Lancer Corp.

National Labor Relations Board - Board Decisions

Aug 31, 1984

271 N.L.R.B. 1426 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lancer Corporation and International Union of
Electrical Radio and Machine Workers, AFL-
CIO. Cases 23-CA-8968, 23-CA-8969, 23-
CA-8970, 23-CA-9035, and 23-RC-5080
31 August 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 10 June 1983 Administrative Law Judge
Hutton S. Brandon issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed cross-excep-
tions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings, 2
and conclusions3 as modified below and to adopt
the recommended Order as modified.
1. The judge recommended dismissal of the alle-
gation that the Respondent violated Section 8(a)(3)
and (1) of the Act by discharging employee
Charles Pfeiffer on 31 August 1982. The Respond-
ent admitted its knowledge of Pfeiffer's union ac-
tivity, and the judge found that the General Coun-
' The General Counsel and the Charging Party have excepted to some
of the judge's credibility findings. The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 Member Hunter notes that no exceptions were filed to the judge's
findings that the Respondent violated Sec. 8(a)(l) of the Act by interro-
gating employees regarding their own and other employees' activities on
behalf of the Union, creating the impression of surveillance, engaging in
surveillance, threatening that organizing would be futile, and telling em-
ployees that rules would be more strictly enforced as a result of the em-
ployees' union activities. He adopts pro forma those findings. In so doing,
he further notes that the hearing and the issuance of the judge's decision
preceded the issuance of the Board's decision in Rossmore House, 269
NLRB 546 (1984).
3 The Respondent has correctly excepted that approximately three to
four employees voted while employee Alice Camacho, who was wearing
a union button, was in the polling area. This, however, does not disturb
the judge's finding that Camacho's brief presence in the polling area was
not disruptive and that she left when asked to do so.
In adopting the judge's recommendation that the Respondent's Objec-
tion 2 be overruled, Members Zimmerman and Dennis emphasize that the
conduct in issue was of short duration and that "the Milchem strict rule
. . .applies only where the objectionable conversations were prolonged
" Boston Insulated Wire v. NLRB, 703 F.2d 876, 881 (5th Cir. 1983).
The General Counsel argues that the Respondent's checking off of
"VIOLATION OF RULES: . Misconduct" on employee Ramiro
Avila's discharge notice as the reason for discharge conflicts with the
judge's finding that the Respondent did not rely on any rule in discharg-
ing Avila. Avila, however, was discharged for sexual harassment, for
which there is no specific rule in the Respondent's policy handbook.
Thus, the Respondent's reference to a general rule against misconduct
does not conflict with the judge's finding that the Respondent did not
rely on a work rule in discharging Avila.
271 NLRB No. 228
sel had established a prima facie case based on the
union animus demonstrated by the Respondent's
several other violations of the Act, including its an-
nouncement of a stricter enforcement of its rules.
However, the judge found that Pfeiffer's refusal to
answer questions at the discharge interview pre-
cluded him from finding that Pfeiffer would not
have been discharged in the absence of his union
activity. He therefore dismissed the allegation. We
find merit to the General Counsel's and the Charg-
ing Party's exceptions to that finding.
Pfeiffer had been employed for approximately 16
months as a welder for the Respondent under the
supervision of Robert Rodriguez. Having been em-
ployed for more than 1 year, he was entitled, pur-
suant to the Respondent's policy manual, to 5 days
of paid sick leave. The policy manual stated, "No
sick leave will be paid any employee without writ-
ten physician's approval, indicating the days out
for sickness." However, the policy manual also
provided, "If you are eligible for sick leave, you
may use two of your sick leave days at your own
discretion." These 2 days were denoted by the
policy manual as "Employee Discretionary Days,"
and the employees were requested, but not re-
quired, to give 24-hour notice prior to using them.
Also pertinent to this allegation, the policy manual
further provided, "These two days will not require
a doctor's note; however, to claim the remainder of
your sick leave time, it will be necessary to submit
a written physician's approval. When the above re-
quirements (for Employee Discretionary Days)
have been met, be sure it is noted on your time
card." (Emphasis supplied.)
According to undisputed testimony, Pfeiffer on
Friday, 27 August 1982, informed Supervisor Ro-
driguez that he had a doctor's appointment for a
premarital examination on Monday, 30 August, and
would be absent for the entire day. Rodriguez re-
plied that this would be all right as long as Pfeiffer
brought in a doctor's excuse when he returned.
Pfeiffer kept his doctor's appointment. The doctor
provided him with a "certificate to return to work
or school" acknowledging the visit and noting that
Pfeiffer was able to return to work on 30 August.
The next day, Pfeiffer returned to work and gave
the doctor's note to Rodriguez, who filled out one
of the Respondent's absence reports showing that
the absence was "excused" and the reason for it
was a "blood test." Although the report included a
checkoff space for "Illness-Self," this portion of the
report was not checked.
Employee Relations Manager Jackie Smith
claimed that when she was reviewing the absence
report on 31 August she noticed a discrepancy be-
tween the doctor's excuse, which released Pfeiffer
1426
LANCER CORP.
to return to work on 30 August, and the absence
report, which excused Pfeiffer for all of 30 August.
Smith testified that it was the Respondent's prac-
tice to investigate alleged misconduct before disci-
plining an employee. Pursuant to this policy she
called the doctor's office, which confirmed that
Pfeiffer had been there for a premarital appoint-
ment at approximately 11:30 a.m. on 30 August,
and had been released to return to work that date.
She did not ask at what time Pfeiffer had left the
doctor's office. Neither did she check with Rodri-
guez about the circumstances of Pfeiffer's absence
or his approval of it. According to her own testi-
mony, she then decided to discharge Pfeiffer for
fraudulently seeking sick pay and summoned
Pfeiffer to her office to inform him of her decision.
When Rodriguez brought Pfeiffer to Smith's office,
Smith said she wanted to ask Pfeiffer some ques-
tions, but Pfeiffer refused to answer.4 Smith then
wrote out his discharge papers.
At the hearing, Smith admitted that she was not
aware that Pfeiffer had given a 24-hour prior
notice of his 30 August absence before she decided
to discharge him. However, she explained that this
knowledge would not have made any difference in
her decision-that, in her view, Pfeiffer was fraud-
ulently attempting to receive nondiscretionary sick
leave pay for that part of the workday that re-
mained after his release from the doctor's office.
The judge found that, although a prima facie
case had been established, Pfeiffer's refusal to
answer questions at his discharge interview pre-
cluded a finding that his discharge was motivated
by his union activity. He reasoned that, according
to the information available to Smith, it appeared
that Pfeiffer was making a fraudulent claim.
Pfeiffer did not refute this at the interview and,
therefore, a clear, nonunion-related basis existed for
discharging Pfeiffer.
We disagree. According to Smith's own testimo-
ny, she decided to discharge Pfeiffer before the
interview began. Further, the Respondent does not
contend that Pfeiffer's refusal to answer the ques-
tions contributed to the decision to discharge him.
In these circumstances, Pfeiffer's refusal to answer
questions at the interview has no bearing on the
Respondent's motivation for discharging him. Con-
sequently, the judge erred in relying on that factor
to conclude that the Respondent did not unlawful-
ly discharge Pfeiffer. Instead, we must analyze the
Respondent's actions prior to the discharge inter-
' The judge did not make a credibility resolution of the conflicting tes-
timony on the reason Pfeiffer did not answer Smith's questions. Accord-
ing to Pfeiffer, he objected to the absence of his own witness. According
to Smith, Pfeiffer objected to the presence of Rodriguez and Night Man-
ager Edward Netherton as witnesses.
view to determine the motive for Pfeiffer's dis-
charge.
Smith, on reviewing the doctor's note and ab-
sence report, called the doctor's office to confirm
that Pfeiffer had kept his appointment and had
been released to return to work that date. She took
no further investigatory action before making her
decision to discharge Pfeiffer. She did not check
with Pfieffer's supervisor, who approved the ab-
sence. According to her testimony, she did not
even ask the doctor's office what time Pfeiffer had
left although this certainly would have been rele-
vant in determining how much, if any, of the
workday remained at the time of his departure. It
is well settled that an employer's failure to conduct
a meaningful investigation of an employee's alleged
misconduct may, in certain circumstances, indicate
a discriminatory motivation. This is all the more
true when the employer's practice, as Smith admits
it was here, is to conduct such an investigation
before taking disciplinary action.5 Smith's investi-
gation was, at best, perfunctory: a facial review of
the doctor's note and the absence slip and a call to
the doctor's office. This minimal action in connec-
tion with a decision not merely to discipline but to
terminate an employee gives rise to the inference
that the Respondent's motive was to rid itself of a
union adherent rather than to guard against the
misuse of sick leave.
The inference of unlawful motivation is strength-
ened by Smith's failure to consult with Pfeiffer's
immediate supervisor Rodriguez. In appropriate
circumstances, the Board has regarded an employ-
er's failure to consult with the immediate supervi-
sor who is the most accurate source of pertinent in-
formation as evidence of discriminatory motiva-
tion.6 Here, Smith admits that she never questioned
Rodriguez about Pfeiffer's doctor's note or absence
report despite the fact that she could tell that Ro-
driguez had not understood the contents of the
doctor's note from the way he filled out the ab-
sence report. Rodriguez' error in this regard threw
the accuracy of his report into question. Yet Smith
did not even make a phone call to Rodriguez. She
simply decided to discharge Pfeiffer on the basis of
the meager information before her.
Smith's failure to consult Rodriguez is particular-
ly suspicious in light of the Respondent's policy of
allowing 2 days of sick leave without substantia-
tion. Under the Respondent's policy handbook, em-
ployees with Pfeiffer's amount of seniority have 5
See, e.g., Tekform Products Co., 229 NLRB 733, 739 (1977).
6 See Industry General Corp., 225 NLRB 1230, 1233 (1976), enfd. 564
F.2d 99 (6th Cir. 1977); Midwest Hanger Co., 193 NLRB 616, 627 (1971),
enfd. in pertinent part 474 F.2d 1155, 1159-1160 (8th Cir. 1973). cert.
denied 414 U.S. 823 (1973).
1427
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days of sick leave-3 of which must be substantiat-
ed as actual "sick days" by a doctor's verification
and 2 of which at the employee's discretion may be
used without substantiation. If an employee choos-
es to use discretionary sick leave, he must give 24-
hour advance notice, and the absence report should
state that this notice was given. Smith claimed that
there was no need to inquire whether Pfeiffer had
given advance notice because it was clear from the
absence report that Pfeiffer was not using discre-
tionary sick leave, i.e., the report made reference to
a doctor's note and did not state that a 24-hour
notice was given. Yet it was also clear from the ab-
sence report that Rodriguez had made an error
with respect to the doctor's note. Given the exist-
ence of two types of sick leave and a supervisor's
error in writing up an absence report, it appears
that a reasonable investigation of the matter would
require a consultation with the supervisor. The Re-
spondent, however, did not take this obvious
course and decided to discharge its employee on
the basis of a superficial review of the document
and a call to the doctor's office. Further, had the
Respondent followed its usual practice of investi-
gating alleged misconduct and questioned Rodri-
guez, it would have found out that Pfeiffer had not
engaged in any misconduct.
The Respondent's perfunctory investigation of
Pfeiffer's claim for sick leave and its failure to con-
sult his supervisor, coupled with the Respondent's
knowledge of Pfeiffer's union activity and its at-
tempts to thwart unionization by such unlawful
acts as more strictly enforcing its work rules,
compel the finding that it used the discrepancy be-
tween the doctor's note and the absence report as
an excuse to rid itself of the union adherent. Thus,
the Respondent's decision to discharge Pfeiffer
before its interview with him and in the absence of
a full investigation demonstrates that Pfeiffer's fail-
ure, at the interview or otherwise, to refute the Re-
spondent's claim that he attempted to misuse sick
leave played no part in the Respondent's decision
to discharge him. The evidence similarly estab-
lishes that the Respondent did not rely on any al-
leged misconduct by Pfeiffer in deciding to dis-
charge him. It is consequently clear from the
record that the Respondent must have relied solely
on Pfeiffer's union activity in deciding to discharge
him. Accordingly, we find that the Respondent
violated Section 8(a)(3) and (1) of the Act by dis-
charging Charles Pfeiffer on 31 August 1982.
2. In a 27 May employee meeting, the Respond-
ent's president George Schroeder stated that if the
Union won the election the Respondent would be
required to sit down at a negotiation table and
would negotiate all benefits from scratch. It is un-
disputed that employee Robert Mickey then told
Schroeder that he was incorrect, that the employ-
ees would not lose their benefits. Schroeder replied
that he would rephrase his statement and told the
employees that at the negotiation table everything
would be subject to negotiation and that the bene-
fits could either go up or down or stay the same.
Schroeder then asked Mickey if that was an accu-
rate statement, and Mickey agreed. Schroeder fur-
ther asked the assembled employees if they under-
stood the point and whether there were any ques-
tions about it. No employee responded.
The judge found that Schroeder's initial state-
ment conveyed the impression that employees
would forfeit existing benefits if the Union won
and was, therefore, unlawful. However, he found
that Schroeder's clarification immediately correct-
ed any coercive effect of his original statement and,
accordingly, dismissed the allegation.
We agree with the judge's conclusion but not
with his rationale. Schroeder's statements must be
considered in the context in which they occurred.
They were part of the same speech and question-
and-answer session. Thus, Schroeder's first state-
ment concerning bargaining from scratch must be
viewed against the second statement concerning all
benefits being subject to negotiation. In this con-
text, we find that Schroeder did not give any em-
ployee the coercive impression that a union victory
would result in the loss of existing benefits. On this
basis, we find that the Respondent did not violate
Section 8(a)(1) by Schroeder's conduct at the 27
May meeting and, therefore, we adopt the judge's
dismissal of the allegation. 7
AMENDED CONCLUSIONS OF LAW
I. Insert the following as Conclusion of Law 4
and renumber the subsequent paragraphs.
