Interstate Engineering

National Labor Relations Board - Board Decisions

Jun 8, 1977

230 N.L.R.B. 1 (N.L.R.B. 1977)

INTERSTATE ENGINEERING
Interstate Engineering, a Division of A-T-O, Inc. and
Aluminum Workers International Union, AFL-
CIO and Employee Communications Board, Party
in Interest.
Interstate Engineering, a Division of A-T-O, Inc. and
Aluminum Workers International Union, AFL-
CIO. Cases 21-CA-14354, 21-CA-14380, and
21-RC-14456
June 8, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On December 21, 1976, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed exceptions and a supporting brief and a
brief in answer to Respondent's exceptions.
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, as
modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Interstate Engineering, a Division of A-T-O,
Inc., Anaheim, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, as so modified:
1. Insert the following as paragraph l(d):
"(d) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights to self-organization, to form labor organiza-
tions, to join or assist labor organizations, to bargain
collectively with representatives of their own choos-
ing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such
activities."
2. Substitute the attached notice for that of the
Administrative Law Judge.
230 NLRB No. 3
IT IS FURTHER ORDERED that the election held on
January 20, 1976, in Case 21-RC-14456 be, and it
hereby is, set aside, and said case is hereby remanded
to the Regional Director for Region 21 for purposes
of conducting a new election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
' Respondent and the General Counsel have 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 u 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.
Member Murphy agrees that certain statements in Respondent's letters of
December 11, 1975, and January 6 and 16, 1976, to the effect that
Respondent would bargain from scratch and resist demands for a union
shop, thereby "inevitably" precipitating a strike during which strikers would
be replaced and the Company would lose part of its die-shop business,
constituted veiled threats of reprisal in violation of Sec. 8(aXI). Since these
statements occurred in the context of extensive unlawful conduct, including
interrogations, threats of plant closure and loss of jobs and benefits,
solicitation of grievances, and promise of benefits, and Respondent's
statement that, after the election it would reestablish the disbanded
employee committee it had created and dominated prior to the Union's
representation petition, Member Murphy believes that there is no merit to
Respondent's claim that the above statements were privileged under Sec.
8(c). For the same reasons, she agrees with the finding that Respondent
violated Sec. 8(aXl) by the comments of Limacher in his speech of January
19, 1976, concerning the likelihood of closure of the die-cast division or the
plant in the event of a strike.
2 The Administrative Law Judge inadvertently omitted providing for a
conclusionary eease-and-desist paragraph in his recommended Order and
notice to which the General Counsel has taken exception. In view of the
seriousness and pervasiveness of the unfair labor practices found to have
been committed by Respondent, we deem it proper in order to effectuate the
purposes of the Act to amend the recommended Order and notice by adding
a broad cease-and-desist provision therein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT dominate the formation or
administration of the Employee Communications
Board nor contribute unlawful support or assis-
tance to it.
WE WILL NOT interrogate our employees con-
cerning their or other employees' membership in
the Aluminum Workers International Union,
AFL-CIO, or other activities on behalf of that
organization or their sentiments concerning that
organization (or any other labor organization).
WE WILL NOT make statements to our employ-
ees which give them the impression we are
maintaining a surveillance of their activities on
behalf of the above-named or any other labor
organization.
WE WILL NOT directly or by implication
threaten our employees with discharge, job loss,
plant closure, reduction of benefits, refusal to
I
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain with a labor organization duly selected by
a majority of our employees within an appropri-
ate unit, or any other reprisals to discourage their
support of the above-named or any other labor
organization.
WE WILL NOT promise benefits to our employ-
ees to encourage them to withdraw or refrain
from supporting the above-named or any other
labor organization.
WE WILL NOT solicit grievances or complaints
from our employees to discourage their support of
the above-named or any other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form labor organizations, to join or assist labor
organizations, to bargain collectively with repre-
sentatives of their own choosing, and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
WE WILL withdraw and withhold all recogni-
tion from the Employee Communications Board
as the bargaining representative of our employees
for the purpose of adjusting our employees'
wages, rates of pay, hours, or working. conditions
and WE WILL completely disestablish that organi-
zation as such representative.
INTERSTATE
ENGINEERING, A
DIVISION OF A-T-O,
INC.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge: On
June 7, 8, 9, 10, 11, 14, and 15, 1976,1 I conducted a hearing
at Santa Ana, California, to try issues raised by the Union's
objections to alleged company conduct affecting the
election in Case 21-RC-14456 and companion issues
raised by a consolidated complaint issued on March 31 on
the basis of a charge and an amended charge filed by the
Union in Case 21-CA-14354 on February 4 and March 26,
respectively, and a charge filed by the Aluminum Workers
International Union, AFL-CIO, hereafter called the
Union, in Case 21-CA-14380 on February 12.
On April 2 the Regional Director for Region 21 issued an
order consolidating the issues raised by the election
objections and the consolidated complaint for hearing and
resolution.
The consolidated complaint and the election objections 2
allege that Interstate Enginneering, a Division of A-T-O,
I Read 1976 after all further date references omitting the year.
2 The acts alleged to constitute unfair labor practices encompass all the
objections to the election other than Objections 4 and 8. Inasmuch as no
Inc., hereafter called the Company, violated Section
8(a)(Xl1), (2), and (3) of the National Labor Relations Act, as
amended,3 and prevented a fair election. The complaint
and objections alleged the Company violated Section
8(aX 1) and (3) of the Act by discharging Samuel Rodriguez
for engaging in protected concerted activities; violated
Section 8(aXl) and (2) of the Act by disbanding an
employee-elected grievance-bargaining committee and
forming, dominating, and dealing with an organization of
its employees called the Employee Communication Board4
in its stead; and violated Section 8(aXl) of the Act by
interrogating its employees concerning union activities, by
making statements which gave its employees the impres-
sion the Company was maintaining a surveillance of union
activities, by threatening its employees with discharge, job
loss, plant closure, reduction of benefits, and other reprisals
to discourage employee union activity, by promising
benefits to employees to encourage employees to refrain
from supporting the Union, by stating the Union's
organizational campaign prevented the grant of wage
increases, by distributing forms and instructions to em-
ployees for revoking their signatures to union authorization
cards and offering to assist employees in accomplishing
such revocation, by stating the Company would never
recognize or bargain with the Union, and by soliciting
grievances from employees to discourage employee support
of the Union.
In its answer, the Company admitted at times material
Robert Limacher was its president, William Davis was its
vice president for industrial relations, Sherine East was its
personnel manager, Darryl Roth was its production
manager, Charles Jaime was its director of manufacturing
die-cast products, Eugene Davis was its die-cast superin-
tendent, Jack Reynolds was its foreman, Ed Ploschek was
its foreman, Gary Ashby was its printshop manager, and
all the foregoing were supervisors and agents of the
Company acting on its behalf. The Company in its answer
also admitted at times pertinent Jeanette Grabathy was a
leadwoman but denied she at any time was a supervisor or
agent of the Company acting on its behalf. The Company
also admitted in its answer it discharged Rodriguez, but
denied it discharged Rodriguez for engaging in union
activities. The Company also denied the ECB was a labor
organization within the meaning of the Act; denied it
disbanded an employee-elected grievance-bargaining com-
mittee and formed and dominated the ECB as its
successor. Lastly, the Company denied any of its supervi-
sors or agents committed the acts attributed to them in the
complaint as unfair labor practices and elections miscon-
duct. The Company on the basis of the foregoing requested
the complaint and election objections be dismissed.
The issues before me for resolution are:
i. Whether the Company disbanded an employee-
elected grievance-bargaining committee and formed and
dominated the ECB as its successor and thereby violated
evidence was produced at the hearing in support of either of those
objections, I recommend they be dismissed.
3 Hereafter called the Act.
4 Hereafter called the ECB.
2
INTERSTATE ENGINEERING
Section 8(a)(2) and (1) of the Act and prevented a fair
election. 5
2. Whether the Company discharged Rodriguez for
engaging in protected union activities and thereby violated
Section 8(a)(3) and (1) of the Act and prevented a fair
election.
3. Whether Grabathy was a supervisor or agent of the
Company acting on its behalf at times pertinent. 6
4. Whether E. Davis, Roth, Jaime, Limacher, Rey-
nolds, Ploschek, East, and Ashby committed the acts
attributed to them in the consolidated complaint and, if so,
whether by such acts the Company violated Section 8(aX1)
of the Act and prevented a fair election.
The parties appeared by counsel at the hearing and were
afforded full opportunity to produce evidence, examine
and cross-examine witnesses, argue, and file briefs. Briefs
have been received from the General Counsel and the
Company.
Based upon my review of the entire record, observation
of the witnesses, perusal of the briefs, and research, I enter
the following:
FINDINGS OF FACT
I. URISDICTION AND LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find at
times material the Company was a corporation engaged in
the manufacture of fire alarms, vacuum cleaners, and job
shop die castings at a facility located in Anaheim,
California, that it annually sold and shipped products
valued in excess of $50,000 to customers located outside of
California, and that it was an employer engaged in
commerce in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The complaint alleges, the answer admits, and I find at
all times material the Union was a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES AND
ELECTION MISCONDUCT
A. The Alleged Company Disbanding of the
Employee-Elected Grievance-Bargaining Committee
and Creation and Domination of the ECB as its
Successor
The employees' organizational activities began with the
meeting of a small number of the Company's employees
near the plant on Saturday, November 8, 1975. The
employees discussed their wage scales, fringe benefits, and
working conditions and reached general agreement that
improvements were warranted; they formed a committee
of six of their numbers to formulate proposals for
improvements therein and present them to management;
they also decided to call a meeting of all the employees on
the following Monday (November 10, 1975).
