet Respond-
ent virtually leaped into action upon its establishment
discharging employees listed by INS as not authorized
by it for employment even though no local or state en-
actment made such extreme action necessary. (R. Exh.
22.) Finally, when this unprecedented action is taken by
Respondent, it limits its participation to the Impact plant
alone, where the union campaign and activities of its
Mexican alien employees in support of representation
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were underway , and not to Mexican alien employees em-
ployed at its companion operation Sandwich Brass locat-
ed in the same area but wherein a union representation
election petition had been withdrawn.
The record in my view supports the conclusion that
Respondent viewed the INS program as a handy con-
venient way to rid itself of a bloc of union-supporting
employees . That Respondent attempted , to demonstrate
on brief by way of an exhibit (R. Exh. 22) that it really
did not, in retrospect , net that many Mexican aliens is
certainly no proof that it did not venture into unlawful
waters in an attempt to do so. Moreover, as noted below,
over 20 members of the group were employed in August.
I find , therefore, that Respondent set the entire chain of
events involving INS into motion to cause the direct and
indirect termination (the former by Respondent firing
them and the latter by quitting ) of Mexican aliens named
above because of their support for the Union, in viola-
tion of Section 8(a)(3) of the Act.38 Sure-Tan, Inc.,
36 Because Respondent's discrumnation against these members of the
"bloc" of Mexican alien employees was broadly based and impacted
against them as a bloc because of their union activity , it is inconsequential
to the plain justification for "class type " relief whether one or two mem-
bers in the bloc were hired after the election , for, inter aba, Respondent's
animus continued through this period and was aimed at the class and
whatever member it succeeded in discharging under the guise of the pro-
gram or coerced into quitting. Thus 22 Mexican aliens (excluding Super-
visor Nunez Sr, from this total who were employed during the campaign
(in fact since January 1980) were still employees in August when Spears
contacted INS and later in September when she sent employee names
from the group to INS . (R. Exh. 22.) In short , the Mexican alien group
remained an inviting target for antiunion measures at that time . Respond-
ent is responsible for the consequences of its unlawful conduct against the
group, even assuming it did not aim at one or two targets in the group.
While under examination as an adverse witness by counsel for the Gen-
eral Counsel , Becker, Impact's president and chairman of the board ad-
mitted that most of Impact 's employees lived in and around the Sand-
wich, Plano, Illinois area, where an earlier raid by INS had led to depar-
ture of Mexican aliens , including Impact empoyees He further admitted
that Sandwich Brass, a companion company to Impact, like Impact, also
employed Mexican aliens As has been noted , Respondent admittedly did
not contact INS about Mexican aliens employed at Sandwich Brass-the
Union's representation petition having been withdrawn and such activity
ceased, when Spears first contacted INS in August and later in early.Sep-
tember submitted Impact employees' names for investigation. Becker first
denied that he knew during the period February 1980 through December
1980 that most of his Mexican employees were in the United States ille-
gally However , he then testified-
A. I became aware of it at a given time .. The .. somewhere
doing that period of time . . Then . about mid-year . . I guess
. sometime in July-August . then . . . maybe May or June
However else one may view a familiar equivocation in sensitive areas
present in Becker's testimony , it is established that Respondent, through
Becker, knew most of its Mexican alien employees were in the United
States illegally prior to contacting INS so that Spears' action combined
with Respondent's knowledge that its Mexican alien employees, all but
one of whom had signed an authorization card, were uniformly prounion,
its animus, and the lack of any persuasive reason for contacting INS cou-
pled with the failure to present Pilgrim, as noted, produce a clear picture
concerning Respondent's motive Respondent either desired the result it
achieved when the discriminatees were terminated on the heels of its
action against them through the INS, or knew that the terminations that
ensued were virtually certain to occur from its past experience with the
earlier INS raid and its knowledge from Operation Cooperation. It is
therefore clear that , when Respondent contacted INS it was taking action
intended to cause the separation of the prounion Mexican contingent of
alien employees , for reasons herein found unlawful under the National
Labor Relations Act
supra; and Amay's Bakery Co., 227 NLRB 214 (1976); La-
Mousse, Inc., supra.
