Kendick Engineering, Inc.

National Labor Relations Board - Board Decisions

Sep 12, 1979

244 N.L.R.B. 989 (N.L.R.B. 1979)

KENDICK ENGINEERING. INC.
Kendick Engineering, Inc. and General Teamsters,
Chauffeurs, Warehousemen & Helpers Local No.
982, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America.
Cases 31-CA-7732 and 31-CA-7948
September 12, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBFRS PENELI.O
AND TRUESDALE
On March 29, 1979, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, the General Counsel and Re-
spondent filed exceptions and supporting briefs, and
the General Counsel filed a motion to strike portions
of Respondent's brief in support of its exceptions and
an answering brief to those exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs'
and has decided to affirm the rulings, findings,'2 and
' We deny the General Counsel's motion to strike portions of Respon-
dent's brief in support of its exceptions as we find, contrary to the General
Counsel's contention, that those portions do not raise scandalous or scurri-
lous argument.
2 Respondent contends that the Administrative Law Judge's conduct at
the hearing, his discrediting of all Respondent's witnesses, and his Decision
in general evidence his bias and constitute grounds for dismissing the com-
plaint with prejudice or, at the very least, the granting of a trial de nova In
support of its contention Respondent specifically asserts that the Administra-
tive Law Judge engaged in improper conduct during the hearing by conduct-
ing an ex parne off-the-record conversation with counsel for the General
Counsel in a closed room adjacent to the courtroom. We reject Respondent's
claim that this incident demonstrated the Administrative Law Judge's bias.
We note at the outset that the conversation complained of by Respondent
occurred with its assent. See NLRB Rules and Regulations, as amended, Sec.
102.130(c). Furthermore, while we do not condone any conduct which might
create the impression of impropriety, we reject Respondent's conclusions
that the Administrative Law Judge's conduct evidences bias on his part.
Moreover, we have carefully reviewed the entire record in this case and
conclude that the Administrative Law Judge's findings of fact and conclu-
sions of law are based on the preponderance of the evidence presented
herein. Accordingly, we find no showing of prejudice to Respondent in this
proceeding.
We have also considered Respondent's argument that the Administrative
Law Judge's findings are tainted because he "totally discredited every em-
ployer witness." We reject that argument since it is well settled that the total
rejection of one view, including significant credibility resolutions. does not
alone impugn the trier of fact. See, e.g., N.L.R.B. v. Pittsburgh Steamship
Company. 337 U.S. 656 (1949). Respondent, in essence, has excepted to cer-
tain credibility findings made by the Administrative Law Judge. It is the
Board's established policy not to overrule an administrative law judge's reso-
lutions with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Standard
Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for reversing
his findings.
Respondent also objects to the delay in connection with the Administra-
tive Law Judge's reopening the record to take evidence on the alleged super-
conclusions 3 of the Administrative Law Judge and to
adopt his recommended Order. as modified herein. 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified
herein, and hereby orders that the Respondent, Ken-
dick Engineering, Inc., Canoga Park, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(c):
"(c) In any like or related manner interfering with,
restraining, or coercing employees in their exercise of
rights under the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
visory status of certain of the dischargees. We find no merit in Respondent's
argument that backpay should by tolled between the time the original hear-
ing was closed and the time when it was reopened in January 1979 to take
evidence on the employees' alleged supervisory status, as the conduct of the
hearing was within the informed discretion of the Administrative aw Judge.
See NLRB Rules and Regulations. as amended, Sec. 102.35.
3 Member Penello notes that in affirming the Administrative Law Judge's
finding of violations in this proceeding he puts no reliance on Abilities and
Goodwill, Inc., 241 NLRB 27 (1979), cited by the Administrative Law Judge.
in which he dissented. Accordingly, in line with his dissent there and con-
trary to the Administrative Law Judge's recommended Order, Member
Penello would order backpay from February 6. 1978. the date on which the
striking employees made their offer to return to work.
4 Consistent with our recent decision in Hickmott Foods, Inc., 242 NLRB
1357 (1979), we have decided to issue a narrow cease-and-desist order here
General Counsel has excepted to the Administrative Law Judge's failure
to recommend that interest on backpay should be computed at 9 percent per
annum. We find no merit in this contention Florida Steel (porution. 231
NLRB 651 (1977j.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which we participated and had a
chance to give evidence, the National Labor Rela-
tions Board found that we violated the National La-
bor Relations Act and has ordered us to post this
notice.
WE WILL NOT discharge, refuse to reinstate, or
otherwise discriminate against employees be-
cause they have engaged in a protected strike or
other concerted activity for their mutual aid or
protection.
WE WILL NOT interrogate employees concern-
ing their union activities.
244 NLRB No. 114
9X9
DI).(ISIONS OF NATIONAL I.ABOR RELATIONS BOARD
WE Will.. NOI in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights as guaranteed by Sec-
tion 7 of the Act.