5 A subsidiary issue is whether the ECB was a "labor organization"
within the meaning of the Act.
6 If so, another issue is whether Grabathy committed the acts attributed
to her in the complaint and, if so, whether such acts violated Sec. 8(aXI) of
the Act and prevented a fair election.
Approximately 75 employees9 attended the November
10 meeting. Hare acted as chairman. He reported the issues
discussed at the previous meeting, the designation of the six
employees to formulate proposals for improvements in
wages, fringe benefits, etc., for presentation to management
and asked those in attendance to authorize the six to act on
their behalf in preparing and presenting the proposals to
management. All 75 signed such authorization.
The committee met to formulate their proposals a few
days later. Not completing the proposals, they agreed to
meet at Saville's home the following Sunday, November 16,
1975. At the November 16, 1975, meeting, attended by all
six committee members plus an alternate (Evelyn Brooks),
they formulated 11 proposals and put them in written form.
Their 11 proposals were: (1) abolish the merit wage system
presently in effect and establish rate ranges for each job
classification; (2) establish rates for each job classification
comparable with wages paid by the industry within the
area, with an anticipated increase of approximately 90
cents per hour; (3) increase company contributions to the
pension plan by 12 cents per hour and company contribu-
tions to the health and welfare plan by 12 cents per hour,
with consequent upgrading of benefits; (4) establish
Washington's Birthday as an additional paid holiday; (5)
establish a program for payment of cost-of-living increases
commensurate with changes in the cost-of-living index; (6)
establish a seniority system; (7) establish a procedure for
processing grievances between the committee and manage-
ment; (8) establish 5 days of paid sick leave per year; (9)
establish lead classifications with specified rates; (10)
provide for commensurate revisions in production quotas
with each change in product or process or method of
manufacture; and (11) embody the employees' rates of pay,
job classifications, fringe benefits, and working conditions
in a written contract executed by the Company and the
committee.
The committee called a general employee meeting the
next day (Monday, November 17, 1975) to notify the
employees of the proposals and discuss them before they
were presented to the Company. The proposals were read
and discussed at the meeting. No changes were made.
On Tuesday, November 18, 1975, Hare approached his
supervisor, Russell Gray, and informed Gray of the
employee actions and the proposals. He asked Gray to
arrange a meeting between the employee committee and
management. Gray arranged a meeting that afternoon. The
meeting was attended by the following company represen-
tatives: Robert Limacher, president; David Martin, vice
president/comptroller; Charles Jaime, director of manu-
facturing, die-cast products; Darryl Roth, production
manager; and Sherine East, personnel manager. The six
elected committee members attended as representatives of
the employees. Hare, as chairman of the employee
committee, advised Limacher of the employees' meetings
and actions, the election of the committee, the draft of
proposals for improvements in rates of pay, fringe benefits,
etc., and presented Limacher with a written document
T Twenty employees attended the meeting. There were 109 employees
eligible to vote in the January 20 election.
I Arnold Hare, Eva Semendinger, Dora Moore, Mary Campos. Ken
Suleski, and Pat Saville.
9 A majority within the unit.
3
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
setting forth the 11 proposals. Limacher stated he would
study the proposals, confer with the parent company (A-
T-O), and give the Company's answer to the committee's
proposals thereafter.
On December i, 1975, Limacher prepared a letter to all
employees stating he was creating an organization called
the "Employee Communications Board" (ECB); that he
would select an employee from each department to serve
on the ECB; that the ECB would meet twice per month on
company time10 and he would act as chairman; that the
ECB would discuss, inter alia, employee relations and
employee suggestions; and that a summary of each meeting
would be posted on all bulletin boards. On the date his
December I letter was generally distributed (December 3,
1975), Limacher summoned Hare and stated the Company
had not in the past and would not now recognize any
employee-elected committee, that he was going to appoint
employees to the ECB, and that he would communicate the
Company's answers to the proposals submitted to him on
November 18 to the ECB. On the same date, Limacher
selected four of the six employee-elected committeemen as
members (Hare, Semendinger, Campos, and Suleski) plus
five other employees (Genevieve Codol, Ponciana De La
Rosa, McKinley Lynch, Daniel Solorio, and Gualberto
Vizcarra) and announced the first meeting of the ECB
would be held at 2:15 p.m. on Friday, December 5, 1975.
The ECB met as scheduled. Limacher and his appointees
were present. Limacher stated the first business was the
Company's answers to the Ii proposals submitted to the
Company by the employee-elected committee on Novem-
ber 18. He then stated the following were the Company's
answers: (1) the Company already had rate ranges for each
job classification; (2) the present wage rates for each
classification equalled or exceeded those prevailing within
the industry in the area; (3) the pension and health and
welfare plans would be reviewed; (4) the Company
presently had a sufficient number of paid holidays, nine,
with two floating holidays (at the same time announcing
the first floating holiday for 1976 was to be January 2,
1976, with the second to be announced later); (5) cost-of-
living adjustments were not warranted since advances in
the cost of living were taken into account in annual wage
reviews and adjustments; (6) present seniority policies were
adequate; (7) any valid grievances would be processed
between the aggrieved employee and the Company; (8) no
response; (9) the Company established lead classifications
as required and paid an additional 15 cents to leads; (10)
production quotas were reasonable and would be reviewed
in early 1976; and (II1) the Company would not recognize
any employee-elected committee and there was no need for
same. Limacher stated the Company's sales declined in
1975 and the Hadco division was being closed down with
the remaining work of that division transferred to another
A-T-O division.
10 For which its members would receive compensation at their regular
rate of pay.
" He had scheduled a second meeting of the ECB for 2 weeks after the
December 5, 1975, meeting.
12 A third meeting was held on May 25.
13 Semendinger testified without contradiction that Limacher solicited
employee complaints or grievances at each meeting; that she complained
Following this meeting, a sufficient number of employees
contacted the Union and executed authorization cards to
warrant the December 9, 1975, filing by the Union of the
petition for certification in Case 21-RC-14456.
On December 17, 1975, Limacher addressed a letter to
the employees stating he would not call any further
meetings of the ECB l pending resolution of the question
concerning representation raised by the Union's December
9, 1975, petition for certification.
On January 20 an election pursuant to the petition was
held. Of 109 eligible voters, 102 cast ballots. Forty-three
voted for union representation and 58 voted against union
representation. One ballot was challenged.
On April 15 Limacher called the second meeting of the
ECB for April 28. Nine members (other than Limacher)
attended the meeting. Two of the original appointees (Hare
and Suleski) were replaced by Kenneth Avery and Thomas
Rogers. The committee thus contained only two of the
original six employee-elected committeemen. At the April
meeting and subsequent meetings,12 the ECB discussed
employee grievances or complaints,' 3 improvements in
sales, suggestions for improving production, future produc-
tion plans, etc.
It is clear from the foregoing the Company, by Limacher,
refused to recognize and bargain with an employee
committee elected by a majority of its unit employees for
that purpose and instead created the ECB with a majority
of appointees other than those elected by its unit employ-
ees. It is further clear Limacher not only selected the
membership of the ECB, he scheduled when and where the
ECB met, he paid its members for time spent in atten-
dance, he controlled the agenda, he dominated the
discussions, and he dictated the reports of the ECB's
activities to the employees.
It is also evident Limacher brought the Company's
answers to the employee-elected committee's proposals for
improvements in rates of pay, wages, fringe benefits and
working conditions, and employee complaints or grievanc-
es before the ECB, discussed and reported them.
The Board has held an organization which functions as
the ECB did is a labor organization within the meaning of
Section 2(5) of the Act and that such organization is
Company dominated when a management representative
selects its members, schedules its meetings, pays its
members for attending, controls the subjects discussed, and
controls the reports made to employees of its delibera-
tions.14
I therefore find and conclude the ECB at times pertinent
was a labor organization within the meaning of the Act,
that on or about December 3 the Company, by Limacher,
refused to meet and bargain with an employee-elected
grievance and bargaining committee but rather established,
dominated, and utilized the ECB for the purpose of
discussing employee wages, fringe benefits, working condi-
tions, and employee complaints in its stead, thereby
over her and her co-workers' working conditions (lack of fans [ventilation 1,
and excessive noise from a tumbler which was to be moved but had not
been, etc.) at the meetings and Limacher stated he would look into and
attempt to rectify the complaints, and the others voiced similar complaints
and received similar assurances. Her testimony is credited.
" Hertzka and Knowles, 206 NLRB 191 (1973).
4
INTERSTATE ENGINEERING
violating Section 8(aXl) and (2) of the Act. I further find
by supplanting the employee-elected grievance-bargaining
committee with the ECB and attempting to use it as a
vehicle for resolving employee complaints over fringe
benefits, wages, and working conditions, the Company
interfered with and prevented a free and fair election.
B. The Alleged Independent Violations of Section
8(a)(1) of the Act and Related Interference With a
Fair Election
1. The Die-cast building or division
The Company's die-cast operations are conducted in a
separate building from its other manufacturing activities.
At all times pertinent Charles Jaime was in charge of die-
cast operations; Eugene Davis was superintendent; Ed-
ward Ploschek was day foreman; and Jack Reynolds was
night foreman.
It is alleged in the complaint the Company, by Jaime and
Davis, violated Section 8(aXl) of the Act and interfered
with the election by interrogating employees concerning
their and other employees' union membership, activities,
and sympathies, by making statements to employees which
gave the impression the Company was maintaining a
surveillance of their union activities, and by threatening
employees with discharge and other reprisals to discourage
their support of the Union.
