Markle Mfg., Co.

National Labor Relations Board - Board Decisions

Jan 17, 1979

239 N.L.R.B. 1353 (N.L.R.B. 1979)

MARKLE MFG. CO.
Markle Manufacturing Company of San Antonio and
International Union of Electrical. Radio & Machine
Workers, AFI,-CIO-CLC, and its Local 1000.
Cases 23-CA-5460. 23--CA-5498, 23-CA-55008
23-CA-5518. 23-CA-5550. 23-CA 5573, 23 CA
5439, and 23-CA 5672
January 17, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PtENi-.I IO
AND MURPHY
On March 26, 1976, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, the General Counsel and Re-
spondent filed exceptions and supporting briefs and
the Respondent filed an answering brief.
Pursuant to the provisions of Section 3ib) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge as
modified herein and to adopt his recommended Or-
der which has been modified in certain respects. 3
i The Respondent has excepted to certain credibility findings made hb the
Administrative Law Judge. It is the Board's established polic? not to over-
rule an Administrative Law Judge's resolutions with respect ito crediblity
unless the clear preponderance of all of the relevant cs ldence cmnsinces u
that the resolutions are incorrect. Standard Dri Waull Prwvlus t. Irn. 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 The complaint alleges that Respondent violated Sec. 8(a) II) of the Act
by its denial of a probationary wage increase to employvee Puente hecause or
the Union. The credited testimony estabhlishes. howeser. that Puente vas
told by Shop Superintendent Arcos following expiration Ef the probatlonar\
period that he would be receiving a raise of approximalels 10 cents hut that
"if you want to wait . . . it will be more after the contract is signed" We
agree with the Administrative Law Judge that such a statement is not siols-
live of Sec 8(aX I) of the Act.
We find that as regards information relating to the complaints and
charges filed against Respondent under the Equal Pax Act, title VII. t ec*-
utive Order 11246. and state employment practice laws. the tnmon ha, not
demonstrated the relevance of such informatison as toi nionunlt emplosees
Therefore par. I(c) of the recommended Order has been modified ti restrict
this information to unit employees Moreover. since the Umnon has nt deim-
onstrated that iI needs the names of the persons who filed such charges and
in order to protect the identity of the persons filing them. this paralgraph hal
been modified to provide that Respondent may delete frorr.1 this inforni.ltiin
the names of the charging parties. Ht inghouc ti.he'trl (t sr/rtllrltmu 239
NLRB 106 (1978).
I. THE 8(a)(I) VIOLATIONS
A. Respondent 's Un/nlawJful Threat to Discharge
Employee Carrtu During a Grievance Session
The Administrative Law Judge concluded that
Cantu's participation in a grievance session consti-
tuted protected concerted activity and, further, that
[riese. Respondent's vice president, made a threat to
fire Cantu during the course of such meeting. He
concluded, however, that Respondent, by such con-
duct, committed no violation of Section 8(a)(1) inas-
much as there is no allegation that Cantu's participa-
tion in the grievance session was the cause of Friese's
threat.
On October 23, 1974, the parties were engaged in a
grievance session over the discharge of certain em-
ployees and Respondent's issuance of a reprimand
letter. During the course of the discussion, Cantu.
who was the Union's president, stated to Friese that
Friese had been offering money to union adherents
to quit the Union. Friese denied the accusation and
responded that if Cantu did not refrain from spread-
ing these lies, "I'm going to punch his card and fire
him."
It is clear that Respondent's threat occurred at a
time when employee Cantu was engaged in protected
activity. Further, even assuming that Respondent's
threat was provoked by Cantu's conduct, we do not
find that such conduct was so egregious as to remove
him from the protection of the Act.4 Accordingly, we
conclude that Respondent violated Section 8(a)( I) by
threatening to discharge an employee for engaging in
protected conduct during the course of a grievance
session.
B. Respondents Unlawful Threats to Take
Di.sciplinarl' Action Against E,?lpohvees Almara: and
Cantu ,/or Intdicating Dissatisfaction with Respondent'S
Bargaining Proposals
The Administrative Law Judge concluded that nei-
ther of Respondent's statements to employee Almar-
az during the course of a meeting on March 12 con-
stituted violations of Section 8(a)(I) of the Act. We
disagree.