Because it is concluded that Respondent entered the
INS program discriminatorily motivated to oust a readily
identifiable employee contingent of known union loyal-
ists- Respondent's defense that it was only acting pursuant
to such participation when it discharged numerous such
employees (voluntarily it should be restated), classified as
"not authorized for employment" and took other action
found to have intentionally caused quitting by several
employees , must be viewed as a mere unpersuasive con-
trivance. (Compare, Bloom Art Textiles, 225 NLRB 766
(1976), in which there was a state law against employ-
ment of aliens.) Given the factors noted above concern-
ing union activity , knowledge , animus, and unconvincing
rationale for the action it took, it is clear that the Gener-
al Counsel's prima facie case of an 8(a)(3) violation in the
terminations, by discharge and constructive discharge of
Mexican aliens has not been rebutted by a showing by
Respondent that its actions would have taken place even
apart from antiunion considerations. Accordingly, it is
concluded that by such actions Respondent violated Sec-
tion 8(a)(3) of the Act by discriminatorily discharging
such employees. Wright Line, 251 NLRB 1083 (1980);
Purity Supreme Supermarkets, 256 NLRB 989 (1981).
J. Respondent 's Refusal to Recognize and Bargain
with the Union
The parties stipulated that the appropriate unit is "All
full-time and regular part-time production and mainte-
nance employees employed by Respondent at its facility
located at 1212 East Sixth Street, Sandwich, Illinois; but
excluding all other employees of the Respondent, office
clerical employees, professional employees, guards, fore-
man and supervisors as defined in the Act," and it is so
found. (Jt. Exh. 1.)
The record shows that the Union procured 106 signed
employee authorization cards during the organizing cam-
paign, most in early periods, viz, 93 cards by February
19 according to uncontested testimony of Union Repre-
sentative Mario out of an employee complement of about
118 as estimated by Impact Chairman and President
Becker. Further, the parties stipulated that the majority
of Respondent's employees in the above appropriate unit
executed valid UAW authorization cards prior to March
17, 1980, and that such cards bore authentic and genuine
signatures and dates. (Jt. Exh. 1.) Accordingly, I find
that the Union represented a majority of Respondent's
production and maintenance employees when it request-
ed recognition in the March 12 letter discussed below.
By letter dated March 12 the Union notified Respondent
it represented a majority of its employees and that, ". . .
in the event you recognize or deal with other person
[sic] or organization as representing such employees,
with respect to wages, benefits, hours of work or other
terms and conditions of employment," such conduct
would violate the National Labor Relations Act. Re-
spondent's president and chairman of the Board received
the letter and Respondent's Exhibit 7 indicates Respond-
ent's receipt occurred on March 14. On March 17 the
IMPACT INDUSTRIES 29
Union filed a representation petition leading to the elec-
tion on May 16 after which timely objections were filed.
Although at the hearing Respondent counsel objected
to a description of the March 12 letter as containing en
haec verba an express "demand" for recognition, viz., in
precise literal terms, when the letter was offered into evi-
dence no party contested Union Representative Maria's
testimony that the letter was a demand for recognition
nor raised any dispute over the assertion that the Union
had made such a demand for recognition at that time. I
think a fair reading of the letter's terms that the Union
represented a majority of Respondent's employees for
purposes of collective bargaining and Respondent was
not to recognize or deal with any other person or organiza-
tion (than the,UAW) on conditions of employment of its
employees under pain of violating the Act, constituted a
demand to be recognized as exclusive bargaining repre-
sentative,39 and I so find. (G.C. Exh. 53.)
The General Counsel, pointing to Respondent's nu-
merous illegal acts against employees during the Union's
campaign, urges that a' bargaining order remedy is re-
quired because Respondent's conduct engaging in unfair
labor practices designed to destroy the Union's majority
rendered a fair election impossible. Respondent argues
that no bargaining order remedy is appropriate because
Respondent's acts were minor technical and "less exten-
tive" violating at the worst, and points out in brief that,
'inter alia, a large turnover, 42 out of 130 on the ExcLdsior
list were no longer employed at the time of the hearing,
and 30 new employees were hired by such time. I find
no merit' to Respondent's position on this question inas-
much as even by its own figures some 88 employees in
the later unit of 118 had been exposed to Respondent's
unlawful conduct, hardly the basis for applying any
"fresh start" concept and finding that a new election
could be fairly conducted, especially where, as found
here, Respondent's misconduct was egregious in nature
and broadly scaled in scope. Mere employee turnover, in
any event, would not be an obstacle to a bargaining
order in such circumstances, Justak Bros. & Co., 253
NLRB 1054, 1086 (1981).