"4. By discharging its employee Charles Pfeiffer
because of his union activities the Respondent has
engaged in, and is engaging in, an unfair labor
practice within the meaning of Section 8(a)(3) and
(1) of the Act."
2. Substitute the following for Conclusion of
Law 6.
"6. The Respondent did not violate Section
8(a)(3) and (1) of the Act in suspending its employ-
ee Jill McDonald or in discharging its employees
Pete Mascorro or Ramiro Avila."
AMENDED REMEDY
In addition to the findings made by the judge,
we have found that the Respondent has engaged in
an unfair labor practice in violation of Section
7 See generally Ludwig Motor Corp., 222 NLRB 635 (1976).
1428
LANCER CORP.
8(a)(3) and (1) of the Act. Accordingly, we shall
order the Respondent to cease and desist there-
from, and to take certain affirmative action, in ad-
dition to that ordered by the judge, designed to ef-
fectuate the policies of the Act. Therefore, we shall
order the Respondent to offer Charles Pfeiffer rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent one, without
prejudice to his seniority or other rights and privi-
leges enjoyed by him. We shall additionally order
that the Respondent make Charles Pfeiffer whole
for any loss of earnings or other benefits he may
have suffered as a result of his unlawful discharge.
Backpay shall be computed in the manner set forth
in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as prescribed in Florida Steel Corp., 231
NLRB 651 (1977); see generally Isis Plumbing Co.,
138 NLRB 716 (1962). Finally, we shall order the
Respondent to remove from its personnel files all
references to the discharge of Charles Pfeiffer.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Lancer Corporation, San Antonio,
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Insert the following as paragraph l(f) and re-
letter the subsequent paragraph.
"(f) Discharging employees because of their
union activities."
2. Insert the following as paragraphs 2(a), (b),
and (c), and reletter the subsequent paragraphs.
"(a) Offer Charles Pfeiffer immediate and full re-
instatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed, and make
him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section
of the decision.
"(b) Remove from its files any reference to the
discharge of Charles Pfeiffer on 31 August 1981
and notify him in writing that this has been done
and that evidence of the unlawful discharge will
not be used against him in any way.
"(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order."
3. Substitute the attached notice for that of the
administrative law judge.
IT IS FURTHER ORDERED that the complaint is
dismissed to the extent it alleges violations of the
Act not specifically found here.
IT IS FURTHER ORDERED that Case 23-RC-5080
is remanded to the Regional Director for Region
23 and that the challenges to the ballots of Pete
Mascorro and Ramiro Avila, which were cast in
the 2 July 1982 representation election, are sus-
tained, and that the Regional Director is directed
to open and count the challenged ballot of John
Hawkins and to prepare and serve on the parties a
revised tally of ballots.
IT IS FURTHER ORDERED that, if the Petitioner
receives a majority of valid votes cast, the Region-
al Director shall issue a certification of representa-
tive, but that if the Petitioner does not receive a
majority of the valid votes cast, according to the
revised tally, the election held on 2 July 1982 in
the unit found appropriate is set aside and the Re-
gional Director is directed to conduct a second
election whenever he deems it to be appropriate.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT engage in surveillance of your ac-
tivities in support of International Union of Electri-
cal, Radio and Machine Workers, AFL-CIO, or
any other labor organization.
WE WILL NOT create among you an impression
that your activities on behalf of the above-named
Union or any other labor organization are under
surveillance.
WE WILL NOT tell you that we will not sign a
contract with the above or any other labor organi-
zation should you select it to represent you in an
appropriate unit.
WE WILL NOT threaten you that our rules will be
more strictly enforced because of your activities on
behalf of the Union or any other labor organiza-
tion.
WE WILL NOT discharge you because of your
union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
1429
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer Charles Pfeiffer immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed, and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL remove from our files any reference to
the 31 August 1981 discharge of Charles Pfeiffer
and WE WILL notify him in writing that this has
been done and that evidence of that discharge will
not be used against him in any way.
LANCER CORPORATION
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge.
This case was heard at San Antonio, Texas, on March 7
through 10, 1983. The charges in Cases 23-CA-8968, 23-
CA-8969, and 23-CA-8970 were filed by International
Union of Electrical, Radio and Machine Workers, AFL-
CIO-CLC (the Union) on June 28, 1982.' The charge in
Case 23-CA-9035 was filed by the Union on September
1. An order consolidating Cases 23-CA-8968, 23-CA-
8969, and 23-CA-8970 and consolidated complaint and
notice of hearing issued on September 13, alleging that
Lancer Corporation (Respondent or the Company), inde-
pendently violated Section 8(a)(1) of the National Labor
Relations Act (the Act), through various actions and re-
marks, and violated Section 8(a)(3) and (1) of the Act
with respect to the 3-day suspension of its employee Jill
McDonald and the discharge of its employees Pete Mas-
corro and Ramiro Avila. Case 23-CA-9035 was consoli-
dated for hearing with the prior cases by an order con-
solidating cases and amended consolidated complaint and
notice of hearing dated October 14, and adding, in effect,
the allegation that Respondent violated Section 8(a)(3)
and (1) of the Act through the discharge of its employee
Charles Andrew Pfeiffer on August 31. The issues pre-
sented by the consolidated complaint, as amended, are
whether Respondent independently violated Section
8(a)(1) of the Act by the various actions of its agents as
specified in the complaint, and whether Respondent's ac-
tions with respect to the employees named in the com-
plaint were based upon their involvement with, or activi-
ty on behalf of, the Union. Respondent filed timely an-
swers to the consolidated complaints denying the viola-
tions of the Act attributed to it.
The Union also filed a representation petition in Case
23-RC-5080 on May 27. Pursuant to a Stipulation for
Certification Upon Consent Election approved on June
7, an election by secret ballot was conducted on July 2
in an appropriate unit of Respondent's employees. Three
ballots were challenged, including those of Ramiro Avila
and Pete Mascorro, who are named as alleged discrimin-
' All dates are in 1982 unless otherwise indicated.
atees in the consolidated complaints noted above. The
challenge to the third ballot, that of John Hawkins, was
based upon his alleged supervisory status. Both the Com-
pany and the Union filed timely objections to the elec-
tion on July 9 and July 12, respectively. On September
13, the Regional Director for Region 23 of the National
Labor Relations Board (the Board), concluding that the
issues with respect to challenges and objections of the
Company and the Union could be best resolved on the
basis of the record testimony, particularly where the alle-
gations of the outstanding consolidated complaint were
coextensive with the Union's objections, issued an order
directing hearing, and consolidating Case 23-RC-5080
with the outstanding unfair labor practices cases for
hearing.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, Respondent, and
the Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
The consolidated complaint, as amended, alleges, and
Respondent by its answer admits, that Respondent is a
Texas corporation with offices in San Antonio, Texas,
where it is engaged in the manufacture of beverage
equipment. It is further alleged, and Respondent also
admits, that during the 12 months preceding issuance of
the complaint Respondent, in the course and conduct of
its business operations, purchased products, goods, and
materials valued in excess of $50,000 directly from firms
located outside the State of Texas, and that such prod-
ucts, goods, and materials, were shipped directly to Re-
spondent at its San Antonio, Texas facility. The com-
plaint concludes, Respondent admits, and I find that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
Respondent admits the additional complaint allegation
that the Union is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The uncontradicted testimony of Eddie Felan, an
International representative of the Union, establishes that
the Union began its organizing campaign at Respondent's
place of business on April 8 by conducting a meeting at
a local motel attended by Respondent's employees Jill
McDonald, Robert Mickey, and Charles Pfeiffer. Be-
cause Felan was preoccupied with other out-of town-
business, his direct attention to the organizational effort
was delayed for approximately 2 weeks. Accordingly,
sometime after April 22, Felan conducted additional em-
ployee meetings and held some 12 additional meetings
between April 22 and the election on July 2. At some
point in time not specified by the record, Felan estab-
lished an in-plant committee consisting, he claimed, of
Mickey, McDonald, Pfeiffer, Ramiro Avila, Pete Mas-
1430
LANCER CORP.
corro, and certain others who were unnamed to solicit
employees' signatures on authorization cards.2 Felan said
that he began meeting with these employees on a daily
basis in addition to the general employee meetings earlier
referred to. No contention was made by Felan that Re-
spondent was advised of the identity of any of the em-
ployees on the committee. While several of the employee
witnesses presented by the General Counsel herein testi-
fied that they had signed union cards, the dates of such
signings were not established. However, according to the
uncontradicted testimony of Jill McDonald, 3 the Union
did not begin to pass out union authorization cards until
May 18. Respondent, through its president George
Schroeder, admitted that it was aware of the Union's or-
ganizing drive and that authorization cards were being
signed by employees some 2 or 3 weeks prior to Re-
spondent's initial overt reaction to the organizing drive
in a speech by Schroeder to assembled employees about
May 27.
B. The Alleged Independent Violations of Section
8(a)(1)
1. By George Schroeder
To support a complaint allegation that Schroeder on
May 27 told employees that, if the Union came in, all
benefits would have to be negotiated from scratch, em-
ployee Frank Wiggins testified that, in a speech about
the Union to the first- and second-shift employees in the
lunchroom, Schroeder stated "something about negotia-
tions" and "that all benefits were going to start from
scratch." In corroboration, former employee Robert
Mickey testified that Schroeder "tried to tell everyone
that when the Union came in that we would have to
start from scratch." Similarly, employee Alice Camacho
testified that Schroeder said, if a union came in, they
would have to negotiate everything from scratch. Lastly,
employee Pfeiffer also related that he heard Schroeder
make the statement at a meeting that, if the Union came
in and Respondent had to negotiate, it would start from
scratch, and all the employee benefits would be taken
away and employees would start over completely from
scratch. 4
Schroeder in testifying for Respondent acknowledged
that he gave a speech to employees on May 27, and that
following the speech he responded to questions from em-
ployees about what would happen if the Union won the
election. To one question, Schroeder answered that Re-
spondent would be required to sit down at a negotiating
table and would negotiate all benefits from scratch. At
that point, Mickey raised his hand, Schroeder acknowl-
2 Mascorro in his testimony indicated he was unaware of his appoint-
ment to an "in-plant" committee.
3 McDonald, an alleged discriminatee herein, subsequent to the alleged
unfair labor practices, married Charles Pfeiffer, another alleged discrimin-
atee herein. She is referred to herein by her maiden name.
I Pfeiffer was unclear as to the month in which Schroeder's speech
took place and finally asserted that it took place on June 6. In the ab-
sence of other evidence establishing a second speech by Schroeder and
because the May 27 speech of Schroeder was directed to the first shift on
which Pfeiffer worked, I conclude that Pfeiffer was in error with respect
to the June 6 date, and that he was referring instead to the May 27
speech.
edged him, and Mickey stated that what Schroeder had
said was incorrect, that the employees would not lose
their benefits. In response to Mickey's assertion, Schroe-
der replied that he would rephrase it. He testified that he
then said that at the negotiation table everything would
be subject to negotiation and the benefits could either go
up or down or stay the same. Schroeder then asked
Mickey if that was an accurate representation of what
happened at negotiations, and Mickey agreed. Schroeder
then turned back to the other employees and asked if
they understood that point and whether there were any
questions relative to it. The record shows no specific re-
sponse by the other employees. Schroeder's version of
his correction by Mickey was substantiated in Mickey's
cross-examination.
The General Counsel and the Charging Party contend
that Schroeder's statement that all benefits would have
to be negotiated from scratch constituted a violation of
Section 8(a)(1) of the Act. Under Board law, an employ-
er's statement that employees would have to bargain
from "scratch" if they selected the union to represent
them interferes with employees' Section 7 rights in viola-
tion of Section 8(a)(1) where it conveys the impression
that the employer will require the union to give up exist-
ing employee benefits. See, e.g., Zero Corp., 262 NLRB
495 (1982). Thus, Schroeder's statement to the employees
in its unclarified form clearly conveyed the unlawful im-
pression. However, Schroeder was immediately correct-
ed by Mickey and then lawfully, and correctly, explained
that as a result of collective-bargaining employees could
gain benefits, lose benefits, or they could remain the
same. In view of this immediate clarification directed to
the same audience which heard the first remark, I can
perceive no basis for concluding that employees were
left with the improper conclusion that they would neces-
sarily lose existing benefits simply because they could
choose to have the Union represent them. The General
Counsel, citing Intertherm, Inc., 235 NLRB 693 (1978),
argues that Respondent's subsequent unfair labor prac-
tices vitiated any neutralizing effect of Schroeder's clari-
fication prompted by Mickey. In the cited case, an em-
ployer's subsequent repudiation of a supervisor's unlaw-
ful interrogation was found to be vitiated by the employ-
er's later unfair labor practices. The instant case is distin-
guishable, I conclude, because the coercive aspect of
Schroeder's remark was immediately corrected. Any
subsequent unfair labor practices by Respondent found
herein do not affect correction of the misrepresentation
or the misinformation which tended to make Schroeder's
original remark coercive.
Schroeder's remark is more analogous to unlawful in-
terrogation which has been immediately withdrawn prior
to any response. The Board has held that such interroga-
tion is not unlawful where the interrogation was immedi-
ately withdrawn, and the evidence reflected that a re-
sponse was not expected. Wesco Electrical Co., 232
NLRB 479, 482 (1977). Here, Schroeder was challenged
regarding his remark, and the remark was corrected
eliminating the basis for any finding of any lingering co-
ercive effects. Accordingly, I find no violation of Sec-
1431
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 8(a)(1) of the Act in Schroeder's May 27 remark
concerning bargaining.