The complaint alleges the Company also violated Section
8(aXl) of the Act and affected the election by Jaime's
solicitation of grievances from employees to discourage
their supporting the Union, and by Davis' promise of
benefits to employees to encourage them to withdraw or
refrain from supporting the Union, his statement that the
union organizing drive prevented the Company from
granting normal wage increases, and his threatening
employees with reprisals because they engaged in union
activities.
The complaint alleges that the Company also violated
Section 8(aX)(l) of the Act and prejudiced the election by
Ploschek's statements to employees which gave them the
impression the Company was maintaining a surveillance of
their union activities and Reynolds' threats of plant
closure, job loss, and company refusal to bargain in the
event the employees elected the Union as their bargaining
representative.
Company President Limacher chaired a meeting of
management personnel in mid-December 1975 at which it
was decided certain supervisors' 5 would conduct inter-
views among employees to sell the Company and counter
the union campaign. Jaime and Davis met separately and
decided to conduct interviews of all the die-cast employees
during the week commencing Monday, January 6, 1976. It
was decided that Davis would interview Spanish-speaking
employees' 6 (Davis was fluent in Spanish and Jaime did
not speak the language). Since Jaime was heavily occupied
during that week, Davis interviewed both the Spanish-
speaking employees and some of those who only spoke
15 Jaime, Davis, and Roth.
's About two-thirds of the die-cast employees were Spanish-speaking.
'1 In response to their statements the Union told them they would keep
English. Davis interviewed approximately 25 employees
and Jaime interviewed 10 employees.
a. Charles Jaime
Jaime conducted his interviews by calling 10 employees,
I at a time, into his office. He followed a standard format:
he first asked each employee whether he was happy in his
job; he then asked if the employee had any complaints or
recommendations for improvements in the Company's
operations (noting any complaints or suggestions on a pad
and promising to investigate and rectify same); he next
inquired whether the employee was aware of the Compa-
ny's wage scales, fringe benefits, and working conditions,
referring to a company booklet setting forth their details
(going into details when the employee was unfamiliar with
these matters); he next discussed the union literature,
stating his views concerning alleged misstatements, exag-
gerations, etc., therein and the disadvantages of union
representation; he then described the past history of the
die-cast operations (stating die case had progressed from
eight employees in 1970 to its current size of the work
force, its transformation from a captive to a job shop, etc.);
he pointed out the dies utilized in the die shop were owned
by the Company's customers and stated, in the event there
was a strike, the customers would undoubtedly pull out
their dies and there would be no work for anyone; he told
the employees 17 if the Union came in they could end up
with less in wages and benefits than they had, since all
current benefits would have to be agreed to by the
Company in negotiations with the Union; and he closed
each conversation by asking what advantages the employee
expected to gain by union representation, giving his
arguments against whatever gain the employee expressed.
Following the 10 interviews, Jaime took action to remedy
the employee complaints. The various employees com-
plained that there were not enough tables and suggested
the patio be roofed over because it was too hot to eat in
during the summer; that hospitals would not admit them or
their dependents under the existing hospital plan; that their
job standards (one employee) were incorrectly set (too
high) and an overhead fan was too noisy; that they had to
wait too long for materials; that someone be hired to back
up another employee (Semendinger) on the drill press
instead of her; that procedures for setting of the machine
should be improved; that there was inadequate arm
protection (the employee was a furnace tender); and that
several machines were too old and should be replaced.' 8
Employees Penny Ledferd, Harold Blossom, and Cora
Murie corroborated Jaime's testimony (and report) con-
cerning his statements that their interviews were separately
and individually conducted in Jamie's office; that he
followed the general format described above; that they at
his solicitation complained regarding production stan-
dards, a noisy fan, inadequate lunch facilities, waiting too
long for materials, Semendinger's back-up situation, and
inability to secure hospital admissions and that Jaime
promised to investigate the complaints and rectify them.
Murie and Ledferd also confirmed Jaime's testimony (and
their present wage levels and fringe benefits and the Union would improve
them in negotiations after it won the election.
18 Jaime confirmed the above in a written report to Limacher.
5
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
report) that he told them the die shop's most important
customers owned the dies which were utilized in the shop
and stated, if the Company became involved in a dispute
with the Union, those customers would probably remove
their dies and the die shop would not have any work or
jobs as in 1970 before, by his efforts, he made the die shop
over from a captive shop to a job shop with consequent
expansion of its workload and jobs.
Jaime also asked Ledferd if she was ever affiliated with a
union and, when she expressed the fact she was familiar
with unions, proceeded to attack the union literature as
ridiculous and characterized any employee who believed it
as ignorant; when she responded to his inquiry concerning
what she expected to gain by union representation by
stating a union provided job security, he asked her how it
provided such security, she responded the Union could
protect an employee against arbitrary discharge (citing a
discharge in the department she believed unwarranted),
upon which Jaime proceeded to argue that the discharge
was for poor work (with which she disagreed), after which
he ended the conversation by saying a union could not
provide job security.
In addition to corroborating Jaime's testimony as noted
heretofore, Blossom testified Jaime asked him how he felt
about the Union and, when he responded he didn't
particularly care for unions but they were sometimes
necessary, Jaime stated if the Union gets in, it will call a
strike and the employees could well wind up with lower
wages and fringe benefits because bargaining would start
with a blank piece of paper and Jaime couldn't understand
why any employee wanted a union since the Company's
wage scales were higher than its competitors in the area.
Blossom also stated that Jaime said while the Union was
saying the Company could not close or move its plant
while an organizational campaign was underway, it could
so close and move its plant, that the Union's statement was
like saying he could not move from his present home to
another. Blossom further testified Jaime also told him he
knew Blossom attended several union meetings, he knew
everyone else on the night shift attended except for two or
three and asked Blossom why he attended, to which
Blossom rejoined by asking Jaime if he would attend
himself if he were offered free beer and pizza; Blossom also
testified Jaime asked him what was said at the union
meetings and asked him to secure copies of the union
literature for him. Blossom was a convincing witness and
Jaime in essence corroborated a good portion of his
testimony; Blossom's testimony is credited.
It is clear from the mutually corroboratory testimony of
Jaime and the three employees that Jaime solicited
employee grievances and sought to rectify them in order to
reduce their dissatisfaction with the Company and thereby
have less reason for seeking and securing union representa-
tion to resolve them.19
Jaime and the employees also gave mutually corrobora-
tive testimony that Jaime asked them what they expected
to gain by union representation and argued against
19 Jaime testified the main reason he and Davis held the interviews was
to find out what the employees were unhappy about and caused them to
seek union representation.
whatever reasons they advanced for desiring union repre-
sentation.
Mutually corroboratory testimony also establishes that
Jaime intimated the Company would bargain from zero
with the Union and if the Union struck the Company to
preserve or improve current wages and benefits the dies
would be removed from the die-cast division and all die-
cast employees would lose their jobs.
While Jaime categorically denied Blossom's and Led-
ferd's testimony that Jaime told them he knew about the
various meetings of the Union and, in Blossom's case, who
attended, thereby giving those employees the impression
the Company was maintaining a surveillance of such
meetings, I have credited Blossom's and Ledferd's testimo-
ny and find Jaime made the statements in question, as well
as asking Blossom what transpired at the union meetings.
On the basis of the foregoing, I find and conclude on
January 6 the Company by Jaime interrogated employees
concerning their and other employees' union membership,
activities, and sympathies, made statements to employees
which gave them the impression the Company was
maintaining a surveillance of their and other employees'
union activities, threatened employees with loss of jobs and
benefits, and solicited grievances from employees to
discourage their supporting the Union, thereby violating
Section 8(aX)() of the Act and interfering with the
employees' freedom of choice in the January 20 election.
b. Eugene Davis
Davis followed a format similar to that employed by
Jaime in the interviews he conducted; he informed the
approximately 25 employees he interviewed the union
election was coming up on January 20; he asked them how
they liked their jobs; he explained the Company's wages
and fringe benefits and working conditions as set forth in
the company booklet; he asked them whether they had any
complaints or suggestions for improvements in the Compa-
ny's programs or policies; he discussed the Union's
literature and expressed his views concerning it; and he
asked them whether they had any questions concerning the
election. Davis' testimony was undisputed that none of the
employees had any complaints or suggestions (he testified
without contradiction the pad of paper he had for
recording any complaints remained blank).
Four employees of the die-cast division testified concern-
ing alleged statements made by Davis which formed the
basis for the complaint allegations and objection elections
relating to Davis: Eva Semendinger, Judith Azzopardi,
Clifton Hill, and Samuel Rodriguez (the alleged discrimi-
natory dischargee in this case). Neither Semendinger nor
Azzopardi testified to any interview by Davis during the
week of January 6 and Davis stated categorically he
conducted no interview with Azzopardi.20 Davis testified
unhesitatingly he did conduct such an interview during the
week of January 6 with Rodriguez and Hill.21
Hill did not testify to the contents of any interview with
Davis during the week of January 6. Hill testified
unequivocally that on December 2, 1975, he was called to
20 The record does not disclose whether Jaime conducted an interview
with Semendinger.
21 His testimony is credited.
6
INTERSTATE ENGINEERING
Davis' office during Davis' absence to discuss his wage
raise with Sherine East, the Company's personnel director;
that after he and East concluded their conversation and he
was about to leave, Davis entered the office and asked him
to stay; that Davis then said the Company some 5 years
previous moved its fire alarm manufacturing operations
and die-cast operations from Puerto Rico to the plant, that
it could conduct those operations cheaper in Puerto Rico,
that it was contemplating moving those operations back to
Puerto Rico, and that the employees would be wise to
desist from seeking any union representation at this time.