Thus, Respondent has been found to have, inter alia,
threatened employees with plant closure if they voted
for the Union, one of the harshest most serious kinds of
coercion against employee free choice, threatened em-
ployees with loss in employment benefits and other unde-
fined reprisals should the Union get in, unlawfully insti-
tuted improvements in employment benefits following
unlawful solicitation of employees grievances promising
for improper reasons to resolve such problems to dis-
courage employee support for the Union, engaged in cre-
ating the impression of surveillance of employee union
activities, warned employees against discussing the
Union or wearing a union button, interrogating employ-
ees concerning their union sentiments, penalizing em-
ployees by warnings, unlawfully reporting Mexican alien
employees to the Immigration and Naturalization Serv-
39 Even assuming arguendo a contrary interpretation, and none is
shown to have been entertained by Respondent at any time, a demand
under the circumstances would not be necessary as a predicate for the
relief sought by the General Counsel in the circumstances noted in this
case (Cases noted infra.)
ice, and discharging employees because of their activities
in support of the Union.
Respondent's conduct, in my view, erases any possibil
ity that an election could fairly reflect the true wishes of
employees exposed to so serious a battering of their
rights under the Act, to seek representation in collective
bargaining. In NLR v. Gissel Packing Co., 395 U.S. 575
(1969), as has been noted before, the Supreme Court ap-
proved the use of authorization cards as an indication of
employee sentiment and as a basis for a bargaining order
in circumstances where there is, "a showing that at `one
point the union had a majority" and the employer has
engaged in unfair labor practices that "have the tendency
to undermine majority strength and impede the election
process" NLRB v. Gissel'Packing Co., supra at 614.
It is clear and I find` that by engaging in the conduct
described above, Respondent "evinced its rejection of
the collective bargaining principle and sought to destroy
the Union's majority status before an election could be
held." E. Mishan & Sons, Inc., 242 NLRB 1347 (1979). I
further find that the possibility of using traditional means
to remedy the unfair labor practices and ensure a fair
election is slight and that employee sentiment as reflect-
ed in their authorization cards executed in the period
February through May 1980 would, on balance, be better
protected by a bargaining order. Therefore, it is conclud-
ed that Respondent violated Section 8(a)(5) of the Act
from March 17, 1980, forward, the date by which time
the parties agreed the Union had a majority and had, the
evidence further shows, demanded recognition only to
be met by a continuation, even increase, in the Respond-
ent's efforts to eliminate employee support for the Union
and to make a fair election impossible. NLRB V. Gissel
Packing Co., supra; Trading Port, Inc., 219 NLRB 298
(1975); Jefferson National ,Bank, 240 NLRB 1057 (1979);
Century Moving, 251 NLRB 671, 683 (1980); American
Pistachio Corp., 249 NLRB 1198 (1980). Pace Oldsmobile,
256 NLRB 1001 (1981); E. Mishan & Sons, Inc., supra;
Pantex Towing Corp., 258 NLRB 837 fn. 4 (1981).
Given the recommendation that the bargaining order
be retroactive to the date of the Union's demand for rec-
ognition, I also conclude that by installing the incentive
awards program in place for employees the week before
the election on May 16, and by reinstating paid lunch
time in June, Respondent unilaterally granted benefits
without consultation or bargaining with the Union, in
further violation of Section 8(a)(1) and (5) of the Act.40
Mosher Steel Co., 220 NLRB 336, 338 (1975); Taylor
Bros., 230 NLRB 861 (1977); Broadmoor Lumber Co., 227
NLRB 1123, 1137 (1977).
40 The complaint alleged these grants of benefits were unlawful and in
violation of Sec. 8(a)(1); however, the complaint also alleged that Re-
spondent "violated Sec 8 (a)(5)" at times prior to the dates Respondent
put them into place thereby encompassing those acts within the timespan
during which it is alleged Respondent violated Sec 8(a)(5). Moreover,
the violations noted above are within the genre of the pleadings, and are
inextricably related to Respondent's unlawful refusal to recognize the
Union Because all the facts concerning the Respondent's institution of
these benefits were aired at the hearing and the matters were specifically
litigated there is no impediment to these findings being made Hamilton
Avnet Electronics, supra
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Representation Case 33-RC-2608
The objections in Case 33-RC-2608 are encompassed
in the unfair labor practice allegations found hereinabove
to have merit. Accordingly, Objections 4 and 8-those
portions remaining after the partial withdrawals noted
above that is-are found meritorious and I recommend
they be sustained, the election be set aside and that the
representation case, which ordinarily would then be re-
manded to the Regional Director for Region 33 for fur-
ther action consistent with such finding be nullified and
that case dismissed because the bargaining order findings
herein render further representation proceedings moot.
On the foregoing findings of fact, and on the entire
record; and pursuant to Section 40(b) of the Act I make
the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The unit as described hereinabove is a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
4. At all times since March 17, 1980, the Union has
been the exclusive collective-bargaining representative of
the employees in the above-described unit within the
meaning of Section 9(a) of the Act.