WE Wil.T, to the extent that we have not al-
ready done so, offer each of those named below
immediate and full reinstatement to the job he or
she held on February 3, 1978. or, if the job no
longer exists, to a substantially equivalent job,
without prejudice to his or her seniority and
other rights and privileges previously enjoyed.
and WE WIt.l. make each whole, with interest, for
any loss of earnings and benefits suffered as a
result of unlawfully being discharged on Febru-
ary 3 and denied reinstatement at the start of the
day shift on February 6, 1978:
Alatorre, Aurelio
Alatorre, Fernando
Alatorre, Francisco
Arellano, Juan
Avalos, Javier
Ayala, Gerardo
Betancourt, Juan
Castaneda, Daniel
Castaneda, German
Castillo, Arturo
Doyle, Tom
Fernandez, Yolanda
Gomez, Francisco
Harold, Bill
Harris, Kirk
Kellegrew, Scott
Lagunas, Frank
Lopez, Sigfrido
Luna, Samuel
McCreadie, Michael
Martinez, Bertha
Miller, Jack
Mora, Ramon
Najera, Denise (Jose
Layon)
Payne, Stephen
Reynoso, Moises
Sanchez, Cabrera
Sanchez, Felicito
Sifuentes, Jose
Slone, Dru
Taylor, Ernie
Thut, Don
Torres, Jose
KENDICK ENGINEERING, IN(C.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
matter was heard before me in Los Angeles, California, on
August 29-31 and October 3-4, 1978, and January 16-17,
1979. The charge in Case 31-CA-7732 was filed on Febru-
ary 15, 1978, and amended on April 10 by General Team-
sters, Chauffeurs, Warehousemen & Helpers Local No. 982.
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America (herein called Union).
That in Case 31-CA 7948 was filed by the Union on May
1, 1978. A consolidated amended complaint issued on June
21, 1978, was amended during the hearing and alleges that
Kendick Engineering, Inc. (herein called Respondent) had
violated Section 8(a)(1) of the National Labor Relations
Act (herein called the Act), as amended.'
I The consolidated amended complaint superseded a complaint hat had
issued in Case 31 CA-7732 on April 24, 1978.
During the hearing the parties were permitted to intro-
duce relevant evidence, examine and cross-examine wit-
nesses, and argue orally. Post-trial briefs were filed for the
General Counsel and for Respondent.
1. J RISI)I( IION
Respondent is a California corporation with a plant in
Canoga Park where it manuflctures motorcycle exhaust
systems, among other things. It annually obtains goods and
materials of value exceeding $50.000 from suppliers within
C(alifornia who obtained said items directly from outside
the State.
Respondent is an employer engaged in commerce and in
activities aftecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. t.ABOR ORANIZA'I)ON
The Union is a labor organization within Section 2(5) of
the Act. It was trying to organize the employees in question
at relevant times.
ll. ISSUES
The consolidated amended complaint alleges that Re-
spondent violated Section 8(a)(l) by discharging over 30
employers who had struck on February 3, 1978, by refusing
the strikers' unconditional offers to return to work on Feb-
ruary 6, and by two instances of interrogation concerning
the Union on February 6 and 7. The answer denies any
wrongdoing.
IV. IHE AI.I.EiED UNFAIR ABOR PRACTICES
A. Facts
During the morning of' February 3. 1978, Respondent
informed its day-shift production complement that some of
them were to receive raises in varying amounts. Word was
passed by the leadmen of the several departments, who had
been given sheets containing the particulars by James
Groogan, Respondent's general manager.
Many of the workers were disappointed, both with the
sizes of the raises and with the fact that some workers had
been bypassed altogether. They had been restive over their
wage levels for several weeks; indeed, a wage-related work
stoppage had been averted only I month or so before on the
assurances of Richard Raczuk, Respondent's president, that
raises were forthcoming. Upon learning of the raises on
February 3 Gary Morin, a leadman in the machine shop,
declared to Fernando Alatorre, the tube-shop leadman,
that they "were very low," and that the employees "had to
protest." Those in the tube shop and the polishing depart-
ment likewise complained to Fernando, terming the raises
unfair and urging that he do something about it.2
Fernando presently confronted Groogan with some of
the specific complaints, including his own. A machine-shop
2 To avoid being confused with his brothers Aurelio and Francisco, also
employed by Respondent. Fernando Alatorre will be called by his first name.
990
KENDICK ENGINEERING. INC
leadman, Russ Olson, also complained to Groogan. Groo-
gan testified that as a result some adjustments were made
on the spot. an that he advised Fernando and Olson to take
their personal griev'nces directly to Raczuk. Fernando tes-
tified, on the other hand, that no adjustments were made;
rather, he said that Groogan responded initially that further
raises were precluded by a lack of funds. later relenting that
he would speak with Raczuk. Fernando is credited. His de-
meanor and recall were excellent, while Groogan's credibil-
ity suffered from evasiveness and a susceptibility to sugges-
tion when examined by Respondent's counsel.' Further, the
fact of the ensuing walkout comports more with Fernando's
than with Groogan's story.
Later on the morning of February 3 Morin told Fer-
nando that the machine-shop employees had "determined
to make a stoppage" in protest and asked if he would join
in. Fernando replied that he had not made up his mind.
Fernando later reported Morin's disclosure to those in the
tube shop and the polishing department, ascertaining from
them, after a period of discussion and deliberation. that
they were prepared to support a stoppage. Fernando con-
veyed this to Morin shortly before the lunchbreak. which
was to run from 11:15 a.m. to noon.
Thirty-four workers left at or soon after 11:15, all or al-
most all clocking out: they remained absent without autho-
rization for the balance of the day.4 Raczuk, Groogan.