Hill also testified Davis mentioned a plan to establish a
new incentive program based on seniority (Hill had just
completed approximately I year's service with the Compa-
ny) and that Hill appeared eligible to move from his
breaker classification to a die-cast operator classification.
Davis testified the alleged December 2, 1975, exchange
never took place; he testified it was highly unlikely it would
occur, inasmuch as he did not learn of the union organizing
campaign until December 9, 1975.
While it is true self-organizational activities commenced
among the employees in November, the record indicates
the employees did not seek representation by the Union
until after Limacher's December 3, 1975, announcement
that the Company was not going to recognize the
employee-elected committee (it appears the first union
card-signing activity occurred on December 4, 1975).
Davis' testimony and demeanor was forthright and
convincing and I credit his testimony his only contact with
Hill and any discussion concerning union activity, etc.,
occurred during the week of January 6 and that in the
course of the January 6 interview with Hill, he did not
voice the statements attributed to him by Hill.
On the basis of the foregoing, I shall recommend those
portions of the complaint alleging the Company violated
Section 8(a)(1) and interfered with the election by state-
ments attributed to Davis by Hill be dismissed.
Rodriguez testified to three conversations with Davis. He
testified when he received his first paycheck (he was hired
on December 1, 1975), he noted he was paid at a rate of
$2.90 per hour; he then sought out Davis and complained,
stating Davis promised him $3.25 an hour; that Davis
replied he was not entitled to a $3.25 rate because he was a
trainee; that Rodriguez stated he was not a trainee but an
experienced die-cast operator; that Davis stated he nev-
ertheless was hired as a trainee. Rodriguez testified Davis
then said a union was trying to get into the plant; that he
asked Davis what the Union had to do with his rate of pay;
and that Davis closed the conversation by telling him to be
patient, when the Union was out of the picture, he would
receive the rates promised to him. 22
Rodriguez testified he had a second conversation with
Davis approximately 3 days before the election (the
election took place on Tuesday, January 20); that Davis
told him the union election was coming up; that he wanted
Rodriguez to vote against the Union; that the president of
the Company had run the plant for 35 years and was not
going to let the Union come in and run it for him; that the
22 Rodriguez testified Davis hired him at a starting rate of $3.25 as a die-
cast operator with a promised increase to $3.60 after 30 days and to S3.85
after 60 days: he later testified differently, that he was promised a 50-cent
increase within 60 days after his hire.
company president would close the plant down first and all
the employees would lose their jobs; and that Rodriguez
was a trainee in his probationary period and could be fired
at any time. Rodriguez further testified Davis then asked
him how he was going to vote, to which he replied he was
going to stay neutral, since he was new and didn't know
what was going on.
Rodriguez testified he had a third conversation with
Davis the day of the election; that Davis asked him if he
had made up his mind about the Union; that he replied he
didn't want to lose his job and was not going to vote; that
Davis stated after the Union lost the election there would
be better holidays and benefits and that the Union was
going to be very unhappy at the loss, since it spent a lot of
money on beer and pizza at the union meetings.
Davis testified he interviewed Rodriguez on Friday,
November 28, 1975, and hired him as a trainee because he
lacked experience as a die-cast operator during the
previous 3 years; 23 that he told Rodriguez if his work was
satisfactory, at the end of his 90-day probationary period
he would be considered for reclassification to die-cast
operator; that he at no time discussed Rodriguez' starting
rate or any rate increases; and that the first conversation
related by Rodriguez above never occurred.
Insofar as the second conversation is concerned, Davis
testified the only conversation he had with Rodriguez
concerning the forthcoming union election occurred during
the week of January 6; that he followed the format set forth
above and that he did not say he wanted Rodriguez to vote
against the Union; that he did not ask Rodriguez how he
was going to vote; and that he did not say the plant would
be closed if the Union came in.
Davis denied he had a conversation at all with Rodriguez
on the day the voting occurred (January 20).
I credit Davis' denial that the first conversation occurred.
Documentary evidence establishes both Rodriguez and
Sherine East, the Company's personnel director, signed a
hiring form which clearly stated Rodriguez' classification
was that of trainee and his starting rate was $2.90 per hour.
Rodriguez' testimony concerning this first alleged conver-
sation with Davis was both hesitating and contradictory,
while Davis' testimony was clear and forthright.
Insofar as the second conversation is concerned, I find
Rodriguez was confused as to dates and the second alleged
conversation, which he related occurred not on January 17,
but in the week of January 6, and was conducted along the
general lines of the format established by Jaime and Davis.
I find, however, not only did Davis conduct the interview
along the lines of the standard format, he also stated he
wanted Rodriguez to vote against the Union; told Rodri-
guez the president of the Company would close the plant
down and all the employees would lose their jobs if the
Union came in; asked Rodriguez how he was going to
vote; and warned Rodriguez he was a trainee in his
probationary period and could be fired at any time.
The general tenure and purpose of the Jaime-Davis
interviews during the week of January 6 were to ascertain
the extent of union support among the employees and
23 Rodriguez' application disclosed he last worked as a die-cast operator
over 3 years previous to the date of his application.
7
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weaken that support by attempting to resolve any grievanc-
es among the employees and to persuade the employees to
refrain from or cease their support of the Union. While
both Jaime and Davis testified they were instructed to
refrain from any arm-twisting and delving into employees'
union memberships, sympathies, and desires, I find they
exceeded those instructions in their zeal to avoid a union
victory in the forthcoming election. Rodriguez in this
portion of his testimony was convincing and is credited.
On the same grounds, I credit Rodriguez' testimony
concerning the third conversation on the day of the
election and find on January 20 Davis asked Rodriguez if
he had made up his mind about the Union and, after
receiving Rodriguez' assurance he didn't want to lose his
job and, therefore, was not going to vote, stated after the
Union lost the election there would be better holidays and
benefits and the Union was going to be unhappy over the
loss, since it spent a lot of money on beer and pizza at
union meetings.
On the basis of the foregoing, I find that on or about
January 6, and on January 20, by Davis' interrogation of
Rodriguez on how he was going to vote in the union
election, his threat the Company would close down the
plant if the Union were to win, and his promise there
would be better holidays and benefits if the Union lost, the
Company violated Section 8(a)(l) of the Act and interfered
with employee rights to cast a free and uncoerced ballot in
the January 20 election.
Azzopardi testified approximately a week before the
election she was standing in front of a bulletin board
reading the notice of election when Davis approached her
and told her to vote "no" in the election, if the Union got
in the employees would lose benefits, and if the Union got
in it would probably cause a strike. She testified she
disagreed with Davis' prediction of a strike and told Davis
she didn't like the Company's increase in production
quotas, that Davis replied they had not been raised, that
she disagreed with him, and that the conversation closed by
Davis' stating she was doing good work and if she made
quota would receive her regular scheduled increase at her
next performance review.
Davis confirmed the conversation took place under the
circumstances related by Azzopardi. He stated he ap-
proached Azzopardi at the bulletin board because she was
there during working hours and asked her what she was
doing there instead of working, that she replied she was
there to read the notice; that she asked him what he
thought of her job performance; 24 that he replied he
thought her work was satisfactory; that she stated the die-
cast foreman, Ed Ploschek, told her that her work would
have to improve; and that he ended the conversation by
saying he thought her work was O.K. but he would review
and discuss it with her at greater length when he had the
records before him at her next performance evaluation.
Davis denied he instructed her to vote "no" at the union
election, stated the employees would lose benefits if the
Union got in, and stated the Union would cause a strike if
it got in.
24 Azzopardi had been off work for a period of time and only recently
returned to work.
I credit Azzopardi's testimony. While she had some
difficulty communicating due to a limited ability to speak
and comprehend English, her demeanor was sincere and
worthy of credit.
I therefore find and conclude during the week of January
12, by Davis' instructing Azzopardi to vote "no" in the
union election and threatening a loss of benefits if the
Union won the election, the Company violated Section
8(aX)() of the Act and interfered with employee freedom of
choice in the election.
Semendinger testified she was called to Davis' office in
mid-December; that he told her since she was the oldest
employee in the die-cast division, he would like her
viewpoint on the Union; that she replied she was going to
listen to both sides and make her own decision; that Davis
stated the Company could not go further than it had
already in pay raises and other improvements; that she
stated if Limacher (the company president) had conducted
one more meeting with the original employee-elected
committee the Union would not be at the Company's door;
that Davis asked her how other employees felt; that she
stated she didn't know how some of them felt, since they
were Spanish-speaking and she only spoke English; that
Davis stated $3 was a good starting rate and while the
Company had been late in granting raises, the employees
should give it a chance, since if the Union got in the
Company's attitude would change; that he worked in
union plants before and wouldn't want to work in another
one; and that the Company would be making some
improvements after January 1.
Semendinger stated she had a second conversation with
Davis on the day before the election (January 19) at her
workplace; that Davis asked her how she thought the
election would go; that she asked him how he thought it
was going to go; that he stated it was going to go 60 percent
for the Company and 40 percent for the Union; that he
stated he asked Danny Solorio why he was voting for the
Union and Solorio replied he was voting for the Union
because he was running a die-cast machine but was not
classified as a die-cast operator; that he asked Solorio if he
had any other reasons and Solorio said he was also voting
for the Union because a majority of the employees he knew
were voting for the Union and he told Solorio his second
reason was more stupid than his first; that Davis stated
that while there were stories floating around the plant the
Company could not move it in the face of the union
election campaign, the Company could move the plant if it
so desired; that she asked Davis if she told him she was not
going to vote for the Union and the Union did not get in,
what would happen to the committee; 25 that Davis replied
nothing would happen to the committee and if the
employees would wait the year out and see if Limacher
came through with all he said he would, they could then get
the Union in if they were not satisfied.
