Imperial Bedding Co.

National Labor Relations Board - Board Decisions

Mar 7, 1975

216 N.L.R.B. 934 (N.L.R.B. 1975)

934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Imperial Bedding Company and Amalgamated Cloth-
ing Workers of America, AFL-CIO. Case 23-CA-
5070
March 7, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On November 8, 1974, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel and
the Charging Party filed briefs in support of the
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, ' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Imperial Bedding
Company, San Antonio, Texas, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
FRANK H. ITKIN, Administrative Law Judge. This case
was tried before me on August 27 and 28, 1974, in San
Antonio, Texas. The unfair labor practice charge was filed
by the Union on April 25 and the complaint issued on June
20, 1974. The principal issue presented is whether Respon-
dent Company violated Section 8(a)(l) of the National
Labor Relations Act by telling employees on April 5, 1974,
that they would be discharged if they engaged in a strike to
protest the 3-day suspension of a fellow employee and by
1 The seven employees , as named in par. 7 of the complaint, are:
1. Charles Birmingham 4. Came Schwartz
2. Juan Antonio Alvarado 5. Pablo Atilano
3. Benito Renato 6. Catalino Rodriguez
7. Mary Rodriguez Gutierrez
discharging seven employees because they engaged in the
strike., Upon the entire record, including my observation
of the witnesses, and after due consideration of the briefs
filed by counsel, I make the following findings of fact and
conclusions of law:
FINDINGS OF FACT
I. INTRODUCTION 2
Respondent Company, a Texas corporation, has its place
of business in San Antonio, Texas, where it is engaged in
the manufacture and sale of mattresses and box springs.
During the past year, Respondent purchased goods valued
in excess of $50,000 which were shipped directly to
Respondent's San Antonio facility from outside of Texas. I
find and conclude that Respondent is therefore an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. Further, I find and
conclude that the Charging Party Union is a labor
organization within the meaning of Section 2(5) of the Act.
Sol Schnitzer is president of Respondent Company;
Stephen Schnitzer is treasurer and bookkeeper ; and Tito
Ramirez is superintendent. I find and conclude that Sol
Schnitzer, Stephen Schnitzer, and Tito Ramirez are
supervisors within the meaning of Section 2(11) of the Act.
U. THE SEQUENCE OF EVENTS
Mary Louise Gutierrez testified that she first started
working for the Company about 4 years ago as a quilting
machine operator. She was subsequently transferred to the
"build-up department." Her last day of employment was
Friday, April 5, 1974. Mary Louise Gutierrez recalled that
she reported for work about 8 a.m. on April 5 and was
"inside the building waiting to punch in ...." She
overheard John Silva, an alleged supervisor, talking with
employee Ramon Gonzalez . Gutierrez testified:
John [Silva] asked Ramon [Gonzalez] why didn't he
stay to work overtime on April 4.. . . Ramon said that
the reason why he didn't stay was because John didn't
ask him to stay to work overtime, that he already
worked his eight hours and already had punched his
card .... Ramon told John, "You know I was in my
car. I was just waiting for one of my riders and I was
ready to leave."
Mary Louise Gutierrez then punched her timecard, went
to her table and started working. She observed employee
Ramon Gonzalez speaking with employee Catalino Rodri-
guez. Mary Louise Gutierrez observed employees Pablo
Atilano and Benito Renato walk over to Ramon Gonzalez
and Catalino Rodriguez. The "group" of employees
"stopped working." Mary Louise Gutierrez "then went
over to them and asked what had happened. And then
Catalino told [her, Mary Louise], that Ramon [Gonzalez]
was suspended ... because he didn't stay to work
The name of Mary Rodriguez Gutierrez was corrected to Mary Louise
Gutierrez.
2 The findings of fact and conclusions of law recited in this section are
principally based upon admissions in the pleadings, stipulations of counsel,
and the essentially undisputed evidence of record.
216 NLRB No. 160
IMPERIAL BEDDING COMPANY 935
overtime on April 4." The suspension was for a 3-day
period.
Mary Louise Gutierrez explained that employees Juan
Antonio Alvarado, Benito Renato , Pablo Atilano, Carrie
Schwartz, Charles Birmingham, and herself were in this
"group" and they were "discussing Ramon's suspension,
when ... Supervisor Tito Ramirez approached [them ] and
asked, . . . what was going on, why weren't [they ] working
...." The "group" responded: "we are not going to go
back to work unless Ramon would stay to work."