The General Counsel argues, and the complaint al-
leges, that in the latter part of June 1982 Schroeder
promised employees a wage increase, and on July 5
granted a wage increase, all in violation of Section
8(a)(1) of the Act. Schroeder admitted in his testimony
that the question was raised sometime prior to the elec-
tion as to the way the Union's election affected wage in-
creases. Schroeder testified that he responded to that
question stating that the law required them to do exactly
as they had done in the past relative to all employee ben-
efits, and their normal policy was that in January and
July Respondent gave wage increases. Schroeder stated
that Respondent would continue to -do the same thing
they had always done. Schroeder testified that Respond-
ent had consistently given wage increases in January and
July, except that in 1982, because of economic condi-
tions, the first wage increase was given in February
rather than in January. Schroeder contended that Re-
spondent had followed this practice of giving wage in-
creases in January and July for the past 5 or more years.
Schroeder's testimony in the foregoing respects was sub-
stantiated by employees Raul Herrera and Grace Her-
nandez. The parties stipulated herein that Respondent
did in fact grant a wage increase to its employees on
July 5.
Board cases establish that an employer, when con-
fronted by a union organizing campaign, must proceed as
it would have done with respect to wage increases had
the union not been conducting its campaign. KDEN
Broadcasting Co., 225 NLRB 25 (1976); Russell Stover
Candies, 221 NLRB 441 (1975). Here, Respondent's July
5 wage increase was consistent with its prior practice.
Had Respondent not granted the wage increase, it could
well have been found in violation of Section 8(a)(3) and
(1) of the Act because it would have been a departure
from prior practice and, in the absence of some valid ex-
planation, inferentially designed to discourage employees
in their union activity. KDEN Broadcasting Co., supra.
Accordingly, because the timing of the wage increase in
the instant case was consistent with prior practice, I find
that Schroeder's remarks about the wage increase were
not an unlawful promise of benefits designed to thwart
employees in their union activity. Likewise, and again
because of the undisputed evidence regarding the prior
practice, I find Respondent did not violate Section
8(a)(l) of the Act in the actual granting of the wage in-
crease as alleged in the complaint.
2. By John Day, tubing department supervisor
The complaint alleges that Day interrogated an em-
ployee regarding whether the employee had signed a
union authorization card. In support of this allegation,
McDonald testified that around June 1 she was ap-
proached during the late afternoon at her work station
by John Day, who was her supervisor at the time. Day
discussed with McDonald the antiunion meeting Re-
spondent had held and asked her questions. Then Day
asked her if she had signed an authorization card for the
Union. McDonald answered affirmatively and Day
turned and walked away.
Day, in his testimony for Respondent, denied that he
had ever asked McDonald if she had signed a union card
or how she felt about the Union. Day, who claimed that
he had previously been a member of the United Steel-
workers of America and a shop steward at a previous
place of employment, conceded he had suspicions about
McDonald's union inclinations due to the fact that she
frequently, and to a greater extent than other employees
in his department, asked Day questions about the Union.
Determination of whether Day violated the Act here
depends, of course, upon whether he or McDonald is be-
lieved. I have carefully considered the testimony of both
in light of the entire record as well as their respective
demeanor in testifying. Day appeared completely at ease
in testifying and did so in a calm and deliberate manner.
He appeared to be straightforward and very candid. On
the other hand, McDonald's testimony lacked detail of
the context in which the alleged unlawful question had
been propounded. Moreover, as an alleged discriminatee
in this case, McDonald's testimony could not be consid-
ered entirely unbiased. McDonald impressed me as less
forthright, less sincere, and more inclined to color her
testimony to suit her own interest. It is significant that
no other unlawful independent acts of restraint or coer-
cion were attributed to Day by any other employee. Ac-
cordingly, I find Day more credible than McDonald and
conclude that he did not question her about her union
authorization card as she claimed. Accordingly, I find
Respondent did not violate Section 8(a)(l) of the Act
through Day as alleged.
3. By Johnny Hernandez, dispenser line supervisor
The complaint attributes a number of 8(a)(1) violations
by Hernandez from the period of June 4 through 18. Ini-
tially in this regard, it is alleged that on June 4 Hernan-
dez surveilled employees' union activities. Evidence to
support this allegation was found in the testimony of
Union Representative Felan and employees McDonald
and Pfeiffer. Thus, Felan testified that he met with a
group of employees almost daily behind the Lone Star
Ice Store a short distance from Respondent's plant. At
such a meeting with employees McDonald, Pfeiffer, and
Mickey around June 4, McDonald pointed out Hernan-
dez with an employee identified as Sharon Stubblefield
parked in a truck in an alleyway beside the Lone Star
Ice Store and at a point where the meeting between
Felan and the three employees could be observed. Felan
continued his meeting with the employees for about 10
minutes after Hernandez had been spotted. Felan's testi-
mony was supported by that of McDonald and Pfeiffer.
McDonald, however, added that she had seen Hernandez
parked out in front of the store on other occasions drink-
ing beer and conceded that Hernandez used to go to the
ice store on a regular basis. However, she claimed she
had never previously seen him parked to the side of the
store in the alleyway where he could observe the em-
ployees meeting with Felan.
Hernandez testified that he went to the Lone Star Ice
Store almost daily to drink beer. He testified on direct
examination that on June 4 he had seen McDonald and
three other employees at the Lone Star Ice Store talking
1432
LANCER CORP.
to a gentleman he did not know. He said he observed
them while sitting on a retaining wall by the alleyway
drinking beer. On cross-examination, he conceded that
on another occasion he had been with Sharon Stubble-
field parked in his truck in the alley. Hernandez denied
that he had gone to the store to spy on employees, and
explained he parked in the alley because Stubblefield did
not want anyone else to see her.
The evidence clearly shows that Hernandez' presence
at the Lone Star Ice Store was not unusual. Thus, and
also because the "union meeting" which was taking place
there on June 4 was not an especially called one likely to
draw special attention, it could not be inferred that Her-
nandez had an unlawful purpose in visiting the store's
premises on June 4. However, his choice of a parking lo-
cation in a semihidden area from which the employees
meeting with Felan could be observed, absent a credible
explanation, warrants the inference that Hernandez had
more than drinking beer on his mind. In this instance, I
do not accept Hernandez' explanation of his presence at
that particular location. That Stubblefield did not wish to
be seen with Hernandez is perhaps understandable in
view of the fact that Hernandez was married at the time.
An additional reason for discreteness is found in the fact
Respondent maintained a rule publicized to its employees
in its policy handbook which prohibited supervisors from
"dating" employees. However, if these were real consid-
erations, it does not explain why Hernandez parked in a
place where employees could nevertheless see both him
and Stubblefield, and even remain there for 10 minutes.
Moreover, that Hernandez by his own admission had
watched from the same alley employees meeting with
Felan on a prior occasion demonstrates that his presence
was not purely happenstance. Finally, additional testimo-
ny credited infra reveals Hernandez' interest in identify-
ing union supporters. Accordingly, while Hernandez'
presence at the store may have been explained, his pres-
ence in the alley from where the employees meeting
with Felan could be observed has not, in my opinion,
been credibly explained. I conclude that Hernandez'
presence was not coincidental and was, in fact, designed
to interfere with employees' union activity. I therefore
find that Hernandez unlawfully surveilled employees in
their union activity as alleged in the complaint.
Other unlawful conduct by Hernandez was alleged in
the complaint and supported by the testimony of Ramiro
Avila, an alleged discriminatee herein, and Grace Her-
nandez. Employee Hernandez related that Supervisor
Hernandez told her on June 5 as she was clocking out
that the employees were doing everything wrong about
the Union. When Hernandez inquired as to what he
meant by that, he replied that "we" know who the
Union is, and "we" know who the Union is not. More-
over, he told employee Hernandez that she should not be
hanging around in the disconnect department because
management knew that the department was really "gung
ho" for the Union, and it did not look good for her. Fur-
ther, he cautioned her about being seen with Mickey,
McDonald, and Pfeiffer.
Hernandez in his testimony did not specifically deny
the testimony of Grace Hernandez. Grace Hernandez im-
pressed me as honest, and she is credited. The General
Counsel relied upon her testimony to establish the com-
plaint allegation that on June 5 Hernandez created the
impression of surveillance of union activity. I find Her-
nandez violated Section 8(a)(1) as alleged in his remarks
to Grace Hernandez.
Avila testified that in early June, he was talking to
two employees about a leaflet Respondent had put out to
the effect that if the Union came in and there was a
layoff, the ones organizing the Union would be the last
to be laid off. While Avila's testimony on the point is not
a paragon of clarity, it appears that Avila attempted to
oppose Respondent's assertion in its leaflet. According to
Avila, Supervisor Hernandez came by and told the em-
ployees not to believe Avila and that employees who
went in the Union would be the first ones to be laid off.
Hernandez did not respond specifically to the forego-
ing testimony of Avila. He did, however, deny telling
Avila or any other employee that they would be laid off
if the Union came in. Because Avila was clearly con-
fused and his testimony was contradictory regarding the
leaflet and Hernandez' remarks, and because his testimo-
ny on the matter was elicited largely through leading
questions, I do not credit Avila regarding the remarks at-
tributed to Hernandez. Accordingly, I find no violations
of the Act based on such remarks.
Avila further testified, however, that he had another
exchange with Hernandez a week or 2 later on a Friday.
It was the morning after a union meeting and, as Avila
was coming up the ramp to the dock at the plant, Her-
nandez remarked that Avila looked like he had a real
bad hangover. Avila inquired what he meant, and Her-
nandez started laughing and asked Avila if there had
been a lot of beer out there at the union meeting the
night before, and did he eat a lot of tamales. Avila did
not respond. Hernandez then added that he was glad he
did not have to have anybody buying him his beer, espe-
cially the Union, and he would not want them to buy
him any beer or give him tamales. That afternoon Her-
nandez, Avila testified, approached him and asked him
what the meeting was about. When Avila said he could
not disclose that, Hernandez asked if Avila had already
signed a card. Avila admitted that he had.
Hernandez in his testimony recalled that one morning
he had asked Avila if he had had too much to drink the
night before because he was lagging in his work. Avila
responded that he had been drinking the night before.
Hernandez specifically denied that he asked Avila
whether he had gone to a union meeting, and denied
asking him whether he had signed a union authorization
card.
In this instance, I credit Avila whose recall on the
point appeared more certain. I find Hernandez' denials
unconvincing. Further, Hernandez' explanation of his re-
marks to Avila apears to be less complete and more
likely contrived. Avila's claim that Hernandez' remark
took place as he was coming to work puts the remarks in
a context more believable than Hernandez' claim that his
remarks were made during the course of the workday.
There was no evidence that the meeting which Avila at-
tended was generally announced or publicized so that
Hernandez could have had a legitimate basis for knowing
1433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about the meeting. Certainly, there was no publication
regarding the serving of beer or tamales at the meeting.
Under these circumstances, the remarks attributed to
Hernandez by Avila clearly created the impression that
Hernandez' information had been surreptitiously ob-
tained. Accordingly, I conclude, as the complaint alleges,
that Hernandez created the impression of surveillance
through his remarks to Avila. Further, still crediting
Avila over Hernandez, I find as established the addition-
al complaint allegation that Hernandez unlawfully inter-
rogated Avila about the meeting and his signing of a
union card. In context, and notwithstanding Avila's
truthful answers to Hernandez, Hernandez' questions had
a clear tendency to restrain and coerce employees in
their union activity particularly where, as here, no legiti-
mate reasons were provided for the questions and the
employees were given no assurances against reprisals.
4. By Jim May, second shift plant manager
Three employees attributed a number of coercive re-
marks and questions to Jim May which are alleged as
violations of Section 8(a)(1) of the Act in the complaint.
Employee Raul Herrera testified that on June 16 May
took Herrera to the dining area where he talked with
him about the Union and reasons why Herrera should
not vote for the Union. According to Herrera, May as-
serted that George Schroeder did not plan to sign a
union contract because it was not good for the Company
or the employees. Similarly, employee Alice Camacho
testified that she had a conversation with May in the
conference room where May had taken her to talk about
the Union, and May told her that Schroeder had already
said he was not going to sign a union contract.
Raul Herrera further testified that on May 17 May ap-
proached him at his machine and began a conversation
talking about work, but then stated he was not supposed
to ask, but nevertheless asked, whether Herrera was for
or against the Union. Herrera said he had not made up
his mind yet, to which May responded with the question
of whether Herrera had signed a card. Herrera stated
that he had, but he still did not know which way he was
"going."
Employee Frank Wiggins testified that he also had
been taken to the lunchroom on June 16 where May
talked to him about the Union and Respondent's opposi-
tion to the Union. The following day, according to Wig-
gins, as in the case of Herrera, May came back to Wig-
gins' area and asked him what he thought about the
Union. Wiggins gave an equivocal response, and May
then asked him if he had signed a union card, to which
Wiggins responded that he did not want to tell May, that
he did not think it was any of May's business.
The complaint alleges another incident of unlawful in-
terrogation by May on June 22. This allegation is appar-
ently premised upon Raul Herrera's testimony concern-
ing further interrogation by May which he placed as oc-
curring on June 28. According to Herrera, on that occa-
sion May came back to his work station and asked him if
he had made up his mind which way he was going. Her-
erra replied that he had not.
Finally, the complaint alleges further unlawful interro-
gation by May occurring on July 8 after the election had
been held. Wiggins testified in support of this allegation
that on July 8 May came to his home with a six-pack of
beer having indicated at some time earlier to Wiggins
that he wanted to come over and talk. Wiggins related
that May initially talked about going to the beach and
summertime activities, Then, however, he changed the
subject to talking about the Union and inquired as to
what percentage of the employees was for the Union on
the second shift, how many were for the Union, and
who had voted for the Union. Wiggins declined to
answer, and May remarked that the information was for
his own personal use, but Wiggins persisted in telling
him nothing. At that, May stated that he knew Raul Her-
rera did not vote for the Union although he knew that
Wiggins had voted for the Union. Then May inquired of
Wiggins whether another named employee voted for the
Union. Wiggins declined to answer or even talk about it,
and asked May to leave.