Charles Park (Respondent's financial manager), and per-
haps another management official had lunch together that
day, not learning of the walkout until they returned to a
nearly empty plant between 12:30 p.m. and 1:00 p.m. No
one had told them of the impending stoppage, much less of
the reason for it, and they professed total surprise and puz-
zlement.'
The next scheduled workday for the day shift was Mon-
day, February 6, starting at 7 a.m. All 34 who had walked
out appeared at the plant at about that time. The gate
through which they normally passed to reach the produc-
tion area was padlocked and bore a sign directing them to
the office lobby, where management planned to give them
letters of termination and severance checks. They did not
heed the sign nor Raczuk's hand signal that they enter the
lobby instead remaining outside. Raczuk's eventually
emerged from the building, Groogan and Park at his side,
and, summoning each of the 34 to him by name, handed
out the letters and checks. None of the 34 indicated at the
time if he/she was or was not desirous of returning to work.
Seven testified, however, that it was their intention to return
A demonstrable instance of Groogan's testimonial unreliability was his
testimony in response to leading questions from Respondent's counsel and
contrary to a pnor stipulation that the absences of Yolanda Fernandez and
Don Thut on the afternoon of February 3 had been authorized. He even
ventured that Thut had a medical or dental appointment. Reminded of the
discrepancy between his testimony and the stipulation at that point, Groo-
gan admitted that he did not know if Thut had a medical excuse, adding
with reference to both Fernandez and Thut: "It just seems to me ... those
two other names came up for some reason."
4 Ironically, Gary Morin was not among the 34. having been authorized to
absent himself that afternoon because of a medical appointment
'That so many clocked out at lunchtime did not necessarily imply that
something was amiss. Large numbers typically clock out over the Friday
lunch penod to cash paychecks received Fnday morning Of course they are
expected to clock back in and finish the shift
to work that morning, and Raczuk testified that his "under-
standing at the time was that most of the people that left ...
were just coming back to go to work ... ." There is no
convincing evidence that anyone was there for a different
purpose.
The terminating letters, identical except fbr the handwrit-
ten contents of the blanks, were in this form:
Feb. 3, 1978
1:00 P.M.
Kendick Engineering
7900 Deering Avenue
Canoga Park, California 91304
To:
Your inexcused failure to return to our job after the
lunch break on Feb. 3, 1978. constitutes cause for the
termination of your employment as of that time. At-
tached is your check covering your wages through the
last hour you worked as shown on your time card.
If you wish to be considered for re-employment, I will
be available to discuss that possibility with you in my
office at the time and date shown below.
Sincerely.
Richard Raczuk
President, Kendick Engineering
Re-Employment Interview:
Date Time
The re-employment interviews mentioned in the letters
were conducted over several days, the first being later the
morning of February 6. About one-half of those terminated
were rehired during these interviews, with more being re-
'That all 34 appeared at the plant at about 7:00 a.m. and received the
letters and checks as descnbed is inferable from the testimonies of Raczuk
and Groogan Raczuk testified that all of the letters and checks passed
through his hands that morning. that the materials were distributed at "7:00
o'clock in the morning"--"the normal starting time," that, "to the best of my
knowledge," everyone showed up. that "I think all of the paychecks and
notes were distributed" at that time, and that "I can't recall mailing any."
the plan being to mail any unclaimed letters and checks. Similarly. Groogan
testified "I believe so" when asked if all the letters and checks were handed
out that morning and "I don't believe so" when asked if any were later
mailed.
Park, testifying after Raczuk and Groogan, controverted them, asserting
that 10 to IS letters and checks went unclaimed on February 6 and conse-
quently were given to him by Raczuk to be mailed. that "quite a few" were
claimed in person the next day, and that others were mailed. Park's testi-
mony is rejected as a belated contrivance to cast doubt on the protesters'
February 6 back-to-work sentiments-and issue that Respndent seemed to
become aware of only on the day Park testified after the above testimonies of
Raczuk and Groogan. Not only was Park's testimony in this area vague and
disjointed, but it defies belief that had upwards of 10 to 15 letters and checks
gone unclaimed Raczuk and Groogan would not have remembered it
As if to serve the same purpose, and again unpersuasively. Park testified
that on February 6 he noticed that one of the protesters Ernie Taylor. was
wearing a brown leather sport jacket instead of "dirty clothes"; and Raczuk
testified, when recalled to testify on October 4. that despite the "turmoil and
tension" as he handed out the letters and checks, "I recall them not carrying
lunches" the implication being that they had no intention of going to work.
991
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
hired later. The dischargees were required to submit fresh
application forms, and Raczuk told at least one of them.
German Castenada, that he would be "like a new hired
employee" should he return.
The decision to terminate was solely Raczuk's. He testi-
fied, consistent with the time indicated on the termination
letters, that it was made in the early afternoon of February
3. He assertedly had no idea of what had prompted the
walkout either then or on February 6 when the letters were
distributed, insisting that dissatisfaction with the raises was
"one of the last thoughts on our mind." On the afternoon of
February 3, after the discharge decision was made, he di-
rected Park to telephone some who had walked out. Park
tried but was unable to reach anyone. There was no com-
munication between management and any of the protesters
from the onset of the walkout until the morning of Febru-
ary 6.)