On or about March 12. 1975, employee Almaraz
and several other employees were reading a letter
prepared by Respondent concerning certain raises
See Ihc Rulicher I,oanuIif ririt (r orporiatrln. 76 Nl RB 52b. 527 I194i8.
wherein the Board disintgu ihed tho,se c,.es here "emprlpee, engaged in
concerted aclisli, exceed the hounds of la' ful conduct in 'a moment if
animal exubheranlc' nd those flalgrant ctases in which the mnlscnduct is
so s'ilent oir of suth scrlOis character is to rendnderthe emplohee unfit for
further sersice See ;ido S/.. . O. I,hid oil ( ,tnpanl , Ira . 153 Ni RB 1244
( 19tS): i-.,, %idcl ( ...repar. 159 NI RB 293 299 300 (1966t
1353
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which were to be granted. Almaraz questioned
whether all employees would get the promised raise
and indicated to other employees present that they
"would have to get on their knees" to obtain the
raise. Almaraz was subsequently summoned to Shop
Superintendent Arcos' office. Arcos stated his dis-
pleasure with Almaraz' comments and told him to
"keep his mouth shut." During the same conversa-
tion, Arcos also referred to Almaraz' testimony at an
earlier arbitration hearing at which time Arcos stated
that he would prove Almaraz' testimony to be a lie
and that if he, Arcos, were fired, he would see to it
that Almaraz was fired also.
Arcos' statements to Almaraz "to keep his mouth
shut" clearly constitutes coercion directed towards
suppressing an employee's questioning of Respon-
dent's sincerity in making bargaining proposals and
thereby interferes unlawfully with protected Section
7 rights. It is equally clear that Arcos' threat to dis-
charge Almaraz because of his testimony at an earli-
er arbitration hearing interferes with an employee's
right to engage in concerted activity for mutual aid
and protection. Accordingly, we find that Respon-
dent, by its above statements to employee Almaraz
on March 12, violated Section 8(a)(1) of the Act.
C. Friese's February 7, 1975, Remarks
The Administrative Law Judge found that Friese's
February 7, 1975, remarks to Cantu were not unlaw-
ful. We disagree. On February 7, 1975, Vice Presi-
dent Friese held a meeting with Respondent's newer
and apparently nonunion employees for the purpose
of explaining the Company's bargaining position.
Union President Cantu joined the meeting and an
impromptu debate subsequently ensued between
Cantu and Friese during which Friese stated to Can-
tu that if he did not like the Company's proposals he
could quit.
We find that such remarks constitute a veiled
threat designed to convey the impression that man-
agement considers continued employment incompat-
ible with engaging in union activities.5 Accordingly.
we conclude that Respondent's statement comes
within that interference and coercion proscribed by
Section 8(a)(1).
II. THE 8(AX3, VIOLATION
Respondent's Unlawful Denial of a Wage Increase
to Employee Navarro
The Administrative Law Judge found that Re-
spondent did not act unlawfully when it denied em-
Padre Dodge. 205 NL.RB 252 (1973)
ployee Navarro a raise, telling him that it could not
give him one as the Union would file charges. We
disagree.
Jesus Navarro was hired by Respondent as a fitter
on February 20, 1975. At that time Shop Superinten-
dent Arcos promised him a wage increase of 28 cents
an hour, to be instituted at the end of a 75-day pro-
bationary period. At the expiration of the probation-
ary period, Navarro questioned Arcos concerning the
promised increase. Arcos stated that he could not
give Navarro any raise while the Union and the
Company were engaged in negotiations inasmuch as
the Union would file charges against the Company.
We find that Respondent violated Section 8(a)(l)
of the Act by its statement blaming the Union for the
failure to grant the promised wage increase and fur-
ther violated Section 8(a)(3) in its denial of the wage
increase it would otherwise have granted.
iII. iHE 8(AHS) VIOLATION
The Unlawful Refusal To Agree to a
Dues-Checkoff Clause
The Administrative Law Judge dismissed the Sec-
tion 8(a)(5) allegations of the complaint alleging that
Respondent unlawfully refused to agree to a dues-
checkoff clause. We disagree.
The parties' first and only collective-bargaining
agreement contained a dues-checkoff clause which
was duly implemented. During the course of initial
negotiations for a successor contract in December
1974, Respondent announced that it would not agree
to a continuation of the checkoff provision for the
stated reason that the Union was filing too many
charges and grievances alleging discrimination
against union members. Respondent further stated in
justification of its position that since the absence of
such a clause would preclude knowledge as to which
employees were members of the Union, Respondent
could not be charged with discrimination.