May, who had only become a night-shift manager in
the month of May and who left the employment of Re-
spondent later in August, denied stating to Herrera or
any employee that Schroeder said he would never sign
any contract with the Union. He further denied that he
had asked any employee if they were for or against the
Union, or whether they had signed a union card or how
they were going to vote, although he admitted that he
had met with Wiggins at Wiggins' home on July 8. He
testified that they did not talk about work.
I credit the testimony of Herrera, Camacho, and Wig-
gins over that of May. The three employees' testimony
was consistent in reflecting a pattern of interrogation by
May. The three appeared to be sincere in their testimony
and displayed generally good recall. May's denials were,
for the most part, general in nature and clearly uncon-
vincing when weighed with the more detailed testimony
of the three employees. The fact that May had received
general instructions from management regarding "do's
and don'ts," including interrogation among the "don'ts"
does nothing to lessen the likelihood that May engaged
in the interrogation attributed to him. After all, as Herre-
ra's testimony establishes, May had acknowledged that
he was not supposed to ask employees any questions
about the Union, but then he went ahead and did it
anyway.
Based on the credited testimony of Herrera and Cama-
cho, I find that May did state that Schroeder would not
sign a contract with the Union. Such a remark clearly
conveys to the employees the futility of their organiza-
tional efforts, thereby interfering with their Section 7
rights in violation of Section 8(a)(1). Also based upon the
testimony of Herrera, Camacho, and Wiggins, I find that
Respondent, through May, violated Section 8(a)(1) of the
Act as alleged in the complaint in his questioning of em-
ployees regarding their union activities and that of other
employees. In his questioning, May expressed no legiti-
mate basis for his questions and gave the employees no
assurances against reprisals as a result of their answers.
The fact that the employees considered the questioning
coercive is demonstrated by the fact that they gave
equivocal or noncommital responses.
1434
LANCER CORP.
5. By Robert Rodriguez, welding department
supervisor
The consolidated complaint alleges that on May 28
Respondent, through Supervisor Rodriguez, threatened
employees by telling them that the company rules would
be strictly enforced as a result of the union activity.
Three witnesses, Wiggins, Mickey, and Grace Hernan-
dez, testified in support of this allegation. Thus, Wiggins
testified that on May 28 Rodriguez called together ap-
proximately 10 employees in the weld area on both night
and day shifts, and told them to read the employee
manual or rule book "real good" because it was going to
be strictly enforced. He told the employees that if they
did not know the Company's rules and regulations they
should know them. Some of the employees asked why
they were getting so strict, and Rodriguez said he really
did not know, but they were playing it by the rules. Ac-
cording to Mickey, Rodriguez, who had just come from
a supervisors' meeting, told the employees that the Com-
pany was going to start enforcing the rules more, espe-
cially the tardiness and absenteeism rules. Mickey asked
whether this was being done because the Union was
coming in, and Rodriguez nodded his head affirmatively.
Grace Hernandez confirmed that Rodriguez stated that
Respondent was going to enforce the rules "a little bit
more" but failed to attribute anything to Rodriguez indi-
cating that the move was directly related to the union
activity.
Rodriguez conceded in his testimony that he met with
employees from his department on May 28. He said that
this meeting was predicated on a supervisors' meeting
held earlier in the day when it was brought to the atten-
tion of the supervisors that employees were "running
around the plant." Management asked the supervisors to
talk to the employees and see if they could straighten out
the problems. Rodriguez' version of his remarks has it
that he explained to the employees that the supervisors
had gotten chewed out because a lot of employees were
walking around the area and making stops in other de-
partments talking to employees, taking time, and causing
production problems. On cross-examination, Rodriguez
admitted that he had told employees that he was going
to go strictly by the book. He further conceded that one
of the employees, either Mickey or Charles Pfeiffer,
asked him if this action was because of the Union. How-
ever, Rodriguez testified that he denied that it was.
I have already found Mickey to be a credible witness
with good recall. Because of his former employee status
he was more likely to be unbiased. His version of Rodri-
guez' comments struck me as truthful when considered
in contrast with Rodriguez' rather bland denials. In addi-
tion, Rodriguez displayed a rather sporadic memory and
could recall nothing of the remarks of George Schroeder
to the employees on May 27, the day before Rodriguez
had his meeting with employees. Rodriguez conceded,
however, that he attended the meeting with Schroeder
and the employees. Further, Rodriguez claimed that
Plant Manager Brown had previously talked to supervi-
sors about tightening up on the rules, but he could not
recall how long before it was. Accordingly, I accept
Mickey's version of Rodriguez' remarks including the af-
firmative nodding of his head on Mickey's question. I
therefore find that Rodriguez implicitly threatened em-
ployees that more strict application of Respondent's rules
was responsive to their union activities. In this regard,
Respondent violated Section 8(aXl) of the Act, I find, as
alleged in the complaint. See Vincent's Steak House, 216
NLRB 647, 649 (1975). The conduct of Rodriguez and
the other violations of Section 8(a)(1) provide the context
in which the alleged 8(a)(3) violations must be consid-
ered.
C. The Alleged 8(a)(3) Violations
1. The discharge of Pete Mascorro
Mascorro was employed by Respondent in August
1980 and worked in the tubing department under Super-
visor John Day. He was transferred to the acid room on
March 30, where he worked under leadman David
Lopez and Supervisor James Sundsted. 5 Mascorro testi-
fied, in effect, that his work in the tubing department
was exemplary, and he was utilized both to train new
employees and to fill in on one occasion for Supervisor
Day for about a I-week period in 1982. On direct exami-
nation, he acknowledged only one prior reprimand and
that reprimand which he placed as occurring sometime
in 1980, was based on his failure to clean up around his
work area at the end of his shift. According to Mas-
corro, everyone in the department received the same
reprimand at the same time."
Mascorro testified that he became involved in the
union campaign beginning in the latter part of April
when he and several other employees, including McDon-
ald, Pfeiffer, Mickey, and Mario Gonzalez, began talking
about the Union. He also attended union meetings begin-
ning, he claimed, from the very first. He testified further
that he passed out union cards sometime in May and
signed a union card himself. Further, he stated that on
May 28, he was seen passing out cards in the dining area
by Supervisors Rodriguez and Day. According to Mas-
corro, Rodriguez and Day were sitting at the table right
next to the table where he was seated.
According to Mascorro, he was discharged on June 7.
In the late afternoon on that date, he was called into the
office of Jackie Smith, employee relations manager,
where, Mascorro related Smith said that he had "stuck
out a screwdriver at Pablo Medina," another employee
in the acid room. According to Smith, the incident had
occurred on June 2 in the dining area during lunchtime.
Mascorro denied that any such thing had happened and
offered to take a polygraph to prove his innocence.
Smith refused, and told Mascorro they had reached a de-
cision to fire him and did fire him. Mascorro's testimony
was contradictory with respect to whether Sundsted had
said anything about his job performance during the meet-
ing in which he was discharged. Initially, he related that
s Mascorro in his testimony placed the transfer as taking place in the
latter part of April, but Respondent's documents signed by Mascorro
show the effective date was March 30. R. Exh. 7.
6 On cross-examination, he was confronted with a written reprimand
signed by him and dated June 25, 1981, for failure to "clean up." Mas-
corro conceded that the reprimand was in 1981 rather than 1980 as he
had initially claimed.
1435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sundsted had said that Medina and Lopez had com-
plained to him about Mascorro's work. Subsequently,
however, he testified nothing was said about his job per-
formance at the June 7 meeting.
Mascorro acknowledged an encounter with Medina on
May 28, in which Medina had asked him if he was for
the Union, and Mascorro had replied that he was.
Medina remarked that he was not for the Union and told
Mascorro he should not be talking about the Union be-
cause people did not want the Union and Mascorro was
going to be suspended or fired if he kept it up. A
moment later, according to Mascorro, Lopez came into
the department and Medina went over to talk to him.
The two looked at Mascorro while they were talking.
Then the two went to Foreman Sundsted and talked to
him. Later on the same day, sometime after lunch,
Sundsted talked to Mascorro and told him that he had to
shape up because Sundsted could not be keeping an eye
on him or babysitting him. Mascorro asked what he was
doing wrong, and Sundsted said he was receiving com-
plaints from Lopez and Medina. Mascorro testified that
he had had no previous complaints from Sundsted about
his job performance and, in fact, the week after he had
started in the acid room Sundsted told him he was doing
a good job. Moreover, he said that Lopez and Medina,
who was a senior employee in the acid room and respon-
sible for assisting leadman Lopez, never complained to
Mascorro about his work or job performance. However,
Mascorro admitted that also on May 28 Medina and
Lopez told him that he was taking too long in going to
the restroom. Lopez told Mascorro that he would have
to do what Medina told him, and that, if he wanted to
go to the restroom, he would have to do it in the acid
room where the drainage was. On the same day, Mas-
corro complained to Jackie Smith about such instruc-
tions, and Smith told him he would have to listen to his
supervisor and leadman, and directed him to go back to
work.
Mascorro related that on June 2 Medina came in
drunk and Mascorro reported that to Lopez. Lopez said
that he would take care of the matter. Mascorro denied
that he talked to Medina that day at all and denied spe-
cifically threatening Medina with a screwdriver.
Based on the foregoing, the General Counsel and the
Charging Party's counsel argue that no legitimate basis
existed for the discharge of Mascorro. They argue, based
on Mascorro's testimony and the record as a whole, that
Mascorro had been involved in union activity, that Re-
spondent knew of Mascorro's involvement in such activi-
ty, that Respondent harbored union animus as reflected
by its 8(a)(l) violations herein, and that Mascorro had
engaged in no misconduct warranting his discharge. This
evidence reflects, the General Counsel contends, all of
the elements of a prima facie case as required under the
principles of Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (Ist Cir. 1981), cert. denied 455 U.S. 989
(1982). The contention is that the evidence establishes
that Mascorro would not have been discharged had he
not been engaged in union activity.
Respondent's defense is based upon the testimony of
Supervisors Day and Sundsted, leadman Lopez, and em-
ployee Medina. In brief, Respondent contends that Mas-
corro was not, in fact, a good employee and this was a
consideration in reaching a conclusion with respect to his
discharge which was decided upon following a threat
issued to Medina and witnessed by two other employees.
With respect to Mascorro's work ability and employment
history, Day testified that Mascorro was capable of good
production. However, his production in March 1982 was
becoming a problem because it had fallen down to less
than half of what he had been producing. He therefore
took Mascorro to the plant manager who warned Mas-
corro that he would have to bring his production back
up and that, if he did not, they would have to take fur-
ther action. Mascorro did not bring his production up,
and, instead, asked the plant manager for a transfer to
the acid room. Mascorro signed a transfer sheet reflect-
ing that the transfer was at the employee's own request.7
Contrary to Mascorro's testimony that he had had only
one prior reprimand, Day identified prior reprimands of
Mascorro dated May 11 and 15, 1981, for tardiness, ab-
senteeism, and early departure from work. The last dated
reprimand had resulted in a 3-day suspension of Mas-
corro. 8 Although Day admitted that Mascorro had been
used to train other employees, he added it was common
practice to use older employees to train newer employ-
ees. Day did not concede any knowledge of Mascorro's
union activity, but quite candidly admitted that sometime
prior to his transfer from the tubing department he had
overheard Mascorro tell two other employees that they
ought to get a union to represent them.
Medina testified that as a senior employee in the acid
room he was expected, in the absence of leadman David
Lopez, who had responsibilities outside the acid room, to
see that the acid room work was done. Medina said that
he had problems with Mascorro because Mascorro
would not heed anything Medina said to him and ad-
vised the other workers in the acid room to also ignore
Medina. Mascorro would leave the acid room to go to
the restroom where he would stay 25 to 30 minutes or
more and generally did whatever he wanted to do in the
acid room. According to Medina, Mascorro told him
that he was not going to work as hard as Medina did be-
cause Medina was paid more. Mascorro added that he
was not going to hurry up in his work or worry about
anything. Medina said he reported these matters to
Lopez who thereafter told Mascorro to work with
Medina. In early June, Mascorro told Medina in the
dining room that he was not going to use his hands on
Medina, but he was going to stick him with a screwdriv-
er. Medina identified employees Armando Olivarez and
Juan Martinez as being present and hearing Mascorro's
remarks. Medina testified that he told Lopez about Mas-
corro's threat, and it was a few days later that he repeat-
' Mascorro, on cross-examination, admitted his signature on the docu-
ment but denied that the transfer was at his request. Contrary to earlier
testimony suggesting the exemplary nature of his work performance, he
testified that he was told to either transfer to the acid department or be
fired.
8 While Mascorro acknowledged his signature on the two additional
reprimands, he could not recall the incidents nor could he recall the 3-
day suspension.
1436
LANCER CORP.
ed the matter to Jackie Smith through Lopez, who inter-
preted. 9
Medina's testimony was supported by Lopez both with
respect to problems he was having with Mascorro as
well as the report of the threat by Medina. However,
Lopez testified that Medina had complained to him about
the threat on a Saturday (June 5) but that Medina had
claimed that the incident had taken place a day or 2 ear-
lier. Lopez immediately related the incident to Supervi-
sor Sundsted. On cross-examination, Lopez, who was no
longer employed by Respondent at the time of the hear-
ing, admitted that he was aware that Mascorro was a
union supporter. On further cross-examination, Lopez re-
called Medina reported to him that there had been an
actual attempt by Mascorro to stab Medina in the back.
Such alleged attempt was never substantiated by any
other witnesses, including Medina, and I conclude that
Lopez was mistaken in this regard.
James Sundsted testified disputing Mascorro's claim
that there had been no problems regarding his work in
the acid department. Sundsted stated that he had re-
ceived complaints about Mascorro working quite slow
from Medina and Lopez, and he went over these com-
plaints with Mascorro about 2 or 3 weeks after he came
into the acid room. He had also had an occasion to talk
to Mascorro about some lines or tubes that Mascorro had
damaged delivering to the tubing department. The com-
plaint about the lines had come from Day, who, Sundst-
ed testified, informed Sundsted of problems Day had had
with Mascorro when he worked in the tubing depart-
ment. Sundsted added he had also talked to Mascorro
about complaints about his cooperating with Medina and
Lopez. Sundsted admittedly told Mascorro that he could
not babysit with him that he did not have that luxury.
