Magnesium Casting Co., Inc.

National Labor Relations Board - Board Decisions

Jul 17, 1980

250 N.L.R.B. 692 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Magnesium Casting Company, Inc. and United Elec-
trical, Radio and Machine Workers of America
(UE), Local 262. Cases 1-CA-13882, 1-CA-
14347, 1-CA-14383, 1-CA-14443, I-CA-
14728, and 1-CA-14925
July 17, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On November 20, 1979, Administrative Law
Judge Abraham Frank issued the attached Decision
in this proceeding. Respondent filed exceptions and
a supporting brief, and the General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Magnesium Casting Company, Inc., Hyde Park,
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis for reversing his findings.
2 In adopting the Administrative Law Judge's conclusion that Re-
spondent violated Sec. 8(a)(4) and (I) of the Act by issuing disciplinary
warnings to employees Melendez and Robinson because the)y attended a
Board hearing, we find it unnecessary to rely on E H. Limited d/b/a
Earringhouse Imports, 227 NLRB 1107 (1977) (Member Penello dissent-
ing), enforcement denied 600 F2d 930 (DC Cir. 1979) The record in
this case shows that Respondent routinely gave employees permission to
leave the plant during working hours to go to court or to attend to per-
sonal business, that such permission was never denied, and that employ-
ees were not warned or disciplined for requesting such permission or for
leaving the plant under such circumstances Thus, Supervisor Dais ini-
tially gave Melendez and Robinson permission to leave the plant when
they told him they were going to a hearing at the National Labor Rela-
tions Board Respondent's subsequent discipline of these employees for
having attended the Board hearing. in the circumstances here. constituted
disparate treatment and, therefore, discrimination within the meaning of
Sec 8(a)(4) of the Act.
I We have modified the Administrative l.aw Judge's recommended
Order to include the broad remedial iorder paragraph which he inadvert-
ently omitted. We have also modified his notice to conform ith his rec-
ommended Order
Massachusetts, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Insert the following as paragraph 1(r):
"(r) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the
Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONA. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate our
employees concerning their union activity or
the union activity of other employees.
WE WILL NOT threaten directly or impliedly
that we will close our plant if the Union repre-
sents our employees.
WE WILL NOT threaten to discharge employ-
ees or deny them raises because of their union
activity.
WE WILL NOT threaten loss of jobs through
union causation in the event the Union repre-
sents our employees.
WE WILL NOT restrain and coerce our em-
ployees from engaging in union and protected
concerted activity by informing them that the
discharge and discipline of employees as a
result of the Union's campaign would not have
occurred if the employees had not tried to
bring the Union into the plant.
WE WILL NOT create the impression of sur-
veillance by informing our employees that
their cars had been seen at union meeting
places, that we had heard that they had signed
union cards, and that we would know who
among our employees signed union cards.
WE WILL NOT restrain and coerce our em-
ployees by suggesting that employees give tes-
timony in our interest at a Board proceeding.
WE WILL NOT restrain and coerce employ-
ees by threatening severe punishment if they
attend a Board hearing involving their self-in-
terest.
WE WILL NOT coercively direct employees
not to sign union cards.
WE WIL L NOT solicit employees not to sign
union cards or attend union meetings because
of our generous leave policy.
WF WIl.l. NOT promise employees considera-
tion for promotion contingent upon the defeat
250 NLRB No. 107
692
MAGNESIUM CASTING COMPANY
of a union in its campaign to represent our em-
ployees for the purposes of collective bargain-
ing.
WE Wlltl NOT publicly announce an unpub-
licized policy of granting free legal aid to em-
ployees for the purpose of dissuading them
from adherence to a union.
WE WILl. NOT maintain and promulgate an
overly broad and discriminatorily applied no-
solicitation, no-distribution rule.
WE WILL NOT discharge, suspend, or other-
wise discriminate against our employees be-
cause of their union and protected concerted
activities.
WE WILL NOT discriminate against our em-
ployees by issuing disciplinary warning notices
because they have attended a Board hearing
involving their self-interest.
WE WILL NOT engage in surveillance of
union activity by conspicuously surveilling the
passing out of union leaflets.
WE WILL NOT discriminate against employ-
ees because of their union activity by granting
them less remunerative work and denying
them overtime.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed to them in
Section 7 of the Act.
WE WILL, upon request, recognize and bar-
gain collectively, effective June 14, 1978, with
United Electrical, Radio and Machine Work-
ers of America (UE), Local 262, as the exclu-
sive bargaining representative of our employ-
ees in the below-described appropriate unit
and, if an agreement is reached, embody such
agreement in a written, signed contract. The
appropriate unit is:
All full-time and regular part-time produc-
tion and maintenance employees including
leadmen and plant clericals employed by
Magnesium Casting Company, Inc. at its
Hyde Park, Massachusetts location, exclud-
ing all office clerical employees, professional
employees, guards and supervisors as de-
fined the Act.
WE WILL offer Walter Escribano, Leonard
Lamkin, John Manoloulis, Sherman Brown,
and Jimmy Eason immediate and full reinstate-
ment to their former jobs or, if those jobs no
longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or
other rights and privileges previously enjoyed,
and WE WILI. make them whole for all losses
suffered as a result of our discrimination
against them, with interest.
WE WILL make whole, with interest,
Charles Hatcher, Francisco Melendez, Juan
Rodriguez, Jerome Robinson, Efstathio Sakals,
Eric Tolland, Jose Rosa, and Harry Authelet
for all losses suffered by them as a result of
our discrimination against them.
WE WIL L rescind and remove from the per-
sonnel records of Charles Hatcher, Juan Ro-
driguez, Jerome Robinson, Efstathio Sakals,
Eric Tolland, and Jose Rosa notices of suspen-
sion, dated July 17, 1978.
WE WILl. rescind and, if physically includ-
ed, remove from the personnel records of
Charles Hatcher and Francisco Melendez evi-
dence of disciplinary warnings relating to their
absence from their work locations during their
break period during the early part of April
1978.
WE WILL rescind and, if physically includ-
ed, remove from the personnel records of
Jerome Robinson and Francisco Melendez evi-
dence of disciplinary warnings relating to their
attendance at a Board hearing on July 18,
1978.
WE WILL rescind and remove from our bul-
letin boards and our employee handbook our
overly broad and discriminatorily applied no-
solicitation, no-distribution rule.
MAGNESIUM CASTING COMPANY,
INC.
DECISION
ABRAHAM FRANK, Administrative Law Judge: The
original charge in these consolidated cases was filed on
November 21, 1977, and the original complaint issued on
January 5, 1978. Thereafter, charges and amended
charges were filed on various dates from December 29,
1977, to and including September 6, 1978. A final com-
plaint, amended during the course of the hearing, issued
on October 19, 1978. In its final form the complaint al-
leges violations of Section 8(a)(1), (3), (4), and (5) of the
Act. The hearing was held on various dates between Oc-
tober 30 and November 29, 1978, at Boston, Massachu-
setts. All briefs filed have been carefully considered.
At issue in this case are questions whether the Re-
spondent discharged leading union adherents because of
their union and protected concerted activities, issued
warnings and suspensions to other employees, and en-
gaged in acts of interference, restraint, and coercion, all
for the purpose of defeating the Union in its organiza-
tional campaign. Also at issue are questions whether Re-
spondent unlawfully refused to bargain with the Union
and whether a bargaining order is warranted under the
doctrine of V.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575 (1969).
DECISIONS OF NATIONAI LABOR RELATIONS BOARD
FINI)INGS 1: FACI ANI) CONCLUSIONS 01: LAW
A. Preliminary Findings and Conclusions
Respondent, a Massachusetts corporation, is engaged
in the business of manufacturing, selling, and distributing
castings, electrical fixtures, and related products at its
principal office and Place of business at 98 Business
Street, Hyde Park, County of Suffolk, Massachusetts.
The Respondent admits, and I find, that it is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
The Charging Party, herein called the Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
B. The Beginning of the Union's Campaign
Leonard Lamkin, a machine operator in Respondent's
die casting department, made the first contact with the
Union in June 1977. He initially spoke to Will Jones,
field organizer. Jones told Lamkin to go back to the
plant and find out if the other employees were interested
in the Union. Lamkin spoke to employees in the die cast-
ing and maintenance departments about the need for a
union at Respondent's plant. About the end of July or
the first part of August he called the Union a second
time and spoke to Union Organizer Philip Mamber. On
August 6, 1977, Mamber met with Lamkin and die cast-
ing department employees Charles Moore, Nat Ran-
dolph, Larry Stoat, and Assistant Foreman Raymond
Childs.
The Union conducted its campaign by visiting employ-
ees in their homes, handing out union membership cards
at the plant gate, and, beginning on November 17, 1977,
distributing leaflets in front of the plant gate. At the time
of the hearing, the Union had been distributing leaflets
two or three times a week during the preceding year.
At times material herein Respondent employed a
number of employees of Spanish, Puerto Rican, and
Greek origin who could neither read nor speak English.
The union membership cards are printed in English and
Spanish. Beginning on April 24, 1978, the Union distrib-
uted leaflets printed in Greek.
C. The Discharges of Walter Escribano, Leonard
Lamkin, John Manoloulis, Pedro Milan, Sherman
Brown, and Jimmy Easton
I. Walter Escribano: Escribano, who had previously
been employed by Respondent, returned to his job as a
die-cast operator in September 1975, and worked until
his discharge on October 28, 1977. Escribano attended
the union meetings of September 24 and October 2, 1977.
He was an in-plant organizer and would report to work
20 or 30 minutes before his shift to talk to other employ-
ees about the Union. He spoke to the employees on this
subject during his break time and when he went to the
locker room to change clothes. On one occasion Assist-
ant Foreman Clarence Thompson was present when
Escribano informed an employee in the locker room that
there would be a union meeting the following Sunday.
Escribano assisted Mamber by giving the latter phone
numbers of employees so that Mamber could call them at
home. Die-cast operators fall into the categories of train-
ees, Class C, B, and A, A being the highest classification.
Escribano was a good A operator.
Respondent's die-cast machines hold a die mold. The
die-cast operator ladles metal from a furnace into the die
of the machine. When the casting cycle is completed, the
machine opens and the operator removes the casting and
repeats the process. A single casting may contain 10, 12,
or 20 pieces. Each cycle of the machine is called a shot.
The shots are recorded electrically on a meter at a panel
on the foreman's desk. At the end of the day the fore-
man records the number of shots for each machine and
operator.
Die-cast operators are hourly paid at a rate ranging
from $4.02 for a trainee to $4.50 for a Class A operator.
They are not paid for sick leave. To encourage maxi-
mum production Respondent utilizes an incentive piece
rate system for operators. Each job is assigned a set
piece rate per hour, based on a prior timestudy for that
particular job. An operator may increase his pay by pro-
ducing more shots per hour than the set fixed rate. If the
set fixed rate is 50 shots per hour, an operator who pro-
duces 55 shots per hour will be paid at his regular rate
for that hour plus an additional 10 percent. Thus, under
the incentive system an employee who has worked 40
hours a week may actually be paid on the basis of 40-
plus hours for that week, depending upon the count of
his production.
When an operator punches in at the timeclock, he
punches a day or workcard to establish his presence in
the plant on paid working time. He is then assigned to a
machine. When the machine heats up and is operating
properly the operator punches out his workcard and
punches his production or incentive card. If the machine
becomes inoperative or operates ineffectively the opera-
tor returns to his workcard so that he will receive at
least his hourly pay even though he is not producing
shots. On occasion a foreman will designate a particular
job as an average job. In that event the operator will re-
ceive the average incentive rate that he had received the
previous week. Thus, an operator may be paid on the
basis of: (I) his regular hourly rate derived from his day
or workcard plus his incentive hourly rate based on the
number of shots produced during the hours spent in
actual production or (2) an average rate based on his
average incentive rate for the previous week.
A machine may produce pieces which are defective
and cannot be shipped to Respondent's customers. In-
spectors regularly check the production of the machines
and keep a record of good and bad pieces. If an operator
has time to notice that his shot is defective he will dis-
card that shot by throwing it back into the melting pot.
All shots are recorded on the foreman's meter for that
job and the operator is paid for defective as well as good
shots. The operator places his finished castings in a
basket, which also contains a master ID card identifying
the name of the operator, the date, the number of the
machine, the specific job, and the last count of shots pro-
duced. From the diecasting department the shots prog-
ress to the trim department for trimming of rough edges,
h694
MA(iNJFSIUM CASTIING COMPANY
to first inspection, to sanding, and finally to a polishing
operation.
The diecasting department operates 24 hours a day in
three shifts. The first shift is 7 a.m. to 3 p.m.; the second
from 3 p.m. to II p.m.; and the third from 11 p.m. to 7
a.m. Each shift has a foreman and an assistant foreman
who have total authority over the operators and are stat-
utory supervisors.
Mel Emack is the supervisor of the diecasting depart-
ment. Emack checks his attendance records about once a
week. Warnings may be issued to employees for poor at-
tendance, poor work, insubordination, and leaving the
job without permission. Usually, a verbal warning pre-
cedes a written warning. The degree of discipline is de-
pendent on the nature of the offense and is discretionary
with foremen, assistant foremen, and higher management.
At the time of his discharge Escribano was working
on the second shift under Foreman Darnell Johnson and
Assistant Foreman Clarence Thompson.
On October 28, 1977, Escribano was assigned to ma-
chine 3 on a job designated as "SLB I and SLB 2," each
shot containing eight pieces or cavities. The incentive
rate for that job was 54 shots per hour. Under the incen-
tive system in effect the operator on that job would be
paid an incentive rate for every shot over 50 per hour.
Foreman Johnson's information sheet for October 28,
1977, shows that Escribano produced 542 shots in 8.0
hours, presumably based on Johnson's meter count.' By
dividing 54 into 542 or 543 an incentive rate was due
Escribano for 10 hours work.
Machine 3 was used for the SLB I and 2 job over a
period from October 26 to November 2, 1977. During
this period Escribano and other operators had been as-
signed to this machine for the same job. The record
shows a fairly wide range of shots produced, from 442
shots in 8.0 hours by Alley to 616 shots in 7.5 hours by
C. Hatcher. Escribano and Hatcher, both A operators,
were consistently high producers during this period. Ma-
chine 3 appears to have had mechanical problems on Oc-
tober 27 and 28. It was inoperative for the shift preced-
ing Escribano's second shift on October 28. There were
problems with the machine on October 31 and Novem-
ber I and 2. It was inoperative for two shifts on Novem-
ber 2.
Hatcher, who had worked on machine 3 on October
26 and 27, testified that the machine was operating
poorly and that he threw a majority of his shots into the
melting pot because they were not good. Nevertheless,
he remained on his incentive card and received credit for
the defective castings.
Don Beach, Respondent's electrician, worked on ma-
chine 3 in mid-October, prior to Escribano's discharge,
but did not fix the meter on that machine and several
other machines until after Escribano's discharge. Orlando
Victoria, another electrician, had worked on the machine
prior to Escribano's discharge. Two maintenance em-
ployees, Nino Piccirilli and Harvey Kamps, were ob-
served working on machine 3, by Hatcher 2 or 3 days
after the discharge of Escribano.
I Emack testified. however. that the meter count a', 543
Escrihano testified that machine 3 was cold when he
started working on October 28 and the plunger was
sticking. His shots were defective and he threw them
back into the melting pot. He continued having difficulty
with the machine for about an hour.