The record contains vague intimations that some of those
participating in the walkout either did not understand its
purpose or were influenced to do so by fear of physical
injury. Regarding the former, Raczuk testified that some
stated to him, during their re-employment interviews, that
Fernando had told them that they had the afternoon off.
Raczuk was unable to identify anyone so stating, and no
one testified of being told this by Fernando, leaving this
evidence in a hearsay and nonprobative posture.
In addition, Juan Arellano testified that he heard Fer-
nando say that the employees should walk out "so that the
Union could come in," and Bertha Martinez testified that
Fernando told her that everyone was "going to leave be-
cause Monday the Union was going to come in, or some-
thing like that." Martinez later elaborated that Fernando
had said that there was going to be a walkout because "a
union was going to come in to better the situation on what
was happening here." Arellano and Martinez both partici-
pated in the walkout, both were rehired after initially being
discharged, and both were called to testify by Respondent.
Fernando denied making any union references in the con-
text of the walkout and is credited. Arellano's and Marti-
nez' versions do not integrate with the surrounding circum-
stances sufficiently to carry credence, beyond which
Martinez was able to recite hers only after repeated and
extreme leading, leaving the irresistible suspicion that both
versions were of after-the-fact assembly in support of Re-
spondent's theory s that the walkout was a "hoax" perpe-
trated by the Union "to precipitate false charges."
Concerning the intimations that fear of injury was a fac-
tor, Fernando's brother, Aurelio, credibly testified that both
I It must be doubted that Respondent was as much "in the dark" as
Raczuk would have us believe. Apart from the temporal proximity of the
raises to the walkout and the unresolved status of Fernando's and Olson's
complaints to Groogan about the raises, Aurelio Alatorre testified credibly
and without refutation that Jim Perkins, Respondent's head of research and
development, noticed him cleaning his machine shortly before the walkout
and asked what was "going on," to which Aurelio replied, "Low wages."
Additionally, German Castenada testified credibly without refutation that he
saw Perkins 20 or so feet away as a group of employees discussed whether to
walk out. Raczuk admittedly spoke with Perkins about the walkout upon
returning from lunch on February 3. Perkins had authority to hire and fire
and thus was a statutory supervisor.
s Propounded during an opening statement.
Morin and Ernie Taylor, a welder, had declared that those
refusing to do so would be "forced to leave":9 and Gerardo
Ayala credibly testified that when he told Fernando that
those in the polishing department had decided to walk out
Fernando commented that "the Americans"-seemingly an
allusion to Morin and Taylor-had said there would be "a
brawl" unless everyone left.'
Beyond that, Groogan testified that during the re-em-
ployment interviews, in answer to the question why they
had walked out, Juan Arellano explained that Fernando
and "El Gordo"-the nickname for Morin-had said that
they would "beat the shit out of" him if he did not join in;
and that one of the Sanchez brothers, Felicito or Cabrera,
had given a like explanation. This testimony, coming from
Groogan, is nonprobative hearsay. Moreover, both Arel-
lano and Felicito denied in their testimonies that they had
been threatened; and Felicito further denied that either he
or his brother, during their joint re-employment interviews,
told Groogan of such threats."
Raczuk testified that vandalism incidental to the walkout
caused damage to Respondent "in the thousands of dol-
lars." He continued that after the walkout it was discovered
that blueprint and set-up books had disappeared, that
bending dies and jigs required major readjustment, and that
there was "a giant gouge" on the side of his car. These
discoveries admittedly came after the decision to terminate
and so did not affect it. Raczuk did not identify anyone who
might have been responsible.
German Castenada testified that during his re-employ-
ment interview on February 6 Raczuk asked if he had at-
tended a union meeting, that he denied that he had, and
that Raczuk then insisted that he tell the truth. Daniel Cas-
tenada testified that during his interview on February 6
Raczuk mentioned that Daniel had been seen with a group
of employees in front of a liquor store the morning of Feb-
ruary 6 and asked if they had been talking about the Union.
German and Daniel both testified that Groogan and a
night-shift leadman, who served as an interpreter, were pre-
sent during the interviews.
Raczuk testified that he did not "at any time during any
interview . . . ask any employee about his union activity"
but otherwise did not address these assertions of the Caste-
nadas. Groogan's testimony did not deal with these inci-
dents, either generally or specifically, and the night-shift
leadman was not called. The Castenadas are credited. Their
recitals and demeanor generally carried conviction, whereas
Raczuk's denial was of so broad and pro forma a nature as
to lack persuasive thrust, particularly absent some sem-
blance of corroboration from the others present.
9 Taylor was "the angriest" of all. according to Aurelio.
'o Respondent's production complement was predominantly Mexican.
many of whom have little or no understanding of English. Of the 34 to walk
out. 23 have Spanish surnames.
1 Groogan also testified that Frank Lagunas explained during his re-em-
ployment interview that there "would be trouble" if he had not walked out,
and that Stephen Payne said that he had decided to "take off" because "it
was getting pretty heavy back there." Raczuk testified that some of the inter-
viewees, none of whom he could name, had explained to him that they would
have been "beat up" had they not walked out., and that one. likewise un-
named, explained that he had been told that the Union would fire those not
leaving when it became the employees' representative. All of this, of course,
is nonprobative hearsay.