5. By promising wage increases and other improve-
ments in working conditions, and by granting improved
vacation, break periods, lunch benefits, and an employee
incentive program in order to induce employees to with-
hold their support for the Union, by soliciting grievances
from employees and impliedly promising to resolve them
to induce them to withhold support from the Union, by
interrogating employees concerning their 'union senti-
ments, and activities in support of the Union; including
their voting intentions in the Board election; by engaging
in conduct creating the impression that the activities of
its employees in support of the Union were being kept
under surveillance, by publicly reprimanding employee
Deborah Johnson because she engaged in protected con-
certed activity, by expressly threatening employees with
a loss in benefits or by telling them bargaining will be
from scratch-and the plant will close and other unspeci-
fied reprisals if employees selected the Union as their
bargaining representative, by investigating the alien
status of its employees and reporting its employees to the
Immigration and Naturalization Service, in order to dis-
courage them from supporting the Union by-through its
personnel supervisor-threatening employees with dis-
charge for bearing invalid registration cards in order to
discourage support for the Union, by threatening em-
ployee Domingo Villareal for discussing the Union and
warning an employee, Betty Ferris, not to wear a union
button, and by, through Supervisor Smith, informing em-
ployees they were denied wage increases due to employ-
ees' union activities, Respondent violated Section 8(a)(1)
of the Act.
6. By issuing a warning against Jolene Kitsky on Octo-
ber 23, and by affecting or causing the discharge of
Pamela Fruit, Irene Ruiz, Dehlia Perez, Silvia Gonzalez,
Victor Nunez, Romerico Calderon, Pedro Diaz, Daniel
Ramirez, Raphael Gonzalez, 'Augustine Nunez, Saul
Nunez, Oscar Gonzalez, and Felipe Gonzalez, on the
dates noted and specified hereinabove the Respondent
violated Section 8(a)(3) of the Act.
7. By refusing, on and after March 17, 1980, to recog-
nize and bargain with the Union as the exclusive collec-
tive-bargaining representative in the unit described, Re-
spondent violated Section 8(a)(1) and (5) of the Act.
8. By unilaterally putting into place the employees'
new incentive awards program during the week before
the election on May 16, and by reinstating paid lunch for
employees in June, Respondent violated Section 8(a)(1)
and (5) of the Act.
9. Supervisor Herb Smith did not unlawfully solicit
grievances from employee Samella Wilson.-
10. Respondent did not unlawfully discharge Linda
Anderson.
11. The aforesaid unfair labor practices are-unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
12. Respondent has not violated the Act in other re-
spects not specifically found.
THE REMEDY
Having found that the Respondent unlawfully dis-
charged Pamela Fruit, Irene Ruiz, Dehlia Perez, Silvia
Gonzalez, Victor Nunez, Romerico Calderon, Pedro
Diaz, Daniel Ramirez, Raphael Gonzalez, Augustine
Nunez, Saul Nunez, Oscar Gonzalez, and Felipe Gonza-
lez, I shall recommend that it cease and desist from such
activity and offer them reinstatement4 i to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions of employment and make them
whole for any wages or other benefits they may have
lost as a result of the discrimination against them in ac-
cordance with the formula set forth in F. W. Woolworth
Co., 90 NLRB 298 (1950), with interest as provided for
in Florida Steel Corp., 231 NLRB 651 (1977).42
It shall also be recommended that the written repri-
mand against Jolene Kitsky by withdrawn from her per-
sonnel file, and that the records of the other employees
unlawfully terminated be cleansed of reference to the un-
lawful terminations, including but not limited to the ref-
erences found unsupported herein contained in Irene
Ruiz' file concerning an adverse recommendation against
her rehire. Two Guys Department Store, 241 NLRB 64
(1979). As the record is not clear on all the, circum-
stances surrounding some of the alleged communications
regarding reinstatement offers in postcomplaint periods
no definitive findings are made regarding when or
whether the backpay period has been cut off pursuant to
such offers, said subject left to compliance stages. It shall
41 For a discussion on the alien reinstatement remedy as it may involve
employees involved herein see Retaliatory Reporting of Illegal Alien Em-
ployees. Remedying the Labor-Immigration Conflict, article, Col. Law Rev.
Vol 80, Oct. 1980 No. 6, as it pertains to compliance.