It was common knowledge in the diecasting depart-
ment that an operator could manipulate the switch on a
machine so that the meter would register more shots
than the operator actually produced. This was accom-
plished by turning the machine to manual and flicking
the switch back and forth. Emack was fully aware that
the die-cast operators could engage in this practice and
under the incentive system receive more than their just
pay. It was his policy to order a count of the castings
once a month on an informal basis.2 The physical count
of castings would then be compared to the count regis-
tered on the foreman's meter for the operator involved.
Emack customarily warned the operators a week or 2
weeks in advance of his count, "Hey, look, it's coming."
His purpose was not to "catch" an operator with a short
count, but to deter operators from manipulating the ma-
chines to register more than the actual shots produced
Apparently, for at least 10 years prior to October 2x.
1977, this policy was effective. Emack had never during
this period been confronted with an excessively short
count. Indeed, the record shows that only one employee,
Eugene Bonds, had been discharged by Respondent for a
short count. This occurred in 1968. Bonds was subse-
quently rehired.
A short count could result because the operator had
manipulated the machine to register a shot without actu-
ally producing one or had honestly discarded a defective
shot which was registered on the meter.
Sometime early in October 1977, and again on Friday
morning, October 28, 1977, Cliff Thornton, the plant
manager, complained to Emack about inflated counts.
Thornton's records and the feedback from the sales de-
partment indicated to him that the die-cast operators
were claiming more castings than actually produced.
Emack instructed Darnell Johnson, foreman on the
second shift, to warn the employees that a count was
coming. Emack may have told Johnson to warn his op-
erators 2 or 3 days or a week prior to October 28, 1977,
or on that very evening. Johnson testified that he did, il
fact, warn all his operators that if Johnson caught an op-
erator cheating the operator would be fired on the spot.
At or about 9 a.m., October 29, 1977, Emack told
Chief Inspector George Hicks to check most of the ma-
chines for the previous night to determine the accuracy
of the registered counts. Hicks counted the castings from
a majority of the machines and gave Emack the results.
Later that day Emack asked Hicks to recheck the count
on two machines, Escribano's machine 3 and machine 7,
operated by Richard Hardman. As indicated above,
Escribano's machine 3 was metered at 542 or 543 shots,
not a particularly high count for that job. Foreman
2 Emack testified initially, however, that at time', material to this case
he had conducted counls more than once ai month. pshibl) three or fur
time, a monlth In later teslimony, he lateid Ihat he did not remenber
how often he had conducted counil, prior to (kOclohr 28. 1977. but the,
were prohahl, around once a molllh
F tCISI()NS ()F NAII()ONAL I A()R RELATIONS BOARD
Eddie Allen assisted Hicks in recounting the production
of machine 7. Hicks and Eleanor Justice, an inspector in
the trim department, recounted the production of ma-
chine 3.:1 The count for Escribano's production on ma-
chine 3 was 469, short 73 or 74 castings. The count on
machine 7 was also found to be short. Escribano's miss-
ing 73 or 74 castings represented 1.4 hours of pay or
close to $6.
When Emack discovered the short count he reviewed
the foremen's information report sheet for Friday, Octo-
ber 28, for about 5 minutes. He testified that he saw
"nothing wrong." Johnson was not available for consul-
tation on Saturday, October 29, and was not consulted
by Emack. On the same day at or about 3 p.m., Emack
sent telegrams to Escribano and Hardman, discharging
them for cheating.
Escribano did not receive the telegram and did not
learn of his discharge until he called Emack on Monday,
October 31, prior to his scheduled shift of 3 p.m.
Lamkin learned of Escribano's discharge Sunday eve-
ning, October 30. The following morning, Lamkin called
Mamber and helped organize a group of diecasters to
protest Escribano's discharge. On Thursday, November
3, about 20 diecasters from the first and second shifts met
with Vice Presidents Harvey Berman and Neil Wolfson
in the former's office. When the employees walked into
Berman's office, accompanied by Escribano, Berman said
to Escribano, "I don't have to talk to you. You are
fired." Berman then asked the employees what they
wanted. They asked why Walter Escribano had been
fired. Berman said that Escribano was cheating and
noted that Escribano had previously been warned about
absenteeism. Escribano asked if there was any proof that
he had cheated. Berman replied that Berman had said it
and that was proof enough.
Following the meeting Escribano spoke to Berman pri-
vately. In this conversation Berman said, "Listen,
Walter. You don't need this job. You are smarter than
the average guys over here. You could become a fore-
man except we're up to here with you."
2. Leonard Lamkin: As indicated above, Lamkin, em-
ployed by Respondent from September 1976 until his dis-
charge on November 8, 1977, initiated union activity at
the plant. Assistant Foreman Raymond Childs was pres-
ent at the first union meeting on August 6, 1977, when
Lamkin and several other employees met with Mamber.
Foreman Adam Smith was also present in the locker
room following the discharge of Escribano when em-
ployee Eugene Bonds suggested to Lamkin that there
would be no change in the piece rate if the Union got in.
Lamkin said it was a negotiable item. Lamkin helped or-
ganize the October 30 meeting in Berman's office to pro-
test the discharge of Escribano. He spoke out at that
meeting on behalf of Escribano and was identified by
Berman for Wolfson when the latter asked, "Who are
you?"
Absenteeism is a longstanding problem in the diecast-
ing department. About 15 employees were discharged
for absenteeism in 1977 and about 10 or 11 in 1976. The
discharge of an employee for excessive absenteeism is
' Based on Ihe credited iestimron of Justice. For the resolulion of
credibility on this point see sec D, below.
discretionary with Emack. In exercising his discretion
Emack takes into consideration the employee's length of
employment, his efficiency and productivity, sickness,
the employee's practice of calling in to notify Respond-
ent of his absence, an employee's personal problems, and
whether the employee has made an effort to talk to
Emack about them. If an employee does not call in the
assumption is that he does not have a good reason to be
absent.
On November 7, 1977, Emack reviewed his attendance
book and discovered that Lamkin had been absent about
26 or 27 days during the current year. A lot of the days
were Mondays and Fridays. Emack had issued a written
warning to Lamkin on August 15, 1977, with the nota-
tion, "You have been absent from work 4 days since va-
cation. Continued absence will be cause for dismissal."
Emack determined to discharge Lamkin for excessive ab-
senteeism.
A meeting of production employees was scheduled for
7 a.m. on November 8. Prior to that meeting Emack in-
formed Berman that Emack was discharging Lamkin.
Berman opened the November 8 meeting with a ques-
tion, "Is Lenny Lamkin here?" Several employees re-
sponded, "No." Berman then said, "He's gone." Subse-
quent to that meeting Emack sent Lamkin a telegram
firing him for absenteeism. However, Lamkin had al-
ready learned of his discharge through another employ-
ee's phone call.
That afternoon Lamkin met with Berman and Emack
in the former's office. Berman told Lamkin that he was
discharged for absenteeism. Emack produced the attend-
ance book and pointed out that Lamkin had missed a lot
of days. Lamkin explained that he had had problems
with stomach pains and had taken a physical examination
at the Harvard Community Health Plan to discover the
cause. Berman told Lamkin, "We don't want any sick
people working in the plant. If you are really sick, we
don't want you working here. But if you can bring in
records to prove that you are not sick, I'll either hire
you back on the day shift in die cast or day shift in an-
other department." Berman also wanted to know why
Lamkin liked working in the diecasting department.
Berman pointed out that those workers were not his
peers and asked why a person like Lamkin would not
like to go to college rather than working in Respondent's
diecasting department.
The following week Lamkin returned to the plant with
his medical records, comprising the results of physical
examinations at the medical center. The records did not
show any physical cause for Lamkin's complaint of stom-
ach problems. Berman looked at the records quickly and
said, "So you're not sick. So why were you out all those
days? F- you, Lenny, I don't have to talk to you,
you're fired, get out of my office."
Adam Smith, Lamkin's foreman, was not consulted by
Emack prior to Lamkin's discharge. Smith testified that
Lamkin was a good operator when he was in, but that he
was absent a lot. Smith had used Lamkin as a relief man,
a job that required experience and a pretty good opera-
tor. Smith had never recommended that an operator be
discharged for excessive absenteeism. Lamkin was a B
(69
MAGNESIUNM CASTING COMPANY
operator. At the time of his discharge he was told by
Emack that Emack had reviewed Lamkin's records the
previous August and had given him a warning instead of
a promotion to Class A operator.
Emack had reviewed the attendance record of employ-
ees other than Lamkin on November 7, but did not re-
member whether any other employee had a record of ex-
cessive absenteeism. In fact, the evidence reveals that a
number of employees had been absent an unacceptable
number of days during the period from December 1975,
to the date of the hearing.
Joseph Bowden was warned about absenteeism on De-
cember 15, 1975, and March 29, and August 30, 1976.
Between the middle of January 1976 and the beginning
of March 1976, Bowden had been absent 6 days. On
some of these days Bowden had not reported that he
would be absent. On March 3, 1976, Bowden was pro-
moted from Class C to Class B operator. Levada Davis
was discharged for poor attendance on September 25,
1975. He was subsequently reemployed, but his attend-
ance continued to remain poor. Davis was laid off for
lack of work on June 7, 1976, and quit without notice on
August 13, 1976. On November 8, 1977, Ralph Alley
was warned that future absenteeism would result in his
dismissal. He was given a final warning on January 30,
1978, and was warned again on September 9, 1978. Alley
had a number of personal problems, including family
problems. In evaluating Alley's attendance record
Emack considered Alley's problems as extenuating cir-
cumstances. Rodgers Blue, who had been discharged in
August 1973 for absenteeism, was apparently reemployed
and discharged again on February 22, 1977. He was
reemployed again on November 3, 1977. Blue received a
final warning for absenteeism on January 30, 1978. As of
the date of the hearing Blue had been absent 38 days in
1978, of which 8 clays were Mondays; 25 days of absence
were due to an automobile accident. Gerald Scherer re-
ceived a final warning on April 27, 1976, and was dis-
charged on October 4, 1976. Between these dates
Scherer had been absent 19 days. During Scherer's term
of employment of about 14 or 15 months he had been
absent 30 days. In May 1976, Robert Roscoe, an assistant
foreman, was absent without calling in 6 days in a row;
in August 1976 he was absent 5 days in a row without
calling in; in January 1977 he was absent 4 days in a row
without calling in. Roscoe was discharged on February
22, 1977, for destruction of machinery due to negligence.
Emack testified that he had rehired Blue in a "weak
moment" and did not discharge Roscoe earlier because
Emack did not have a replacement for Roscoe.
3. John Manoloulis: a die-cast operator, was hired by
his relative, James Skafidas, the assistant foreman under
Foreman Johnson on the 3 p.m. to 11 p.m. shift. He and
several other employees of Greek origin went to work
for Respondent on February 2, 1978. Manoloulis does
not speak or understand English and his testimony was
given through an interpreter.
Prior to April 24, 1978, Manoloulis had received union
pamphlets from Mamber outside the plant gate. The
pamphlets were in English. Manoloulis and several other
Greek employees asked Skafidas, Manoloulis' relative
who spoke and read English as well as Greek, about the
union literature. Skafidas told Manoloulis, thit the paipers
were from the Jehovah's Witneess,. Mlmoloull, anid the
other Greek employees promptly threw, the uL1ioIi htcra-
ture in the trash.
As set forth above, the Union began distributing la.f-
lets at the plant gates on April 24. 1'78. n78. the (ricek
language. Manoloulis and other Greek emploecs \xcre
handed these leaflets. read them. and agreed that the,,
would sign the union cards to be in a better positioni
That day in the locker room Skafidas asked the (;reek
employees if they \were going to sign the union paper,,
They replied that they swould read the papers anid see
Later at 5 p.m.. Skafidas called Manoloulis froni his na-
chine into the hallway. Skafidas asked if Manoloulis sa3s
going to sign the union card. Manoloulis replied that it'
the Company would gi.e him an extra dollar, he \, ould
not sign; but if the Company did not gise him the dollar
he would sign. Skafidas said the Compan\ s. ould not
give Manoloulis a dollar and to put the union card "up
his ass." Skafidas told Manoloulis that the Coinpaun,
would close its doors but the Union w ould not get in
Skafidas also said that if the Union got in Skafidas \sould
kick Manoloulis out. Skafidas did not talk to Manoloulis
for the remainder of the day.
The following day, April 25, Manoloulis reported for
work and was assigned to machine 6 by Skafidas It s.as
the first time Manoloulis had been assigned to that ma-
chine. The machine was not operating properly. It
would produce a few good shots, but then would
become stuck and produce poor pieces. Every time the
machine failed Manoloulis would punch one card or the
other. For about 2 hours Manoloulis operated the ma-
chine intermittently, punching his cards in and out.
Johnson, who was absent on April 25, testified that for
some time Manoloulis had been punching his cards im-
properly. Johnson warned Manoloulis in sign language
and on at least one occasion used Skafidas as an inter-
preter to explain to Manoloulis the proper procedure in
punching cards. Although Johnson could not understand
why Manoloulis continued to punch his cards improper-
ly, Johnson did not conclude that Manoloulis was cheat-
ing the Company by such conduct.
After Manoloulis had worked several hours on April
25, Skafidas took the cards from Manoloulis' hands, tore
them up, and threw them in the trash. When Manoloulis
asked why Skafidas had torn up the cards, Skafidas re-
plied, "Because I wanted to. If you want to complain, go
in the office." Manoloulis reported to the office, but
could not communicate with the person who was pres-
ent. He was told to return the following day with an in-
terpreter. Manoloulis attempted to return to his machine
to finish his shift, but was prevented from doing so by
Skafidas, who called the guard and the police to eject
Manoloulis. Manoloulis did return the next day with his
daughter and went to Emack's office to complain about
Skafidas. Emack said, "We cannot rehire you If we fire
Skafidas, then we'll hire you."
As explained by Emack and Skafidas, it sas possible
for an operator to cheat the Company by punching his
day or work card and failing to punch his incenltive card.
Theoretically, he could be paid double for the hours
lDECISIONS OF NATIONAL LABOR RELATIONS BOARDI
punched on his workcard and the hours of pay to which
he would be entitled under the incentive system. This
would be an unlikely situation, however, because Emack
would immediately be alerted if an operator was claim-
ing an extraordinary number of paid hours. An operator
could gain an advantage by failing to punch his incentive
card for an hour while the machine was producing shots.
In that situation he would gain an hour's pay on his day
or work card plus the higher incentive rate on his incen-
tive card for the shots produced during that hour. Im-
proper punching of cards was a frequent occurrence
among the operators. However, no operator had ever
previously been discharged for that reason.
In fact, machine 6 to which Skafidas assigned Mano-
loulis on April 25 was being run as an average job. As
indicated above, an operator on an average job would be
paid the average incentive rate he had earned the previ-
ous week regardless of the number of shots on the fore-
man's meter. It was thus impossible for Manoloulis to
cheat the Company by improperly punching his cards on
April 25.
In his testimony Skafidas denied interrogating Greek
employees about signing a union card; denied telling any
Greek employees he would kick them out if the Union
got in; denied telling any Greek employees that the
Company would close its doors before letting the Union
in.
With respect to the conflict in testimony between
Manoloulis and Skafidas, I credit Manoloulis, who im-
pressed me as a person of considerable dignity. I also
take into consideration the fact that Skafidas in his direct
examination accused Manoloulis of cheating the Compa-
ny on April 25 by claiming pay on his day card and
extra pay on an incentive basis. It was only on cross-ex-
amination that Skafidas admitted that Manoloulis was on
an average job and it made no difference in terms of his
salary whether he had 1,000 or I shots on the meter.