Superintendent Ramirez then went to the office of
Company President Sol Schnitzer. Shortly thereafter,
Ramirez returned to the "group" and notified them that
"there was going to be a meeting held in the sewing room
concerning the matter."
All of Respondent's employees attended the meeting in
the sewing room later that morning. Mary Louise Gutierrez
recalled that Company President Schnitzer said to the
assembled employees: "he [Schnitzer] was aware that we
had stopped working because of Ramon's suspension, .. .
Ramon's suspension still stands , and . . . he wanted us to
go back to work." Mary Louise Gutierrez recalled that
Schnitzer told the assembled employees, "Ramon's suspen-
sion still stands . . . go back to work or else all of us would
be fired." Mary Louise Gutierrez acted as interpreter and
spokesman for the "group." She "told Mr. Sol that the
reason why Ramon didn't stay to work overtime was
because he [Schnitzer] should hire more people to load and
unload the trucks." Schnitzer "repeated again that he
wanted [the employees ] to go back to work and that if not,
[they] were fired."
Mary Louise Gutierrez testified that one of the persons
in the "group" said: ". . . well, if Ramon Gonzalez will not
be allowed to stay, we wouldn't either." The seven persons
named above then "all agreed that if Ramon was
suspended for three days, [they] would not stay either."
They "went to [their] tables and took [their] belongings
and [they] took off" after "punch[ing] out." Company
President Schnitzer, in response to an inquiry by one of the
employees, said that their paychecks "would not be ready
until the usual time" later that day, about 4:45 p.m. The
seven workers "left in a group."
The employees met in the nearby parking lot. They
agreed to return later that day as a group for their
paychecks. And, as Mary Louise Gutierrez testified:
... we got there at 4:30 [that afternoon]. Then we
entered the building through the showroom and I [Gutie-
rrez] went into Mr. Sol's office and the rest of them stayed
in the showroom.. . . I told him that we were there just for
our checks. And he said O.K., just a minute. And he had
his checks with him . . . . So Mr. Sol went back into the
plant . . . to the showroom . . . . Then Mr. Sol told us
... , "Before I hand out your checks, I want for you all to
know that whatever happened today is forgotten ... .
That whatever happened today was forgotten and that we
could return to work Monday."
3 On cross-examination , Schwartz explained that Schnitzer told the
assembled employees on April 5: ". . . if we didn't report back to work that
we were going to be fired," "... he had to keep discipline in the plant" and
"Ramon's suspension still stands."
Gutierrez inquired "about Ramon's suspension." Schnitzer
"said Ramon's suspension still stands." Gutierrez com-
plained to Schnitzer that "it was unfair to the employees
..." The "group" left.
The seven workers returned to the plant at 8 a.m. on
Wednesday, April 10, when coworker Ramon Gonzalez' 3-
day suspension ended. Ramon Gonzalez was also present.
As Mary Louise Gutierrez testified:
Well, when we got there I went into Mr. Sol's office and
I told him that we all had to go back to work, since
Ramon's suspension ended that day and that we were
ready to report back to work. Like I told him, I said,
"Mr. Sol, I know that you said that we were fired if we
didn't show up for work Monday but since Ramon's
suspension ended we are here to report back to work."
And he said, "I am sorry but what I said still stands. As
far as I'm concerned all of you are fired." ... He said
Ramon can stay because after all he was just suspend-
ed. But Ramon can stay but the rest of us were fired
Employee Carrie Schwartz testified that she started
working for the Company in the "build-up department"
during March 1972 and that she too was discharged on
April 5, 1974. Schwartz corroborated in large part the
testimony of Mary Louise Gutierrez as summarized above.
Schwartz recalled that Company President Schnitzer stated
to the employees who were assembled in the sewing room
on Friday, April 5 that, "... if we were not going to go
back to work, we were fired" and that "Ramon's
suspension was still on." 3 Schwartz and the other members
of the "group" then "punched out." Schwartz recalled that
later that Friday, when the "group" returned for their
paychecks, Company President Schnitzer said, ". . . if
anybody wanted to come back to work he's welcome to
come back to work ... " on Monday, April 8. On cross-
examination , Schwartz explained that when the employees
returned on April 5 for their paychecks, Schnitzer said:
.. if you want to come back to work Monday it is O.K.
If you don't, you are fired ..... Schnitzer also stated to
the employees that "Ramon' s suspension was still on."