The Administrative Law Judge concluded that (I)
the Company's position did not evidence a determi-
nation to bargain in bad faith, and (2) the failure to
agree to a particular provision advanced by the
Union is not itself violative of Section 8(a)(5).
Initially, we note that the issue presented for con-
sideration herein is not whether Respondent may
lawfully be compelled to grant a clause providing for
checkoff of union dues, but whether Respondent
may base its refusal to agree to the continuation of
such a provision solely on reasons proscribed by the
Act. While the former clearly runs afoul of the Su-
preme Court's decision in H. K. Porter Co., Inc..6
6397 US. 99 (1970).
!354
MARKLE MFG. CO.
that decision does not purport to permit an
employer's refusal to agree to contractual provisions
for reasons clearly violative of the Act. Accordingly.
we conclude that it is properly within the Board's
remedial power to require a respondent to cease and
desist from resting its refusal to agree to a dues-
checkoff clause on reasons which are illegal.
We further conclude, contrary to the Administra-
tive Law Judge, that Respondent's withdrawal of a
clause previously in existence evidences, under the
circumstances of the present case, its determination
to refuse to bargain in good faith. Respondent. by Its
stated refusal to agree to the continuation of a check-
off clause, clearly indicated an intent to withdraw an
existing term and condition of employment because
employees had filed charges and otherwise invoked
Section 7 rights by pursuing remedies under the par-
ties' contractual grievance procedure. Further. Re-
spondent's statement clearly implied that agreement
on a checkoff clause could not be obtained absent
some kind of guarantee from the Union that its
members would cease filing charges and grievances.
By thus predicating its withdrawal of an existing con-
dition of employment on lack of participation in pro-
tected activity and by implicitly conditioning agree-
ment to continuation of a checkoff clause of the
waiver of its employees' right to invoke Board pro-
cesses as well as other Section 7 privileges, Respon-
dent was clearly impeding and frustrating bargaining
for no legitimate purpose. Accordingly, we find that
Respondent, by such conduct, refused to bargain in
good faith in violation of Section 8(a)(5) of the Act.
IV. THE STATUS OF RESPONDENT'S STRIKING EMPLOYEES
The Administrative Law Judge declined to resolve
the status of Respondent's striking employees since
he concluded that the record does not afford a suffi-
cient basis on which to resolve the issue.
The General Counsel contends that Respondent's
employees who engaged in the July 8 strike were un-
fair labor strikers and are, therefore, entitled to rein-
statement upon unconditional application to return
to work. Respondent contends, however, that its
striking employees were engaged in an economic
strike. For the reasons set forth below, we find merit
in Respondent's contention.
The Administrative Law Judge rests his failure to
resolve the status of the employees herein primarily
on a lack of evidence as to whether the parties' origi-
7The Administrative Law Judge concluded that there is no e'idencc to
indicate that either party submitted notice of intent to terminlte the illec-
tive-bargaining agreement. However. the undisputed tesHimnon, of tI mon
Representative Paul Javior shows that such notice was timekl submitted hs
the Union and acknowledged b. Respo*ndent on or ahlul Decenlher 6,
1974 Accordingly we so find
nal collective-bargaining agreement was duly termi-
nated by submission of written notice 60 days prior
to the stated expiration date. Thus, since that con-
tract, which contained a no-strike clause, would con-
tinue in full force and effect in the absence of notice
of intent to terminate, he concluded that an issue
presented (and incapable of resolution) is whether
the strikers, by striking in violation of a no-strike
clause, lost their status as employees pursuant to the
provisions of Section 8(d) of the Act. However. on
December 6, 1974, the Union notified Respondent of
its intent to terminate the contract and Respondent
acknowledged receipt of such notice on or about the
same date.' Thus the contract was duly terminated
by notice submitted to Respondent by the Union on
December 6, 1974. Accordingly, we conclude that the
status of Respondent's striking employees under Sec-
tion 8(d) of the Act is not an issue for resolution
herein.
On or about May 19, 1975. Respondent's emploN-
ees met to voice their complaints over certain of Re-
spondent's current practices. The testimony of Gen-
eral Counsel's witnesses establishes that the
employees expressed objections to Respondent's in-
stitution of "new" safety rules and "new" absentee-
ism policies and its hiring of new employees "off the
street" at higher rates of pay than unit employees. At
the conclusion of all the employees' complaints. a
motion was made and carried that employees re-
tained the right to call a strike voted by the members
should the Respondent continue the above-described
practices. The strike commenced on July 8. 1975. and
apparently continued until the employees' request to
return to work on December 23.