4. Pedro Milan: Milan, an employee in the trim depart-
ment, was first employed by Respondent in December
1976, and was discharged on April 14, 1978. He worked
under the supervision of Foreman Eddie Allen and As-
sistant Foreman Miguel Olaverria. Milan does not speak
or read English and his testimony was given through a
Spanish interpreter. Milan was an early participant in the
Union's campaign. He went to a union meeting, read the
union's leaflets and pamphlets, and spoke to employees
about the Union during his breaks and lunch periods. He
also distributed cards to the employees. Allen and Ola-
verria observed Milan while Milan was reading the
union's pamphlets and on occasions when Milan dis-
cussed with other employees the benefits of belonging to
the Union.
Milan was a coworker and friend of Ramon Valera,
whose discharge was reduced to a suspension on April 3,
1978, is discussed below. Milan was the spokesman for
other Spanish-speaking employees who met with Berman
to protest Allen's original discharge of Valera. Milan
through an interpreter told Berman that Allen was dis-
criminating against the Spanish-speaking employees,
watching and checking them too closely. The result of
the meeting was a reduction of Valera's discharge to a
suspension.
Milan testified that his relationship with Allen prior to
Milan's union activity was very good; they laughed and
joked together even though Milan did not understand
English. After Allen observed Milan and Olaverria
openly reading the Union's pamphlets, Allen's attitude
toward Milan and Olaverria changed. Allen became vigi-
lant and checked Milan constantly. Following Milan's
activities with respect to the discipline of Valera, Allen's
vigilance toward Milan increased. Milan did not receive
overtime and was required to work with heavy machine
parts for an inordinate amount of time.
On April 14 at or about 9 a.m., Milan was assisting a
fellow employee lift a basket to the inspection table. At
or about that time Milan greeted a female employee.
Allen approached and told Milan he was supposed to be
on the machine and not messing around during work-
time. A few hours or a few minutes later Milan said
something to Allen to the effect that Allen was always
after Milan. According to Milan, Allen then said, "Shut
up, you bleep Hispanic" and Milan grabbed Allen
around Allen's shoulder. According to Allen, Milan said
something to Allen, grabbed Allen around the collar,
pushed Allen over a barrel and punched Allen in the
mouth. At that point Allen fired Milan. Larry McCon-
nico testified that he observed Allen and Milan facing
each other in a fighting posture. Both of them took a
swing at each other, but McConnico did not see who
threw the first punch. Milan had a piece of metal in his
hand and hit Allen. McConnico grabbed Milan's wrist
and Milan dropped the metal. Another employee held
Allen.
5. Sherman Brown and Jimmy Eason: Brown and Eason
were diecasters who worked under the supervision of
Foreman Herb Davis and Assistant Foreman Albert
Myers. They were both good operators. Brown had been
employed, with several layoffs, since 1967 and Eason for
the previous 5 years. Both were active union adherents.
Brown passed out union leaflets at the plant gate, had
union cards signed by other employees, and went to
union meetings. He spoke to employees on the way
home and in the cafeteria. While passing out union leaf-
lets, Brown observed Supervisors Davis, Myers, and
John Lisson coming in or going out of the gate. Eason
signed a union card, passed out a few cards, and talked
to employees about the Union. Eason talked to the union
organizers outside the gate and his activity was observed
by Emack and Thornton when they walked by. Eason
also carried union cards in his pocket which were visible
to his foreman, Davis.
Both Brown and Eason had a history of absenteeism.
Brown was warned by Emack on January 23, 1978,
about his record of absences, 40 days during the previous
year. Brown explained that his absences were due in part
to sickness and his mother's funeral. Brown was absent
from 7 to 10 days after the January warning. He testified
that these absences were due to problems with his eyes
and cramps. However, he would either call in or have
one of his children call in on those occasions. Eason tes-
tified that he had been late a lot and absent a lot. On
January 23, 1978, he was warned by Emack about exces-
sive absenteeism. Davis warned Eason about 3 months
698
MAGNESIUM CASTING COMI'ANY
prior to the July 1978 vacation period. Subsequent to the
January warning Eason had excused absences in Febru-
ary and March, some absences in June, and was late a
lot.
On or about June I, 1978, Respondent posted a notice
that the plant would be closed for vacation on June 29
and would open on the following July 17, at II p.m.
June 29 and 30 were scheduled for inventory. On June
21, 1978, a second notice was posted with a special
notice to the diecasting department to the effect that that
department would shut down at 11 p.m. on Friday, June
30, and would open on July 16 at 11 p.m.
As set forth in more detail below, the second notice
was met with resistance by the die-cast operators, some
of whom, including Brown, had made vacation plans be-
ginning Thursday, June 29. When Brown saw the second
notice on Monday prior to June 29 he told Davis that
Brown had reservations to go south for his family on
Thursday afternoon. Davis said, "Okay." That afternoon
Brown told Myers that the diecasting employees had al-
ready made plans to go away and wanted to know why
the Company had changed the vacation schedule just for
the diecasting department. Myers said he did not under-
stand it himself, but that if they had made plans that is
what they should do.
Eason told Myers at 10 a.m. on Thursday that Eason
would be leaving at 12 p.m. Myers said, "Okay." Al-
though their normal payday was Friday, the employees
had received their pay the previous day, Wednesday.
Brown reported for work on Thursday, June 29.
Myers expressed surprise at seeing Brown. Brown ex-
plained that he did not have to leave until the afternoon.
Myers relieved Brown for a break around 11:45 and said,
"[I know you're going, but if you want to pick up a sand-
wich, you probably have time to pick up a sandwich
before you punch out." Brown got a sandwich, punched
out at 12 noon and went home. At the timeclock Brown
and about eight diecasters, the whole first shift, punched
out. While there Davis and Emack walked by.
Brown did not report for work on Monday, July 17,
or Tuesday, July 18, because of sickness. He asked one
of his daughters to call in for him.
Eason did not report for work until Tuesday, July 18.
He had car trouble returning from New Jersey. He did
not call in.
On Monday, July 17, Emack noticed that a few opera-
tors were missing from the machines. Emack checked
with Davis at about noontime. Davis said he had not
heard from Brown. Emack also checked with the tele-
phone operator. She had not heard from Brown. Emack
terminated Brown and Eason by telex that afternoon.
They were terminated because they had walked off the
shift on June 29, the Thursday preceding vacation. They
had not shown up the following Friday as required by
Respondent's revised notice of June 21 and were absent
Monday, July 17.
The record shows that Ralph Alley was absent on
Friday, June 30, 1978, and did not call in. Other diecas-
ters, who were absent on that date and did not call in,
included Gene Bonds, Charles Moore, Jesus Rios,
Charles Rudolph, and R. Elworthy. With respect to
Alley, Emack testified that Alley told Emack that Alley
had not seen the second notice. With respect to all the
above-named operators who were absent on Friday with-
out being disciplined, Emack testified on rebuttal that he
had no way of knowing that they were not sick.
Neither Brown nor Eason received Emack's telex.
Eason reported for work on Tuesday, July 18, and was
told to report to Emack's office. Emack told Eason that
Emack was going to terminate Eason and Brown for
taking too much time off, that they had left Thursday
before vacation without permission and had not reported
on Monday, July 17, as scheduled. Brown reported for
work on Wednesday. Emack called Brown into Emack's
office and told Brown that Brown and Eason had been
terminated. Brown said he did not even know he was
fired. Emack replied that the union people knew it.
Emack said that if the employees had not been so greedy
about trying to get the union, maybe all this would not
have been happening. Emack also said that after the
"bullshit" is over come back and see me and get in touch
with me.
Davis denied that he had given any operator, other
than Melendez and Padilla, permission to leave early on
Thursday, June 29. Davis testified that he did not see the
diecasters punching out at noon on Thursday, June 29.
Myers testified that Eason told Myers that Eason was
leaving early that Thursday and Myers told Eason to see
Davis. Myers denied giving any operators permission to
leave early that Thursday. Emack testified that he did
not see any diecasters punching out at noon on Thurs-
day, June 29. Emack denied telling Brown that if people
were not so greedy in trying to get the Union in all this
would not have happened and to come back and see
Emack when all the "bullshit" was over.
To the extent necessary, I credit the testimony of
Brown and Eason over that of Davis, Myers, and
Emack. Brown and Eason testified fully, specifically and
in detail. Their testimony is worth more than the general
testimony of Davis and Myers that they did not give per-
mission to the operators to leave early on Thursday,
June 29, a subjective conclusion. Davis did not deny that
he had said, "Okay" when Brown told Davis on the
Monday prior to vacation that Brown had reservations
to leave the following Thursday and Myers did not deny
telling Brown that if the employees had made vacation
plans, that's what they should do. Emack denied making
a remark about the union and suggesting that Brown get
in touch with Emack "after the bullshit is over," com-
ments attributed to Emack by Brown in their final con-
versation on July 20. While I respect Emack as an ex-
tremely competent businessman, more sophisticated and
educated than Brown, the remark has the ring of truth
and fits my impression of Emack as a no-nonsense indi-
vidual who calls a spade a spade. The advent of a union
in an unorganized plant is, for some, an explosive, abnor-
mal situation where foul may be fair and fair may be
foul.
D. The Constructive Discharge of Eleanor Justice
Justice, an inspector in the trim department was em-
ployed by Respondent from September 1968 to October
1978. At the time of her alleged constructive discharge
DECISIONS OF NATIONAL .ABO()R RELATIONS BO()ARD
she worked under the supervision of Foreman Eddie
Allen. She attended five or six union meetings in 1977
and 1978. In 1977, she had a conversation with Allen
during which Allen asked if she had been to union meet-
ings. When Justice did not respond, Allen said they
knew she was going to union meetings because they had
seen her car where union meetings were being held.
Allen also said that if the Union did come in she would
be one of the first the Union would let go because she
would be absent a lot and the Union was very strict.
Justice testified that on Saturday, October 29, 1978,
she had gone upstairs for a break at 11 a.m. and returned
about 5 or 10 minutes later. Allen asked her to help
George Hicks, the head inspector, count some castings
on the table. She helped Hicks count the castings on the
table. She gave Hicks the result of her count orally.
Hicks was very excited and told Allen, "I told you. I
told you somebody was cheating." About 11:15 a.m., she
started cleaning up and left the plant at 11:30 a.m.
Justice was unaware on October 29 that she was
counting pieces produced by Escribano. Following
Escribano's unemployment hearing, however, Justice
learned that witnesses for the Respondent had testified
that she had counted Escribano's pieces and that a card4
had been offered with her name on it. Justice became
concerned because her coworkers were saying that she
had caused Escribano to be fired.
Justice confronted Allen and asked him why he had
said that Justice had counted the work of Escribano.
Allen replied that if he said she had counted the work,
she had counted it. Justice asked how Allen happened to
have a card at the unemployment hearing. Allen said
there was no card at the hearing, that the union people
were telling her lies. Justice also asked Hicks why she
had been identified as the person who counted Escri-
bano's work when both she and Hicks had done the
counting. Hicks said that he had to look out for his
family; that his family came first. Justice had a second
conversation with Hicks around September 1978. In this
conversation Hicks told Justice that he was sorry for
what happened, that they had lied about her, but that
they were in so deep, they had no choice. In September
1978, Justice was coming out of the cafeteria and met
Emack. Emack said, according to his testimony, "Hi, El-
eanor, how's my star witness?" (Justice testified that
Emack told her that she was his alibi for Escribano get-
ting fired and that she was going to testify for him. I
4 Justice did not remember signing a card for the work of counting
Escribano's pieces. Respondent introduced into evidence a card, Resp.
Exh. 7(b), bearing Justice's signature, the date (10/29/77)., the quantity
(1,409), the catalog number (ASLB 2), clock number, and the descriptive
code (SORT) Justice agreed that the signature was hers, but could not
identify the date as her writing because the "2" was not her normal "2,"
as distinguished from the "2" in the catalog number and clock number.
She testified that the quantity (1,4(9) "looks like mine." She also testified
that the card, Resp. Exh. 7(h), an operation card) only required that she
fill in her name, number, and the description code. As to quantity and
other information Allen could fill that in The inspector might turn in the
quantity on a slip of paper and Allen swould put it on the card With re-
spect to Justice's counting of Escribano's work on October 29. Allen tes-
tified that when Justice finished counting she gave the count to Allen
Allen wrote it down and gave it to Emack Emack recorded the count of
1,409 pieces on Escribano's ID card, showsing 220 pieces short, which
translates into 74 shots short Emack attributed the count of 1.409 pieces
to "Elinor."
credit Emack on this point. While Justice may have in-
terpreted Emack's brief comment as she did, having ob-
served Emack on the stand, I do not believe he would
ask Justice in haec verba to be his alibi in the discharge of
Escribano.)
In February 1978, Justice left her job on maternity
leave and did not return until sometime in July of that
year. During the period from July 1978 to October 1978,
Justice was beset with a number of problems. She had
had a fire in her apartment and it had been burglarized.
She was trying to find a new apartment. Her son was in
the hospital and she had babysitting problems with her
new baby.
During the latter part of August 1978, Berman spoke
to her on the telephone, telling her to take as much time
as she needed to get her house and children together. He
also asked her if she had enough money. A week or so
later while at work Berman spoke to her in the presence
of Allen and Ray Nichols, the personnel director.
Berman made some telephone calls to city hall in an at-
tempt to secure an apartment for Justice. When he left
the meeting Nichols asked Justice why she was lying
about the Escribano count, that there were two foremen,
Allen and Hicks, against her and another surprise wit-
ness.
Subsequently, Nichols made additional calls in an at-
tempt to secure an apartment for Justice. On one occa-
sion after making the phone calls Nichols asked Justice
why she would be lying for Escribano with all the other
problems she had. On another occasion after making
phone calls Nichols told Justice that the matter about
Escribano was serious and she had better brush up her
story. Nichols also spoke to Justice at her inspection
table and told her she had a nasty attitude since the
union activity began. He said that he had heard she had
signed a card.
Both Justice's sons required frequent hospitalization
with the result that Justice had a history of being absent
a lot. Nichols pointed out to her that the Company had
been very good to her with respect to these absences and
that she should be the main one who should not be
voting for the Union or going to union meetings.
Prior to the incident of the Escribano count Justice
had been good friends with Allen and his wife. Thereaf-
ter, the relationship changed. Allen was no longer pleas-
ant to her, gave her less desirable work, and she did not
receive the overtime she normally received.
During the first week in October 1978, Justice did not
report for work the entire week, appearing on Friday of
that week to pick up her check. She had called Allen on
the telephone and informed him that she had babysitting
problems. On that Friday when Justice came to the
plant, Allen said to her, "What happened this time?" In a
joking way Allen said he couldn't believe that all of this
could be happening to Justice. Everything suddenly
became too much for Justice. She had been suffering
from headaches since the previous September and had
been told by her doctor it was due to tension. The fire,
the break-in, the apartment search, the pressure to induce
her to admit she alone had counted Escribano's pieces,
her babysitting problems, her headaches, and finally
700
MAGNESIUM CASTING COMPANY
Allen's questioning of her most recent absence, even in
jest, caused her to blurt out: "So, if that's the way you
want it, I just quit."
Allen testified that Justice alone had recounted the
Escribano pieces. Allen denied ever asking Justice if she
had been to a union meeting, denied telling Justice he
had seen her car at a union meeting, denied he had told
Justice she would be one of the first the Union would let
go, denied saying that if he said she had counted the
castings she had counted the castings, and denied dis-
criminating against Justice in the award of overtime.