Employee Schwartz recalled that on Wednesday, April
10, when employee Gonzalez' 3-day suspension expired,
the "group" attempted to return to work. Schwartz
overheard Company President Schnitzer inform Mary
Louise Gutierrez "that what he [Schnitzer] had said on the
5th, that it still stand[s ], that we were fired." The "group,"
excluding Gonzalez, left the plant .4
Employee Charles Birmingham testified that he started
working for the Company in November 1973 as a truck
loader and that he too was terminated on April 5, 1974.
Birmingham corroborated in large part the testimony of
Mary Louise Gutierrez and Carrie Schwartz as summa-
rized above . Birmingham , however, recalled that Company
President Schnitzer told the employees who were assem-
bled in the sewing room on Friday, April 5, "Ramon was
suspended for three days because he refused to work
4 Schwartz was subsequently offered unconditional reinstatement by the
Company on July 10, 1974 (G.C. Exh. 2). She reported to the Company on
July 15 and resumed work on July 16.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overtime and that suspension stands and that if we didn't
go back to work that we wouldn 't have our jobs back
...: ' Birmingham recalled that later that day, when the
employees returned to the plant to get their paychecks,
Schnitzer said "that we could have our jobs back" - "to
come back Monday." Birmingham testified that the
"group" attempted to return to work on Wednesday, April
10, and that Schnitzer then apprised the employees "that
only Ramon had his job back , that we didn 't have our jobs
back." 5
Company President Schnitzer testified that on Friday
morning, April 5, he suspended employee Gonzalez for 3
days because Gonzalez assertedly had refused to work
overtime on Thursday , April 4. Schnitzer told Gonzalez:
"This is not the first time it happened and [Schnitzer] was
suspending him for three days ." Schnitzer was subsequent-
ly informed on that Friday morning that "some employees
had stopped working and they were protesting [Gonzalez]
three day suspension ." Schnitzer then assembled all the
employees in the sewing room . According to Schnitzer, "I
told them I was suspending [Gonzalez] for three days
because he did not follow instructions . My understanding
was that he did not work overtime as he was instructed to
and he had disobeyed the instructions and walked off the
job." Schnitzer recalled that Mary Louise Gutierrez spoke
up in the sewing room . She said : "they [the employees]
were going to walk off because [Schnitzer ] had given
[Gonzalez] a suspension ." Schnitzer testified that, in
response, he stated to the assembled employees , "I said at
the time, 'of course, you do what you feel you have to do.'
And I said . . . your checks will be ready, since this is
Friday your checks will be ready at the usual time, 4:45,
and we will pay you then . And that was about the end of it,
the gist of it ...." Schnitzer denied telling any employees
that "they were going to be fired" or that he had "fired"
"anybody." Schnitzer recalled that later that same day,
April 5 , when the employees returned for their paychecks,
he told the employees "that if they would come back to
work Monday everything would be forgotten ... they
would come back and have their jobs back." n
On Monday morning, April 8, as Schnitzer testified,
I waited until 9:00, 9 : 30, 10:00 o'clock to see if
someone did come back and at that time when they
didn't, I started calling Handy Andy. Handy Andy
maintains an office here . They call it Help Yourself
Employment . I called them up and asked them to send
5 On cross-examination , Birmingham explained that on Friday , April 5,
Company President Schnitzer told the assembled employees in the sewing
room that : "if we didn 't work we wouldn't have our jobs back .... ' Later
that same day when the employees returned to the plant, Schnitzer said, "to
forget what happened that day . . . we could have our jobs back if we
wanted to." And , on Wednesday , April 10, Schnitzer informed the "group"
that "we didn't have our [lobs I back."
6 Schnitzer recalled that during the afternoon of April 5 , one of the
employees, speaking through Gutierrez, asked about a raise . Schnitzer
assertedly responded : "No conditions attached to it. You come back
Monday morning and everything is forgotten . Come back to status quo and
you go back to work ." Schnitzer claimed that he also apprised the
employees : "I've got a business to run. I told them I would have to start
replacing them ." Schnitzer again denied telling any employee that "they
would be fired" or "they were fired."
7 On cross-examination, Schnitzer claimed that he "hued all five of them
me some people as soon as they could that day, that I
wanted to start interviewing to fill these positions ... .
Schnitzer recalled:
And they sent me down some people and I put three to
work immediately.... One boy ... , I put him to
work, but he didn't go to work immediately. He had
some problems to take care of .... I think it was a
week later. I said O.K., come back, start to work on
such and such date, which he did.