Semendinger testified to a third conversation with Davis
just before the Christmas holiday in 1975 wherein she
complained to Davis the employees in the assembly
building were having a Christmas party and the die-cast
employees were not; that Davis replied when there were
25 Semendinger was elected to the original employee committee.
8
INTERSTATE ENGINEERING
two divisions, one was always treated worse than the other
and the die-cast division was the less favored division; that
she then asked why the die-cast division didn't receive an
hour for lunch since the assembly employees in the other
building did; that Davis left, returned, and said that he
spoke to East who said it was too late to permit the die-cast
employees to join the Christmas party at the other building
but the die-cast employees could take an hour for lunch
and that the next year, if the Union did not get in, the
Company would do better.
Davis corroborated Semendinger's testimony that he
called her to his office in mid-December to solicit her views
regarding the percentage of employees involved in the
union organizational drive; that Semendinger stated the
Union had its pros and cons and told him she knew how
some of the employees felt, but not the Spanish-speaking
employees. Davis also corroborated Semendinger's testi-
mony she had a second conversation with him on January
19 and that in the course of that conversation he
commented the stories going around the plant the Compa-
ny could not move it were incorrect, that he had been
involved in a move of another plant from Los Angeles to
Alabama overnight and the Company could move the
plant if it wanted to.
Davis neither confirmed nor denied Semendinger's
testimony that in late December he stated the Company
was going to make improvements after January I if the
Union did not get in or her testimony that on January 19
he related the conversation with Solorio set out heretofore.
I credit Semendinger's testimony. She was a forthright
and convincing witness and her testimony for the most part
was either corroborated by Davis or not contradicted.
On the basis of the foregoing, I find and conclude the
Company in mid-December 1975, on approximately
December 24, 1975, and on January 19, by Davis'
statements to Semendinger wherein he interrogated her
concerning her union views and her knowledge of the
union views of other employees, by his admission he
interrogated employee Solorio concerning his union views,
by his implied promise in mid-December and December 24
conversations of improvements after January I in the event
the Union did not succeed in the election, the Company
violated Section 8(a)(l) of the Act and interfered with
employee exercise of a free choice in the election.
c. Edward Ploschek
The complaint alleges the die shop foreman, Edward
Ploschek, violated Section 8(aX)(1) of the Act and interfered
with the election by a January 9 statement to employee
Arnold Hare which gave him the impression the Company
was maintaining a surveillance of the employees' union
activities and by a January threat to Rodriguez of loss of a
previously announced wage increase and other reprisals to
discourage him from joining or assisting the Union.
Hare testified on or about December 9, 1975, that
Ploschek asked him if he could come to the union meeting
scheduled that night and he replied in the affirmative.
Ploschek conceded he might have asked the question in
26 The Union was distributing leaflets at the plant to all who went in,
including the supervisors, which set forth that free beer and pizza would be
view of the free beer and pizza the Union was advertising
at its meetings.2
Rodriguez testified about 2 weeks after his hire (i.e.,
about December 15, 1975) Ploschek approached him at his
work place and asked him if he heard about union efforts
to organize the plant; that he replied in the affirmative and
asked Ploschek what the Union's chances were; that
Ploschek stated a union had tried to organize the plant
before, failed, would fail again, and that, if the Union did
get in, everyone would have to work extra hard. Ploschek
denied he ever discussed the Union with Rodriguez.
In view of the freely circulated information concerning
the dates of union meetings and the providing of free beer
and pizza, I find Ploschek's inquiry of Hare innocuous and
insufficient to support a finding it gave Hare the impres-
sion the Company was maintaining a surveillance of the
employees' union activities. I therefore shall recommend
those portions of the complaint and election objections so
alleging be dismissed.
With reference to the later allegation, Rodriguez'
testimony related to an alleged mid-December 1975
conversation, there was no mention of loss of a previous
increase, and the language alleged does not contain any
threat.
I therefore shall recommend those portions of the
complaint relating to alleged January 1976 threats by
Ploschek and related union objections be dismissed.
d. Jack Reynolds
The complaint and related election objections allege that
Reynolds in either December 1975 or January 1976
threatened employees with plant closure to discourage their
support of the Union and, on February 11, 1976, threat-
ened employees with job losses and implied support of the
Union would be futile because the Company would avoid
recognizing and bargaining with the Union by keeping it
involved in litigation for years to discourage their support
of the Union.
Thomas Hecker, a die-cast operator on the second shift,
testified approximately 3 weeks before the election (i.e., on
about December 29,1975) he and Reynolds got into a
general discussion at his work station; that they discussed
the subject of company closure or move of the plant in the
event the Union won the election; that Reynolds said he
heard the Company might move if the Union won rather
than deal with it; that he replied that was "bull," it would
cost the Company more to move the machinery and
equipment than to stay and deal with the Union; and that
Reynolds agreed with him.
Employee Joseph Tykodi testified he went on the second
shift on February 2, as an inspector; that he lunched
several times with Reynolds in February; that Reynolds
told him at a management meeting prior to the election the
Company's attorney, Nagel, told the supervisors not to
worry what they said to employees because he could keep
the matter tied up in court for a year; and that on two
occasions at management meetings Jaime said he wanted
to replace some undesirables.
provided at the various union meetings; there was a meeting scheduled for
December 9, 1975.
9
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reynolds testified he met Nagel once in 1974 and had
not seen him since till the date of his testimony at this
hearing; he stated he had not attended any management
meetings prior or subsequent to the current election at
which Nagel was present; he corroborated Tykodi's
testimony that he lunched with him during the month of
February; he stated, however, that after Tykodi told him
the Union filed a complaint against the Company over the
election and that Nagel was the Company's attorney, he
simply commented Nagel would probably keep the matter
tied up in court for quite a while. Reynolds stated he told
Tykodi on another occasion some of the new employees
were not qualified and would have to be replaced and
denied he ever told Tykodi he attended a meeting at which
Nagel said not to worry what the supervisors said to
employees because Nagel would keep the matter tied up in
court for a year.
I credit Reynolds' testimony concerning the Tykodi
conversations and find the Hecker conversation too
inconclusive to warrant a finding that Reynolds threatened
Hecker with plant closure in the event the Union won the
election. I therefore shall recommend those portions of the
complaint and election objections alleging the foregoing
conduct by Reynolds violated Section 8(aX1) of the Act
and interfered with the election be dismissed.
2. The assembly building or division
As noted heretofore, the Company's assembly opera-
tions 27 are conducted in a separate building from its die-
cast operations. At all times pertinent, Darryl Roth was in
charge of the assembly division. No superintendent or
foreman was employed in the division during times
pertinent to this proceeding and there was one leadlady,
Jeanette Grabathy. It is alleged in the complaint Roth
violated Section 8(aX 1) of the Act and interfered with the
election by distributing forms and instructions to employ-
ees in December 1975 on how to revoke union authoriza-
tion cards and offering to assist employees in revoking such
cards; by interrogating employees concerning their and
other employees' union membership, activities, and sympa-
thies; by making statements to employees which gave them
the impression the Company was maintaining a surveil-
lance of their union activities; by threatening employees
with plant closure and other reprisals to discourage their
supporting the Union; and by stating to employees the
Company would never recognize or bargain with the
Union. The complaint also alleges the Company by
Grabathy violated Section 8(a)(1) of the Act and interfered
with the election by the same form distribution and offers
of assistance set out above with regard to Roth and by
stating to employees the Company would close the plant
rather than recognize or bargain with the Union.
No evidence was offered in support of the complaint
allegation and election objection concerning Roth's alleged
distribution of forms and offers of assistance in executing
them. Therefore I shall recommend those portions of the
complaint and election objections so alleging be dismissed.
27 Fire alarms and vacuum cleaners.
28 While Semendinger was not employed in the assembly building, she at
times was in that building and at times Roth was in the die-cast building;
since Semendinger is one of the oldest employees of the Company, Roth
knew her quite well and had a number of conversations with her.
a. Darryl Roth
It is undisputed Roth attended the mid-December
management meeting at which it was decided supervisors
in the two buildings would conduct employee interviews to
ascertain the extent of union support among the employees
and attempt to weaken such support. Roth did not conduct
individual interviews away from the work area, but instead
conducted discussions almost continuously over a period
dating from the management meeting just noted to the day
before the election (January 19) at the employees' work
places. Since a large number of employees were engaged in
assembly, oftentimes a number of employees working in
close proximity to one another participated. Roth followed
the same format employed by Jaime and Davis: he advised
each employee of the forthcoming election; he asked if
employees were familiar with the Company's wages,
benefits, and working conditions (referring to the company
booklet and explaining any gaps in employee knowledge);
he solicited complaints concerning wages, benefits, and
working conditions and sought to rectify them; he
reviewed the Union's literature and criticized it as well as
generally criticizing the Union and questioning the value of
union representation; he stated union representation was
detrimental to the employees' best interest and his reasons
for that position; he asked employees what benefit they
expected to receive from union representation and offered
counterarguments.
Employees Evelyn Brooks, Poinciana De La Rosa, Roxie
Nelson, and Eva Semendinger28 testified concerning
conversations with Roth in January.
Roth confirmed an extended conversation with Brooks
in about the second week of January in the assembly area,
where they discussed at length the employee-elected
committee.29 Roth confirmed that Brooks complained
against Limacher's disbanding of the employee-elected
grievance and bargaining committee and that he replied to
Brooks' complaint by stating the elected committee did not
represent all departments while the one appointed by
Limacher did. When Brooks replied that the employee
committee was elected by a majority of the employees (who
signed a document to that effect), Roth replied Limacher
would never recognize an employee-elected committee but
would shut the doors first. Roth did not dispute Brooks'
testimony (which is credited) that he asked her what she
thought about the union mess; that he asked her how she
thought the election would go; and that he asked her where
Arnold Hare30 secured the figures which appeared in the
Union's literature.