Nichols denied asking Justice why she was lying for
Escribano, denied telling Justice she better brush up on
her story, denied telling Justice she was the one lying
and not Allen and Hicks, denied telling Justice she was
the main one who should not sign a union card. Nichols
testified he made only one phone call for Justice to the
housing authority.
Hicks denied helping Justice recount Escribano's cast-
ings, denied telling Justice he was sorry all this hap-
pened, and sorry he had to lie about her, but that he was
in so deep he had no choice. Hicks did not remember
telling Justice he was just looking out for his family in
his story about the count.
As between the bare denials of Allen, Hicks, and Ni-
chols, I credit the full and forthright testimony of Jus-
tice. It may be she stretched a point here and there.
Memory can be deceptive and a witness tends to recall
events in a light most favorable to his position. I have no
doubt, however, as to Justice's sincerity. I cannot believe
that she fabricated an intricate story out of whole cloth,
including her insistence that she and Hicks counted the
Escribano pieces, her concern when she heard that a
contrary story had been told at the unemployment hear-
ing, and her frequent discussions with Allen, Hicks, and
Nichols on this subject. She spoke freely and easily with-
out hesitation or apparent evasion, at times in Respond-
ent's interest. Her testimony that Allen jokingly asked
her what happened now, precipitating her decision to
quit, was clearly opposed to her own interest.
E. The Suspensions of Juan Rodriguez, Charles
Hatcher, Jerome Robinson, Efstahis Sakalis, Eric
Tollands, and Jose Rosa on July 18, 1978.
As set forth above under section C, (5), during the
week prior to the normal July vacation period Respond-
ent had issued a revised notice requiring the die-cast op-
erators to be available for work on June 28 and 29 and
to report for work at II p.m. on July 16, 1978. Brown
and Eason and the above-named operators all left early
on Thursday, June 29.
The testimony of Rodriguez, Hatcher, and Tolland
corroborates the testimony of Brown and Eason that the
operators had implicit if not explicit permission to leave
early on Thursday, June 29.
Rodriguez testified that about 10:40 a.m. on that date
Davis asked Rodriguez to help Myers give the operators
a break. Rodriguez asked Davis why he was giving the
men a break when they were leaving at noon. Davis told
Rodriguez to check with the men as to whether or not
they were leaving or staying. Rodriguez did so and re-
ported to Davis that the men were leaving. Davis then
told Rodriguez to tell Myers that Myers could decide
whether or not to give the men their break. Myers told
Rodriguez that they would give the men their break be-
cause the day had been very warm.
Hatcher testified that he had informed Davis the week
prior to Thursday, June 29, that Hatcher was planning to
leave at noon on that day because Hatcher was obligated
to go south to take care of an inheritance involving his
grandfather's estate. Davis said. "Yes." On the morning
of Thursday, June 29, as the operators reported for
work, Davis said, "I didn't expect to see you guys this
morning. Wow, you guys surprised me. You showed up
here this morning. I thought you all would be down
south and Puerto Rico." Hatcher told Davis, "Yeah, I'm
just gonna be here a few hours anyway because I got to
leave after lunch anyway," 5 Davis smiled and walked
on.
Tolland testified that on Thursday morning, June 29,
Rodriguez told Tolland that everyone on the shift was
leaving at 12 noon. Tools are normally collected at the
end of the day by Myers and the relief operator. On that
day Rodriguez, the relief operator, and Myers collected
the tools prior to the employees punching out. Tolland
told Myers that the operators were leaving at 12 noon.
Myers said, "Yeah, I guess you are." Tolland asked,
"Everyone's leaving?" Myers replied, "Yeah."
Robinson testified that he worked on July 5 and was
asked by Emack why the employees had left early on
June 29. Robinson said the Company had put up a notice
at the last minute when the employees had made plans to
go to Puerto Rico and south. Robinson said, "You know,
there is a right way to do everything." Emack said,
"Okay."
Rodriguez, Hatcher, Robinson, Sakalis, and Tolland
were all union adherents. Rodriguez passed out union
leaflets at the plant gate, wore a union button on his cap
in May 1978, and distributed cards to other employees.
Hatcher passed out leaflets at the plant gate, attended
union meetings, and signed up employees for the Union.
Robinson passed out leaflets, talked to other employees
about the Union, signed up employees for the Union,
wore a union button, and attended union meetings. Saka-
lis signed a union card. Tolland went to union meetings,
talked to other employees about the Union, and wore a
union button for 2 days in June 1978.
While Davis testified, as set forth above, that he did
not give the operators, except for Melendez and Padilla
permission to leave early on Thursday, June 29, his testi-
mony in material respects does not contradict the testi-
mony of witnesses for the General Counsel. Davis con-
firmed Rodriguez' testimony that Rodriguez informed
Davis that the operators were going to leave early.
Davis merely said, "You go back and take care of the
breaks and I'll get back to the men." Davis did not get
back to the men. Davis did not deny that Hatcher had
s Hatcher testified ihat he made this statement to Davis in passing
Hatcher's affidavit to the Board states that he was assigned to hi, ma-
chine by Myers the morning of June 2q and did not mentiorn that he was
going to leave al 1i2 noon lo all) managemrlen person The apparent in-
collMiiency is not material. partiiularl since Hatcher had pre.lousl in.
formed Dasi' that Ha;ltcher u. old he lca vilg earl) on Ihai dai,
701
D[)ECISIONS ()F NATIONAI LABOR RELATIONS BOARD
informed Davis the previous week that Hatcher would
he leaving early on Thursday, June 29, and that Davis
had said, "Yes."
The testimony of Myers, like that of Davis, makes it
clear that he too was well aware that the operators were
all planning to leave early on Thursday, June 29, and he
neither warned them that they would be disciplined if
they left or instructed them to remain. When Rodriguez
reported to Myers that the men were leaving at noon,
according to Myers, Myers said something to the effect,
"You gotta be shittin'." At or about 11:30 a.m., three or
four operators told Myers they were leaving at noon.
Myers said, "What the hell can I do. I can't keep them."
On the afternoon of July 18, 1978,6 the day after Ro-
driguez, Hatcher, Robinson, Sakalis, Tolland, and Rosa
returned from their vacations they were called to the
office and handed a 3-day suspension notice by Assistant
Plant Manager Bill Flynn as a result of their actions on
Thursday, June 29, 1978.
F. The Suspensions of Charles Hatcher and Francisco
Melendez
As indicated above, Hatcher was an active union ad-
herent beginning in the fall of 1977. He signed up several
employees and customarily talked to Mamber and other
union organizers outside the plant gate before and after
his shift. On some of these occasions he would be ob-
served by supervisors, including Emack. At the time of
the hearing Hatcher, a Class A operator, had been em-
ployed by Respondent from a year and a half to 2 years.
He worked under the supervision of Davis and Myers.
In early April 1978, at or about 2 p.m., Hatcher was
on a 10-minute break. Melendez, who was also active on
behalf of the Union, took his break at the same time.
Hatcher suggested that they walk to another building to
observe some construction work. In the drill and trim
department, Meiendez stopped to say a few words to a
friend and Hatcher also spoke to a friend. They were ob-
served by Foreman Sammy Gangemi. Hatcher and Me-
lendez returned to the diecasting department at the con-
clusion of their 10-minute break. Gangemi reported the
matter to Thornton. Hatcher and Melendez were called
to the office and given a I-day suspension for leaving
their work area and interrupting the work of other em-
ployees.
G. The Suspension of Raymond Valera
Valera, a Spanish-speaking employee who testified
through an interpreter, worked in the trim department
under Foreman Eddie Allen and Assistant Foreman
Miguel Olaverria since about April 1977. He was active
in the Union's campaign, read the Union's leaflets during
his lunch hour, and distributed cards to other employees.
He discussed the Union with Olaverria in the presence of
Allen. Valera's relationship with Allen deteriorated after
the former's union activity.
^ The suspension notices are dated July 17. 1978. However, it appears
from the testimony of Robinson. Tolland, and Francisco Melendez that
Robinson and Melendez were given warnings for leaving against orders
on July 1i. 1978, the day of the representation hearing at the Board of-
fices, by Bill Flynn and that Flynn at the same time handed out the sus-
pensions. Berman also testified that Flynn gave the warnings on July 1I.
On March 31, 1978, Valera was using the air hose to
blow dust off his clothes. Robert Catudal, an inspector in
the trim department, was nearby, showing an employee
how to operate a machine. Catudal felt a stream of air
from the hose hit his ear. He turned around and saw
Valera laughing. Catudal screamed something in English.
Catudal then went to Allen's office and told Allen that
Valera had blown air in Catudal's ear. Allen asked
Valera why he had blown air in Catudal's ear. Valera
laughed. Allen then told Valera he was fired. Subse-
quently, as indicated above, the Spanish-speaking em-
ployees protested the discharge of Valera to Berman.
Berman investigated the incident, tested the air hose, and
reduced the discharge to a suspension.
H. The Warnings to Francisco Melendez and Jerome
Robinson
On the morning of July 18, 1978, Robinson told Davis
that Robinson was going to a hearing at the National
Labor Relations Board.7 Some time later Davis came to
Robinson's machine and asked Robinson if he was going
to the hearing. Robinson said, "Yes." Melendez told
Davis that same morning that Melendez was going to the
same place as Robinson. Davis asked if it was for a hear-
ing and Melendez said, "Yes." Berman observed the two
operators leaving and asked Davis where the men were
going. Davis said they were going to court. Berman
asked if they had produced a note. Davis said if they had
a note they would have shown it to Davis. Davis went
back to the locker room and told Melendez and Robin-
son that they would be severely punished if they did
leave. Melendez and Robinson attended the Board hear-
ing and, upon their return that afternoon, were given
written warnings by Bill Flynn for disregarding work re-
quirements and leaving the premises.
I. The Discriminatory Treatment of Harry Authelet
Authelet had been employed by Respondent in March
1978, in the machine department under the supervision of
Foreman Samuel Gangemi. At the time of the hearing
Authelet was still employed by Respondent.
Toward the end of April 1978, Authelet had a conver-
sation with Gangemi. Gangemi asked Authelet if Authe-
let knew what was going on, if he had seen the union
people passing out leaflets. Gangemi said that the Union
was trying to get in and that they were just going to
take his money; the Union really could not do anything
for Authelet. Gangemi became excited and said that the
Company was very stubborn, that they wanted to run
the shop their own way, and that they would shut the
place down before they would ever bargain with the
' Davis denied that Robinson had mentioned the National Labor Rela-
tions Board. I credit Robinson over Davis. Berman testified that he in-
structed Flynn to issue the warnings to Rohinson and Melendez without
knowing that they were leaving to attend a Board hearing On July 14,
1978, the Regional Director for Region I issued and served upon the par-
ties in this case a notice of representation hearing for respondent's em-
ployees in Case i-RC-15.804 to be held at the Board's Regional Office
in Boston, Massachusetts, on July 18. 1978. Berman conceded that he
knew on the afternoon of July 18 that Robinson and Melendez had left to
attend the above-mentioned Board hearing. but did not at that time re-
scind the disciplinary warnings to these employees
7()2
MA(iNESIUrM CASTING CO)MI'ANY\
Union. Gangemi asked Authelet if Authelet knew about
the Company's benefits and promised Authelet a booklet
and material about health insurance. Finally, Gangemi
calmed down and told Authelet that Gangemi just
wanted Authelet to know about the Union and that
Authelet should make up his mind.
About a week after the above conversation with Gan-
gemi, Authelet had a conversation with Night Foreman
Frank Johnson. Authelet asked Johnson if Johnson
thought they would get any more money if the Union
came in and mentioned that Gangemi had said the
owners would close the place down before they would
let the Union in, but that it seemed to Authelet that busi-
ness was really good because the Company had just ex-
panded. Johnson replied that he did not think there
would be a whole lot more money if the Union got in
and, with respect to closing down, that Berman didn't
care about the place that much because he and his family
owned a lot of other businesses and hotels in Florida.
During the second week in June 1978, Gangemi told
Authelet that Gangemi liked the work Authelet was
doing and that there was a future in the Company for
young guys like Authelet, and that Gangemi would keep
Authelet in mind for a setup job if one became available.
Then Gangemi said, "The only problem is that if the
Union gets in I'm not sure I'll be able to move you."
Gangemi said the Company was very stubborn and
would not bargain with the Union.
Authelet came out publicly in support of the Union
the week of July 17, 1978, following the vacation period.
Authelet passed out leaflets for the Union outside the
plant gate. While engaged in this activity, he saw Super-
visor Al Lafonj driving by. Authelet also talked to em-
ployees in the plant about the Union and went to several
union meetings.
Following Authelet's open union activity Gangemi's
attitude toward Authelet changed. Gangemi stopped
talking to Authelet except for business reasons. Gangemi
and Supervisor Lafonj no longer asked Authelet on
Friday if Authelet wanted to work overtime on Satur-
day, as Authelet had been accustomed to doing on a
fairly regular basis. On several occasions Authelet asked
if he could work overtime and was told there was no
work. Authelet did work on one occasion and turned
down overtime work on two occasions because he had
to get his car repaired. Other than those occasions Auth-
elet has not worked overtime.
Authelet also testified that after his union activity he
was given more difficult and less remunerative work,
such as "coining." After doing this work 8 hours a day
for 3 days in a row, Authelet protested to Gangemi.
Gangemi gave Authelet the average rate for the previous
day. While doing "coining" work Authelet's percentage
rate dropped from 141 percent to 121 percent.
In his testimony Gangemi denied telling Authelet that
if the Union got in Gangemi would not be able to make
Authelet a setup man, but confirmed Authelet's testimo-
ny that Gangemi told Authelet that he would be consid-
ered for such a job. In fact, a setup job eventually did
become available. Paul Sears, an employee working in
the maintenance department and with less seniority than
Authelet, was assigned to that job by Assistant Plant
Manager Bill Flynn. Gangeni denied asking Authelet
whether he had signed a union card and denied saying
that the Company was stubborn and would shut down
before bargaining with the Union.
I credit Authelet over Gangemi. Authelet's testimony
fits the pattern of Respondent's conduct. I cannot accept
Gangemi's testimony that he thought Authelet did not
want to work overtime because Authelet had refused
overtime on two occasions. Gangemi did not recall that
Authelet had told him that his car had broken down on
those occasions. There is no explanation other than
Authelet's story of Gangemi's hostility toward the Union
for the drastic change in relationship between the two
men following Authelet's public display of his union ad-
herence. Nor is there any explanation why Respondent
chose Sears, a junior employee from another department,
for the job of setup man despite Gangemi's expressed
high opinion of Authelet and promise of consideration
prior to Authelet's union activity.