Schnitzer added:
... we had an ex-employee that had left a year prior
to have her baby. She was off about a year. And I
called her and asked her to come back and she came
into the office and discussed it with me on Monday.
She said she would like a couple of days to find a
babysitter. I said fine. And she did and I put her to
work.
Schnitzer assertedly hired five persons. He did not replace
two of the seven employees. Schnitzer claimed that
"Birmingham's position up front" "sacking mattresses"
was not filled. Schnitzer assertedly "found out we didn't
need" Birmingham . Also, according to Schnitzer, he did
not "need Catalino" Rodriguez, "a mattress finisher."
Schnitzer explained: "Our business is down and we just
didn't need the production at that time ...." Schnitzer
claimed: "Our truck drivers were sacking mattresses and I
had another boy out there." Schnitzer claimed: "We had a
tape edge man we trained prior. I like to cross train my
people. And then Tito Ramirez [the plant superintendent]
is a tape edge man, too." Ramirez "started running the
machine" which was previously operated by Rodriguez.
On Wednesday, April 10, according to Schnitzer, the
"group" of employees "presented themselves for work and
[Schnitzer] told them ..., Gonzalez could come back to
work because his suspension was up. But [Schnitzer] had
replaced the others." Schnitzer denied stating that "any-
body was fired." 7
Plant Superintendent Tito Ramirez testified that Ramon
Gonzalez had refused to work overtime on Thursday, April
4, as instructed and that, as a result , the employee was
given a 3-day suspension on April 5. Ramirez explained
that the employee "had disobeyed an order and he had two
previous warnings on the same account." Ramirez was
[the alleged replacements ] on that Monday" April 8. He explained: "That
day, I hired them when they came down except one. I agreed to let him
come back, come in a week later , and then the girl." Three persons
assertedly went to work that day, Monday, April 8. The fourth "had a few
personal problems" and it was agreed that he could "start in a weeks time."
The fifth, as noted, "came in the next day or the day after she found a
babysitter, a very short while . She came to work, I think , within two days."
She is still employed by the Company. Schnitzer was unsure whether the
other four were still employed.
Counsel for Charging Party read to Schnitzer testimony or statements
which Schnitzer assertedly gave before the Texas Employment Commission
to the effect that Schnitzer had called Handy Andy on Tuesday and not on
Monday. Schnitzer did not "recall" making that statement. Schnitzer
testified that he has since offered employment to five of the seven employees
involved (that is , excluding Birmingham and Mary Louise Gutierrez).
IMPERIAL BEDDING COMPANY 937
present during the meeting in the sewing room on the
morning of April 5. Ramirez testified in part as follows:
Q. . . . Did at any time , did he [Schnitzer ] say, tell
the people that they were fired?
A. No. I never heard it ....
Ramirez recalled that later the same day, Schnitzer "told
them that their checks were ready and that anybody who
showed up Monday would have their jobs with the
exception of Ramon . . . [who] was suspended for three
days." Ramirez denied that Schnitzer "threatened to fire"
the employees or said "anything about anybody getting
fired. 118
Stephen Schnitzer , treasurer and bookkeeper for Respon-
dent Company, was present at the plant during the
afternoon of Friday, April 5. He testified, in part, "Well,
Sol [Schnitzer ] had the checks in hand and he told them
that . . . we have the checks ready for you and that, . . . if
they would come back to work Monday morning at 8:00
o'clock , that we would just consider the incident closed.
That is, nothing more would be said by us about it or
anything like that . . . ." Stephen Schnitzer denied that
Sol Schnitzer used the word "fired" or said "anything"
"about them losing their jobs."9
III. DISCUSSION
Counsel for Respondent Company argues in his brief
that the "sole issue" before me is "whether or not the
Company discharged the employees on April 5, 1974." The
pertinent legal principles were restated by the Eighth
Circuit in N.L.R.B. v. Hilton Mobile Homes, 387 F.2d 7, 9
(C.A. 8, 1967):
It is now conceded by Hilton that the strike was not
unlawful . It contends , however, that it did not
discharge the employees on May 6th, but rather
notified them that they would be replaced unless they
returned to work immediately . It contends it had a
right to do so as the employees were economic strikers
who could be replaced. Whether Hilton's statements
constituted an unlawful discharge depends on whether
they would reasonably lead the employees to believe
that they had been discharged. N.LR.B. v. Comfort,
Inc., 365 F.2d 867, 875 (8th Cir. 1966); N.LR.B. v.