Each of the foregoing practices referred to above
was alleged to constitute an unfair labor practice and
was fully litigated during the course of the hearing.
The Administrative Law Judge concluded, and we
agree, that none of the above-described conduct tvio-
lated the Act. Accordingly. since we find that the
July 8 strike was neither precipitated nor prolonged
by conduct proscribed by the Act, we conclude that
Respondent's striking employees have at all times
herein retained the status of economic strikers.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent.
Markle Manufacturing Company of San Antonio,
San Antonio. Texas, its officers, agents. successors,
and assigns, shall:
I. Cease and desist from:
(a) Interfering with, restraining. and coercing em-
ployees in the exercise of the rights guaranteed them
by Section 7 of the Act. by denying employees merit
1355
DECISIONS OF: NATIONAL LABOR REL.ATIONS BOARD
increases to which thev are entitled because they
have engaged in union or other protected concerted
actix its: by interfering with their rights to hold meet-
ings on comlipany premises during nonworking time;
or bh threatening to discharge employees because
the' have engaged in protected concerted activity.
(h) Discriminating against employees with regard
to hire or tenure of employment by reprimanding,
discharging. and failing to grant wage increases at
the expiration of their probationary periods in order
to discourage union activity or other protected, con-
certed activity.
(c) Refusing to bargain with International Union
of Electrical. Radio & Machine Workers, AFL CIO-
CIC'. and its l.ocal 1000, by discontinuing its prac-
tice of immediately informing the Union of those
employees who have been laid off, quit, or been rep-
rimanded: by failing and refusing to furnish the
Union with information concerning the attendance
records of all employees in the bargaining unit de-
scribed below: by failing to furnish requested infor-
mation concerning all complaints and charges filed
against the Company under the Equal Pay Act, Title
VIl, Executive Order 11246, and state employment
practice laws relating to all employees in the bargain-
ing unit described below, and copies of each com-
plaint or charges relating to employees in the bar-
gaining unit described below, along with any related
documents pertaining to the status of such charges,
provided that Respondent may delete therefrom the
names of the charging parties: or by failing and re-
fusing to agree to a contract clause providing for the
checkoff of union dues for reasons proscribed by the
Act. The bargaining unit is:
All production and maintenance employees
including group leaders, leadmen, shop clerks,
truckdrivers, shipping and receiving clerks,
welders, burners, fitters, layout men, and inspec-
tors, but excluding all other employees including
all office clerical employees, guards, watchmen
and supervisors, as defined in the Act.
(d) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act, in-
cluding the right to self-organization, to form, join,
or assist the above-named Union, or any other labor
organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, as guaran-
teed by Section 7 of the Act, or to refrain from any
and all such activities.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Grant employee Feles M. Cantu a wage in-
crease of 16 cents per hour retroactive to October 8.
1974, with interest as prescribed in Florida Steel (Cor-
poration, 231 NLRB 651 (1977). See, generally, Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
(b) Grant employee Jesus Navarro a wage in-
crease of 28 cents per hour retroactive to April 20,
1975, with interest.
(c) Expunge from Marvin O'Neil's personnel file
the written reprimand of on or about October II11.
1974.
(d) Reinstate employee Ernest N. Reynolds to his
former job or, if that job no longer exists, to a sub-
stantially equivalent position. without prejudice to
his seniority or other rights or privileges previously
enjoyed, and make him whole for any loss of benefits
resulting from the discrimination against him from
and after March 3, 1975, pursuant to the formula set
forth in F. W. W'oolworth Company, 90 NI.RB 289
(1950), with interest.
(e) Immediately inform the Union of any emploN-
ee who has been laid off, quit, and/or been repri-
manded.
(f) Grant employee Jesus C. Gonzalez 16 hours of
pay at the rate of $3.05 per hour with interest from
May 26, 1975.
(g) Upon request, furnish to the above-named la-
bor organization information concerning attendance
records of all employees in the bargaining unit, de-
scribed above, from the period of January 1, 1975. to
the date of compliance.
(h) Furnish the above-named labor organization
copies of all complaints and charges filed against the
Company under the Equal Pay Act. Title VII, Execu-
tive Order 11246, and state employment practice
laws relating to all employees in the bargaining unit
described above, and copies of each complaint or
charge relating to employees in the bargaining unit
described above, along with any related documents
pertaining to the status charges, provided that Re-
spondent may delete therefrom the names of the
charging parties.