J. Meetings With Emnployeev
Beginning on Tuesday, prior to Thanksgiving day in
November 1977, Berman and Wolfson held a number of
meetings with employees, department by department,
during which Respondent advanced counterarguments
against the Union. At the first meeting Respondent's offi-
cials told the employees that the cards signed by the em-
ployees for the Union would be turned over to the (;ov-
ernment or Washington and if the Union had a certain
percentage there would he an election. Justice and em-
ployee Sarah Creach testified that they were also told
that Respondent would know who among the employees
had signed such cards. Berman and Wolfson denied
making a statement of this nature. The employees were
told that, if they needed legal assistance for personal
problems, Respondent employed a lawyer, Nathan Shein-
feld, who would help them. Sheinfeld had previously as-
sisted employees with legal problems. Although Justice
and Creach testified that Respondent told the employees
about "new benefits" it is unclear from their testimony
what new benefits, if any, were promised. There is no
other evidence in the record of promised benefits. In
fact, the only clear benefit granted the employees at this
time was a turkey for Thanksgiving. Justice also testified
that at one meeting Berman said that Respondent would
close the plant before Respondent would let the Union
come in: that a union had tried once before and the Re-
spondent had beaten it. Jesus Rios, an employee in the
diecasting department, testified that in the meeting prior
to Thanksgiving Respondent's officials told the employ-
ees to forget about the Union, that it was a Communist
Union, and that Respondent could overcome that llnion
just as Respondent had overcome other unions in the
past. Justice and Rios both testified they were told that if
the employees wanted their cards returned, Respondent
would find a way to have the cards returned to them.
Berman and Wolfson denied making statements of this
nat u re.
In crediting Justice, Creach, and Rios over Berman
and Wolfson, I am aware of the superior social. econom-
ic, and educational status of these compaiin officials
703
DE CISI()NS OF NATIONAL LABOR RELATIONS B()ARD
Except, however, for their testimony as to the destina-
tion and use of union cards and denials of the damaging
statements attributed to them, neither Berman nor Wolf-
son gave a clear and full account of what, in fact, they
did tell the employees in the antiunion meetings they
held, department after department. Berman testified that
at a meeting with the Greek employees he gave his
"usual spiel" about why they did not need a union, but
the extent of it was that the Union was a "left wing
union" and Berman believed this would appeal to them
because Greeks are normally anti-Communist. On cross-
examination he elaborated by saying he told them they
did not need a third party to represent them, that the
Company had "an open door policy, et cetera." I believe
he told them more, that he gave them more persuasive
reasons why they should not sign a card for the Union.
Justice and Creach could not remember all that was said
and some of what they did remember was garbled. It
may be that Berman and Wolfsom did not make the
statements in the precise language remembered by Jus-
tice, Rios, and Creach. But I am satisfied that Berman
and/or Wolfson did make statements that Justice, Rios
and Creach could reasonably interpret as they did and
the testimony of these employees is closer to the truth
than the flat denials of Berman and Wolfson.
K. Surveillance of Union Activity
On November 17, 1978, when the Union commenced
its distribution of leaflets at the plant gate, Foreman John
Smolinski placed a barrel next to the gate and stood by it
from about 2 p.m. until 3 p.m., observing the Union pass-
ing out leaflets. On several occasions he cautioned
Mamber to keep off company property.
L. Threats Kostas Sakalis and Efstathio Sakalis
K. Sakalis, an employee in the diecasting department,
began working for Respondent in February 1978. He
learned of the job through Foreman Kimon Kalaitzidis.
K. Sakalis was in the group of Greek employees who on
April 24, 1978, received and read the Union's leaflet
written in Greek. Prior thereto Kalaitzidis had called K.
Sakalis and told K. Sakalis not to sign the paper for the
Union, that the Company was going to get a lawyer to
take the paper back. Foreman Skafidas also told K. Saka-
lis not to sign the union paper. Skafidas told K. Sakalis
that the Company would close its doors before allowing
the Union to come into the plant.
E. Sakalis, employed in the diecasting department for
about 8 months and still employed at the time of the
hearing, was originally hired by Skafidas. E. Sakalis re-
ceived the leaflet written in Greek from Mamber on
April 24, 1978, along with a union card. E. Sakalis
signed the card in the locker room and returned it to
Mamber. Shortly thereafter Davis sent E. Sakalis to Ber-
man's office. Kalaitzidis was present and translated.
Berman asked E. Sakalis why E. Sakalis had signed the
union card and told E. Sakalis that he should not have
signed the card for the good of the factory. Berman also
told E. Sakalis that Berman would not give E. Sakalis a
raise, but would give a raise once in a while to E. Saka-
lis' brother. Thereafter, Davis told E. Sakalis that the
Union should not get in for the betterment of the Com-
pany and that E. Sakalis should look after his job be-
cause he had a family. About a month prior to the hear-
ing in this case, E. Sakalis also heard Skafidas tell an em-
ployee named Kostas not to sign the union card because
Kostas would lose money if he did; that the Company
would throw Kostas out.
Berman denied interrogating any employee about their
union activity or threatening to deny any employee a
raise because of such activity. Kalaitzidis denied translat-
ing such statements by Berman. Skafidas denied interro-
gating or threatening the Greek employees.
I credit K. and E. Sakalis. K. Sakalis impressed me
particularly as a man of great natural pride. E. Sakalis
testified with the knowledge that his adverse testimony
could lead to his loss of a job, but nevertheless stubborn-
ly spoke out.
M. Interrogation and Coercion of Juan Rodriguez
On November 1, 1978, prior to his testimony at the
hearing in this case, Rodriguez showed Foreman Davis
the subpena requiring Rodriguez' presence at the hear-
ing. Davis asked Rodriguez if Rodriguez knew the ques-
tions he would be asked and suggested that the questions
would be about the suspensions. Davis asked Rodriguez
if Rodriguez remembered what Davis had said and re-
minded Rodriguez that Davis had told Rodriguez "to tell
the guys to stay at the machines." Then Davis said, "Do
you remember?" Rodriguez replied, "Yes, I know."
Davis testified that Rodriguez showed Davis a sub-
pena and Davis said. "Now you're involved because I
got subpoenaed for the same thing. You're involved in
working with me on that morning the shift left." Davis
denied saying anything else.
I have previously credited Rodriquez, and I again
credit him in this instance over Davis.
N. The No-Solicitation or Distribution Rule
On or about December 21, 1977, Respondent posted
the following notice, reproduced from its employee
handbook:
All solicitation or distribution during an employee's
working time is prohibited. A breach of this rule is
subject to disciplinary action.
0. The Refusal To Bargain
I. The request for bargaining
On the afternoon of June 14, 1978, at 3:30 p.m., the
Union held a rally outside the plant gates with a bull-
horn. Through the bullhorn the Union's representative
called on the Company to come out and recognize the
Union. Company officials denied that they heard the
demand. No formal or other request to bargain was
made.
2. The appropriate unit
All full-time and part-time production and mainte-
nance employees including leadmen and plant clericals
employed by the Respondent at its Hyde Park, Masssa-
704
MA(iNFSIUM CASTIN(G COMPANY
chusetts, location, excluding all office clerical employees,
professional employees. guards and supervisors as de-
fined in the Act, constitute a unit appropriate for the
purposes of collective bargaining writhin the meaning of
Section 9(h) of the Act.
The parties stipulated that 175 employees, whose
names appear on the June 14, 1978, plant payroll are
properly included in the appropriate unit.
They are in dispute as to the inclusion of five employ-
ees. The names of four of these employees also appear
on the above payroll. The latter employees are: R. Jones,
W. Gear, N. J. Sorenson, and J. Cullen. Although these
four employees were hired prior to June 14, 1978, they
were not actually working on that date. Jones, Gear, and
Sorenson did not begin work until June 15 and Cullen
did not begin work until June 20. For the purpose of de-
termining the Union's majority status on a particular date
the Board has excluded an employee who, although pre-
viously hired, was not working on that date on the
ground that it would be unreasonable to make the
Union's status dependent upon an employee not known
to the unit employees on the critical date. Western Drug,
231 NLRB 890 (1977). See also Ra-Rich Manufacturing
Company, 120 NLRB 1444, 1447 (1958); B.L.K. Steel
Inc., 245 NLRB No. 175 (1979), for the established rule.
with respect to eligibility to vote in a Board election,
that an employee must be employed and working on the
eligibility date, unless absent for one of the reasons set
forth in the Direction of Election. On the basis of the
foregoing, I conclude that Jones, Gear, Sorenson, and
Cullen were not members of the appropriate unit on June
14, 1978, for purposes of determining the Union's major-
ity on that date.
The parties are also in dispute as to the inclusion in the
unit of Dennis Hickey, who was employed on June 14,
1978, but was discharged at 8:15 a.m. As Hickey's status
as an employee terminated prior to the Union's claim of
majority status and there is no evidence in the record of
his reasonable expectation for future employment in that
unit, I conclude that, for purposes of determining the
Union's majority on June 14, 1978, his card should not
be counted.
3. The authorization cards
The General Counsel introduced into evidence cards
bearing the names of 89 employees whose names appear
on the June 14, 1978, payroll list. The cards were re-
ceived at the National Labor Relations Board's Regional
Office on that date. The cards are unambiguous, single
purpose membership cards in English and Spanish,
authorizing the Union to represent the signer with re-
spect to hours of labor, wages, and all other conditions
of employment.
The applicable rules relating to misrepresentation of
such cards are set forth in Cumberland Shoe Corporation,
144 NLRB 1268 (1963); Levi Strauss & Co, 172 NLRB
732 (1968); Hedstrom Company, 223 NLRB 1409 (1976);
N.L.R.B. v. Gissel Packing Co., supra.
The Respondent Challenges the Validity of 15
Cards
(a) Arthur Patillo: In the fall of 1978, Edward Carbone,
a field organizer for the Union, visited the home of Pa-
tillo and solicited his signature. At that time Patillo ,was
under the impression that he might be a supervisor. Car-
bone told Patillo that they did not believe he was a su-
pervisor, but that if he was a part of management he
would not be allowed in the Union anyway. Patillo
signed a card, but regretted doing it as soon as Carbone
left. Three or 4 weeks later Patillo asked Carbone to
return his card and Carbone said that he would destroy
it. Carbone did not recall exactly what Patillo said in a
conversation outside the plant gate, but testified that Pa-
tillo did not ask for the return of his card. On this evi-
dence, I credit Patillo. His card will not be counted.
(b) Rosa Fulcinitti: Fulcinitti testified through an inter-
preter. She signed a card for the Union in November or
December 1977. Her card is dated January 16, 1978. She
testified that thereafter she spoke to Mamber on one oc-
casion in the spring or summer of 1978 and asked for the
return of her card. According to Fulcinitti, Mamber told
her not to worry, that her card was torn up. Mamber
was positive that Fulcinitti did not ask for the return of
her card. Mamber testified in a straightforward manner
and had a detailed memory of the events. I take into
consideration the fact that Fulcinitti does not speak Eng-
lish and there may have been a failure of communication
between Mamber and Fulcinitti. In any event, I credit
Mamber. Moreover, Fulcinitti was content to remain a
member of the Union for many months and it has not
been established that her conversation with Mamber out-
side the plant gate preceded the critical date of June 14,
1978. In these circumstances, I conclude that Fulcinitti's
card is valid and it will be counted.
(c) Nino Piccirilli: Piccirilli's card is dated 10/24/77.
He testified that he signed the card in a barroom during
lunchtime, but that he did not read the card. According
to Piccirilli, he signed the card because Mamber said it
was "for an election purpose only." Mamber testified
that he and Piccirilli discussed Piccirilli's membership in
another union prior to his employment by Respondent;
that they talked about having a union at Respondent's
plant; that Piccirilli told Mamber about previous union
campaigns in the shop; that Piccirilli told Mamber who
might be interested in the Union and who would not be
interested. Mamber denied telling Piccirilli that the card
was only for an election. I credit Mamber. Piccirilli was
an evasive witness. He spoke to Mamber for 10 or 15
minutes but remembered only that Mamber told Piccirilli
to sign the card only to have an election. I am satisfied
that Piccirilli well knew that the purpose of the card he
signed was to secure representation by the Union with or
without an election. Piccirilli's card is valid and it will be
counted.
(d) James LaCourt: LaCourt's card is dated 5/30/78.
He testified on direct examination that he did not sign
the card, that the card had been signed by his wife, and
was given to Mamber without LaCourt's permission. On
cross-examination, confronted by his signature, LaCourt
agreed that he himself had filled out the card and signed
7()5
I)ICISI()NS ()f NATI()NAL I AIO()R RELATI()NS O()ARI)
it. However, he denied that he had given the card to
Mamber, as Mamber testified. I credit Mamber. LaCour
is not a credible witness. I find his card valid and it will
be counted.
(e) Miguel Ortiz: Ortiz' card is dated 5/1/78. Orliz tes-
tified that he cannot sign his name and had never given
anyone permission to sign a card for him. Francisco Me-
lendez testified that Alberto Rivera, with whom Ortiz
traveled, told Melendez that Ortiz wanted to sign a card.
Melendez spoke to Ortiz in Rivera's car and Ortiz asked
Melendez to sign the card for Ortiz. Melendez did so
and showed Ortiz the card after it was signed. Ortiz said
that the matter would stay among Ortiz, Melendez, and
Rivera, that the Company would not find out. Initially,
Ortiz denied that he knew a man by the name of Alberto
Rivera or that Ortiz traveled to and from work with
Rivera. Subsequently, Ortiz agreed that he knew Rivera
and traveled with him. Ortiz also knew Rivera by the
name of Don Franco. It is clear from Ortiz' testimony
that he was concerned that the Company would think he
had done something wrong if he had signed a card for
the Union. I credit Melendez. I find Ortiz' card to be a
valid card and it will be counted.
(f) Saturingo Vega: Vega testified that the card bearing
his name (G.C. Exh. 54) was not signed by him; that he
had never asked anyone to sign a card for him; that he
was not aware of the existence of General Counsel's Ex-
hibit 54 until the day of his appearance at the hearing.
Vega does not read or write and his signature made at
the hearing does not resemble the signature on General
Counsel's Exhibit 54. Vega, however, testified on cross-
examination that Mamber and Melendez visited Vega in
Vega's home that they showed Vega a union card and
told him the card was for the Union to get more money
and benefits. Mamber testified that Vega signed the card
in Mamber's presence and gave it to Mamber. Melendez
testified that a fourth person, a girl, was present when
they solicited Vega's signature, that the girl filled out the
card, gave it to Vega, and Vega then gave it to Mamber.
Although I conclude that Mamber was mistaken in be-
lieving that Vega actually signed General Counsel's Ex-
hibit 54, it is clear from Vega's own testimony that he
was, in fact, visited by Mamber and Melendez and that
their purpose was to secure a signed card from him.
Vega, a reluctant and evasive witness, was employed by
Respondent at the time of the hearing. He was not asked
and he made no mention of the presence of a girl at his
meeting with Melendez and Mamber. Melendez' testimo-
ny on this point is uncontradicted. I credit Melendez. I
find that General Counsel's Exhibit 54 was signed for
Vega with his knowledge and approval and turned over
to Mamber. The card of Vega is valid and it will be
counted.
(g) Maria Sanchez: Rafaela Ruiz, a friend of Sanchez,
testified that she handed out seven cards in the morning
to various employees, including Sanchez, and received
the signed cards that afternoon. Sanchez testified that she
did not sign a card for the Union and did not ask any-
body to sign a card for her. Sanchez initially testified
that she had never seen a union card prior to the date of
the hearing; that no employee had talked to her and she
had talked to no employee about the Union. However,
Sanchez later testified that she attended a union meeting
and Ruiz spoke to Sanchez about the Union; that
Mamber and another individual visited her home and
told her about the Union. Sanchez told the union solici-
tors that she had only been working at the factory for 3
months and did not want to get into trouble. Sanchez in-
sisted that she did not see the union card they showed
her and asked her to sign; that she must have been blind
when they showed the card to her. Ruiz testified on re-
buttal that she spoke to Sanchez prior to Sanchez' testi-
mony in this case and that Sanchez said, "Rafaela, I
don't know if I made a mistake in declaring, because I
was taken by surprise, and I was nervous. I know that I
gave you the card, and the signature was of somebody
else, but I gave consent." I cannot credit Sanchez' obvi-
ous inconsistent testimony. I take into account Sanchez'
testimony that she wanted to avoid problems with the
Union because she did not want to get into trouble. I
credit Ruiz and find that Sanchez' card is valid. It will
be counted.