Trumbull Asphalt Company of Delaware, 327 F.2d 841,
843 (8th Cir. 1964); N.LR.B. v. Central Okl. Milk
Producers Ass'n, 285 F.2d 495, 497-498 (10th Cir.
1960); National Labor Rel. Bd v. Cement Masons Local
No. 555, 225 F.2d 168, 172 (9th Cir., 1955).
The court, quoting from its prior decisions , noted that "an
employer cannot lawfully terminate the employment status
of economic strikers prior to the time they have been
validly replaced"; and "the fact that ... employees
received no formal notice of discharge , as was respondent's
customary practice, is immaterial, if they could logically
infer that their employment status had been terminated at
that point ...." The court concluded in Hilton Mobile
Homes, supra,
Here, as in Comfort, supra, we find that the actions and
statements of Hilton, on May 6th, had the intended
8 Employee Angelica Ramirez overheard the conversation between
employee Ramon Gonzalez and John Silva on April 4. Ramirez explained
how Silva asked Gonzalez "to stay and work late" and Gonzalez refused.
Ramirez was also present on April 5 when Schnitzer addressed the
employees in the sewing room . Ramirez testified:
Q. During that meeting did Mr . Schnitzer say anything about
being fired?
A. No, sir.
Ramirez also witnessed the "group" of employees picking up their
paychecks later that same day . According to Ramirez , Schnitzer told
Gutierrez "the same [thing) he told her [earlier ] during the meeting."
Ramirez again denied hearing Schnitzer "tell these people they were fired. "
Angelica Ramirez acknowledged that Superintendent Tito Ramirez is her
husband . She also acknowledged that she just speaks a "little bit" of
English.
Employee Rodolfo Trejo was also present at the meeting in the sewing
room on April 5 . Trejo also claimed, inter alia, that the word "fired" was not
used by Schnitzer.
9 Stephen testified that five persons were hired "to replace these people."
Employee Charles Birmingham and Catalino Rodriguez were not replaced
because "we were producing fewer and fewer pieces." Stephen characterized
this as a "general type slump ." Gilbert Herrara started to work on April 15.
Herrara was "spoken to on the Tuesday evening before that," April 9.
Louise N. Perez started to work on April 8. Mary Ruiz started to work on
April 10. Victor Alvarez assertedly started to work on April 9 . And David
Gonzalez started to work on April 8. See Resp . Exhs. 1-5 and 15-17.
Juan Alvarado was offered reinstatement by letter dated June 13 (Reap.
Exh. 6). Benito Renato was offered reinstatement by letter dated June 13
(Reap. Exh. 7). Catalano Rodriguez was offered reinstatement by letter dated
June 21 (Reap . Exh. 8). Stephen Schnitzer testified that Catalmo Rodriguez
had not been replaced , but "Our business normally does increase at this
time of the year. We didn't feel that Tito [Ramirez] could take the
responsibility of runing [sic ] the machines as well as his normal
responsibility." See Reap . Exhs. 10-14 . Pablo Atilano was offered reinstate-
ment by letter dated June 28 (Reap. Exh. 9 ). Schnitzer explained that,
although Perez had 'replaced" Atilano and Perez worked up to July 12,
The last three weeks Mr. Perez had worked , he hadn't worked full
weeks and we felt that he was not going to last very much longer and
we needed someone again to take his place.
None of the five named "replacements" are "actively employed" except for
Ruiz. Of the seven employees who were allegedly discharged, Birmingham
and Mary Louise Gutierrez have not been recalled.
I credit the testimony of Mary Louise Gutierrez as summarized above.
Her testimony is in large part corroborated by the testimony of coemployees
Carrie Schwartz and Charles Birmingham. Her testimony is also substanti-
ated in part by the testimony of Company President Sol Schnitzer,
Treasurer Stephen Schnitzer , Superintendent Tito Ramirez , employee
Angelica Ramirez, and employee Rodolpho Trejo . And, upon the record as
a whole , including the demeanor of the witnesses, I am persuaded that the
testimony of Mary Louise Gutierrez, corroborated in part by Schwartz and
Birmingham , is a truthful, accurate and reliable account of the events
recited above . Insofar as the testimony of Sol Schnitzer, Stephen Schnitzer,
Tito Ramirez , Angelica Ramirez, and Rodolpho Trejo differs with the
testimony of Gutierrez, Schwartz, and Birmingham , I credit the latter as
more dependable and trustworthy . In particular , I do not believe Sol
Schnitzer's assertion that during the morning of April 5, he simply stated to
his employees : "Of course, you do what you feel you have to do " I do not
credit his assertion that he did not "tell anybody they were going to be
fired ." As Schnitzer acknowledged , "They [the employees I got their
belongings and left." And, as Schnitzer further acknowledged, later that
same day he told the employees that "if they would come back to work
Monday everything would be forgotten and we - I would forget about, and
they would come back and have their jobs back " - "Everybody has got
their jobs back" "if you come back to work Monday morning " Further, I
do not credit Schnitzer's assertion that he carefully advised the employees
that he "would have to start replacing them" and "at no time did [he]
mention anybody was fired ." Nor do I credit the denials of Superintendent
Tito Ramirez and his wife, Angelica, and employee Trejo, elicited
principally in response to leading questions, that Schnitzer did not "say
anything about anybody being fired."