Roth also confirmed he had a conversation on approxi-
mately January 15 with De La Rosa in the assembly
building and confirmed he asked her if she was going to the
union meeting scheduled that evening for the free beer and
pizza. Their testimony differed in that De La Rosa testified
Roth suggested he and she form a union of which she could
be secretary, that they charge dues and then give the
money back by giving free pizza at their meetings, and that
he stated if the employees did choose the Union, they
29 Brooks was an alternate member of that committee; this was known to
Roth.
30 Hare was the chairman of the employee-elected committee.
10
INTERSTATE ENGINEERING
would lose their Christmas vacation and rest breaks at the
end of each hour. Roth stated he asked De La Rosa if she
was going to attend the union meeting, received a negative
reply, and ended the conversation by telling her she should
go and listen to what the Union had to say and weigh what
they offered against what the Company was saying. I credit
De La Rosa's testimony; she was a convincing witness and
had a clear recollection of the exchange.
Roxie Nelson testified about a week before the election,
in the course of a conversation in the cafeteria between
Roth, Nelson, and three other employees, Roth stated if
the Union came in and forced the Company to raise wages
and the Company's prices got too high, the Company
would not be competitive, the customers would pull out
their dies, and the Company would have to close its die
shop.
Semendinger testified she had two conversations with
Roth, one the Thursday before the election and another the
Friday before the election. In the first conversation, Roth
asked her what the employees' union sentiments were in
the die-cast shop and she replied she only knew the
sentiments of some of the employees; that Roth made a
speech about his 10 years in the Air Force fighting for the
country, his belief in freedom, and his opinion the Union
would limit freedom. Semendinger testified they engaged in
an exchange concerning any negotiations which ensued in
the event that the Union won, with her taking the position
the employees would retain their existing benefits and
bargain over improvements therein and Roth taking the
position bargaining would start from zero with the
possibility the employees could end up with reduced wages,
benefits, and working conditions. Semendinger also testi-
fied they got into an exchange over the Company's right to
shut down and move the plant in the event the Union won
the election with Semendinger taking the position it would
be unlawful for the Company to do so and Roth taking the
position the Company had a right to do so in the event it
believed its operations would be uneconomical.
Semendinger testified in the second conversation Roth
renewed his request for information concerning the extent
of union support in the die shop, renewed their discussion
of the posture the Company would start negotiations from,
and renewed their discussion concerning the Company's
right to move the plant, with both maintaining their same
positions and Roth restating his reasons for believing union
representation of the employees would not be to their best
interest.
Roth confirmed Semendinger's testimony he asked her
the extent of union sentiment among the die-shop employ-
ees, corroborated Semendinger's testimony concerning his
statements the Company would start from scratch in any
negotiations, but denied engaging in any discussion of
plant closure. I credit Semendinger's testimony as she
appeared to be a forthright, sincere witness throughout her
testimony.
31 There had been a foreman prior to December 1975 in the division or
department and a replacement foreman was hired subsequent to January
1976.
32 Shortly after Grabathy's appointment as a leadlady in October 1975
Roth received complaints Grabathy was overzealous in taking employees to
task for alleged deficiencies in their work: he had a conference with her, in
On the basis of the foregoing, I find and conclude the
Company in January by Roth interrogated employees
concerning their and other employees' union activities and
sympathies; threatened employees with plant closure and
other reprisals; made a statement to an employee which
gave her the impression the Company was maintaining a
surveillance of union meetings; and stated to an employee
the Company would never recognize or bargain with an
employee-elected representative, thereby violating Section
8(aXl) of the Act and interfering with employees' freedom
of choice in the election.
b. Jeanette Grabathy
It is alleged the Company by Grabathy violated Section
8(a)(1) of the Act and interfered with the election in
December 1975 by Grabathy's distribution of forms and
instructions to employees on how to revoke union authori-
zation cards and offering to assist employees in revoking
such cards and in January 1976 by Grabathy's statements
to employees that the Company would close its plant rather
than recognize or bargain with the Union. The Company
denied that Grabathy, at times pertinent, was a supervisor
or agent of the Company acting on its behalf, further
denied that she committed the acts just alleged, and lastly
denied such acts, if committed, were violative of the Act.
During the December 1975 to January 1976 period in
which the aforesaid acts allegedly occurred, the assembly
division headed by Roth was without a foreman. 31 Both
Roth and the foreman (when employed) were salaried
employees with undisputed authority to hire and fire or
effectively recommend same; with authority to reprimand
and discipline employees; and with authority to direct
employees in the department or division in their work
performance.
The evidence is undisputed Grabathy was an hourly
rated employee; that she neither had nor exercised the
power to hire or fire or effectively to recommend any hiring
or firing; and that she had no authority and did not
exercise authority to reprimand or discipline employees.32
The evidence is likewise undisputed Grabathy was paid a
rate 15 cents per hour higher than the highest rate paid to
any classification she led;33 that she spent 80 percent of
her time performing production and maintenance work
and only 20 percent of her time leading and directing the
work of other employees; that she relieved employees on
the lines in case of absences, breaks, lunch periods, and the
like; that she not only attended the various union meetings
and was treated as an employee eligible to participate in
such meetings along with other production and mainte-
nance workers, but she acted as an election observer at the
election.
On the basis of the foregoing, I find and conclude
Grabathy at times pertinent was not a supervisor within the
meaning of the Act.34
which he advised her she had no such power and instructed her to bring any
complaints over performance to him and he would decide whether or not
any reprimand or discipline was warranted.
33 Grabathy acted as a leadlady in the spray painting and vacuum
assembly line.
34 The General Counsel did not contend at the hearing or in his brief
(Continued)
I1
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the foregoing, I shall recommend those
portions of the complaint and election objections based
upon any actions allegedly committed by Grabathy be
dismissed.
3. The print shop manager
At all times pertinent Gary Ashby was the Company's
print shop manager and an admitted supervisor and agent
of the Company acting on its behalf. The complaint alleges
on January 13 Ashby threatened employees with loss of
jobs and other reprisals to discourage their support of the
Union, interrogated employees concerning their union
membership, support, and activities, and gave employees
the impression the Company was maintaining a surveil-
lance of their union activities.
The Ashby allegations rest upon the testimony of Joseph
Tykodi. Tykodi testified about a week prior to the election
he entered the inspection area in the assembly building and
heard Ashby talking to Nora DeGraw, an inspector in the
assembly building; that Ashby hailed him and stated he
was just the man Ashby wanted to talk to, since he was a
strong union man; that the Union had been misinforming
the employees by stating the Company did not have to start
bargaining from the present wage and fringe benefit levels
since the Company could start from scratch; that if the
Union got in, there would be fewer jobs and the possibility
of a plant move; that he and Ashby then got into a
discussion of the Company's pension plan and inadequa-
cies Tykodi felt existed in it, with Ashby taking issue with
that position by Tykodi; and that the conversation ended
with Ashby asking him what extent the Union had support
among the die-cast employees, to which he replied, 90
percent.
Ashby testified he approached the mailroom in the
assembly building about the time in question and heard
Tykodi and DeGraw engaged in a heated discussion; that
they were discussing her retirement and Tykodi was calling
her a dummy for not supporting the Union, since the
Company's retirement plan was very poor. Ashby testified
he intervened and asked Tykodi whether he understood the
pension plan and, if he didn't, suggested he see Sherine
East, the Company's personnel director, and get the
details; that Tykodi and DeGraw resumed their argument,
with Tykodi repeating his remark that DeGraw was stupid
for not supporting the Union, at which time he intervened
again3 5 and stated to Tykodi if the Union did come in, the
Company could start bargaining from scratch with regard
to the current wage and fringe benefit levels and if the
Company and Union did not reach an agreement, there
could be a strike and all the employees would lose income.
He corroborated Tykodi's testimony that he asked Tykodi
what the union sentiment was among the die-cast employ-
ees and stated Tykodi replied a majority of the die-cast
Grabathy was an agent of the Company acting on its behalf and contended
only that any liability to the Company resulting from her alleged actions
was predicated on his theory that she was a supervisor within the meaning of
the Act.
35 Ashby testified DeGraw was a close freind of his.
36 None of the remarks attributed to Ashby by Tykodi indicate any
impression of surveillance, so I shall recommend the portions of the
complaint and election objection so alleging also be dismissed.
employees supported the Union. Ashby denied making any
statement about plant closure.
On the basis of their mutual corroboration, I find and
conclude Ashby asked Tykodi the extent of union support
among the die-cast employees in January and by such
statement the Company violated Section 8(aXl) of the Act
and interfered with a free election. I credit Ashby's version
of the balance of their conversation and find and conclude
Ashby did not threaten plant closure in the event the
employees chose union representation and that his other
statements did not amount to a threat the Company would
reduce or take away existing wages and benefits or
constitute a threat of job loss or other reprisals and
therefore I shall recommend those portions of the com-
plaint and election objections attributed to Ashby be
dismissed.36
4. The personnel director
The complaint alleges in December 1975 the Company
violated Section 8(aXl) of the Act and interfered with tle
election by a statement attributed to East which in essence
promised employees benefits to encourage them to refrain
from supporting the Union.
The same Joseph Tykodi testified in support of this
complaint allegation and election objection. Tykodi testi-
fied that on December 2, 1975, he was called to the office
of Darryl Roth by East and notified of an increase in his
rate of pay; he testified East subsequently stated the
employees of the Company had never been union repre-
sented, the Company opposed such representation, and the
Company would continue to maintain its normal wage
adjustment program,37 and that union representation
would not be to the employees' benefit; and that they then
discussed details of the Company's pension program.