(h) Narin Saeeaw: Saeeaw's card (G.C. Exh. 97) is
dated 4/26/78. At the time of the hearing he was on
leave of absence in Thailand and unavailable. The Re-
spondent introduced into evidence W-4 forms purport-
edly signed by Saeeaw. The signatures of these forms do
not correspond to the signature on General Counsel's
Exhibit 97. Personnel Director Nichols testified that
Saeeaw worked for Nichols for a number of years and
Saeeaw can sign his name. Mamber's testimony with re-
spect to this card is brief. He did not see Saeeaw sign the
card. Mamber testified that he stopped Saeeaw's car
some place on Hyde Park Avenue and Saeeaw handed
Mamber the card. Saeeaw's name on General Counsel's
Exhibit 97 is grossly misspelled. On the signature line it
appears to be spelled "Narine Sour." On the name line it
appears to be spelled "Narine Saeew." Accepting Ni-
chols' testimony that Saeeaw can sign his name, I have
difficulty believing he would turn in a card, whether
signed by himself or someone on his behalf, with such
distorted spelling. In this instance, as in the case of Sa-
turnino Vega, I believe Mamber was mistaken. On the
evidence presented I cannot conclude that General
Counsel's Exhibit 97 represents Saeeaw's uncoerced
desire to be represented by the Union for the purposes of
collective bargaining. His card will not be counted.
(i) Ramo Martinez: Mamber and Melendez visited the
home of Martinez and discussed the Union with him.
Mamber spoke in English and Melendez in Spanish. Mar-
tinez gave the card to his wife, who filled out the Span-
ish side for him. Martinez took the card from his wife
and gave it to Mamber. Martinez and his wife were sub-
penaed by the General Counsel, but did not appear at
the hearing. Nicols testified that Martinez was on leave
of absence and Respondent was unable to reach him. Re-
spondent introduced into evidence a W-4 form for Mar-
tinez. The signature on that form appears to be crudely
made and does not correspond to the clear signature on
Martinez' card, General Counsel's Exhibit 118. 1 am sat-
isfied, however, that Martinez clearly indicated his desire
to be represented by the Union through the card signed
for him by his wife. His card will be counted.
7()h
MA(iNESIIM CASTIIN( C()MPANY'
(j) Ovadiv Santana: Santana testified that she was vis-
ited in her home by two union solicitors and signed a
card for the Union at that time. The union solicitors told
her that no one would find out and that there would be
an election. Santana signed the card because she did not
want the union solicitors to return to her house. Rosalina
Melendez, a part-time employee of the Union, testified
that she told Santana that signing the card meant that
she would become a member of the Union. Melendez
also told Santana and other employees that after the
cards had been signed the Union would petition for an
election. I find that Santana's card is valid and it will be
counted.
(k) Miguel Olaverria: Olaverria signed a card for the
Union on the front porch of his home and gave it to
Mamber in the presence of Pedro Milan and Olaverria's
brother. Olaverria had discussed the Union with
Mamber, Milan, and Rosaline Melendez on numerous
previous occasions. In those conversations Olaverria in-
formed Mamber and Melendez of the rumors he had
heard in the plant about employees who were for or
against the Union. Mamber told Olaverria that they were
trying to get the Union in so that the employees would
have more benefits. Olaverria testified that he did not
read the card before signing it and that he also signed a
card for his wife at the same time. Olaverria, employed
by Respondent at the time of the hearing, refused to
honor the General Counsel's subpena, but appeared at
the hearing pursuant to Respondent's subpena. On direct
examination he testified that he finally signed a card to
get rid of Mamber; that Mamber told Olaverria it did not
imply anything, that there was going to be a free elec-
tion. Mamber did not recall talking about an election
when Olaverria signed his card. When questioned by the
General Counsel, Olaverria was evasive and hostile. I am
satisfied that he understood through his many conversa-
tions with Mamber and other union solicitors that a pur-
pose of the card was to secure more benefits through the
Union's efforts and that he intended to, and did, author-
ize the Union to represent him for the purposes of col-
lective bargaining with or without an election. His card
is valid and will be counted.
(I) Geovanny Olaverria: Mrs. Olaverria testified that her
husband had authority to sign documents in her name
and that she instructed him to sign a union card for her.
She did not read the card, and authorized its signing to
keep the union solicitors from visiting her home and in-
terfering with her domestic chores. She agreed that
Mamber had told her that she would receive certain
benefits by joining the Union. She was also aware
through the Union's leaflet that an election was sched-
uled and she believed the election was more important
than her signature on the card. In the absence of evi-
dence that Mrs. Olaverria was told that the only purpose
in signing a union card was for an election, I conclude
that her husband was properly authorized to designate
the Union as her representative for the purposes of col-
lective bargaining. Her card will be counted.
(m) Kleantis Manoloulis: K. Manoloulis testified that he
signed a card for the Union prior to receiving the
Union's leaflet printed in Greek; that his son translated
the union card and an English leaflet for him that he un-
derstood from the translation that the Union would be in
if he signed the union card and that there would be an
election. Subsequently, K. Manoloulis himself read the
union leaflet printed in Greek (G.C. Exh. 20). After sign-
ing the card K. Manoloulis returned the card to Mamber.
K. Manoloulis testified that the Greek leaflet and the
translated English leaflet were not different with respect
to representations material to this case. The Greek leaf-
let, translated at the hearing, makes no mention of an
election, but asks the reader to join the Union and sign a
card for the Union. K. Manoloulis never asked to have
his card returned to him. I find K. Manoloulis' card valid
and it will be counted.
(n) George A4nastasiadis: Anastasiadis testified that he
received a card from Gilbert Moore, a field organizer for
the Union, as Anastasiadis was leaving work with two
fellow employees, Anthony Tsardinaskis and Karavalilis
Dionisios. The three employees sat in the back of their
car and signed the cards within 5 minutes. They then
gave the cards to Moore. The cards were in English,
which Anastasiadis does not read. Anastasiadis signed
the card because he had heard that a union was coming
into the plant. He believed that by signing the card there
would be an election. However, he was also aware that
by signing the card he would become a member of the
Union because, "Everybody knew about it." On cross-
examination Anastasiadis testified that he heard about the
election for the first time when he saw the Board's offi-
cial notice of election, printed in Greek, and posted on
Respondent's bulletin board pursuant to the Union's peti-
tion for such an election on June 14, 1978. 1 find Anasta-
siadis' card is valid and it will be counted.
(o) Charles Trivoskovis: Trivoskovis signed two cards
for the Union. He testified that he thought there would
be an election when he signed the cards, but that nobody
told him that the card was for an election. The card was
translated for Trivoskovis by his brother-in-law. When
Trivoskovis signed the card he knew that the Union was
going to try to get more benefits for him. I conclude that
Trivoskovis was aware when he signed the union cards
that he was authorizing the Union to represent him for
the purposes of collective bargaining. His card will be
counted.
I thus conclude that 87 employees, whose names
appear on the June 14, 1978, payroll, had by that date
authorized the Union to represent them for the purposes
of collective bargaining.
Analysis and Final Conclusions of Law
A. Interference, Restraint, and Coercion
I conclude that Respondent violated Section 8(a)(l) of
the Act by the following conduct:
(1) The interrogation of John Manoloulis and other
Greek employees on April 24, 1978, by Assistant Fore-
man James Skafidas as to whether they were going to
sign union papers and Skafidas' interrogation of Mano-
loulis about 5 p.m. that afternoon as to whether Mano-
loulis was going to sign the union card in the context of
(2) below.
707
I) 'SI()NS (),t NA I )NAI. I.ABl()R R FL.A IOI()NS IO()ARI)
(2) Skartidals' threat to Manoloulis on April 24, 1978,
thlii tIhe Conipai\y would close its doors to defeat the
lion miid Sktfidas' threat to Mlanioloulis on the same oc-
casionl thiat Skafidas \ould kick Manoloulis out if the
Lrnir n got il.
(3) SupLrvisol Malconl i mack's statement to Sherman
Iro wn oil July 20. 1978, that "maybe all this wouldn't
has hbeel happening" if the employees had not tried to
get the (inion iln, which Bro wn could reasonably inter-
prel as a reference to his discharge and the discharge and
discipline of other emlployees in connection with the
linio's camnpaign. thereby restraining and coercing
lro w1n arid other employees from engaging in union and
concerted activity for their mutual aid and protection.
(4) I The jiterrogalion of Eleanor Justice by Foreman
Etddie Allen in 1977 during the Union's campaign as to
\whether she had attended a union meeting in the context
of (5) alld (6) below.
(5) Th e statement of Allen to Justice following the
abhove interrogation that the Company knew Justice was
going to union meetings because they had seen her car at
unlion meeting places. thereby creating the impression of
surveillanicee.
(6) The threat by Allen to Justice following the above
iterirogatlon that if the Union came in Justice would be
the first the Union would let go because she would be
absent a lot and the Union was very strict, thereby re-
strainlig and coercing Justice in her union adherence by
an unsubstantiated charge that the Union would cause
the loss of her job if it represented the employees.
(7) 1 he statements of Personnel Director Ray Nichols
to Justice during the last week of August or the first part
of September 1978, that she was lying about the Escri-
bano count, that the matter was serious, and she had
better brush up her story, thereby restraining and coerc-
rig Justice in the exercise of her protected right and ob-
ligation to give testimony under the Act.
(8) The statement of Nichols to Justice in the fall of
1978, that he had heard she had signed a card, thereby
creating the impression of surveillance.
(9) The statement of Nichols to Justice in the fall of
1978 that the Company had been good to her with re-
spect to absences and she should be the main one who
should not be voting for the Union or going to union
meetings, thereby soliciting her not to be a union adher-
ent because of the Company's past and perhaps future
generous leave policy.
(10) The interrogation of Harry Authelet by Foreman
Samuel Gangemi toward the end of April 1978, as to
whether Authelet knew what was going on, if he had
seen the union people passing out leaflets in the context
of (I I) below.
(I I) The threat of Gangemi to Authelet following the
above interrogation that the Company would shut the
place down before they would bargain with the Union.
( 12) The implied corroboration of Gangemi's threat to
Authelet about a week later by Night Foreman Frank
Johnson, who, when questioned by Authelet as to Gan-
gemi's threat that the Company would close the place
down before bargaining with the Union, stated that
Berman did not care about the place that much because
he and his faimily ovwnsed a lot of other businesses and
hotels ill Florida.
(13) Gangeni's promise to Authelet during the second
week of June 1978 that Gangemi would consider Authe-
let for a setup job, but might not be able to move Authe-
let if the Union came in, coupled with Gangemi's repeti-
tion of his threat that the Company would not bargain
with the Union, thus making a promise of benefit contin-
gent upon the Union's defeat.
(14) The statements of Vice President Harvey Berman
or Vice President Neil Wolfson or both at meetings with
employees during the week preceding Thanksgiving Day
1977, that Respondent would know who among its em-
ployees had signed cards for the Union, thereby creating
the impression of surveillance.
(15) Respondent's public announcement for the first
time at its meetings following the initiation of the
Union's campaign that the legal services of a company
official was available to the employees for their legal
problems. While the Respondent had assisted its employ-
ees with their legal problems in the past, it was not until
the advent of the Union that the Respondent publicly an-
nounced the availability of such services.
(16) Berman's threat at one of the above meetings with
employees that Respondent would close its plant before
it would let the Union come in.
(17) The direction of Foreman Kimon Kalaitzidis to
Kostas Sakalis prior to April 24, 1978, not to sign a
paper for the Union; that the Company was going to get
a lawyer to take the papers back, thus coercing K. Saka-
lis not to sign a union card with the threat of legal action
if he did.
(18) The direction of Foreman Skafidas to K. Sakalis
on or about April 24, 1978, not to sign the union paper
coupled with the threat that the Company would close
its doors before allowing the Union to come into the
plant.
(19) The interrogation of E. Sakalis, translated by Ka-
laitzidis, by Berman on or about April 24, 1978, as to
why E. Sakalis had signed a union card coupled with the
threat that E. Sakalis would not receive a raise while a
raise would be given to E. Sakalis' brother.
(20) The threat of Foreman Davis that E. Sakalis
should look after his job because he had a family in the
context of Davis' statement that the Union should not
get in for the betterment of the Company.
(21) The threat of Foreman Skafidas about a month
prior to the hearing in this case to employee Kostas not
to sign a union card because Kostas would lose money if
he did; that the Company would throw Kostas out.
(22) The suggestion by Foreman Davis to Rodriguez
on November 1, 1978, when Rodriguez showed Davis a
subpena requiring Rodriguez' presence at the hearing in
this case, that Rodriguez remember that Davis had told
Rodriguez "to tell the guys to stay at the machines,"
thereby restraining and coercing Rodriguez in the exer-
cise of his protected right and obligation to give testimo-
ny under this Act. (During the course of the hearing the
General Counsel amended the complaint to allege a vio-
lation of Section 8(a)(4) as to this incident. However, I
NIA(GNI SIUt( C'ASI ING CO()MPA.XNY'
find the incident to be violati e of Section 8(a)(1). but
not 8(a)(4).)
(23) The maintenance and promulgation of an overly
broad and discriminatorily applied no-solicitation and no-
distribution rule. Historically, the Board and the courts
have recognized the balance between the right of em-
ployees to engage in concerted activity and the right of
an employer to continue his normal business activity
during a Union's organizational campaign. Working time
is for work. Thus, it has long been established that a no-
solicitation rule is presumed valid if applied during work-
ing time and is presumptively invalid if applied during
nonworking time. So, too, no-distribution rules are pre-
sumptively valid unless they extend to distribution
during nonworking time and nonworking areas. Stoddard
Quirk Manufacturing Company, 138 NLRB 615 (1962);
St. John's Hospital School of Nursing,. Inc., 222 NLRB
1150 (1976); The Times Publishing Company, 231 NLRBI
207 (1977).
The distinction is of enormous importance to both
unions and employees. It is the responsibility of employ-
ers to see to it that the rule is clearly stated so that the
employees understand that all solicitation and all distri-
bution of literature is not forbidden on company prem-
ises. In the instant case the rule forbids "all solicitation
and distribution during an employee's working time."
This cryptic rule could be interpreted by the employees
as forbidding solicitation or distribution by any employee
while any employee was working. In view of Respond-
ent's around-the-clock operation of its diecasting depart-
ment, the rule could be construed as forbidding solicita-
tion of all employees and distribution of all union litera-
ture during any employee's working time and in non-
working areas. The rule is therefore overly broad and in-
valid. The Trimes Publishing Company, supra, 211. More-
over, during the 'week of July 17, 1978, Gangemi distrib-
uted a letter or leaflet about the Union signed by Berman
to employees in the machine department while they were
working at their machines. Gangemi asked Authelet to
read the literature. Thus, the rule was discriminatorily
applied and is invalid for that reason, Capitol Record.
Inc., 233 NLRB 1041, 1045.
(24) The surveillance of union activity by Foreman
John Smolinski on November 17, 1978, by conspicuously
surveilling the passing out of Union leaflets.