992
KENDICK ENGINEERING. INC.
B. Conclusions
The discharges. The walkout was of a concerted charac-
ter, triggered by displeasure with the raises, and thus was an
activity protected by the Act. The resultant discharges, to
the extent that they victimized nonsupervisors. therefore
violated Section 8(a)(1) as alleged. See F. a. Homes, Inc.,
235 NLRB 648 (1978); Long Beach Youth Center, Inc., a/k/
a Long Beach Youth Home (formerlv Trailback, Inc.) 230
NLRB 648 (1977); Sihilios Golden Grill, Inc., 227 NLRB
1688 (1977); Crenlo, Division of GF Business Equipment,
Inc., 215 NLRB 872 (1974); Bagley' Produce, Inc., 208
NLRB 20 (1973).12
It does not detract from this conclusion that the protest-
ers did not give management warning of the impending
walkout and a chance to redress their grievances before its
occurrence. See N. L.R.B. v. Washington Aluminum Co., 370
U.S. 9, 14 (1962): Howard Manufacturing Company, Inc.,
227 NLRB 1858. 1865 (1977); Roemer Industries, Inc., 205
NLRB 63, 65 (1973); Allen Hayosh Industries, Inc., and its
Subsidiary AlHI Machine Tool & Die, Inc., 176 NLRB 439.
444-445 (1969); Tomar Products, Inc., 151 NLRB 57, 62 63
(1965). Nor was the walkout unprotected because of the
prior intimations that those refusing to participate would be
"forced to leave" and that "the Americans" has said there
would be "a brawl" unless everyone left. Cf.. Eagle Interna-
tional, Inc., 221 NLRB 1291 (1975). Finally, it is of no mo-
ment that some of those joining in the walkout might have
preferred not to, had no complaints about the raises, or did
so for reasons unrelated to the raises. See Du-Tri Displayvs.
Inc., 231 NLRB 1261, 1269 (1977).
New England Fish Company, 212 NLRB 306 (1974), cited
by Respondent, is fundamentally distinguishable from the
present case. In that case the employer had no way of
knowing that the dischargee had been acting in aid of a
concerted concern, while the present walkout was palpably
concerted, the only possible-but extremely unlikely-un-
certainty being the reason for the collective irritation.
Thefailure to reinstate on February 6 at 7 a.m. It is infer-
able that all of the strikers intended to return to work at the
start of the day shift on February 6. All were at the plant at
that time; seven testified that it was their intention to go to
work, and there is no convincing evidence that anyone was
there for a different reason. It scarcely can be doubted,
moreover, that Respondent perceived them as being there
to go to work; Raczuk himself having admitted that in his
view "most of the people that left ... were just coming back
to go to work." Finally, it is evident that by then handing
out the termination letters to each of the strikers, which
assigned a date and time certain for a re-employment inter-
view "if you wish to be considered for re-employment."
Respondent imparted to them in unmistakable terms the
futility of their requesting reinstatement at 7 a.m. on Febru-
ary 6, or at any time before the re-employment interviews.
12 The parties are in agreement that one of those discharged, Russ Olson.
was a statutory supervisor, and they are in disagreement over the status of
Fernando, Gerardo Ayala, and Michael McCreadie. It is concluded in the
circumstances of this case that the discharge of supervisors was permissible.
F M. Homes, Inc., supra, Long Beach Youth Center, supra, Sibilio's Golden
Grill, supra. Determination of the status of the three in dispute is made later
in this Decision.
It is concluded in these circumstances that the nonsuper-
visory strikers were entitled to reinstatement as of the start
of the day shift on February 6. even though none then or
previously had verbalized a desire to be reinstated; and that
Respondent's failure to do so was an additional violation of
Section 8(a)(1). Weather Tee Corporation, 238 NLRB 1535
(1978); F M. Ilomes, nc.. supra, Eagle International, Inc(.,
supra. I'allei Oil Co., Inc., 210 NLRB 370 (1974): A.stro
Electronics. In., 188 NLRB 572 (1971)."
The allegedlv unlaiful interrogations. It is concluded.
without need for extended discussion or analysis, that
Raczuk violated Section 8(a)( 1) during the re-employment
interviews of German and Daniel Castenada on February 6
by asking German if he had attended a union meeting and
by asking Daniel if the group of employees he had been
seen with that morning had been talking about the Union.
V. rite QUiESIIONS OF SL PERVISORY SAI'US
A. Positions of the Parties
As earlier mentioned.' the General Counsel and Respon-
dent are in agreement that one of those terminated, Russ
Olson, machine-shop leadman. was a statutory supervisor
at the time. Respondent contends that the other three
Fernando. Gerardo Ayala, and Michael McCreadie were
supervisors as well. The General Counsel disagrees.
B. The Evidence
Fernando had been the leadman in the tube shop for 7 or
8 months prior to the walkout. There were 11 employees
under him. The tube shop had six distinct types of ma-
chines, four of which were within the operating competence
of everyone in the department. Fernando's wage as of the
walkout was $5 per hour, which was about 50 cents above
any other employee's in the department.