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effect of terminating the employment relationship of
the striking employees, and was thus an unlawful
discharge.
Applying these principles here, I find and conclude that
the seven employees named , supra, were engaging in
concerted activity protected by Section 7 of the Act when
they struck in protest over a 3-day suspension which had
been given to a coworker because of his refusal to work
overtime . See, e.g., Hilton Mobile Homes, supra, N.LR.B. v.
Washington Aluminum Company, Inc., 370 U.S. 9 (1962). I
find and conclude that Respondent Company interfered
with, restrained, and coerced its employees in the exercise
of their Section 7 rights in violation of Section 8(a)(1) of
the Act, when Company President Schnitzer told the
employees on April 5 that "he wanted [the employees] to
go back to work and that if not [they] were fired." As
employee Mary Louise Gutierrez credibly testified, Schnit-
zer said "that Ramon's suspension still stands and for us to
go back to work or else all of us would be fired." Further, I
find and conclude that Respondent Company violated
Section 8(ax 1) by discharging the seven employees on
April 5 because they were engaging in a protected strike in
protest over coemployee Gonzalez' 3-day suspension.
The credited evidence of record, as detailed above,
makes it clear that Company President Schnitzer threat-
ened to fire and in fact fired the seven employees because
they were engaging in protected concerted activities.
Counsel for Respondent, in his brief, notes that one of the
employees assertedly "testified that Mr. Schnitzer said the
employees would lose their jobs if they did not return to
work, but denied that the word `fired' was used" on the
morning of April 5. However, I am persuaded by the
credible evidence of record, as discussed, supra, that
Schnitzer in fact used the word "fired" when he spoke to
the employees . Moreover, even if I were to assume that
Schnitzer instead told the employees that they, in effect,
"would lose their jobs," I would still find and conclude on
this record that Schnitzer's statements to his employees on
April 5 "reasonably led the employees to believe that they
had been discharged"; that the employees "could logically
infer that their employment status had been terminated at
that point"; and that Schnitzer's statements "had the
intended effect of terminating the employment relationship
of the striking employees, and there was thus an unlawful
discharge ." Hilton Mobile Homes, supra.10
In sum , Respondent threatened to discharge and in fact
discharged the employees because they persisted in
exercising their Section 7 rights.
Counsel for Respondent contends that Mary Louise
Gutierrez was at all times pertinent to this proceeding a
"supervisor" within the meaning of Section 2(11) of the Act
and, accordingly, is not entitled to the protection of
Section 7 of the Act. The rights conferred by Section 7 are
accorded only to "employees" - a term which under the
10 Counsel for Respondent argues that: "Even if it be assumed that there
was a discharge on Friday morning, it was revoked on Friday evening." I
am, however, persuaded that Schmtzer's statement to the employees on
Friday evening to the effect that "everything would be forgotten" if the
employees "would come back to work Monday" was conditioned upon the
employees abandoning their lawful strike and is itself evidence that the
employees had been discharged.
express provisions of Section 2(3) of the Act excludes "any
individual employed as a supervisor ." A "supervisor" is
defined in Section 2(11) of the Act as,
... any individual having authority , in the interest of
the employer, to hire , transfer , suspend, layoff, recall,
promote , discharge, assign, reward or discipline other
employees , or reasonably to direct them , or to adjust
their grievances, or effectively recommend such action,
if in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
Actual existence of true supervisory power is to be
distinguished from abstract, theoretical, or rule-book
authority. It is well settled that a rank-and-file employee
cannot be transformed into a supervisor merely by
investing him or her with a "title and theoretical power to
perform one or more of the enumerated functions."