B. Discrimination To Discourage Union Activity
I conclude that Respondent violated Section 8(a)(3)
and (I) of the Act by he following conduct:
I. The discharge of "Walter Escribano
As indicated above, Escribano was an active in-plant
union organizer, who attended union meetings. solicited
his fellow employees to join the Union, and provided
Mamber with the phone numbers of potential members.
Among the large complement of Spanish-speaking em-
ployees, Escribano. an assertive and outspoken indisidu-
al, was a natural leader. He had taken the initiative in
urging Respondent to hire members of his ethnic group
and had secured jobs for several of his own friends.
Where Escribano led it could be expected that other
Spanish-speaking empnlloee, would tfllow; lmrom the
outset the (die casting depairtnient \ tis thle ftc;il point ol
the Union's campaign. Respondent \was ;N:Zrc of l' sril-
bano's union activit, \vhich had( been ireset;led to a
fellow eimployee ill the presence of Assistallt ForenTlial
IThompson.
Escribalno was one of Respondcint's top die-ca;l opera-
tors in a department \ihere good operators sere haid to
find and hard to keep. In 3 years of continiuotus employ\-
ment the only disciplinarN mark oil his record \\as a
warning for absenteeism, dated August 16. 1977. At the
time of his discharge Respondent was una\xare that
Escribano had ever previously cheated by dishtonestly iii-
flaring the meter count of his castinigs
Under this Act an employer has a right to discharge
an employee for any reason or no reason pros ided it is
not related to his union or protected concerted activit
Certainly, Respondent had a right to discharge scri-
banll for cheating, even if the amount svas the rclati clt
small sum of $6. The question befiore me, ho\, e\er. is
swhether this was the real reason or merely a pretext to
cloak Respondent's desire to rid itself of an active union
adherent and thus frustrate the Union's organizationlal
campaign at the outset.
On this record, I cannot find definitively that Escri-
bano did or did not cheat during his shift on ()ctober 28.
1977. Escribano's own testimony that he tried to cheat,
but could not because machine 3 had been fixed to pre-
vent cheating cannot be credited. At the hearing il this
case he testified that he had cheated in the past, testinmo-
ny directly contrary to his previous testimony that he
had never cheated. There is. however, other evidence
casting doubt on Respondent's conviction, based on its
October 29, 1977, count of castings, that Escribano , \as
clearly guilty of cheating. Emack testified that he looked
at the foreman's information sheet for Friday, October
28, for about 5 minutes. Hlie noted only that there was
nothing wrong with machine 3 on Escribano's shift. In 5
minutes, however, Emack should have been able to note
that something was mechanically wrong with that ma-
chine for several days before Escrihano's shift arid,
indeed, the machine appears to have been inoperative oil
the shift preceding Escribano's second shift If Emack
had been more alert he would have noted prior to Escri-
bano's final conference with Berman on November 3.
1977, that machine 3 had problems on October 31 and
November I and 2, and was inoperative for tw o shifts on
November 2. Escribano's count of 542 or 543 shots \vas
not a particularly high count for that johb. Hatcher testi-
fied that he threw defective castings from that machine
into the melting pot during the days immediately preced-
ing October 28. Yet, Respondent gave Escribano no
credit at all for possible defective castings thrown into
the melting pot, but held hinm to strict accountablilit\ for
castings actually counted. Int fact, ias Foreman L)arnell
Johnson testified, the only certain way Io detiermine
whether all operator had cheated sx as to catch hilml ill thli
act. For himself, Johnson \\ oul(d tike Inobotld\' \ord ihil
an operator had cheated
Fmack w as well as \ arre o ci tile \ca.s l l ii t he s\s.icIh-
es on tlhe machines ill the diccritisig depmrnlcill.c oil uI'
I)1 (ISIl()NS ()1 NA I lO()NAI I.AlIt)R R:IA I IO)NS I()ARI)
lanlipulaled to register false counits. fie testified, howev-
er, that he did notl wanl to lose a good operator bhy
catchinig him cheating. His general policy, therefore, s as
nolt to spring surprise counts on the operators, but to
%waril then well il advance that a count was coming and
thus to deter them from turning ill inflated meter counts.
[mlack did not follow his standard policy with respect
to the October 29, 1977, count. lie himself did not warn
the operators that a coLouit was coming Hlie told Johnlson
to warnl the operators, but it is not clear whether John-
son was told to warn them 2 weeks prior to or on the
very evening of October 28. According to Johnson, lie
warned the operators individually that if he caught one
of them cheating he would firt )lill oni tile spot. lut it is
not clear, when. if at all, he warned them prior to Octo-
ber 29, 1977, that a count was inminlent.
Although Fmack conducted counts on a fairly regular
basis at least once a month, for the 10-year period prior
to October 29, 1977, no employee had been found by Re-
spondenlt to be excessively short ill his meter count. So
far as the record shows only one operator. Eugene
Bonds, had ever previously been discharged for an inflat-
ed count and he was rehired and employed by the Re-
spondent at the time of the hearing.
Escrihano was discharged summarily by telex within
hours after Fmack had written evidence on October 29,
1977, that the couit of Fscribano's castings did not
match his meter count. Emack tesiified that he (lid not
consult with Johnson because Johnson did not work on
Saturdays. Emack discharged E'scribano by telex to save
Fscribano aln unnecessary trip to the plant on Monday.
()n November 3, 1977, when the employees met in
Herman's off'ice to protest the discharge of Escribano,
Berman reacted with curtness and rudeness, refusing to
listenl to any explanation by Escribano or to offer evi-
dence that Escribano had cheated. Such treatment of a
senior employee with an excellent work record is hardly
in accord with valid, business reasons for his discharge.
Moreover, talking to Escribano privately, Berman sought
to persuade Escribano to look for another job and told
Escribano that he was smart an(d could have been a fore-
man fior Respondent "except we're up to here with you."
Although Berman's last remark is ambiguous, it suggests
conduct of F-scribano other than a single incident of
cheating and a single warning for absenteeism over a 3-
year period of top work perfoirmance.
In view of Escrihano's known union activity, Re-
spondent's hostility to the organization of its employees,
the uncertainl nature of Respondent's evidence that i scri-
bano, in fact, had cheated, the minimal amount involved
($h), Eniack's failure to follow his standard warning
policy with respect to the October 29, 1977, count,
F scrihano's record as a top operator, the fact that no op-
erator had previously been discharged for such ani of-
fense over a 1()-year period, the summary nature of
Escrihano's discharge, anid Berman's commenits to Escri-
bano on November 3, 1977, 1 conclude that Escribano
was not discharged because he had cheated or Respond-
ent believed he had cheated on October 28, 1977, but
that Respondenlt's real reason was to remllove from its
plant and from colltact with other Spanish-speaking em-
ployees an active, aggressive union organizer anld thus to
defeat the Union's efforts to secure members among Re-
spondent's employees and to become their collective-bar-
gainiiiig representative. Such conduct violates Section
X(a)(3) and (I) of the Act.
2. The discharge of I eonard I.amkin
As set forth above, Lamnkin was the employee respon-
sible for initiating union activity at Respondent's plant.
His leadership role in the Union was known to Respond-
cnt through the presence of Assistant Foreman Childs at
the first union meeting on August 6, 1977. About a week
later on August 15, Lamkin received a written warning
fir absenteeism because he had been absent from work 4
days since the July vacation period. I amkin, a B opera-
tor, was due for a promotion to A operator at this time,
but was given the warning notice by Emiack instead of a
promotion.
At the time of his discharge on November 8, 1977,
I amkin had been abseiit 26 or 27 days, most of the ab-
sences occurring in the fall of that year. te was dis-
charged by Emack by telex, but not before Berman pub-
licly announced Lamkin's discharge at a meeting of the
productilo employees. The evidence with respect to the
absentee records of other employees is set forth above.
InI short, it appears that a number of employees had rele-
vant records of excessive absenteeism. However, Re-
spondent had no consistent policy of discharging em-
ployees for this reason. Emack testified that Rodgers
ltlue, with a record of chronic absenteeism, was rehired
ill a weak moment. Ralph Alley, another chronic case,
was excused because he had a number of personal prob-
lems.
Lamkin, too, had a personal problem in the fall of
1977. He suffered from stomach pains and had submitted
to a series of physical examiniations to determine the
cause. F}ollowing his summary discharge, Lamkin met
with Berman andt Enmack and explained the reason why
he had been excessively absent during the preceding
months. Lamkin's testimony is uncontradicted that
Berman said he would rehire Lamkin if Lamkin could
prove he was rinot sick; that Respondent did not want
sick people working ii tihe plant. Lamkin produced his
medical records, which revealed no physical cause of ill-
ness. Seizing uponl the evidenlce that Lamkin's absences
were not the result of physical illiess, Berman, with an
obscene expression, ordered l.amkin out of the office.
Based on the foregoing, I conclude that Lamkin's ab-
sentee record was not the actual reasoni for his discharge,
but a pretext to mask Respoindent's real reason, its desire
to rid itself of the employee primarily responsible for
hringing the Union into the plant aid to let his dis-
charge, publicly announced, serve as a dramatic exaniple
to other employees of what they too coulh expect if they
supported the Unlioin and signed a uthori/zation cards. 3By
such conduct Respondent violated Section 8(a)(3) and (1)
of the Act.
3. The discharge of John Manoloulis
Marnoloulis' intcitioni to sign a card loir thie Union was
made known to Skafidas lon April 24. 1978, when Mano-
loulis first received and read the hUnion's leaflet in tihe
71()
MA(iNE SIUM CAS IN(; C()OMPANY
Greek language. At that time he was coercively interro-
gated and threatened by Skafidas. Manoloulis was dis-
charged by Skafidas the very next day on the pretext
that he was cheating the Company by improperly punch-
ing his cards. Foreman Johnson refused to characterize
the improper punching of cards, a frequent occurrence in
the diecasting department, as an act of cheating. No em-
ployee had ever been discharged for such a reason. In
fact, Manoloulis had not been cheating. On the day of
his discharge he had been assigned to a machine with an
average rate for which he would be paid a fixed sum re-
gardless of the number of times he punched his cards.
Skafidas' discharge of Manoloulis was supported by
Emack.
I conclude that Respondent through Skafidas was de-
termined to nip in the bud the inclination of some of the
Greek employees to sign cards for the Union and the dis-
charge of Manoloulis was in furtherance of Respondent's
objective. Such conduct violates Section 8(a)(3) and (I)
of the Act.
4. The discharge of Sherman Brown and Jimmy
Eason
Brown and Eason were veteran employees of Re-
spondent. They were both admittedly good operators
whose records of absenteeism had been condoned by
Emack for many years. Like other employees in the die-
casting department, they became active supporters of the
Union and their activity on the Union's behalf was
known to Respondent.
Their discharges were precipitated not so much be-
cause of their prior absentee records, but as a result of
the peculiar circumstances surrounding Respondent's
notice of a change in the July 1978 vacation schedule
only for employees in the diecasting department. I have
set forth above in considerable detail the facts relating to
the reaction of the supervisors and the diecasters. includ-
ing Brown and Eason, to this revised notice, which re-
quired the diecasters to continue at work on Thursday
and Friday, June 28 and 29, 1978. It is clear that neither
Foreman Davis nor Assistant Foreman Myers took this
notice seriously. Both appeared to acquiesce when told
by Brown and Eason that the latter planned to leave or
were leaving early on June 28. Without a clear direction
from their supervisors to remain at work and having
been paid on Wednesday rather than on their regular
payday, Friday, Brown and Eason along with other die-
casters left on their vacation early on Thursday, June 28.
Brown was ill on Monday and Tuesday, July 17 and 18,
following his vacation. Eason had car problems on
Monday, July 17. Both were discharged by Emack be-
cause they had left early on June 28, did not report for
work on June 29, and were absent on July 17.
The record shows that six diecasters violated Respond-
ent's revised notice by failing to report to work on
Friday. June 30. 1978. without calling in. None, howev-
er, were disciplined or discharged. With respect to one
of these employees, Ralph Alley, an employee with an
excessive record of absenteeism. Emack was satisfied
with Alley's explanation that Alley had not seen the re-
vised notice. With respect to the other five diecasters,
Emack testified that he had no way of knowing that they
were not sick.
Respondenit's real motive in discharging Browin and
Flason is revealed through Emack's comments to Brown
when the latter reported to the plant onm Wednesday.
July 19. 1978. Emack told Browil that "all this"'' would
not have happened if the employees had not tried to get
the Uniion into the plant. Fnack suggested that Brtown
see him after the "bullshit" was over.
I conclude that Browiln alnd I asonl were discharged he-
cause they were known union adherents arid not because
of their absences immediately prior to and after the July
1978 v acation period. By such conduct Respondent vio-
lated Section 8(a)(3) and ( 1I) of the Act.
5. The suspensions of Juan Rodriguez. Charles
Hatcher, Jerome Robinson, Ifstathis Sakalis, Eric
Tolland, arid Jose Rosa
At least five of the above-named employees were
union adherents. Four of them had publicly displayed
their interest in the Union by passing out leaflets at the
plant gate or wearing union buttons. As in the cases of
Brown and Eason, they had left early on June 28. 1978,
contrary to the revised notice requiring diecasters to
report for work on June 28 and 29, 1978. The evidence
with respect to their consversations with Davis and
Myers prior to and on the morning of June 28 is fully set
forth above and will not be repeated here. Both Davis
and Myers were infolrmed specifically by Rodriguez that
the men planned to leave early on June 28 and neither
supervisor made the slightest effort to instruct the eni-
ployces to remain at work. Indeed, Davis asked Rodri-
guez to check with the men as to whether they were
leaving or staying and, informed by Rodriguez that they
were leaving, merely replied, according to Davis' own
testimoniy, that Davis would get back to the men.
The above-named six employees were given 3-day sus-
pensions on July IX, 1978, the day of the Board's hearing
relating to the Union's petition foir an election in this
case. As noted above, other employees who were absent
on Friday. June 29, 1978, contrary to the revised notice
of the vacation schedule, were not disciplined nor
warned for their infraction of Respondent's orders.
I conclude that Rodriguez, Hatcher, Robinson. E Sa-
kalis, Tolland, and Rosa were disciplined by Respondent
on July 18, 1978, because at least five of them were
union adherents. Respondent's purpose was to discourage
union activity among its employees. Such conduct vio-
lates Section 8(a)(3) and (1) of the Act.
6. The suspensions of Charles Hatcher and
Francisco Melendez
Hatcher was a known union activist. He and Melenidez
were given I-day suspension under circumstances set
forth above. There is no evidence that any other employ-
cc had ever been disciplined for this reason. A iunlber of
employees testificd that svisits by employees from other
departments was a fairly frequent occurrence. Hatcher
and Melenldez were absent from their ownii work area no
longer than 1(1 minutes, their break period Their casual
711
l)[FCISIONS ()F NAlO()NAI I At()R R.ELATIONS BO()ARI)
greeting of other employees in the drill and trim depart-
ment hardly rises to the stature of a work interruption.
I conclude that Hatcher and Melendez were disci-
plined because Hatcher, at least, was known to Respond-
ent as a union adherent and Respondent was determined
to minimize his contact with other employees and thus to
further Respondent's purpose to defeat the Union's ef-
forts to organize Respondent's employees. This conduct
violates Section 8(a)(3) and (I) of the Act.