With respect to the threat that was attributed to Mas-
corro, Sundsted stated that Lopez had reported the
matter to him on Friday afternoon, June 4. Sundsted im-
mediately went and talked to Medina about the matter
but was unable to speak to Mascorro before the end of
the shift. Although Mascorro was scheduled to work the
next day, Saturday, he did not appear and Sundsted pre-
pared a note regarding the allegations. ° On the follow-
ing morning, Sundsted took the matter up with Mas-
corro, who denied the alleged threat. Sundsted thereafter
turned the matter over to Employee Relations Manager
Smith, who undertook to further investigate the matter
by speaking to Lopez, Medina, and the witnesses identi-
fied by Medina. That afternoon, June 7, following
Smith's investigation, Sundsted was called back into
Smith's office where he was advised of the results of the
investigation. Sundsted made the determination to dis-
charge Mascorro basing that determination, he testified,
not only on the alleged threat, but also on insubordina-
tion, lack of interest in the job entirely, his employment
record, and a poor attendance record which included 9
9 Medina could speak little English and testified herein through an in-
terpreter.
'0 The note itself (R. Exh. 15) appears to be dated Friday, June 4. In
addition to the threat attributed to Mascorro, it also refers to the fact that
Mascorro had not been following orders from Lopez and Medina, and
had not cooperated with them.
days off in a time span of 2 months. " Sunsted denied
that he was aware of any union activities on the part of
Mascorro, and further denied that union activity played
any part in his actions with respect to Mascorro.
Smith corroborated Sundsted's testimony to the extent
that she investigated the Mascorro incident based on the
information supplied to her by Sundsted on June 7. It
was Medina, according to Smith, who gave her the
names of the additional witnesses, Olivarez and Martinez,
whom she also spoke to during the investigation. 12
Mascorro's recollection appeared to be too selective to
be credible. His failure to recall two prior written repri-
mands, one resulting in a 3-day suspension and both of
which were signed by him, demonstrates at best a very
poor and unreliable recollection which serves to make
unreliable his broad denials about prior criticism regard-
ing his work performance. His failure to recall the prior
reprimands also makes very doubtful his denial that the
statement "employee requests transfer" was contained on
the comment section of the transfer form transferring
him to the acid room. Moreover, Mascorro's claim that
his transfer to the acid room was totally involuntary, in
that he was instead told to transfer or be fired, in itself
refutes his contention regarding the quality of his work
and Respondent's satisfaction with him. The transfer, it
should be noted, took place long before he actually en-
gaged in union activity. It is true from Supervisor Day's
candid admission Respondent was aware that Mascorro
had told two employees that a union should be sought to
represent Respondent's employees. However, that state-
ment was not shown to be related to the transfer by
timing or any other factor, and the complaint herein did
not allege that the transfer was discriminatory.
Mascorro's testimony that it was he and Mickey who
contacted Union Representative Felan more than a
month prior to the time of his transfer to the acid room
was unsupported by either Felan or Mickey. Felan's tes-
timony, already related, was that the Union campaign
did not start until April 8, a time after Mascorro's trans-
fer to the acid room. Furthermore, Mascorro's claim
about early involvement in union activity was contradict-
ed by his own statement given to the Board during the
investigation of the case in which he stated he "first
"i Sundsted testified that he had actually prepared a record of repri-
mand and disciplinary action for Mascorro on June 5 (R. Exh. 14). Al-
though Sundsted and Plant Manager Brown had already signed the repri-
mand reflecting insubordination, violation of rules, and unsatisfactory
performance, it did not reflect what action was to be taken. That deter-
mination apparently was not made until the following Monday. When the
alleged threat was reported to Plant Manager Brown by Sundsted on Sat-
urday, June 5, Brown had told Sundsted, according to Sundsted, that
Sundsted should handle the matter. Sundsted explained, however. that he
did not have time to investigate the matter further and Smith had taken
over the investigation.
12 Neither Olivarez nor Martinez was called as a witness herein. How-
ever, Olivarez and Martinez, subsequent to the filing of the charge alleg-
ing Mascorro's unlawful discharge, gave sworn statements to Respond-
ent's counsel dated July 9 in which they generally corroborated Medina's
allegation against Mascorro. These statements were received in evidence.
Under the circumstances, and while such statements are clearly hearsay
to the fact of the "threat," they preclude the inference urged by the Gen-
eral Counsel that had they been called as witnesses they would have tes-
tified contrary to Respondent's contentions.
1437
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
became involved" with the Union when he attended a
union meeting around the latter part of April.
Mascorro's testimony is further suspect because of an
omission in his statement to the Board. Thus, while he
testified herein that Supervisors Rodriguez and Day
were present in the lunchroom once when he gave out
union cards, there was no reference in his statement to
the presence of such supervisors. His attempted explana-
tion for such a critical omission was both feeble and in-
credible.
Considering all the foregoing, as well as the fact that
Mascorro struck me generally as a witness who was will-
ing to testify to whatever was expedient, I do not credit
his testimony where contradicted by Respondent's wit-
nesses. The testimony of Respondent's witnesses regard-
ing Mascorro was mutually corroborative and contained
only minor inconsistencies not materially affecting their
credibility or impugning Respondent's motivation in its
actions with respect to Mascorro. Based particularly
upon the credible testimony of Respondent's witnesses
Day and Sundsted, I find that Respondent was dissatis-
fied with Mascorro's work both in the tubing department
prior to his involvement in union activity and subse-
quently in the acid room. I further find, and conclude,
that upon reports of Medina to Lopez and subsequently
Sundsted Respondent believed that Mascorro had threat-
ened to stab Medina with a screwdriver. I further con-
clude that viewing Mascorro's threat in light of Mascor-
ro's work background a further determination was made
to discharge Mascorro. Notwithstanding Respondent's
knowledge of Mascorro's union inclinations based upon
Day's admission, I find, and conclude, that Respondent
has demonstrated that Mascorro would have been dis-
charged without regard to such activity. Accordingly, it
is concluded that Respondent has rebutted the General
Counsel's prima facie case with respect to Mascorro and
that Respondent did not violate Section 8(a)(3) and (1) of
the Act in the discharge of Mascorro. I have reached
this conclusion with due regard to Respondent's more
strict enforcement of its rules announced by Rodriguez.
However, it must be noted that Mascorro's discharge
was not based upon any specific rule violation, and, in
light of his employment history based on Respondent's
credited testimony, it cannot be said that Respondent's
discharge of Mascorro was so out of proportion to his
offense as to warrant a conclusion of pretext.
2. The suspension of Jill McDonald
McDonald was employed by Respondent in August
1981. At times material herein, she worked in the tubing
department under Supervisor Day.
It is undisputed that McDonald first became involved
in the union activity on April 8 by attending a meeting
with Felan on that date. She testified that the Union
started passing out union authorization cards on May 18,
and that she herself signed a union authorization card
and served on the Union's committee.
As already related herein, Supervisor Day admitted, in
effect, that he believed McDonald to be a union support-
er.
It is undisputed that at all times material herein Re-
spondent maintained a rule in its handbook generally dis-
tributed to the employees to the following effect:
Employees will punch only their individual time
card and no one else's. Employees will not change
or alter their time card for any reason. A violation
of these rules will result in immediate termination of
one's employment.
It is also undisputed that McDonald was suspended for a
period of 3 days effective June 23 allegedly for violation
of the timecard rule cited above. The complaint alleges
that this suspension was in retaliation for McDonald's
union activities. In support of that allegation, McDonald
denied any violation of the timecard rule. Her version of
the events of June 22 upon which the suspension was
based follows. McDonald testified that she normally rode
to work with Charles Pfeiffer, who, like McDonald,
worked on the day shift. McDonald testified that as she
started to clock in she picked up the wrong timecard out
of the timecard slot, but before clocking it in she noticed
that it was the wrong card and immediately put it back
into the timecard holder. She then got her own card,
punched it in, and proceeded to work. Charles Pfeiffer
got his own card, punched it in, and went to work but
was two or three steps behind McDonald. McDonald
added that when she clocked in she observed Day stand-
ing 50 to 60 feet away from her. McDonald was support-
ed regarding the events surrounding the clock-in on
April 22 by Pfeiffer to the extent that Pfeiffer denied
that McDonald punched his timecard on that day, or at
any other time. He testified that, although they did come
into work together, she would always punch in right
before him.
McDonald testified that she did not discuss her clock-
ing in with Day at any time during the course of the day
until the afternoon when she was taken by Day to
Smith's office. There she was accused of clocking in
Pfeiffer's timecard that morning and was asked to tell
what happened. McDonald denied clocking Pfeiffer in
and explained what had happened at the time she
clocked in. Day disputed her version. McDonald's initial
testimony that Smith was writing up the suspension
notice at the time McDonald was relating her version
was contradicted by McDonald's statement given to the
Board which related that Smith wrote out the suspension
notice after McDonald had related her version.
Respondent's position was predicated upon the testi-
mony of Day. Day related that he saw McDonald pick a
card out of the timecard rack, punch it, and put it back
in the rack. She then looked around to see if anybody
was watching, reached over, picked out another card,
punched it in, and put it back in the rack. Day testified
that, because the machinery had not started up he could
actually hear the clock stamp both cards. Because of
what he had seen and heard, Day stood and watched,
and observed Pfeiffer join McDonald at the timeclock.
Pfeiffer did not punch a card or reach for a timecard.
They both then proceeded to their respective depart-
ments. Day went to the timeclock and picked up both
McDonald's and Pfeiffer's timecards and took them to
1438
LANCER CORP.
Smith relating to her what he had seen. Smith said that
she would take the matter up with higher management
and come back with a decision as to discharge or suspen-
sion. s1 Smith advised Day around 3:45 p.m. to call
McDonald to the office. According to Day, it was his
impression that the decision with respect to the suspen-
sion of McDonald was made before McDonald entered
the office.
Smith testified that she made the decision to suspend
Pfeiffer, and, although the rule book provided for the
discharge of an employee punching another's timecard,
she concluded that a discharge would be too harsh since
that was the first time any employee had been found
breaching the rule. She pointed out, however, that subse-
quent to McDonald's suspension another employee on
August 16 had been discharged for a first offense of
punching someone else's timecard. No disciplinary action
was taken under the Company's rules with respect to
employees whose timecards had been punched by an-
other.
Resolution of the legality of McDonald's suspension
depends upon whether she and Pfeiffer are credited on
one hand or Day on the other. I have previously found
Day more credible than McDonald. Here, also, I credit
Day over McDonald, and I find that he did in fact ob-
serve and hear McDonald punch two timecards on June
22. It is undisputed that a romantic relationship existed
between McDonald and Pfeiffer at the time of the inci-
dent, and it may be inferred from such relationship that
each would be disposed to assist or help the other. Moti-
vation for McDonald's action can be found in the fact
that Pfeiffer had several prior warnings regarding poor
attendance and tardiness. He had twice received 3-day
suspensions, the last such suspension being effective
March I to 4. Another incident of tardiness could rea-
sonably have lead to further, and possibly severe, disci-
plinary action. Thus, it would not have been unreason-
able for McDonald to preclude this possibility by clock-
ing Pfeiffer in even though he was relatively close
behind her. 4
Finally, I specifically do not credit Pfeiffer's denials
that McDonald clocked him in on June 22. In addition to
being entirely self-serving, Pfeiffer's testimony was more
likely to be biased not only because of his relationship
with McDonald but also because he also was discharged
by Respondent as discussed infra. Accordingly, I find
that McDonald did clock Pfeiffer in as Day testified. A
basis therefore, existed for disciplinary action against
McDonald. The disciplinary action imposed, a suspen-
sion, was less severe than that provided for under Re-
spondent's rules and subsequently imposed upon another
employee for the same offense. Had Respondent been
disposed to retaliate against McDonald for her union ac-
3s Copies of McDonald's and Pfeiffer's time cards for June 22 reflect
that both cards were punched in at 7:50 (7:30 a.m.), the clock being grad-
uated in one-hundreths of an hour. Timecards for the preceding 3 weeks
entered in evidence as G.C. Exhs. 5(a)-(c) reflect that it was not alto-
gether unusual for McDonald and Pfeiffer to have the same clock-in
time.
"4 Respondent's rules define tardiness as the failure of an employee to
report to work at the beginning of the employee's scheduled shift. The
day shift on which both McDonald and Pfeiffer worked started at 7:30
a.m., the exact time they were clocked in on June 22.
tivity, it is likely, particularly in view of Respondent's
threat through Rodriguez of a more strict application of
its rules in response to union activity, that it would have
discharged her. Under these circumstances, I conclude
McDonald was not the object of discrimination in viola-
tion of Section 8(a)(3) and (1) of the Act.
3. The discharge of Ramiro Avila
Avila began working for the Company in July 1981
and worked on the dispenser line under the supervision
of Johnny Hernandez. He testified that he had become
involved in union activity in early May, having attended
union meetings and having signed a union authorization
card. In addition, he estimated he gave out union author-
ization cards to about 10 other employees. Jackie Smith
admitted that she was aware of Avila's union sympathies
at times material.
Avila had missed work on June 16, and had brought in
a doctor's excuse. On June 21, he was called to Smith's
office where Smith told him that she was investigating
some doctor's excuses which had been turned in for ab-
sences because they had found some forged ones. s Ac-
cordingly, she told Avila that they were looking into his.
Smith said she would be making some phone calls to
verify Avila's excuse. Not having heard anything further
from Smith, Avila went to her on the morning of June
25 to ask what was taking so long in verifying his
excuse. She replied that she was still waiting for the
doctor to call her and that she would have results that
afternoon.