N.LR.B. v. Southern Bleachery & Print Works, Inc., 257
F.2d 235, 239 (C.A. 4, 1958), cert . denied 359 U.S. 911
(1959). What is relevant is the actual authority possessed
and not the conclusory assertions of a company's officials.
And while the enumerated powers listed in Section 2(11) of
the Act are to be read in the disjunctive,1' the Section also
"states the requirement of independence of judgment in the
conjunctive with what goes before." Poultry Enterprises,
Inc. v. N.LRB., 216 F.2d 798, 802 (C.A. 5, 1954). Thus, the
individual must consistently display true independent
judgment in performing one of the functions in Section
2(11) of the Act. The exercise of some supervisory tasks in
a merely "routine," "clerical," "perfunctory" or "sporadic"
manner does not elevate a rank-and-file employee into the
supervisory ranks . N.LRB. v. Security Guard Service, Inc.,
384 F.2d 143, 146-149 (C.A. 5, 1967). Nor will the
existence of independent judgment alone suffice ; for "the
decisive question is whether [the individual involved has
been found to possess authority to use [her] independen
judgment with respect to the exercise by [her ] of some on(
or more of the specific authorities listed in Section 2(11) o
the Act." N.LR.B. v. Brown & Sharpe Manufacturin,
Company, 169 F.2d 331, 334 (C.A. 1, 1948). In short, "some
kinship to management , some empathetic relationshil
between employer and employee must exist before the
latter becomes a supervisor for the former." N.LR.B. v
Security Guard Service, Inc., supra, 384 F.2d at 149.
In the instant case , the evidence of record shows that
Mary Louise Gutierrez had been placed "in charge of the
build-up department." Gutierrez, however, credibly de-
scribed what she did in the "build-up department," in part
as follows:
Well, I work just like the other people, employees in the
build-up department, and [Superintendent] Tito Rami-
rez brings a paper sheet with the amount of mattresses
that he wants put out.. . . It [the paper] is made out in
Counsel for Respondent asserts that it is not "clear" that the gmployees'
April 10 "return constituted a true unconditional offer to return to work." I
find that the striking employees made it sufficiently clear to the Employer
on that day that they had ended their strike and were unconditionally
returning to work.
ii Cf. West Penn Power Co. v. N L.R.B., 337 F.2d 993, 996 (C.A. 3, 1964).
IMPERIAL BEDDING COMPANY 939
the office . . ., what John Silva used to do is make a
sheet of, copy the order on a sheet of paper, either John
Silva or Tito Ramirez. . . . And they would write it
down what had to be put out that day on a sheet of
paper . Then Tito would come to me and give it to me
[and] say here 's the orders.
Further , Gutierrez explained that when Superintendent
Ramirez was "absent from work ," Silva "used to come and
give me the invoices and he said , Peggy , will you help me
out. Here are the invoices . Start with this one first or the
other. He [Silva] would tell me how , [b Jut because of Tito's
absence." Gutierrez also explained that Superintendent
Ramirez would assign "additional help" to the "build-up
department" when needed . And, Gutierrez was not given
any "additional authority" when asked by management "to
be in charge of the build-up department." She has never
been consulted by management with respect to any
problems concerning the "build-up department." She has
never attended supervisory meetings ; cannot grant an
employee time off from work ; and cannot recommend an
employee for an increase in wages . Gutierrez credibly
testified:
... we [the employees in the build -up department]
would get together and look at the orders and I would
let them know what orders were supposed to be out
that day and we would divide who worked - It all
depends on how many persons were working there in
the department and we would divide the orders among
ourselves . But I wouldn't order them to do it.12
Gutierrez was paid 10 cents an hour more than the other
employees in the "build-up department." She was, howev-
er, required to punch the time-clock . There are now two
persons working in this "department."
On this record, I do not find that Gutierrez was a
supervisor within the meaning of the Act. Any authority
possessed by Gutierrez was, at best , of a routine or clerical
nature which was exercised in a sporadic manner and did
not require the use of independent judgment. I therefore
reject this contention.13
CONCLUSIONS OF LAW
Rodriguez, and Mary Louise Gutierrez on April 5, 1974,
because they had engaged in protected concerted activities.
3. The unfair labor practices found herein are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. I shall also recommend
that Respondent cease and desist from, in any like or
related manner, infringing upon rights guaranteed employ-
ees in Section 7 of the Act.