(i) Post at its San Antonio, Texas, facility copies
of the attached notice marked "Appendix." 8 Copies
of said notice, on forms provided by the Regional
[Director for Region 23, after being duly signed by
Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure
In the eent nalt ihi Order i enfl, reed b a judgment of a United States
('our rlf Appeals, the ords in the notice reading "Posted bh Order of the
N.tlllo;n I.ahbor Relaltions Boaerd" shall read "Posted Pursuant to a Judg-
nnt of the Utniited Stiaes ('our (if Appeals Fnflorcing an Ordei of the
Nsitlo nai I lhor Re.lnll, Hi;lmd."
1356
MARKLE MFG. CO.
that said notices are not altered, defaced, or covered
by any other material.
(j) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
Ii IS FI tRIHER O(RDI)RED that the allegations of the
consolidated complaint, as amended, set forth in
paragraphs 9(e) and (f); 14(a), (b) (insofar as it alleg-
es a violation of Section 8(a)(5) ), (c)-(i), (k), and (I):
and paragraphs 10(a), (b), (d). and (g) of the com-
plaint dated October 23. 1975, be dismissed in their
entirety.
MtNl1Hl R Mt RPm dissenting in part:
I cannot agree with my colleagues' finding that
Respondent violated Section 8(a)(5) of the Act by its
refusal to furnish complaints and charges filed
against it under the Equal Pay Act, Title VII, Execu-
tive Order 11246. and state employment practice
laws.
As I stated in my dissent in Westinghouse Electric
Corporation. 239 NLRB 106 (19785. many of the
agencies established to implement the various anti-
discrimination laws hold as confidential any charges
filed alleging unlawful conduct under those laws.
Consequently. the Board does not have the power to
require disclosure of such documents in the face of
statutory prohibitions against it. The protection af-
forded this information by the antidiscrimination
statutes is of fundamental concern thereby making it
totall, inappropriate to order an employer to give
such information to a labor organization. The
majorits's conclusion that "sanitizing" the docu-
ments will actually protect the identity of a charging
party is simplistic and unrealistic. If a union wants to
learn the identity of a charging party it will be able to
deduce the name from the information supplied in
the charges. Thus. the confidentiality has been dc-
stroyed by the Board's action. I cannot understand
the Board's lack of concern in this serious matter.
Accordingly. I would not adopt this finding of the
Administrative Law Judge. In all other respects I
concur with my colleagues.
See also rnl d ienl in [ '., at' )tli I .1.. ,d ) :c ( ,. 239 NI RBI
119781
APPEN DIX
Norl( i To E\lti'o i s
PosrIt ) BY ORI)I R OF 11Ii
NAI 1NAt LABOR R A I i()NS BOARI)
An Agency of the United States Government
WF WIt I Nor interfere with, restrain. or coerce
our employees in the exercise of the rights guar-
anteed them by Section 7 of the Act bh den ing
them merit wage increases, interfering , tith their
right to hold meetings on company premises
during nonworking time. or by threatening to
discharge employees because they have engaged
in protected concerted activity.
WE WA iL NOI discriminate against our emplo_,-
ees on account of their union membership. or
lack of it, by reprimanding them, discharginl
them, or failing to grant them wage increases
following the expiration of their probationary
periods.
WE WlLL NOT refuse to bargain collectiv el,
with International Union of Electrical. Radio &
Machine Workers, AFL CIO CL(,. and its L.o-
cal 1000, by refusing to furnish information re-
quested necessary to the performance of their
bargaining obligations or to enforce pro'islslns
of the collective-bargaining agreement and to
represent fairly all employees in the bargaining
unit, by failing and refusing to immediately in-
form the Union of those employees who ha,,e
been laid off, quit or been reprimanded: or ho
failing and refusing to agree to a contract clause
providing for checkoff of union dues for reasons
proscribed bv the Act. The bargaining unit is:
All production and maintenance emplo'ees
including group leaders, leadmen. shop clerks.
truckdrivers, shipping and receix ing clerks.
welders, burners, fitters, layout men, and in-
spectors, but excluding all other emplohyees in-
cluding all office clerical employees. guards.
watchmen and supervi.sors. as defined in the
Act.
We wsii.. NOr in ans other manner. interfere
with, restrain or coerce our emploees in the ex-
ercise of the rights guaranteed them bh Section 7
of the Act.