That same afternoon, Avila was told by Hernandez
that Smith wanted to see him. Avila went to Smith's
office expecting word concerning verification of his doc-
tor's excuse. In Smith's office, he met with Smith and
Plant Manager Sam Brown. Smith related to him that
employee Karen Cook had come in that afternoon with a
complaint about Avila. Smith further explained that
Cook contended that Avila had made indecent remarks
to Cook and had fondled her. Avila acknowledged that
he had talked to Cook but denied making any indecent
remarks to her or fondling her. Smith replied that there
were two witnesses that said that he had. She declined to
disclose their names. Avila maintained his innocence and
protested that it had taken Smith only 30 minutes to in-
vestigate the whole thing whereas it has taken her a
week or more to verify the doctor's excuse. To that
Smith responded that she could not verify the doctor's
excuse, but they could terminate him for his actions with
respect to Cook. According to Avila, Smith had already
prepared the termination papers and signed them before
he came into the office. Avila refused to sign the papers
himself, which reported as the cause of the discharge:
"Indecent remarks of a sexual nature & fondling Karen
Cook." The termination paper added under "description
of circumstances," "Mr. Avila persisted even after Ms.
Cook asked him to stop."
It was Avila's testimony that he had occasion to talk
to Karen Cook on June 18, when Cook, along with em-
'm It is undisputed that on March 10, Respondent had discharged an
employee for falsifying a doctor's note.
1439
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees Hector Rangel, Edward Herrera, Daniel Lopez,
Richard Diaz, and Cindy Herrera, were working on the
dispenser line. According to Avila, he said hello to
Cook, talked with her for a while, and then went back to
work. He denied that he at any time touched her. Cyn-
thia Herrera generally supported Avila, testifying she
worked near Cook on June 18, and heard Avila briefly
talking to Cook.
Avila testified that he had dated Cook two or three
times, and that he had gotten together with her at Re-
spondent's 1981 Christmas party. However, admittedly,
he had not left the party with Cook and after that party
they had not talked to each other "that much." To sup-
port the inference that Cook was somewhat preoccupied
with sex and not likely to be offended by anything he
might have said, Avila attributed a comment of a sexual
nature to Cook occurring in October 1980. Even prior to
that, Avila related that Cook had made an obscene com-
ment to employee McDonald regarding certain initials
on a T-shirt that Avila was wearing. McDonald in her
testimony confirmed that Cook had made such remarks.
Herrera also testified that on June 18 after Avila left
Cook she heard Cook admonish Hector Rangel not to
touch her because they did not have any privacy. Herre-
ra apparently looked shocked by Cook's remarks and,
Cook, observing this, told her not to be shocked, that
she grabbed the guys and the guys grabbed her back.
While Avila did not admit to any misconduct with re-
spect to Cook, the General Counsel produced other evi-
dence that Cook was frequently involved in what may
be euphemistically described as "sexual horeseplay." In
this regard, both McDonald and Pfeiffer testified that on
occasions Cook had walked behind Pfeiffer in the plant
"grabbing at his butt" and telling him he had a nice rear
end. On one such occasion, Pfeiffer turned quickly and
Cook grabbed at his front. However, neither McDonald
nor Pfeiffer testified that Cook on any occasion actually
touched Pfeiffer. Pfeiffer made no complaints to any su-
pervisor about Cook's conduct prior to Avila's dis-
charge.
I1 is the contention of the General Counsel and the
Charging Party that Avila was discharged because of his
union activity. They rely upon Respondent's knowledge
of Avila's union inclinations, Respondent's union animus
as demonstrated by the 8(a)(l) violations already found
herein, Avila's denials of any misconduct, and the dispar-
ate treatment of Avila when compared with Respond-
ent's failure to act against Cook based on complaints
made by Pfeiffer subsequent to Avila's discharge. These
elements, if credited in all respects, I find, would consti-
tute a prima facie violation of Section 8(a)(3) and (1) of
the Act in Avila's discharge.
Respondent relies on the testimony of Cook and em-
ployees Daniel Lopez and Richard Diaz to establish the
misconduct of Avila for which he was fired. According
to Cook, Avila had walked up to her on June 18, put his
arms around her, and told her how he thought she was
nice. He laughed and walked away, and then came back
again later and tried to do it again. On this occasion, he
put his arms around her waist but Cook jerked away
asking him to leave her alone. Avila left again but then
came back and tried it again. She told him to leave her
alone, but he put his arms around her waist again and
tried to move them upward. Daniel Lopez, who was
nearby, asked him to go back to his own work area, but
Avila would not. Avila laughed saying he would love to
kiss Cook. According to Cook, Lopez reported the
matter to Supervisor Hernandez, who told Avila to go
back to his own work station. Avila left, but shortly
thereafter, he returned again. On one of the occasions,
Avila touched her on the buttocks and on another told
her he would love to get in bed with her and have a
good time. Cook testified that she went to complain
about the matter to Smith the following Monday, appar-
ently June 21, but Smith was busy and could'not see her.
However, she did report it to Smith the following day,
she claimed.
Cook's testimony is generally supported by that of
Diaz and Lopez. However, Diaz testified he did not see
Avila touch Cook. While Diaz related that he heard
Cook repeatedly tell Avila to leave her alone, he did not
hear Cook complain to a supervisor that day. Moreover,
Diaz testified that most of Avila's remarks of a sexual
nature about Cook were directed to Diaz and related in
Spanish. Lopez testified he observed Avila touch Cook
once on the arm.
According to Smith, Cook did not report the matter to
her until June 25. Cook complained that Avila had made
indecent remarks and gestures to her, and had touched
her, notwithstanding Cook's repeated requests that Avila
leave her alone. Cook named Diaz and Lopez as wit-
nesses. Smith contended that she talked to both Diaz' 6
and Lopez before calling Avila to her office. When
Avila came to Smith's office, Smith told him that she
had investigated the matter, and asked him what he had
to say about the matter. Avila denied the allegations of
Cook, but Smith nevertheless discharged him.
The General Counsel and Charging Party argue that
Avila did not engage in any misconduct with respect to
Cook, and the absence of such misconduct coupled with
Smith's admitted knowledge of Avila's union activities
and her superficial investigation of the incident, includ-
ing her admitted failure to consult with Supervisor Her-
nandez about Cook's complaint, establishes that the as-
serted basis for Avila's discharge was pretextual. The
General Counsel further asserts that Respondent was
"blindly and strictly enforcing Respondent's rules against
a known union adherent." However, there was no show-
ing that Respondent relied upon any particular rule in
discharging Avila, and there appears to be no specific
rule in Respondent's policy book covering the miscon-
duct attributed to Avila. Finally, the General Counsel
contends that even if Avila engaged in the misconduct
attributed to him, it would not have resulted in his dis-
charge, absent his union activities, because no other em-
ployee had been previously discharged for such an of-
fense. Such offenses, according to the General Counsel,
were "unimportant" as evidenced by a complaint voiced
by Pfeiffer to Smith against Cook upon which Smith
failed to Act.
IR Diaz denied he was interviewed on the matter prior to Avila's dis-
charge. I do not credit his assertion in this regard, and instead credit
Smith, who I believe was sincere.
1440
LANCER CORP.
With regard to the General Counsel's latter conten-
tion, the evidence revealed that on June 28, following
Avila's discharge, Pfeiffer went to Smith's office and
complained to her about Cook. According to Smith's
notes received in evidence as General Counsel's Exhibit
13, Pfeiffer reported that Cook had grabbed at his poste-
rior approximately 3 weeks earlier in the presence of
McDonald but did not touch him. He said nothing to
Cook but "inside he was hoping she would stop it." Fur-
ther, Pfeiffer reported to Smith that at an earlier time,
not specifically specified, Cook had pinched him on the
posterior and grabbed at his "front."' 7 He named wit-
nesses to the incident, including Supervisor Rodriguez,
who had suggested to Pfeiffer that he "take advantage"
of Cook. Smith's notes reflect that on the following day,
June 29, Pfeiffer came in to see if Smith was doing any-
thing about his complaint. Smith's notes reflect that she
told him he could not give her two elements necessary
for action by Smith. One was touch, and the other was a
request by Pfeiffer of Cook to quit. Moreover, she point-
ed out that she would be interested if he could remember
the day of the occurrence which included these ele-
ments. He said he would try to remember and see if he
could ascertain the dates but apparently never did.
Smith admittedly did not investigate Pfeiffer's com-
plaint. Smith explained in her testimony that she felt that
Pfeiffer's complaint was simply responsive to Avila's dis-
charge. Moreover, she stated that she knew that people
"kidded around and joked with each other," but it
became extremely serious when one party requested the
other party to stop it. In the case of Cook, Cook had
asked Avila to stop, whereas in the case of Pfeiffer, he
never contended to Smith that he had asked Cook to
stop.
Respondent's position with respect to Avila is simply
stated. Avila harassed Cook in spite of repeated requests
by Cook for him to stop. Smith's investigation through
Cook, Lopez, and Diaz established the fact of the harass-
ment which Smith deemed to be serious. Avila was dis-
charged for such harassment. Smith specifically denied
that Avila's union activity was a consideration.
Lopez impressed me as the most credible, reliable, and
disinterested witness to the Cook-Avila episode of June
18. He exhibited good recall and appeared to earnestly
relate what occurred. Diaz, on the other hand, was ad-
mittedly a friend of Avila's and appeared somewhat re-
luctant in testifying against him. Herrera also was an ad-
mitted friend of Avila and may be regarded as less disin-
terested. Moreover, since she did not work as close to
Cook that day as the other two witnesses, Lopez and
Diaz, I am unconvinced that she was able to see and
hear all that took place between Cook and Avila. Avila's
testimony of the encounter with Cook was unconvineing.
While he contended he had "made out" with Cook at
the Christmas party, he would have me believe he said
nothing to Cook of a sexual nature on June 18.
The record will support no illusions of great modesty
on the part of Cook. However, I believe her testimony
about Avila's conduct on June 18 was sincere. The fact
17 Earlier in her testimony, and prior to reference to her notes, Smith
had denied that Pfeiffer had related that Cook had touched him.
that Cook found Avila's remarks offensive and his ad-
vances unwelcome was supported by the particularly
credible testimony of Lopez as well as the more reluc-
tant testimony of Diaz. Accordingly, on this record, I
find Avila made repeated sexual remarks and advances to
Cook which she found objectionable, and which she re-
peatedly rejected with requests that he leave her alone.
There is absolutely no evidence that the Cook-Avila
episode was a "set-up" to provide a basis for Avila's dis-
charge. One may wonder about Cook's delay in report-
ing the matter to Smith, ' but it is that very delay which
precludes any inference of a conspiracy between Cook
and Respondent to provide a basis for Avila's discharge.
Hernandez' failure to discipline Avila also suggests Re-
spondent was not making a determined effort to "get"
Avila. That Smith might have been more sensitive to
Cook's complaint was understandable.
The question remains whether the record evidence
supports a conclusion that Respondent would not have
discharged Avila but for his union activities. I conclude
that it does not. The fact that there had been no dis-
charges for similar offenses is immaterial since there was
no showing that any previous offenses of a similar nature
occurred. Nor does the fact that a significant amount of
"sexual horseplay" takes place in Respondent's plant
affect the conclusion, for Cook in spite of any proclivity
to engage in such "horseplay" specifically rejected
Avila's advances on June 18, and repeatedly asked him
to leave her alone. Willingness generally to engage in
sexual banter or horseplay does not mean one must suffer
unwelcome advances of a sexual nature.
I find no evidence of disparate treatment of Avila
based on Pfeiffer's belated complaint about Cook's much
earlier conduct directed at Pfeiffer. I conclude, as did
Smith, that Pfeiffer's complaint was directly responsive
to Avila's discharge and that whatever Cook's earlier
conduct toward Pfeiffer had been it was tolerated and
was not unwelcome.
Finally, while Smith's investigation of the Cook-Avila
episode was brief and clearly incomplete to the extent
she did not consult with Hernandez, it was nevertheless
sufficient to establish the fact of Avila's misconduct.
Considering all of the foregoing, and the record as a
whole, I conclude a lawful basis existed for the discharge
of Avila and that there was no disparate treatment in his
discharge. In short, and also because Smith's denials of
union considerations in the discharge of Avila impressed
me as sincere, I conclude that Respondent has demon-
strated that Avila would have been discharged without
regard to his union activities. I therefore find no viola-
tion of Section 8(a)(3) and (1) of the Act in his dis-
charge.:
4. The discharge of Charles Pfeiffer
Pfeiffer, whose union activities have already been
mentioned herein, was discharged on August 31 for, ac-
'" Here. I credit Smith over Cook with respect to the date that Cook
reported the matter Accordingly, Cook's testimony to the effect that the
matter was reported by her to Smith at the first opportunity, about June
22, is rejected. The report was made. I find, 1 week after the episode oc-
curred.
1441
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cording to Respondent, "failure to return to work in ac-
cordance with physician's statement."' 9 The General
Counsel, on the other hand, consistent with complaint al-
legations, contends that Pfeiffer was discharged because
of his union activities in violation of Section 8(a)(3) and
(1) of the Act.
The facts leading up to the discharge of Pfeiffer are
not largely in dispute. Pfeiffer, who had been employed
by Respondent since May 18, 1981, worked as a welder
under the supervision of Robert Rodriguez. Having com-
pleted a year of work, Pfeiffer, under Respondent's poli-
cies, was entitled to 5 days of paid sick leave. Respond-
ent's policy provided, however, that no sick leave would
be paid any employee without written physician's ap-
proval indicating the days out for sickness. Respondent's
policy also provides, however, that "sick leave does not
mean you take off work when you do not feel like work-
ing, it means when you are genuinely sick and cannot
work, the company wants to compensate you for your
lost time because of your past loyalties."20 Nevertheless,
2 days of sick leave could be used at the employee's own
discretion and were designated as "employee discretion-
ary days." A 24-hour notice to the employer of an em-
ployee's determination to use one or both discretionary
days was requested under Respondent's policies but was
not mandatory. Discretionary days were not required to
be supported by a doctor's note or excuse, but a decision
to use a discretionary day was to be noted on the em-
ployee's timecard.