Fernando testified that his primary duties as leadman
were to check work in process to see "that everything was
done correctly"; to do "set-ups"; and to maintain a running
log of production in his department, which was picked up
weekly by his superiors. He elaborated that he checked
work in process three times each day, and that he brought
poor work to the attention of the errant employee but made
no record of it nor reported it to higher ups. He estimated
that this took about 30 minutes each day. Doing setups
consisted of adjusting the machines for new production
3 There is no evidence that any of the strikers had been replaced by the
morning of February 6. Moreover, the discharges became a jural realit in
the early afternoon of February 3. when Raczuk made the decision. as
shown by the time affixed to the termination letters See BM Aurozentrunm,
219 NLRB 86, 99-100 (1975); MAorris Weiss db/a Mook (Weiss eat rPac
ing Comparu and Ter On Weiss dbhia Crowsn Meat Companym 160 NI.RB 546h.
550-51 (1966). Thus, it being clear that no replacements were hired befiore
the unlawful discharges became operative on February 3. the non-supersi-
sory strikers were entitled to reinstatement even at cost of displacing oslensi-
ble permanent replacements. NL.R.B v. International Van .ines. 409 US.
48 (1972) BMW Autozenrrum, supra; H. S. Knitting Milt., Inc.. 211 N.RB
355 (1974); Graneo-Datrsun, 203 NLRB 550. 561. fn. 9 (1973) Moreover. the
Board recently has established the pnnciple that discriminatorily discharged
stnkers need not request reinstatement to activate the employer's reinstate-
ment/backpay obligation. Abilities and Gooduil. Inc., 241 NLRB 27 (1979)
14 In fn. 12.
993
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
runs, consumed from I- 1/2 to 2 hours of Fernando's time
on a daily average, and appears to have required certain
technical know-how but little if any direction of others.
Fernando also testified that he informed Jim Perkins, head
of research and development and the ranking hourly paid
person on the payroll, when machine parts needed replace-
ment in the tube shop.
Ayala became a leadman in the polishing department
about 3 months before the walkout. There were eight em-
ployees under him who operated six identical machines.
Ayala's wage at the time of the walkout was $4.60 per hour,
which was about 60 cents above anyone else's in the depart-
ment. Ayala testified that his duties as leadman included
checking the work of others once each day to be sure that
the parts were "completely smooth," which took 15 to 20
minutes, seeing that defective work was redone, sometimes
by himself, and maintaining a running log of production
and number of employees working, which took another 15
to 20 minutes each day and which was picked up by his
superiors once a week.
McCreadie became a leadman in the welding department
just 2 days before the walkout. There were six employees
under him who operated two kinds of welders, mig and tig,
both of which were within the competence of everyone.
McCreadie received a raise to $4.50 per hour the day of the
walkout, which placed his wage 25 cents above that of the
next highest paid person in the department. McCreadie tes-
tified that his new duties upon becoming a leadman were to
convey to the crew at the start of the shift what was to be
done that day, which took 10 to 15 minutes and had been
previously determined by the shipping and receiving de-
partment, to examine work quality "several times a day,"
which took 5 to 10 minutes in all,' and to maintain a daily
inventory of parts welded by each employee, which con-
sumed 10 to 15 minutes each day.
The three in question attended weekly leadmen's meet-
ings, wore blue smocks supplied to all the leadmen, and
performed production tasks alongside the others when not
discharging their responsibilities as leadmen. Apart from
their higher wages and special duties as leadmen their terms
and conditions of employment were the same as those who
were undisputably rank-and-file employees.' 6
Raczuk testified that the duties of the three were "essen-
tially the same." Their duties were never formally articu-
lated to them, he continued, but rather were conveyed by a
process "kind of like playing by ear" in the course of the
weekly leadmen's meetings. Raczuk asserted that oversee-
ing the work of others was "a day-long job" for the lead-
men, that they "continually had to go around and inspect
parts." He further asserted that the leadmen interviewed
job applicants for their departments, that their hiring rec-
ommendations were followed 80 to 90 percent of the time,
15 Explaining the little time devoted to this, McCreadie testified: "A
trained eye knows whether it's good or bad."
16 Raczuk is not credited that an office in the center of the production area
was solely for the leadmen and bore a sign so stating. He previously testified
that the production employees had access to this enclosure to obtain work
gloves, to store their lunches, and to hang their coats. His first reference to
the sign occurred after 21 transcript pages and a lunchbreak after his testi-
mony by stating that this room was off limits, suggesting contrivance.
and that they set the starting wage of the newly hired about
90 percent of the time. Raczuk added that he was involved
in only I out of every 25 to 30 hirings, and that Fernando
participated in the hiring of all Spanish-speaking appli-
cants.
Raczuk continued that the three in question had "im-
plied"-i.e., never exercised-authority to effect layoffs.
that they meted out discipline as needed in their depart-
ments and adjusted employee grievances, that they were
responsible for seeing that timecards were properly filled in
and initialed necessary changes, that they chose who was to
work overtime, and that a few months before the walkout
Respondent established the practice of having the leadmen
distribute paychecks to those under them, one of the pur-
poses being "to get the leadmen to act as leadmen." Raczuk
also testified that each of the then-leadmen received an
hourly raise of 50 cents or so in September 1977 "to segre-
gate and make them feel that they were on a different level,
that they were closer to management or middle manage-
ment than production people." At this same time and in
part for the same reason, according to Raczuk, the blue
smocks were issued.