7. The discriminatory treatment of Harry Authelet
Prior to Authelet's public display of his support for
the Union, his relationship with his foreman, Gangemi,
was excellent. Authelet regularly received overtime
work on Saturdays and was treated fairly with respect to
his work assignments during his regular shift. Gangemi
had interrogated Authelet about his interest in the Union,
had threatened that Respondent would close the plant if
the Union came in, and had promised Authelet consider-
ation for a promotion. Immediately after Authelet's
known union activity in passing out leaflets, Gangemi's
attitude changed. Authelet was no longer asked to work
overtime on Saturdays and was denied overtime on the
several occasions when he requested it. His work assign-
ments also became more difficult, resulting in loss of pay.
I conclude that Gangemi's change in attitude toward
Authelet with a resultant loss to Authelet of overtime
work and less remunerative work during his regular shift
was due to Authelet's activity on behalf of the Union
and Respondent's purpose to defeat the Union in its or-
ganizational campaign. Such conduct violates Section
8(a)(3) and (1) of the Act.
I conclude that Respondent did not violate Section
8(a)(3) and (I) by the following conduct:
I. The alleged constructive discharge of Eleanor
Justice
To prove that Justice was constructively discharged in
violation of the Act the General Counsel must establish:
(1) that Respondent deliberately made her conditions of
employment so intolerable she was forced to quit her
job; and (2) that Respondent's motive in forcing her to
quit was to discourage union activity. Neither point has
been established. Justice was beset by a number of very
serious problems in the fall of 1978. The attempt of Re-
spondent's supervisors to persuade her to change her
story about the Escribano count was, if not the least, cer-
tainly not her major concern during this period. Indeed,
it appears that Respondent, perhaps hoping that she
would become its star witness in this proceeding, was
quite generous to her in her difficulties. Although their
efforts were not successful, Berman and Nichols attempt-
ed to find an apartment for her. She was granted all the
leave she needed without question. She was even offered
financial assistance, which she declined. The fact that her
personal relationship with Allen deteriorated and she
may have been given less overtime and less desirable
work to perform does not warrant the conclusion that
she was thereby constructively discharged. After being
absent for an entire week she was not even reprimanded
by Allen, who asked, jokingly or incredulously, but not
harshly, what happened now? With all her personal
problems, I can understand that her head would be hurt-
ing and Allen's remark sufficient in the circumstances to
trigger her sudden decision to quit. The evidence, how-
ever, does not add up to a constructive discharge on the
basis of intolerable working conditions and unlawful
motive. Accordingly, I will recommend dismissal of this
allegation of the complaint.
2. The discharge of Pedro Milan
As set forth above, Milan was a known union adher-
ent. The relationship between him and Allen had deterio-
rated into hostility during the course of the Union's cam-
paign. Nevertheless, union activity, however ardent, does
not shield an employee from discharge for cause, pro-
vided, of course, that the cause is the real and not the
pretextual reason for the discharge. It is clear from
Milan's own testimony that he was the aggressor in his
fight with Allen. Words, an epithet, passed between
them before the fight, but there is no evidence in support
of Milan's testimony that he grabbed Allen because
Milan thought Allen was going to strike first. Milan did
more than grab Allen. Milan struck the first blow with a
piece of metal in his hand and dropped the metal only
when restrained from further assault. I credit Allen's tes-
timony that his mouth was bleeding.
It is unfortunate, but historically true, that organiza-
tional campaigns frequently shatter friendships, separate
families, and divide into hostile camps those for and
those against representation by a union. While the Act
protects employees from unlawful discharge or disci-
pline, the Board and the courts have always recognized
that an employer, even one hostile to unions, cannot op-
erate its business without maintaining production and dis-
cipline. J. P. Stevens & Co., Inc., 181 NLRB 666 (1970).
Allen's discharge of Milan was an immediate and sponta-
neous reaction to Milan's physical attack. In the circum-
stances it was the normal reaction of a supervisor with
such authority, regardless of the aggressor's union sym-
pathies. I shall therefore recommend that this allegation
of the complaint be dismissed. Spotlight Co., Inc., 192
NLRB 491 (1971).
3. The suspension of Raymond Valera
Valera was a union sympathizer and known as such to
Allen. As in the case of other union adherents, Valera's
relationship with Allen changed for the worse subse-
quent to Valera's activities on behalf of the Union.
The incident for which Valera was disciplined in-
volved his horseplay with an air hose. There is evidence
that horseplay with the air hose was not an unusual oc-
currence. Nevertheless, Valera's conduct in directing a
stream of forced air, whether intentional or not, at Catu-
dal's ear was potentially dangerous. Certainly, it was not
a laughing matter and it was Valera's laughter as much,
if not more, than his conduct that caused Catudal to
complain to Allen and Allen to discharge Valera.
Berman, acting responsibly, investigated the incident and
reduced the discharge to a suspension. While there might
be some question as to Respondent's motive if the dis-
charge of Valera remained in effect, all the circum-
712
MA(iNSSIMN1 C'ASI'IN(i C()MPANY
stances must he considered in context. Clearly. Valera's
conduct -warranted some discipline. His short suspension,
without more. in my opinion, was a reasonable exercise
of Respondentls final business judgment in maintaining
proper discipline with a due regard for the safety of its
employees. I therefore conclude that Respondent's
motive, with respect to this incident, was unrelated to
Valera's union activity and shall recommend that this al-
legation of the complaint be dismissed.
C. Discrimination Under Section R(a)(4)
I conclude that Respondent violated Section 8(a)(4)
and (I) of the Act by issuing disciplinary warnings to
Francisco Melendez and Jerome Robinson because they
attended a Board hearing.
It is well established that an employee is protected
under the above sections of the Act in his right to attend
a Board hearing or otherwise to participate in various
stages of the Board's processes. E. H. Limited d/b/a Ear-
ringhouse Imports, 227 NLRB 1107, (1977), and cases
therein cited. This right extends to an employee's normal
working hours absent compelling evidence of an employ-
er's business justification in ordering the employee to
remain at work. Id. at 1108. Included in the protection of
Section 8(a)(4) are employees whose on-the-job interests
are involved in the hearing whether or not they actually
give or are scheduled to give testimony. Id., fn. 6. Ac-
cordingly, I conclude that Davis' threat to Melendez and
Robinson that they would be severely punished if they
left to attend the Board hearing involving the Union's
petition for an election in this case violated Section
8(a)(1) and Respondent's subsequent issuance of disciplin-
ary warnings to these employees because they had at-
tended that hearing violated Section 8(a)(4) and (I) of
the Act.
D. The Refusal To Bargain
The appropriate unit is:
All full-time and regular part-time production and
maintenance employees including leadmen and plant
clericals employed by the Respondent at its Hyde
Park, Massachusetts, location, excluding all office
clerical employees, professional employees, guards
and supervisors as defined in the Act.
As set forth above, the General Counsel has submitted
87 valid cards of employees whose names appear on the
payroll list of June 14, 1978. To this number must be
added the cards of Escribano, Lamkin, and Manoloulis,
for a total of 90 valid cards. The cards of these discri-
minatorily discharged employees must also be added to
the stipulated number of 175 employees employed in the
appropriate unit on that date, for a total of 178 employ-
ees. Thus, as of June 14, 1978, the Union had achieved
majority status.
For reasons stated below in the section entitled "The
Remedy," I shall direct a bargaining order in this case.
In doing so, however, I do not rely upon the allegation
of the complaint that Respondent has violated Section
8(a)(5) of the Act. A prerequisite to a finding that this
section of the Act has been violated is a legally sufficient
demand for recognition. Freehold .AIMC-Jeep Corporation,
230 NLRB 903 (1977). While a request to bargain need
not be made in any particular form, it must clearly
convey to an employer a union's desire for recognition
and bargaining in an appropriate unit. In the instant case,
the Union's sole demand for recognition was made vo-
cally on June 14, 1978, through a bull horn during the
course of a rally in front of Respondent's premises. It has
not been established that responsible officials of Re-
spondent were aware of that demand. In these circum-
stances, I conclude that the Union's demand for recogni-
tion was inadequate within the meaning of Section
8(a)(5) of the Act. I shall recommend dismissal of this al-
legation of the complaint.
The unfair labor practices found above are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
THE RI:MEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent discriminatorily dis-
charged Walter Escribano, Leonard Lamkin, John Man-
oloulis, Sherman Brown, and Jimmy Eason, I shall rec-
ommend that Respondent offer each of them immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges. I have also found that Respondent discrimina-
torily suspended Charles Hatcher, Francisco Melendez,
Juan Rodriguez, Jerome Robinson, Efstathio Sakalis.
Eric Tolland, and Jose Rosa and discriminatorily gave
Harry Authelet less remunerative work and denied him
overtime. With respect to all of the above-named em-
ployees, I shall recommend that the Respondent make
them whole for any loss of earnings as a consequence of
their illegal discharges, suspensions, or discrimination in
the manner set forth by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950); Florida Steel Corporation,
231 (1977). See, generally, Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
In view of Respondent's egregious conduct in this case
a broad cease and desist order is necessary.
I also find that a bargaining order is warranted under
the doctrine of N.L.R.B. v. Gissel Packing Co., supra.
There the Supreme Court held that a bargaining order,
based on employee sentiment expressed through cards,
should issue where the possibility of erasing the effects
of past practices and ensuring a fair election, though
present, is slight and cannot be achieved through the use
of traditional remedies. In the instant case, within months
after the initiation of the Union's campaign, the Respond-
ent discharged the two leading union adherents, includ-
ing Lamkin, the employee primarily responsible for initi-
ating the Union's organizational drive. Thereafter, other
employees were discharged or suspended for pretextual
reasons. Employees were coercively interrogated and
threatened with plant closure, one such threat emanating
713
I)ECtISI()NS O)F NATI ()NAI IAB()R RELATIONS BO()ARI)
from Respondent's highest official in charge of the plant.
The impact of Respondent's egregious unlawful conduct
was continuing at the time of the hearing and, so far as
the record shows, has not been abated or remedied since
then. In this context, reinstatement of discharged em-
ployees, make-whole and cease-and-desist orders, and
traditional remedies, cannot, in the context of Respond-
ent's pervasive and adamant hostility to the representa-
tion of its employees by this Union, guarantee a fair elec-
tion.
The bargaining order will he effective from June 14,
1978, at which time the Union had achieved majority
status and Respondent had long since embarked upon its
illegal campaign to defeat the Union.
Upon the basis of the findings of fact, conclusions of
law, and the entire record in this case, I hereby issue the
following recommended:
ORDER"
The Respondent, Magnesium Castings, Inc., Hyde
Park, Massachusetts, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Coercively interrogating its employees concerning
their union activity or the union activity of other em-
ployees.
(b) Threatening directly or impliedly that the Re-
spondent would close its plant if the Union represented
its employees.
(c) Threatening to discharge employees or deny them
raises because of their union activity.
(d) Threatening loss of jobs through union-causation in
the event the Union represents Respondent's employees.
(e) Restraining and coercing employees from engaging
in union and protected concerted activity by informing
them that the discharge and discipline of employees as a
result of the Union's campaign would not have occurred
if the employees had not tried to bring the Union into
the plant.
(f) Creating the impression of surveillance by inform-
ing employees their cars had been seen at union meeting
places, that Respondent had heard that they had signed
union cards, or would know who among its employees
had signed union cards.
(g) Restraining and coercing employees by suggesting
that employees give testimony in Respondent's interest at
a Board proceeding.
(h) Restraining and coercing employees by threatening
severe punishment if they attend a Board hearing involv-
ing their self-interest.
(i) Coercively directing employees not to sign union
authorization cards.
(j) Soliciting employees not to sign union cards or
attend union meetings because of the Respondent's gen-
erous leave policy.
" In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the find-
irags, conclusions, and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations, be adopted by the Hoard
and become its findings, conclusions, and Order, and all objection, there-
to shall he deemed waived for all purposes
(k) Promising employees consideration for promotion
contingent upon the defeat of the Union in its campaign
to represent Respondent's employees.
(I) Publicly announcing for the first time following the
initiation of the Union's campaign that Respondent
would grant free legal advice to its employees.
(m) Maintaining and promulgating an overly broad
and discriminatorily applied no-solicitation and no-distri-
bution rule.
(n) Discharging, suspending, or otherwise discriminat-
ing against employees because of their union and protect-
ed concerted activities.
(o) Discriminating against employees because of their
union activity by granting them less remunerative work
and denying them overtime.
(p) Discriminating against employees by issuing disci-
plinary warning notices because they attended a Board
proceeding involving their self-interest.
(q) Engaging in surveillance of union activity by con-
spicuously surveilling the passing out of union leaflets.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively,
effective June 14, 1978, with United Electrical, Radio
and Machine Workers of America (UE), Local 262 as
the exclusive collective-bargaining representative of the
employees in the below-described appropriate unit and, if
an agreement is reached, embody such agreement in a
written, signed contract. The appropriate unit is:
All full-time and regular part-time production and
maintenance employees including leadmen and plant
clericals employed by the Respondent at its Hyde
Park, Massachusetts, location, excluding all office
clerical employees, professional employees, guards
and supervisors as defined in the Act.
(b) Offer Walter Escribano, Leonard Lamkin, John
Manoloulis, Sherman Brown, and Jimmy Eason immedi-
ate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges previously enjoyed, and make them whole in
the manner set forth in the section of this Decision enti-
tled "The Remedy."
(c) Make whole Charles Hatcher, Francisco Melendez,
Juan Rodriguez, Jerome Robinson, Efstathio Sakalis,
Eric Tolland, Jose Rosa, and Harry Authelet for any loss
in pay suffered as a result of the discrimination against
them, with interest.
(d) Rescind and remove from the personnel records of
Charles Hatcher, Juan Rodriguez, Jerome Robinson, Ef-
stathio Sakalis, Eric Tolland, and Jose Rosa notices of
suspensions, dated July 17, 1978.
(e) Rescind and, if physically included, remove from
the personnel records of Charles Hatcher and Francisco
Melendez evidence of disciplinary warnings relating to
their absence from their work location during their break
period during the early part of April 1978.
(f) Rescind and, if physically included, remove from
the personnel records of Jerome Robinson and Francisco
714
MA(;NISIUM CASTIN(G C()MPANY
Melendez evidence of disciplinary warnings relating to
their attendance at a Board hearing on July 1X. 1978.
(g) Rescind and remove from its bulletin boards and its
employee handbook the overly broad and discriminatori-
ly applied no-solicitation, no-distribution rule.
(h) Post at its plant at 98 Business Street, Hyde Park,
Massachusetts, copies of the attached notice marked
"Appendix."' Copies of said notice, on forms provided
by the Regional Director for Region 1, after being duly
signed by an authorized representative of Respondent,
shall he posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure
9 In Ihe event thal this ()rder is enforced by a Judgment of the Ulnited
Stales Court of Appeals, the kord,, il the notice reading "Posted by
Order of Ihe Nalional Lahlr Relalions BIoard" shall read "'Posted Pursu-
ant to a Judgment of the Ulnited Stltles Colurt of Appeals n fio rcing all
order of the National abhor Relatinll, Board"
that the notices are not altered, defaced, or covered by
any other material.
(i) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports. and all records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(j) Notify the Regional Director for Region I, in writ-
ing. within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS iURIH-lR RICOMMENI)DI) that the complaint be
dismissed insofar as it alleges that Respondent violated
Section 8(a)(5) and Section 8(a)(3) and (1) of the Act
with respect to the rescinded discharge and suspension of
Ramon Valera, the discharge of Pedro Milan, the cessa-
lion of employment of Eleanor Justice, and insofar as it
alleges violations of the Act other than those specifically
found herein.
715