Pfeiffer was absent from work on August 30 in order
to keep a doctor's appointment for a premarital matter.
He advised his supervisor on the preceding Friday,
August 27, and Rodriguez had indicated the absence
would be all right as long as he brought in a doctor's
excuse when he returned. Pfeiffer kept his appointment
on August 30, and obtained from the doctor's office a
"certificate to return to work or school" showing that he
was under the doctor's care on August 30, but also
showing that he was able to return to work on August
30. The nature of illness or injury illness on the certifi-
cate was filled in "premarital." When he returned to
work on August 31, Pfeiffer surrendered the certificate
to Rodriguez, who filled out an absence report on
Pfeiffer showing the absence was excused and the reason
being "blood test."'21
Pfeiffer testified that sometime later in the day on
August 31 he was taken to Smith's office by Rodriguez
where he met with Smith, Rodriguez, and Edward Neth-
erton, night manager. Pfeiffer testified that he asked
Smith if he could have a witness, repeating, in effect, a
request he had made to Rodriguez on the way to the
office. Smith did not respond directly and replied only
that she had some questions she was going to ask him.
Pfeiffer repeated his request for a witness, but Smith re-
plied that Netherton and Rodriguez were his witnesses.
Pfeiffer testified he insisted that he wanted his own wit-
nesses. Smith responded that that was all he was going
1' The quotation is from the record of the reprimand and disciplinary
action regarding Pfeiffer completed by Smith. (R. Exh. 19.)
2O G.C. Exh. 3, p. 6.
" G.C. Exh. 7.
to get. Then she said, according to Pfeiffer, that they
were going to fire him. Pfeiffer asked what for, and
Smith asked if he was going to answer the questions they
had for him. Pfeiffer said he would not until he could
have a witness. Smith repeated that they were going to
fire him. She wrote up a termination sheet handing it to
Netherton to sign, then Rodriguez. Pfeiffer refused to
sign it. On his way out of the office with Netherton and
Rodriguez, Pfeiffer asked what he was fired for, and Ro-
driguez replied that he did not know.
Smith testified for Respondent that, when she saw Ro-
driguez' absence report and Pfeiffer's doctor's excuse
come across her desk, she noted that Pfeiffer had been
released to return to work on August 30 but had not re-
turned to work. Smith then called the doctor's office to
confirm that Pfeiffer had been released to return to work
on August 30. She was advised that he had, that he had
had an appointment at 11:30 a.m. on a premarital matter,
including a blood test. When Smith had Rodriguez bring
Pfeiffer to the office, she explained that she wanted to
ask some questions about his doctor's note that he turned
in, and Pfeiffer replied that he was not answering any
questions. Smith then started writing up the discharge
papers asking Pfeiffer again if he was sure he did not
want to answer any questions, and he again replied that
he did not. Pfeiffer also objected to Robert Rodriguez
and Edward Netherton being present. Smith wrote on
the back portion of Pfeiffer's record of reprimand that
she had called Pfeiffer in to ask him questions about his
doctor's note. She further noted thereon that he had re-
fused to answer any questions because he did not like
Rodriguez and Netherton "as witnesses." Pfeiffer refused
to read or sign the record of disciplinary action. 2 2 Smith
disputed Pfeiffer's claim that he had asked for witnesses,
testifying that he at no time had asked for witnesses and
only objected to Rodriguez and Netherton as witnesses.
She admitted that she had not talked to Rodriguez about
the matter prior to calling Pfeiffer in, and she further ad-
mitted that she had already made the decision to dis-
charge Pfeiffer before he was called in. Moreover, Smith
conceded that she was not aware that Pfeiffer had given
a 24-hour prior notice of his absence when she made the
determination to discharge him. However, she contended
that that was immaterial inasmuch as Pfeiffer had been
released to return to work on the August 30 and did not
return while, in effect, seeking to be paid for his sick
leave. If, according to Smith, Pfeiffer had told his super-
visor he was going to be absent and was going to be
absent all day, there would not have been any problem,
but by submitting the doctor's excuse and, in effect, seek-
ing pay for the time he was actually eligible to come to
work he committed an act of fraud. The record is not
clear whether Pfeiffer was eligible for employees' discre-
tionary days, but, in any event, according to Smith, he
had not sought such days. Assuming his eligibility, had
he done so, it would have made a difference. However,
since Rodriguez did not indicate on his timecard in ac-
cordance with Respondent's rules that Pfeiffer had re-
quested a discretionary day, Smith concluded that
22 R. Exh. 19.
1442
LANCER CORP.
Pfeiffer was seeking sick leave pay for the time he was
able to return to work after the doctor's appointment.
The General Counsel and Charging Party contend, in
essence, that Respondent was aware of Pfeiffer's union
activities, a fact admitted by Smith, that Pfeiffer had
given advance notice of his absence, that Supervisor Ro-
driguez had noticed no problems with Pfeiffer's absence
or his doctor's excuse, and that under the circumstances
Smith's seizure upon the absence and the doctor's excuse
to discharge Pfeiffer without even checking with Rodri-
guez revealed the pretextual nature of the discharge. Re-
spondent contends, on the other hand, that based on the
information available to Smith at the time she called
Pfeiffer and Rodriguez into her office, it appeared to
Smith that Pfeiffer was fraudulently seeking sick pay for
at least that portion of the time he was absent on August
30 after he had been released by the doctor to return to
work. Such action by Pfeiffer warranted Smith's decision
to dismiss him, and, since he refused to answer any ques-
tions about the matter when she confronted him, there
was no contradiction of the information she had and
upon which the discharge was based.
The elements cited by the General Counsel viewed in
the context of Respondent's union animus as reflected in
the other violations of the Act, and Respondent's strict
enforcement of its rules, establish the requisite prima
facie violation of the Act in Pfeiffer's discharge. Howev-
er, Pfeiffer's refusal to answer questions of Smith regard-
ing his absence and the doctor's excuse preclude me
from concluding that he would not have been discharged
but for his union activities. Based on the information
available to Smith, it appeared that Pfeiffer was making a
fradulent claim, and this conclusion was unaffected by
any advance permission given to Pfeiffer to be off from
work. Thus, a clear basis for discharge existed. It is, of
course, conceivable that Pfeiffer could have avoided the
basis for the discharge by explaining that he was not in
fact seeking pay for that portion of the day when he was
able to return to work, or notwithstanding any notation
on his timecard Pfeiffer could have contended that he
was really seeking application of a discretionary day.
That would have more clearly put to test Respondent's
good faith in the discharge. He did neither in his con-
frontation with Smith nor did he at the hearing herein.
Instead, he refused to answer questions without a witness
of his choosing, 2 3 and no mitigating circumstances of
any kind were revealed. Even the fact of his advance
notice to Rodriguez of the absence was not revealed as it
likely would have been because of Rodriguez' presence
in Smith's office during the attempted questioning of
Pfeiffer. Thus, the basis for the discharge remained unre-
futed.
It is possible that Smith was happy to have the oppor-
tunity to discharge Pfeiffer because of his union activi-
ties, but it does not make the discharge unlawful under
the Act if he would have been terminated in any event.
See, e.g., Golden Nugget, Inc., 215 NLRB 50 (1974);
Klate Holt Co., 161 NLRB 1606 (1966). The Act does
as The General Counsel at the hearing disavowed any contention of a
violation of the Act under the principles of VLRB v. J Weingarten, 420
U.S. 251 (1975), in Pfeiffer's confrontation or interview with Smith.
not protect employees from their own misconduct.
Guardian Ambulance Service, 228 NLRB 1127 (1977).
And this is true even where union animus is present. H.
M. Patterson & Son, 244 NLRB 489 (1979). In view of
the valid basis for discharge which existed, and in the ab-
sence of evidence of disparate treatment, I am satisfied
that no pretext has been established, and that, on the
contrary, Respondent has demonstrated that Pfeiffer
would have been discharged without regard to his union
activities. I therefore find no violation of Section 8(a)(3)
and (I) of the Act in Pfeiffer's discharge.
III. THE CHALLENGED BALLOTS
The ballot of Ramiro Avila was challenged by Re-
spondent because of his termination prior to the election.
I have previously found herein that the discharge of
Avila did not violate Section 8(a)(3) and (1) of the Act.
Accordingly, it is concluded that the challenge to the
ballot of Avila should be sustained.
Pete Mascorro's ballot was challenged by the Board
agent because he was not on the voting list. I have found
herein that Mascorro's discharge did not violate Section
8(a)(3) and (1) of the Act. Thus, he lacked employee
status at the time of the election, and the challenge to his
ballot must therefore be sustained.
The ballot of John Hawkins was challenged by the
Union based on the Union's contention that he was a su-
pervisor. Evidence presented by the Union reflected that
Hawkins, who did not testify herein, worked in the sheet
metal department on the first shift. It is undisputed that
he was hourly paid, but he was not the highest paid em-
ployee in the department. According to Raul Herrera, a
second-shift employee, Hawkins approved overtime for
Saturday work and initialed timecards for such overtime
work as required of supervisors under Respondent's
rules. However, Herrera was uncertain whether overtime
was cleared in advance by higher management or wheth-
er particular selection of employees for overtime by
Hawkins was cleared in advance by Hawkins. Herrera
related that sometimes Hawkins would ask him to work
overtime, and on other occasions he would ask Hawkins.
Hawkins, Herrera testified, did not operate a production
machine and largely spent his time at a desk assigned to
him in the department doing paperwork, assigning jobs,
and preparing work schedules. In fact, according to Her-
rera, Hawkins stayed I to 1-1/2 hours beyond his shift
three or four times a week to do paperwork and openly
complained of the paperwork assigned to him after a su-
pervisor left Respondent's employment. 2 4 Such paper-
work included the filling out of employee absence re-
ports although Hawkins marked out the title "supervi-
sor" on the absence report form and inserted instead the
title "leadman." Herrera also testified that Hawkins was
the highest man in terms of authority in the sheet metal
department and reported directly to Plant Manager Sam
Brown or John Garza, whom Herrera identified as a lead
production manager or engineer. When problems oc-
24 Plant Manager Brown admitted that there was no supervisor or gen-
eral foreman for the sheet metal department in June, the prior supervisor
having quit, and that he personally directed the department during that
time with Hawkins reporting to him.
1443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
curred on the night shift in the welding department,
Hawkins' instructions were to call him at home. Even
the supervision on the night shift would tall employees
to contact Hawkins at home regarding problems, Herrera
claimed. Finally, in January 1983 during inventory time
when all employees were called in to work on the day
shift, Hawkins, still according to Herrera, released a man
to go home from work for an emergency situation.
Herrera testified that Hawkins in August told him that
he could hire, fire, or reprimand employees. A similar
statement was attributed to Hawkins by McDonald and
Pfeiffer when Hawkins refused to sign a union authoriza-
tion card for them when they asked in May. Such state-
ments, however, are hearsay to the existence of actual
authority and entitled to little weight.
Respondent's position is that Hawkins was simply a
leadman without supervisory authority, and leadmen
were specifically included in the collective bargaining
unit in which the election was held. In support of the
lack of supervisory authority of Hawkins, Company
President Schroeder testified he did not consider Haw-
kins a part of management. However, he could not recall
and did not deny that Hawkins attended a supervisory
meeting at which Respondent's attorney talked to him
about the union organizational campaign. On the other
hand, Supervisor May testified that Hawkins was at such
meeting remembering that Hawkins sat right next to him.
It is the testimony of Plant Manager Brown that the
Company employs 13 supervisors, 6 or 7 general fore-
men, and roughly 13 leadmen, 1 for each department.
Brown testified that Hawkins' duty was to set up and op-
erate the machines working alongside the other people.
He insisted that Hawkins had no authority to hire or fire,
and has never done so. Moreover, he could not on his on
initiative assign overtime, all overtime being determined
by Brown. Brown conceded, however, that leadmen do
initial timecards for overtime, but such timecards are
subsequently reviewed by Brown. While leadmen do fill
out leaves of absence, they are expected to tell the em-
ployee involved that the leadman would have to see if it
would be approved.
Brown claimed that he made the schedule for the
sheet metal department which was broken up into three
areas using three leadmen, including Hawkins. Brown
testified that Hawkins had no authority to transfer work-
ers and that he received no special benefits as a leadman.
According to Brown, Hawkins had never been told that
he was a supervisor or that he had authority to hire or
fire employees and had never done so. Moreover, he had
no authority to reprimand employees. Hawkins was paid
about 85 cents per hour less than the next highest paid
employee in the department in July, Brown said. While
Hawkins did attend some production meetings held by
Brown on Monday mornings, all the other leadmen at-
tended such meetings also. However,there are also super-
visor meetings, Brown asserted, that Hawkins and lead-
men do not attend.
Section 2(11) of the Act defines a supervisor as "any
individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees,
or responsibly to direct them, or to adjust their griev-
ances, or to effectively recommend such action, if in
connection with the foregoing exercise of such authority
is not of a merely routine or clerical nature, but requires
the use of independent judgment." Possession of any one
of the specified authorities is sufficient to establish super-
visory status. NLRB v. Edward G. Budd Mfg. Co., 169
F.2d 571, 576 (6th Cir. 1948), cert. denied 355 U.S. 908
(1949). But while the existence of the powers enumerated
in Section 2(11) are to be considered in the disjunctive,
the section nevertheless "states the requirement of inde-
pendence of judgment in the conjunctive with what goes
before." Poultry Enterprises v. NLRB, 216 F.2d 798, 802
(5th Cir. 1954). "[T]he burden is on the party alleging su-
pervisory status to prove that it in fact exists." Commer-
cial Movers, 240 NLRB 288, 290 (1979).
In the instant case, there is little evidence to establish
Hawkins exercised supervisory authority. "[T]he failure
to exercise [it] may show the authority does not exist."
Laborers Local 341 v. NLRB., 564 F.2d 834, 837 (9th Cir.