42 See generally Isis Plumbing Co, 138 NLRB 716 (1962).
IMPACT INDUSTRIES
also be recommended that Respondent be ordered to rec-
ognize and bargain with the Union and that it take other
affirmative action and cease and desist from certain con-
duct as it is deemed will effectuate the policies of the
Act. Because Respondent has demonstrated a proclivity
to engage in conduct seriously violative of the Act's pro-
visions and objectives, I shall grant the request by the
General Counsel for a broad order. Impact Die Casting
Corp., 199 NLRB 268 (1972); Hickmott Foods, 242 NLRB
1357 (1979). It shall further be ordered that a notice to
employees be posted in both Spanish and English lan-
guages to better communicate Respondent's assurances
to its employees against any repetition of violations of
the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4s
ORDER
The Respondent, Impact Industries, Inc., Sandwich, Il-
linois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promising wage increases and other improvements
in working conditions to induce employees to withhold
their support from the Union.
(b) Granting improved benefits, such as a better vaca-
tion plan, longer breaktimes, employees incentive awards
plan, and reinstating a paid lunch period in order to
induce employees to withhold their support from the
Union. However, nothing herein is to be construed as re-
quiring that the Respondent withdraw any benefits
granted previous to this Order.
(c) Soliciting grievances from employees and impliedly
promising to resolve them in order to discourage em-
ployee support for the Union.
(d) Interrogating its employees concerning their union
activities and voting intentions in any Board election.
(e) Creating the impression of engaging in surveillance
of employees' activities on behalf of the Union.
(f) Restricting its employees' conversations with other
employees in order to discourage their union or protect-
ed concerted activities.
(g) Expressly threatening its employees with the loss
of existing benefits if they select the Union as their col-
lective-bargaining representative or by stating that bar-
gaining will be from scratch.
(h) Threatening to close the plant if the Union gets in
or wins an election.
(i) Threatening its employees with unspecified reprisals
for engaging in union activities.
(j) Warning any employee that the company president
will not like the employee wearing a union button.
(k) Investigating employees' alien status, reporting
them to the Immigration and Naturalization Service, and
setting up or reporting appointments for them there to
43 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
31
unlawfully coerce them from engaging in support of the
Union.
(1) Informing employees they were denied wage in-
creases due to union activities.
(m) Constructively discharging employees by report-
ing them to the Immigration and Naturalization Service
and threatening their discharge unless they clean up their
alien status, for the purpose of discouraging employee
support for the Union.
(n) Discharging employees because of their support for
the Union in violation of Section 8(a)(3) of the Act.
(o) Refusing to recognize and bargain with the Union
as exclusive collective-bargaining representative of em-
ployees in the appropriate unit described herein.
(p) Unilaterally changing working conditions or em-
ployment benefits without first notifying, consulting, and
bargaining with the Union.
(q) In any other manner interfering with, restraining,
or coercing employees in their exercise of rights under
the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, recognize, and bargain with Interna-
tional Union of Automobile, Aerospace and Agricultural
Implement Workers of America (UAW) as the exclusive
representative of all employees in the appropriate unit
and, if an understanding is reached, embody it in a
signed document. The appropriate unit is:
All full-time and regular part-time production and
maintenance employees employed by the Respond-
ent at its facility located at 1212 East Sixth Street,
Sandwich, Illinois; but excluding all other employ-
ees of the Respondent, office clerical employees,
professional employees, guards, foreman, and super-
visors as defined in the Act.
(b) Offer to Pamela Fruit, Irene Ruiz, Dehlia Perez,
Silvia Gonzalez, Victor Nunes, Romerico Calderon,
Pedro Diaz, Daniel Ramirez, Raphael Gonzalez, Augus-
tine Nunez, Saul Nunez, Oscar Gonzalez, and Felipe
Gonzalez immediate and full reinstatement to their
former positions or, if such positions no longer exist to
substantially equivalent positions, without prejudice to
their seniority, or other rights previously enjoyed, and
make them whole for any loss of pay or other benefits
suffered by reason of the discrimination against them in
the manner described above in the remedy section of this
decision.
(c) Remove from the personnel files of the employees
references to their discriminatory discharge and, in the
case of employee Ruiz, reference to the unsupported rea-
sons against recommendation for her future rehire, as
noted hereinabove.
(d) Remove from the file of Jolene Kitzky reference to
the warning against her herein found unlawful.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(f) Post at Respondent's place of business at Sandwich,
Illinois, copies of the attached notice marked "Appen-
dix."44 Copies of the notice, in the English and Spanish
language , on forms provided by the Regional Director
for Region 33, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
44 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the election in
Case 33-RC-2608 be set aside, and that the petition in
Case 33-RC-2608 be dismissed.45
4s The Order renders moot Respondent's motion received January 12,
1981, to dismiss the objections in the case