Groogan's testimony largely paralleled Raczuk's. He tes-
tified that Fernando, Ayala, and McCreadie had "about the
same duties," including "total responsibility for hiring" in
their departments. Groogan expanded that they inter-
viewed applicants, that only they reviewed application
forms "in normal circumstances", that they set the starting
wage "in most cases"-i.e., unless a wage outside "normal
parameters" was indicated, and that they made the actual
hiring decision about 85 percent of the time.'? Groogan
averred that he talked to less than 10 percent of the appli-
cants, and that he was the only one above leadman level
ever to become involved in hiring. He explained that since
the leadmen "had no supervision experience whatsoever,"
he was at their disposal "if they got crossed up" in the
hiring process.
Groogan also testified that Fernando, Ayala. and
McCreadie were empowered to discharge those under them
without clearance from above, that their discharge recom-
mendations were regularly followed, that they effected the
interdepartmental transfer of employees on their own "all
the time," not to mention assignments from task to task
within their departments, that they adjusted employee
grievances and requested counseling for problem employ-
ees, that they determined when raises were in order, and
that they checked timecards for accuracy and initialed nec-
essary changes.
The clear and uniform purport of the testimonies of Fer-
nando, Ayala, and McCreadie is that they exercised or pos-
sessed little if any of the authority attributed to them by
Raczuk and Groogan. Regarding hiring, Fernando conced-
edly assisted in the interview of Spanish-speaking appli-
cants, sometimes even speaking with them alone. He added,
however, that he did this both before and after becoming a
leadman, and that it was because of his ability to communi-
cate in both English and Spanish. He denied taking part in
hiring decisions. Groogan lent credence to this by testifying
17 Groogan testified elsewhere that the leadman made the hiring decisions
"a majority of the time."
994
KENDICK ENGINEERING, INC.
that Fernando's brother, Francisco, also helped interview
on occasion because of his bilingualism. There is no conten-
tion that Francisco was a supervisor. The record suggests
numerous instances, moreover, in which either Fernando or
Francisco served as go-betweens for the English-speaking
management and Spanish-speaking rank-and-file employ-
ees because of their language skills.
Ayala likewise denied any role in hiring, credibly recall-
ing that two were hired for his department during his tenure
as leadman without his being consulted. No one was hired
as a welder during McCreadie's brief time as leadman. His
predecessor, Justin Cole, did administer welding tests to ap-
plicants, however, the results of which formed the primary
if not sole basis for the hiring of welders. It is doubtful that
the evaluation of test results entailed any significant range
of discretion, as opposed to a technically trained eye. As
Raczuk testified, the hiring of welders was "pretty well cut
and dried," based on the test-"you either can weld or you
can't weld." McCreadie testified that he believed himself to
have the authority to make hiring recommendations be-
cause he believed that Cole had that authority, but there is
no evidence that such authority was ever communicated to
or exercised by McCreadie or that its exercise by Cole went
beyond the administration of welding tests.
As concerns firing, there is no evidence that Fernando.
Ayala, or McCreadie ever exercised such authority or were
told that they had it. Whether they were empowered to
make meaningful discharge recommendations is less clear.
Once when an employee in the polishing department began
throwing rocks at other employees Ayala, in anger, asked
that Fernando speak to Raczuk about having the employee
fired." Fernando did so, and Raczuk ordered the employee
fired forthwith. Considering the aggravated nature of the
incident, it would seem likely that this result would have
obtained regardless of Ayala's viewpoint. Fernando cred-
ibly testified that he once suggested to Raczuk that a certain
employee be reassigned instead of discharged, and that the
employee was discharged just the same. McCreadie testified
that he supposed he had authority to make firing recom-
mendations, again because he thought that Cole had that
authority, but there is no evidence that this authority was
ever communicated to or acted upon by either Cole or
McCreadie. 15
Regarding timecards, Fernando admittedly did initial
changes on occasion, credibly asserting that it was done in
each instance at the direction of Jim Perkins.' 0 Ayala and
McCreadie denied having anything to do with timecards.
Respondent introduced cards bearing Fernando's initials
but none with theirs.
Fernando, Ayala, and McCreadie generally denied that
they understood themselves to have the power to or in fact
did discipline employees, adjust employee grievances, as-
sign overtime, participate in raise decisions, effect interde-
partmental transfers, or distribute paychecks. And, apart
l' Ayala went through Fernando because of the language barrier. He
speaks only Spanish. Ayala testified that he did not expressly ask for the
offending employee's discharge. Fernando is credited that he did.
19 The record contains hearsay testimony that Cole twice tried to discharge
employees, only to be overruled.
20 Perkins did not testify.
from the bald assertions of Raczuk and Groogan, there is
no evidence that the contrary was so. As previously indi-
cated, Fernando, Ayala, and McCreadie did direct the
work in their departments by monitoring quality, seeing
that faulty work was redone, and keeping production rec-
ords. They also trained new employees. It does not follow,
however, that any of this involved notable measures of dis-
cretion. While not a high volume assembly line operation,
Respondent nevertheless processes about 100 parts per shift
per department, all parts on a given production run being
identical. McCreadie testified, as this might suggest. that
who did what and when "was pretty well established," and
Ayala testified that the employees did "the same thing all
the time."