It is noted that December 2, 1975, predated the Union's
preelection campaign, which commenced on December 4,
1975. In any event, the statement attributed to East by
Tykodi is not a promise of future wage adjustments to
encourage Tykodi to refrain from union support but,
rather, states the Company will continue its past practice. I
therefore find and conclude the statement attributed to
East by Tykodi did not constitute a promise of future wage
increases to discourage his support of the Union and I shall
recommend those portions of the complaint and election
objections based thereupon be dismissed.
5. The letters and Limacher's speech
The balance of the allegations of separate violations of
Section 8(aX)(1) of the Act and related election objections
are based upon statements contained in the January 6, 15,
and 16 letters distributed to the employees by Company
President Limacher and a December 11, 1975, letter
distributed by William Davis, vice president of industrial
relations for the Company's parent, A-T-O, plus remarks
37 The Company made a general wage adjustment in December 1975 in
accordance with its normal practice. No allegation of the complaint was
based upon that increase and while an election objection was based upon
this increase, no evidence or argument supporting it was introduced and I
recommend dismissal of that objection.
12
INTERSTATE ENGINEERING
made by Limacher in a January 19 speech to the employees
at the plant.
The General Counsel relies on the following statements
contained in the various letters as a basis for the complaint
allegations (and related election objections) that the
publication and distribution of such letters to the employ-
ees constituted independent violations of Section 8(a)(1) of
the Act and interfered with the employees' exercise of a
free choice in the election.
The December 11 letter:
If we ever get organized-we are required to bargain
with that organization. Some people make the mistake
that bargaining starts with what you have and goes
from there. This is absolutely wrong-it is a give and
take proposition. Everyone should understand early in
the game that the law permits a company to bargain
from scratch-from a blank piece of paper. When an
A-T-O Company is organized, it is our policy to do
just that.
The January 6 letter:
We doubt that the Union has told you that labor
negotiations is a tough process and is a two-way
street. . .The Company assesses its position on the
basis of how much it can afford to pay and still remain
competitive, and it takes a stand at this point. In other
words, Interstate Engineering, if it loses the election,
after bargaining in good faith, would be the sole judge
of what type of labor contract was acceptable to it.
Sometimes the Union fails or refuses to understand this
"simple logic" and keeps promising its members what
they can get for them. If this happens, it is likely a strike
will follow with all the ensuing disorder, bitterness, lost
wages, lost business, or sometimes permanent closing of
the plant.
The January 15 letter:
As I stated on December 1, 1975, "people talking to
people on a regular basis" is the best answer to solving
all of Interstate's problems today and in the future-
NOT A UNION! Hopefully I can immediately restore
the "Employee Communication Board" after the
election on January 20, 1976.38
The January 16 letter:
We are positive that the Union will insist on a union
shop if it wins. This requires that all employees be
members of the Union and pay their monthly dues and
initiation fees in order to be able to work. This would
force your company to fire anyone who refuses to
become a member of the Union. We are strongly
opposed to this as we would be required to force our
3a The General Counsel also relies on a December 17, 1975, letter sent to
all employees by Limacher stating as follows:
I have reason to believe that when given the benefit of a "secret ballot"
they will overwhelmingly reject the Union. Interstate will then take
prompt steps to reestablish the "Employee Communication Commit-
tee."
people to join the Union to keep their jobs. If we were
to lose the election, the union shop would be one of the
key issues for negotiation, that you should know our
feelings at this time.
We believe that the Union, if it wins, must try to
fulfill its promises and insist on higher wages and
benefits. We have the absolute right, under the law, to
refuse to grant any union demands if we believe they
are not in our company's best interest As a matter of
fact, we are not required by law to negotiate from
existing wages and benefits; we can start from scratch,
disregarding present benefits and wages.
We believe that the expected union demands for
higher wages and benefits make a strike highly likely if
we cannot reach agreement after bargaining in good
faith. If there is a strike because we cannot agree on
contract terms after bargaining in good faith, we will
not close our plant for one single day. We will stay
open. Each of you will be welcome to work if there is a
strike-we will have jobs for you. But remember this, the
law gives us the right to permanently replace any
striking employees. We have the absolute right under
the law to make the final decision of what is acceptable
to the Company. No union can force us to sign any
contract which is not acceptable to us.
The General Counsel contends the December 11,
January 6, and January 16 letters, by stating the Company
has the right to bargain with the Union from zero, intends
to do so, and further intends to resist any demand for a
union shop, coupled with assurances it will replace strikers
when the strike it predicts inevitably occurs, exceeds the
free speech license contained in Section 8(c) of the Act and
threatens both bad-faith bargaining and loss of jobs,
thereby violating Section 8(aX1) of the Act and supporting
the Union's related objections to the election.
The Company relies on Section 8(c) of the Act, stating
the above-quoted statements simply inform the employees
of economic facts of life and the possible results of lawful
stands it would take both in bargaining and in the event of
a strike; that in essence these company letters were simply
responses to union literature preaching the theme the
Company would have to bargain "up" from the existing
scale of wages, fringe benefits, and working conditions,
etc.
3 9
Several amendments to the complaint were permitted at
the outset of the hearing alleging Limacher, the Company's
president, threatened plant closure in a speech given the
day before the election (January 19).
Employee Hare testified Limacher said A-T-O would
close the die-cast shop, sell the equipment, and might even
move the Company back East because most of the
Company's raw materials came from there and most of its
products were sold there and that Limacher also stated if
3s The question of whether the Company could bargain "up" or "down"
from current levels, whether it could move its plant to another location, and
whether its die-cast customers would remove their dies and cause the die-
cast business to disappear in the event of a strike were continuous subjects
of discussion among the employees during the election campaign, with
opposing positions concerning same being taken by union and company
representatives both orally and in written form.
13
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union came in, there would be a strike, the employees
would be out of work, and the Company would not be able
to pay them. Employee Hecker testified Limacher stated if
the Union came in the Company could and would deny the
Union's demands, the Company was paying enough
currently, and the Company would move its plant if the
Union came in. Employee Blossom testified Limacher
stated the Company could move its plant to Puerto Rico or
Canada any time. Employee Tykodi testified Limacher
stated the Company could move its plant after the election.
Employee Semendinger testified Limacher stated if eco-
nomic conditions required that the Company move its
plant, it could do so; that the Hadco division of A-T-O
ceased business because the Union which represented its
employees was not cooperative; that A-T-O previously
wanted to close the Company's die-cast division but he
persuaded A-T-O to keep it open and build it up to its
present level. Employee Hare under cross-examination
testified Limacher said that he wanted to respond to a
rumor the Company was considering moving its plant and
the Union was claiming it could not; that the Company
was not considering moving the plant and had not talked
about it though it was his judgment, if economic conditions
warranted, no law prevented the Company from moving
the plant.
Limacher corroborated Hare's testimony that he made
the last statement set out above and Semendinger's
testimony to the same statement. He testified he stated that
wheels were the major product of the die-cast division; that
the dies for those wheels belonged to the customers; that if
there were a prolonged strike, the customers would
undoubtedly remove their dies and have their wheels
manufactured elsewhere; and that if they did so, the die-
cast division would undoubtedly be forced to cease
business. Limacher denied the other statements attributed
to him by Hare, Hecker, Blossom, and Tykodi.
I credit Limacher's denials of the other statements
attributed to him by Hare, Hecker, Blossom, and Tykodi
and find Limacher stated on January 19 that, in the event
of a strike, the dies would probably be removed from the
die-cast department by his customers and the die-cast
division would undoubtedly cease operation and that no
law prevented the Company from closing or moving its
plant in the event economic considerations so warranted.
I further find and conclude that the statements con-
cerned in the December 11, January 6, and January 16
letters, as well as the January 19 comments made by
Limacher to the effect a prolonged strike would result in
closure of the die-cast division, contain veiled threats the
Company not only had but would exercise its rights to
bargain "down" from existing wage and fringe benefit
levels and resist any demands for a union shop; that this
would inevitably result in a strike; that during such strike it
would hire replacements for the striking employees and
lose part if not all of its die-shop business; and that those
statements violated Section 8(a)(1) of the Act and inter-
fered with the employees' freedom of choice in the election.
40 I have earlier entered findings that this was the classification and rate
assigned to Rodriguez when he was hired over Rodriguez' testimony he was
hired as an operator at S3.25.
41 It is clearly a key element in the General Counsel's theory of the case
that Davis discharged Rodriguez on January 30, 10 days after the election,
I further find by the January 15 and December 17, 1975,
letters referred to above, the Company stated it was going
to revive the Employees Communications Board it domi-
nated and controlled after the election and thereby violated
Section 8(a)(l) of the Act and interfered with the
employees' free choice in the election.
C. The Alleged Discriminatory Discharge
Samuel Rodriguez commenced work in the Company's
die-cast division as a trainee on December 1, 1975, at the
rate of $2.90 per hour. 40
Rodriguez signed an authorization card for the Union on
December 4, 1975, and attended two union meetings
thereafter (one on December 7, 1975, and another a few
weeks later). He also discussed the Union with other
employees. There is no evidence any of these matters ever
came to management's attention.
Rodriguez voted in the January 20 election. He testified
Davis saw him going in to vote from his seat at a lunch
table near the polls. 41
Davis acknowledged he was seated at a lunch table in the
die-cast building during voting hours (3-4 p.m.) on the day
of the election drinking coffee and conceded from his seat
he could see the machine Rodriguez normally operated.