1977). The only evidence of exercise of authority is
found in Herrera's testimony that Hawkins approved
overtime and initialed overtime on timecards. But Herre-
ra could not confirm that Hawkins' actions in this regard
were not previously authorized by higher management,
or that Hawkins otherwise exercised independent judg-
ment in determining overtime. Brown's uncontradicted
testimony dispelled any notion that Hawkins exercised
any independent judgment in overtime matters. More-
over, the initializing of timecards does not in itself estab-
lish one as a supervisor. Hydro Conduit Corp., 254 NLRB
433 (1981).
That Hawkins attended the supervisory meeting at
which Respondent's attorney talked to supervisors re-
garding the Union's organizing campaign suggests that
Respondent considered Hawkins to be a supervisor.
However, while suspicious, it nevertheless does not es-
tablish Hawkins' actual possession of supervisory author-
ity. Accordingly, and mindful of the need "to be alert
not to construe supervisory status too broadly because
the employee who is deemed a supervisor is denied em-
ployee rights which the Act is intended to protect"
(Westinghouse Electric Corp. v. NLRB., 424 F.2d 1151,
1158 (7th Cir. 1970), cert. denied 400 U.S. 831 1970), 1
conclude that Hawkins did not possess the authority re-
quired under Section 2(11) of the Act to constitute him a
supervisor. I therefore find that the challenge to his
ballot should be overruled.
Iv. THE OBJECTIONS
A. The Union's Objections
The Union filed 12 numbered objections to the elec-
tion. Objections I and 9 were subsequently withdrawn
by the Union. Objection 2 complained that Respondent
created an atmosphere of fear and coercion through its
campaign literature, and captive audience speeches, by
repeatedly predicting strikes, violence, loss of business,
and loss of jobs as an inevitable result of the Union's vic-
tory. No credible evidence was presented to establish
this objection, and it is found to be without merit.
1444
LANCER CORP.
Objection 3 alleges that Respondent created the im-
pression that the collective-bargaining process would be
futile and harmful to employees by making repeated pre-
dictions of bargaining difficulties, delays, loss of benefits,
and strikes. Credited evidence reflects that Supervisor
May told employees that Respondent would not sign a
contract with the Union, thereby indicating the futility of
the collective bargaining process. Supervisor May's com-
ment in this regard has been found to have violated Sec-
tion 8(a)(1) of the Act. Violations of Section 8(a)(1) a
fortiori constitute objectionable conduct affecting the re-
sults of the election. Dal-Tex Optical Co., 137 NLRB
1782 (1962). Accordingly, merit is found to Objection 3.
Objection 4 contended that Respondent threatened em-
ployees with a loss of benefits, more onerous working
conditions, and other reprisals if they elected the IUE as
their bargaining representative. No evidence was present-
ed to support this objection, and it is found to be without
merit.
The Union's Objection 5 alleged that Respondent
threatened that work rules would be more strictly en-
forced because of the employees' organized union activi-
ties. Credited evidence establishes that Supervisor Rodri-
guez did, in effect, communicate to employees that
working rules would be more strictly enforced because
of the union organizing effort. Rodriguez' action in this
regard was found to have violated Section 8(a)(1) of the
Act. Merit is therefore found to this objection.
It is contended in the Union's Objection 6 that Re-
spondent threatened employees with a loss of access to
management and a loss of harmonious working condi-
tions if they voted in favor of union representation. No
evidence was presented to support this objection, and it
is found to be without merit.
The Union's Objection 7 alleges that Respondent inter-
rogated employees regarding their union sympathies and
activities. Based on credited evidence, it has previously
been concluded herein that Supervisors Hernandez and
May did interrogate employees regarding their union ac-
tivities during the critical period. Accordingly, it is
found that the Union's Objection 7 has merit.
Objection 8 claims that Respondent restricted the
normal movement of certain employees and otherwise
interfered with employees' rights to solicit their cowork-
ers on behalf of the Union. No evidence was presented
to establish this allegation, and it is found to be without
merit.
The Union's Objection 10 contends Respondent grant-
ed discretionary wage increases to certain employees and
promised to implement additional wage increases after
the election in order to discourage employees' support
for the Union. It has already been found herein that Re-
spondent's grant of wage increases was consistent with
its prior practice and not unlawful. Accordingly, it is
concluded that the Union's Objection 10 must be found
to be without merit.
The Union's Objection 11 asserts that Respondent en-
gaged in surveillance and created the impression of sur-
veillance of employees' union activities. Evidence to sup-
port the allegations is based upon the conduct of supervi-
sor Hernandez which was found herein to have consti-
tuted a violation of Section 8(a)(1) of the Act. It is there-
fore found that Objection I has merit.
Objection 12 contends that Respondent unlawfully dis-
ciplined, discharged, and otherwise discriminated against
certain employees because of their union sympathies and
activities, and for the purpose of discouraging such sym-
pathies and activities among other employees. The objec-
tion is premised on the discharges of Avila and Mascorro
and the suspension of McDonald during the critical
period. The suspension of McDonald and the discharges
of Avila and Mascorro have been found herein not to
have been unlawful. Accordingly, the Union's Objection
12 is found to be without merit.
B. The Respondent's Objections
Respondent filed two timely objections to the election,
the first claiming that the Union's observer and various
supporters of the Union engaged in electioneering at the
polls by wearing and/or displaying buttons proclaiming
their support for the IUE, while the second objection
contended that the union supporters engaged in election-
eering near the polls and exhorted employees standing in
line at the polls to cast their votes for the Union.
With respect to the first objection, John Garza, who
served as Respondent's observer during the election, tes-
tified that at the beginning of the election Ramiro Avila,
the Union's observer, wore a blue button approximately
the size of a silver dollar containing the legend "I'm
Proud to be I.U.E." The Board agent told Avila to take
the button off inasmuch as he was not supposed to have
one on. Avila took the button off and laid it on the table
in front of him face up. Individuals going to vote passed
by his table. The button remained face up for approxi-
mately 5 minutes when the Board agent noticed the
button and told Avila he was not allowed to have it. At
that time Avila turned the button face down. Subse-
quently, however, a voter coming through the line
reached down and picked the button up, turned it face
up on the table, and told Avila to "be proud." The
button then remained face up again for about 45 minutes
until the Board agent again noticed it and told Avila to
put it away. Garza stated that approximately 106 em-
ployees voted during the morning session.
Garza further testified that during the afternoon ses-
sion Alice Camacho came through the voting line wear-
ing an IUE button, apparently identical to Avila's. Fol-
lowing her voting, Camacho sat down in the voting area
and observed the proceedings for approximately 5 min-
utes until the Board agent noticed her and asked her to
leave. Also during the afternoon session, Raul Hernandez
voted while wearing an IUE button. Moreover, after he
voted, Hernandez came back to show another employee
where the voting was taking place and where to stand in
line. At that time he was still wearing the IUE button.
Garza's testimony in the foregoing respect is not contra-
dicted and is credited.
Evidence to support Respondent's second objection
was revealed in the testimony of Sam Brown. Brown tes-
tified that around the midpoint of the morning session of
voting, he had occasion to go to the shipping area where
he observed Raul Hernandez and Pete Mascorro stand-
1445
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing at the end of a loading dock approximately 10 feet
away from the end of the voting line. Brown stated he
heard Mascorro and Hernandez hollering and talking to
employees lined up to vote and he heard them say
"Vote, Vote, Vote." Approximately 35 to 40 people
were in the voting line at the time, according to Brown.
Brown related that Hernandez and Mascorro were
present as far as he could tell for only 2 or 3 minutes.
Both of Respondent's objections are based on the
proposition that the Union had improperly engaged in
electioneering at or near the polls. Such electioneering,
Respondent argues, has been long held to be a basis for
setting an election aside. I have difficulty concluding,
however, the conduct complained of can be regarded as
electioneering. All Mascorro and Raul Hernandez did,
even assuming, arguendo, their status as agents for the
Union, was to encourage employees to vote. The evi-
dence does not establish that they solicited employees to
vote one way or another. Moreover, their conduct was
of short duration according to the evidence and extreme-
ly unlikely to have had an impact upon the election.
Their conduct in no way is comparable in gravity or
degree to the conduct of the leadman in Claussen Baking
Co., 134 NLRB 111 (1961), cited by Respondent. There
the leadman had solicited newly hired employees on
their way to the polls to vote against the Union. Here, as
stated, employees were not shown to have been solicited
to vote one way or another by Mascorro or Hernandez
in the morning session. In this regard, the case is also
unlike NLRB v. Carroll Contracting & Ready Mix, 636
F.2d 111 (5th Cir. 1981), also cited by Respondent.
There, two former employees had stationed themselves
in a position where they could urge employees waiting
in line to vote for the union by signs on their hats and
gesturing to ballots marked "Vote Yes" pinned to their
shirts. Although Hernandez, wearing a union button, ac-
companied another employee to the polling area during
the afternoon session, there was no showing he solicited
him to vote any particular way. Accordingly, I find no
merit to Respondent's objection based upon the conduct
of Mascorro and Hernandez.
Avila's conduct with the union button during the
morning session was no more objectionable. His conduct
was simply equivalent to the wearing of the button
during the election, and the Board has held that an ob-
server's wearing a union button is not in itself a sufficient
basis for setting an election aside. Nestle Co., 248 NLRB
732 (1980). See also EDS-IDAB, Inc. v. NLRB., 666 F.2d
971 (5th Cir. 1982); NLRB v. Laney & Duke Storage Co.,
369 F.2d 859, 864-865 (5th Cir. 1966). Nor does Cama-
cho's presence in the polling area for a few minutes after
voting and while wearing a union button constitute ob-
jectionable electioneering. Her presence was not disrup-
tive, there was no showing that any voters were present
during the 5 minutes she sat in the polling area, and she
left when asked by the Board agent.
In view of the foregoing, I shall recommend that Re-
spondent's objections be overruled in their entirety.
CONCLUSIONS OF LAW
1. The Respondent, Lancer Corporation, is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, International Union of Electrical, Radio
and Machine Workers, AFL-CIO-CLC, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By surveilling the union activities of its employees,
by creating the impression of surveillance of the union
activities of its employees, by interrogating employees
regarding their own and other employees' activities on
behalf of the Union, by telling employees Respondent
would never sign a contract with the Union should the
employees select the union to represent them, and by
threatening employees that it would more strictly en-
force its rules as a result of employees' union activities,
Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(aXl) of
the Act.
4. The unfair labor practices enumerated above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
5. Respondent did not violate Section 8(a)3) and (1)
of the Act in suspending its employee Jill McDonald
Pfeiffer or in discharging its employees Pete Mascorro,
Ramiro Avila, or Charles Pfeiffer.
6. Respondent has not violated the Act in any other
manner not found above.
7. The Union's Objections 3, 5, 7, and 11 to the elec-
tion in Case 23-RC-5080 which are coextensive with the
unfair labor practices found above are meritorious and
must be sustained while the remaining objections of the
Union are found to be without merit and must be over-
ruled.
8. Respondent's Objections I and 2 to the election in
Case 23-RC-5080 are without merit and must be over-
ruled.
9. The challenges to the ballots of Pete Mascorro and
Ramiro Avila are found to be valid and must be sus-
tained.
10. The challenge to the ballot of John Hawkins is
found to be invalid and must be overruled.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(aX1) of
the Act, I shall recommend to the Board that Respond-
ent be ordered to cease and desist therefrom, and to take
certain affirmative action designed to effectuate the poli-
cies of the Act to include the posting of an appropriate
notice to employees. Having found the challenges to the
ballots of Pete Mascorro and Ramiro Avila valid, it is
recommended to the Board that the challenges be sus-
tained and that such ballots not be counted. On the other
hand, having found that the challenge to the ballot of
John Hawkins was invalid, it is recommended that the
challenge be overruled and the ballot be counted. It is
further recommended that should the ballot of John
Hawkins, after opening and counting, result in a majority
of the valid ballots cast being cast against representation,
and because of merit being found to the Union's Objec-
1446
LANCER CORP.
tions 3, 5, 7, and 11, the election in Case 23-RC-5080 be
set aside and a new election directed.
On these findings of fact and conclusions of law on the
entire record, I issue the following recommended 2 5
ORDER
The Respondent, Lancer Corporation, San Antonio,
Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Surveilling the activities of its employees on behalf
of International Union of Electrical, Radio and Machine
Workers, AFL-CIO-CLC, or any other labor organiza-
tion.
(b) Creating the impression among employees that
their union activities are under surveillance.
(c) Threatening employees that work rules would be
more strictly enforced because of the employees' union
organizing activities.
(d) Interrogating employees concerning their own and
other employees' union activities.
(e) Telling employees that it would not sign a contract
with the Union should the employees select the Union to
represent them.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Post at its San Antonio, Texas facility copies of the
attached notice marked "Appendix."2 6 Copies of the
*' If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
26 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
notice on forms provided the by the Regional Director
for Region 23, after being signed by Respondent's au-
thorized representatives, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found herein.
IT IS FURTHER ORDERED that Case 23-CA-5080 be
severed from the four complaint cases and that it be re-
manded to the Regional Director for Region 23; that the
challenges to the ballots of Pete Mascorro and Ramiro
Avila, which were cast in the representation election
conducted in Case 23-RC-5080 on July 2, 1982, be are
sustained; that the challenge to the ballot of John Haw-
kins be overruled; and that the Regional Director be di-
rected to open and count the challenged ballot of John
Hawkins and to prepare and serve on the parties a re-
vised tally of ballots.
If the Petitioner receives a majority of valid votes cast,
the Regional Director shall issue a certification of repre-
sentative. If the Petitioner does not receive a majority of
the valid votes cast, according to the revised tally, it is
further ordered that the election held on July 2, 1982,
among certain employees of Respondent's San Antonio,
Texas facility be set aside and that the Regional Director
be directed to conduct a second election at such time as
he deems that circumstances permit the free choice of a
bargaining representative.
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1447