C. Conclusion
It is concluded that Respondent has not met its burden of
proving that Fernando, Ayala, and McCreadie were super-
visors at the time of the walkout.2 The authority of which
Raczuk and Groogan testified was so absurdly inflated and
so devoid of verification by specific illustration that this
testimony must be radically discounted.
It is altogether implausible that such total control over
hiring, wages, and other facets of the operation would have
been vested in people who, in Groogan's words, "had no
supervision experience whatsoever." It is equally unlikely,
had Raczuk's and Groogan's depictions been even remotely
accurate, that there would have been need in late 1977 to
grant the leadmen a raise and outfit them in distinctive
costume "to segregate them and make them feel that they
were on a different level, that they were closer to manage-
ment or middle management than production people" or to
have them distribute paychecks to get them "to act as lead-
men."" Finally, it is beyond comprehension that Raczuk
and Groogan would have seen fit to dissemble to transpar-
ently had they any confidence that an undistorted picture
would have proven Fernando, Ayala, and McCreadie to be
supervisors.
While the three in question plainly bore greater responsi-
bility than the others in their departments, the weight of
credible evidence, including their generally convincing testi-
mony, compels the conclusion that the handling of this re-
sponsibility took relatively little of their time and was done
in a routine repetitive manner, seldom if ever requiring in-
dependent judgment. The smocks, higher wages, and meet-
ings did not alter this basic state of affairs.
CONCLUSIONS OF LAW
I. By discharging the nonsupervisors who walked out in
protest on February 3, 1978, and by failing to reinstate
them upon their appearance at the plant on February 6.
1978, as found herein, Respondent in each instance violated
Section 8(a)(1) of the Act.
21 "[Tlhe burden is on the party alleging supervisory status to prove that it.
in fact. exists." Commercial Mover., Inc. 240 NLRB 288 (1979).
21 This is not to credit Raczuk that the leadmen in fact received a raise in
1977. or that they began to hand out paychecks. Far more significant than
whether they did is Respondent's purported rationale for undertaking these
alleged actions.
995
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By interrogating an employee on February 6, 1978,
whether he had attended a union meeting and by interro-
gating another employee on the same date whether a group
of employees of which he was a part had been talking about
the Union, as found herein, Respondent in each instance
further violated Section 8(a)(l).
3. These unfair labor practices affect commerce within
Section 2(6) and (7) of the Act.
4. The discharge and subsequent failure to reinstate Russ
Olson did not violate the Act.
Upon 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:
ORDER2 4
The Respondent, Kendick Engineering, Inc., Canoga
Park, California its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Discharging, refusing to reinstate, or otherwise dis-
criminating against employees because they have engaged
in a protected strike or other concerted activity for their
mutual aid or protection.
(b) Interrogating employees concerning their union ac-
tivities.
(c) In any other manner interfering with, restraining, or
coercing employees in their exercise of rights under the Act.
2. Take this affirmative action:
(a) To the extent that it has not already done so, offer
each of those named below immediate and full reinstate-
ment to the job he or she held on February 3, 1978, or, if
the job no longer exists, to a substantially equivalent job,
without prejudice to his or her seniority and other rights
and privileges, and make each whole, with interest, for any
loss of earnings and benefits suffered as a result of being
unlawfully discharged on February 3 and denied reinstate-
ment at the start of the day shift on February 6, 1978:
Alatorre, Aurelio
Alatorre, Fernando
Alatorre, Francisco
Arellano, Juan
Avalos, Javier
Ayala, Gerardo
Lagunas, Frank
Lopez, Sigfrido
Luna, Samuel
McCreadie, Michael
Martinez, Bertha
u Certain errors in the transcript are hereby noted and corrected.
2U All outstanding motions inconsistent with this recommended Order
hereby are denied. 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.
Betancourt, Juan
Castaneda, Daniel
Castaneda, German
Castillo, Arturo
Doyle, Tom
Fernandez, Yolanda
Gomez, Francisco
Harold, Bill
Harris, Kirk
Kellegrew, Scott
Miller, Jack
Mora, Ramon
Najera, Denise (Jose Layon)
Payne, Stephen
Reynoso, Moises
Sanchez, Cabrera
Sanchez, Felicito
Sifuentes, Jose
Slone, Dru
Taylor, Ernie
Thut, Don
Torres, Jose
Backpay shall be computed in accordance with F. W. Wool-
worth Company, 90 NLRB 289 (1950). with interest figured
in accordance with Florida Steel Corporation, 231 NLRB
651 (1977). See, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962). Inasmuch as the discharges became op-
erative at 1 p.m. on February 3, as revealed by the letters of
termination, Respondent's backpay obligation shall run
from that time. Abilities and Goodwill. Inc., 241 NLRB 27
(1979).
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amounts owing under the terms of this
Order.
(c) Post at its plant in Canoga Park, California, English-
language copies and Spanish-language copies of the at-
tached notice marked "Appendix." Copies of said notice,
on forms provided by the Regional Director for Region 31,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately upon
receipt thereof, and shall be maintained by it for 69 con-
secutive days thereafter, in conspicuous places, including all
places where notices to employees customarily are posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
The allegation that Respondent violated the Act as con-
cerns Russ Olson is dismissed.
25 In the event that this Order is enforced by a Judgment of a United
States court of appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
996