The first-shift employees 42 were released at 2:30 p.m. on
election day. Rodriguez worked on election day as a
breaker rather than operating his regular machine (it was
down for repairs). Davis denied he saw Rodriguez at any
time he sat at the lunch table and did not know whether
Rodriguez voted or not. I credit Davis' denial and find
Davis did not see Rodriguez in the polling area during the
election.
Rodriguez' brother-in-law was murdered on Sunday,
January 25; Rodriguez testified he did not go to work on
Monday, January 26, because his wife was in shock over
the death and telephoned the Company to explain the
reason for his absence.43 He worked January 27 and 28. On
the latter date, he testified he contacted Davis and asked
for permission to be absent on January 29 to attend his
brother-in-law's funeral, stated to Davis he might not be
able to come in on January 30 as well, and that Davis
suggested he come in at 5 a.m. on January 29 and work
until 7 a.m. and then go to the funeral, to which he replied
he would try. Rodriguez did not report for work on either
January 29 or 30, but testified he telephoned the personnel
office on the latter date to explain he could not come in
and his explanation was received without comment.
On January 31 a relative came to Rodriguez' home to tell
him someone from the Company was trying to reach him
by telephone. Thinking the Company wanted him to pick
up his paycheck, he went to the Company's personnel
office. A clerk there informed him he had been terminated
and handed him checks covering his pay through that date.
He protested the discharge and was told to contact Davis
the following Monday if he wished to discuss it. He made
no attempt to contact Davis.
because Davis saw Rodriguez going to vote after Rodriguez told Davis on
January 17 he was not going to vote.
42 Rodriguez was employed on the first shift.
43 Davis confirmed receiving the report and excusing the absence.
14
INTERSTATE ENGINEERING
Davis testified that, in response to Rodriguez' January 28
request for time off to attend the funeral (which was
scheduled for 9:30 a.m. on January 29), he instructed
Rodriguez to come in on January 29 and work from 5 a.m.
(the starting time for 10-hour shifts in die-casting from
January 12 for some classifications, including breakers) to
8:30 a.m. and to return to work after the funeral for the
balance of his shift and that Rodriguez made no request for
permission to be absent on January 30.44 When Davis
noted Rodriguez did not come in on either day and
checked with the division clericals and personnel and
learned Rodriguez did not telephone in either day, he
requested authorization to discharge Rodriguez, received
it, and processed the discharge on the latter day.
Davis (and Ploschek) had been dissatisfied with Rodri-
guez' attendance and work habits from mid-January 4 5 and
decided by late January to discharge him, though they held
off doing so pending location of a suitable replacement.
During the week ending January 9, it was decided to
place certain portions of the die-cast operations (those
producing aluminum wheels) on a 10-hour shift, both on
the first and second shifts (there was no third shift). The
hours assigned to the first shift operators and support
personnel were 5 a.m. to 3:30 p.m. instead of 7 a.m. to 3:30
p.m. and those of the second shift from 3:30 p.m. to 2 a.m.,
2 hours beyond their normal expiration. A bulletin was
posted in the department informing all employees of the
new work schedules and that it would remain in effect until
changed; Davis also advised each affected employee
personally of the change, including Rodriguez.
The timecards disclose Rodriguez was absent on January
12; reported at 5 a.m. on January 13, 7 a.m. on January 14,
5 a.m. on January 15, and 7 a.m. on January 16; that in the
subsequent week, he reported at 7 a.m. on January 19, 7
a.m. on January 20, 5 a.m. on January 21, 7 a.m. on
January 22, and 7 a.m. on January 23; that he was absent
on January 26; reported at 7 a.m. on January 27, 7 a.m. on
January 28, and was absent on January 29 and 30.
Both Davis and Ploschek noticed Rodriguez' failure to
observe the new starting time from its inception on the new
shift schedule. They discussed Rodriguez' failure to report
as scheduled and Davis told Ploschek to take it up with
Rodriguez, which Ploschek did. Ploschek and Davis
noticed that, commencing in early January, Rodriguez'
attitude seemed to change, he was slow in returning to his
work station after lunch and breaks, etc.
On January 22 Davis reminded Rodriguez he was a
probationary employee, told him that he was required to
work full 10-hour shifts since this was a peak season,
advised him his attendance would have to improve, stated
that while his work had been good the first 30 days, his
performance seemed to have fallen off and he had been
observed visiting other employees during working hours
44 Davis' testimony is credited: his demeanor was convincing and his
testimony more plausible.
45 Both Davis and Ploschek confirmed their December 29, 1975, review
and evaluation of Rodriguez' work performance after his first 30 days on the
job, in accordance with normal practice, their satisfaction with his work,
their recommendation and grant of a 25-cent increase to S3.15 (which
Rodriguez corroborated), and Davis' commendation of Rodriguez and
promise of reclassification to the classification of operator if he continued to
so perform through his probationary period.
and being slow in returning to his work station after breaks
and lunch periods, to which Rodriguez replied he would
make an effort to report at 5 a.m. and refrain from visiting
his fellow employees during working hours.46
It is clear Rodriguez did not report at 5 a.m. on January
23 or on the 2 days he worked in the subsequent week, that
he ignored Davis' request to work before and after the
January 29 funeral, and that he failed to work or explain
his absence on January 30.47
Rodriguez' failure to call in or report on January 29 or 30
was the final straw; on January 30 Rodriguez was
terminated despite the unavailability of a suitable replace-
ment.4
On the basis of the foregoing, I find and conclude the
Company discharged Rodriguez for cause, not because he
engaged in protected, concerted activities. I therefore shall
recommend those portions of the complaint so alleging be
dismissed.49
CONCLUSIONS OF LAW
I. The Company at all times pertinent was an employer
engaged in commerce in a business affecting commerce
and the ECB and the Union were labor organizations
within the meaning of Section 2(2), (5), (6), and (7) of the
Act.
2. At all times pertinent Limacher, William Davis, East,
Roth, Jaime, Eugene Davis, Ploschek, Reynolds, and
Ashby were supervisors and agents of the Company acting
on its behalf and Grabathy was not.
3. The Company violated Section 8(aX1) and (2) of the
Act and interfered with its employees' freedom of choice in
the election by disbanding the grievance and bargaining
committee elected by a majority of its unit employees and
forming, dominating, and treating the ECB as its successor.
4. The Company violated Section 8(aXI) of the Act and
interfered with its employees' freedom of choice in the
election by the following actions committed by Limacher,
William Davis, Jaime, Eugene Davis, Roth, and Ashby:
Interrogating employees concerning their and other em-
ployees' union membership, activities, and sentiments;
making statements which gave employees the impression
the Company was maintaining a surveillance of their union
activities; threatening employees with discharge, job loss,
plant closure, reduction of benefits, company refusal to
bargain, and other reprisals to discourage their support of
the Union; promising benefits to employees to encourage
them to withdraw or refrain from supporting the Union;
and soliciting grievances or complaints to discourage
employee support of the Union.
5. The Company discharged Rodriguez for cause and
not because he engaged in protected, concerted activities
and did not thereby violate Section 8(aXl) and (3) of the
Act.
s6 Rodriguez' denial of this conversation is not credited; Davis'
testimony was plausible and convincing and supported by Rodriguez' time
and attendance records.
47 I credit Davis' testimony Rodriguez did not call in on January 29 or
30.
34 One was secured thereafter.
49 Since Rodnguez' discharge occurred after the election, it was not the
basis for an objection to the election.
15
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The Company did not otherwise violate the Act or
interfere with the employees' freedom of choice in the
election.
7. The aforesaid unfair labor practices and election
interferences affect commerce as defined in the Act.
THE REMEDY
Having found the Company engaged in unfair labor
practices in violation of Section 8(aX)() and (2) of the Act
and in misconduct which prevented a free and fair election,
I recommend election Objections 1, 2, 3, 5, 6, 7, and 9 be
sustained and a new election be directed at a time when the
effects of the unfair labor practices and election miscon-
duct have been dissipated, that the Company be directed to
cease and desist from its unfair labor practices, and that the
Company be directed to take the affirmative actions
specified below to effectuate the purposes of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER50
Interstate Engineering, a Division of A-T-O, Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Forming, dominating, or assisting the Employee
Communications Board or any other labor organization of
its employees.
(b) Recognizing or bargaining with the Employee
Communications Board as the representative of its employ-
ees for the purpose of adjusting such employees' wages,
rates of pay, hours, or working conditions.
(c) Interrogating its employees concerning their and/or
other employees' union membership, activities, or senti-
ments; making statements to its employees which give the
50 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.
impression the Company is maintaining a surveillance of
their union activities; threatening employees either directly
or by implication with discharge, job loss, plant closure,
reduction of benefits, company refusal to bargain with a
collective-bargaining representative duly selected by a
majority of its employees within an appropriate unit, or
other reprisals to discourage their support of the Alumi-
num Workers International Union, AFL-CIO, or any
other labor organization; promising benefits to employees
to encourage them to withdraw or refrain from supporting
the aforesaid or any other labor organization; soliciting
grievances or complaints from employees to discourage
their support of the aforesaid or any other labor organiza-
tion.
2. Take the following affirmative action designed to
effectuate the purposes of the Act:
(a) Withdraw and withhold all recognition from the
Employee Communications Board and completely dises-
tablish it as the representative of the Company's employees
for the purpose of adjusting the employees' wages, rates of
pay, hours, or working conditions.
(b) Post at its place of business in Anaheim, California,
copies of the attached notice marked "Appendix." 51
Copies of said notice, on forms provided by the Regional
Director for Region 21, duly signed signed by an autho-
rized representative of the Company, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Company to insure
that said notices are not altered, defaced, or covered by
other material.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps the Company has taken to comply herewith.
51 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
16