It has been found that Respondent, in violation of
Section 8(a)(l) of the Act, unlawfully discharged employ-
ees Birmingham, Alvarado, Renato , Schwartz, Atilano,
Rodriguez, and Gutierrez on April 5. The seven employees
engaged in a strike until April 10, when they uncondition-
ally presented themselves for work. It will therefore be
recommended that Respondent offer to the employees who
have not been reinstated their former jobs,14 without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings suffered by
reason of their unlawful discharges by payment to them of
a sum of money equal to that which they normally would
have earned from April 10, 1974, to the date of Respon-
dent's offer of reinstatement, less net earnings during such
period with backpay computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950). Backpay shall carry
interest at the rate of 6 percent per annum, as set forth in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Further, it will be recommended that Respondent preserve
and make available to the Board, upon request, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
and useful to determine the amount of backpay due and
the rights of reinstatement under the terms of this
Decision. Since it appears that a number of Respondent's
employees only speak Spanish, the notice to be posted will
be in both English and Spanish.
1. Respondent Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Respondent Company violated Section 8(axl) of the
Act by telling its employees that they would be discharged
if they engaged in a concerted strike to protest the
suspension of a fellow employee and by discharging
employees Charles Birmingham , Juan Antonio Alvarado,
Benito Renato, Carrie Schwartz, Pablo Atilano, Catalino
12 Gutierrez acknowledged that she had complained to Superintendent
Ramirez "about Ramon 's work on the quilting machine." She also
acknowledged telling "a new employee" "what to do" and "training" new
personnel.
13 In view of my finding and conclusion that Respondent Company
violated Sec . 8(axl) of the Act by telling its employees on April 5 that they
would be discharged if they engaged in a concerted strike to protest the 3-
day suspension of a fellow employee, and by discharging the seven named
employees because they engaged in the work stoppage , it is unnecessary for
me to determine whether Respondent committed a further violation of the
ORDER 15
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
Respondent Imperial Bedding Company, its officers,
agents , successors, and assigns, shall:
1. Cease and desist from:
(a) Telling its employees that they will be discharged if
Act on April 10 when the striking employees were not returned to their
employment.
14 The record establishes that all employees , except Birmingham and
Gutierrez, have been reinstated.
15 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they engage in a concerted strike to protest the suspension
of a fellow employee.
(b) Discharging employees because of their protected
concerted activities or in any like or related manner
discriminating against them in regard to hire or tenure of
employment or any term or condition of employment.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to employees Charles Birmingham and Mary
Louise Gutierrez immediate and full reinstatement to their
former jobs or, if their jobs no longer exist, to substantially
equivalent positions without prejudice to their seniority or
other rights and privileges and make whole employees
Charles Birmingham , Juan Antonio Alvarado, Benito
Renato, Carrie Schwartz, Pablo Atilano, Catalino Rodri-
guez, and Mary Louise Gutierrez for any loss of earnings
in the manner set forth in this Decision.
(b) Preserve and make available to the Board or its
agents all payroll and other records as set forth in this
Decision.
(c) Post at its facilities in San Antonio, Texas, copies of
the notice attached hereto as "Appendix" in English and
Spanish .16 Copies of said notice, on forms provided by the
Regional Director for Region 23, shall after being duly
signed by Respondent , be posted immediately upon receipt
thereof in conspicuous places, and be maintained for a
period of 60 consecutive days . Reasonable steps shall be
taken to insure that notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Decision what
steps Respondent has taken to comply herewith.
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full hearing in which both sides had the opportuni-
ty to present their evidence, the National Labor Relations
Board has found that Imperial Bedding Company violated
the National Labor Relations Act and has ordered us to
post this notice. We therefore notify you that:
WE WILL NOT tell our employees that they will be
discharged if they engage in a concerted strike to
protest the suspension of a fellow employee.
WE WILL NOT discharge employees because of their
protected concerted activities or in any like of related
manner discriminate against them in regard to hire or
tenure of employment or any term or condition of
employment.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of the
rights guaranteed in Section 7 of the Act.
WE WILL offer employees Charles Birmingham and
Mary Louise Gutierrez immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions without
prejudice to their seniority or other rights and privileges
and make whole Charles Birmingham, Juan Antonio
Alvarado, Benito Renato, Carrie Schwartz, Pablo
Atilino, Catalino Rodriguez and Mary Louise Gutier-
rez for their loss of earnings , as provided in the Board's
Decision and Order.
19 In the event that the Board 's Order is enforced by a Judgment of a
IMPERIAL BEDDING
United States Court of Appeals, the words in the notice reading "Posted by COMPANY
Order of the National Labor Relations Board" shall be changed to read (Employer)