Wi \ iii offer employee Ernest Reyxnolds
reemplo merit to his former job or, if that job no
longer exists. to a substantially equivalent posi-
tion. ,ithouit prejudice to his seniority or other
rights or privileges previously enjoyed. and
make him whole for all wages and benefits lost
as a result of our discrimin ation against him.
with interest.
Wi x i1 grant Feles M. Cantu a wage in-
crease of 16 cents per hour retroactive to Octo-
her 8. 1974. nith intcre't.
'1 xnl i grrant Jesus Nalsarro a waCe increase
of 28 cents per hour retroactive to April 20.
1975. swith interest.
\'it \ l gi 2rant cmplox ce Jesus C. Gonzales 16
hours If pax at the rate of S3.05 per hour. with
interest. bec.iuse we denied him holiday pan to
k hich he \was entitled.
Wit lt I. expunge from Miarvin O'Neil's per-
1357
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sonnel file the written reprimand of on or about
October 11, 1974.
WI ',II. immediately inform the Union of
any employee who has been laid off, quit, and/
or been reprimanded.
Wi wii.i furnish the Union with information
concerning attendance records of all employees
in the bargaining unit from January I, 1975, to
the date of compliance.
Wt. wiit. also furnish the Union with a list of
all complaints and charges filed against us under
the Equal Pay Act, Title VII of the Civil Rights
Act of 1964, Executive Order 11246, and state
employment practices relating to employees in
the bargaining unit, and copies of each com-
plaint and charge relating to employees in the
bargaining unit, along with any related docu-
ments pertaining to the status of such charges
provided that we may delete therefrom the
names of the charging parties.
MARKLE MANUI IA(TlRIN(, COMPANY OF SAN
ANTONIO
DECISION
STATEMENT OF THE CASE
JAMES L RosE. Administrative Law Judge: These matters
came on for hearing at San Antonio, Texas, on various
dates between December 9, 1975, and January 7, 1976.
In substance, the consolidated complaint, as amended,
and the complaint allege denial of wage increases, threats
of discharge and disciplinary action, and telling employees
that they had been denied wage increases because of the
Union, all in violation of Section 8(a)(1); reprimands, fail-
ure to grant wage increases and a discharge, all in violation
of Section 8(a)(3); and numerous acts said to be violative
of Section 8(a)(5). These allegations generally come within
one of three categories: Unilateral changes of wages, hiring
practices and other conditions which are mandator'y sub-
jects of bargaining; refusing to furnish certain information
to the Union; and refusing to agree to a contract clause
providing for the checkoff of union dues.
One may fairly characterize the parties' relation in the
last 2 years as litigious. Formalized grievances and Na-
tional Labor Relation Board charges abound. Grievances
have gone to arbitration. Whether the Company must
abide by an arbitrator's decision is being appealed to the
Federal circuit court of appeals. The Company filed a state
court action as well as changes in connection with the
strike.
In short, even though settling a contract in February
1974, the parties continued in conflict. And from the rec-
ord, it would not be fair to fault one side more than the
other-a disputatious attitude is likely to be countered in
kind.
In the instant round of litigation, the Union filed at least
II unfair labor practice charges, 8 of which are involved
here, 2 of which were deferred to arbitration [Collyer In.ru-
lated Wire, a Gulf and Western System Co.., 192 NLRB 837
(1971)], and I of which is still under investigation.
As might be expected with such an outpouring, much
trivia is included. Nevertheless, there is proof that the
Company has committed some unfair labor practices.
The record shows that the Company has at times been
obstreperous, but tLen so has the Union. But the Company
has not been totally recalcitrant. For instance, within 4
months of the Union's certification, the parties had a con-
tract, with the Company agreeing to a union-security
clause.
These generalizations are not particularly relevant to any
specific allegation, but serve as a cursory overview of the
dynamics involved.
Based on the record as a whole, including briefs and
arguments of counsel, and upon my observation of the wit-
nesses, I hereby make the following:
FINoINGS OF FACT
I JURISDICTION
The Respondent is a Texas corporation having its princi-
pal place of business in San Antonio, Texas, where it is
engaged in the manufacture of metal products. During the
12 months preceding the issuance of the complaints
herein, the Respondent purchased and received goods and
materials valued in excess of $50,000 from points directly
outside the State of Texas. The complaint alleges, the Re-
spondent admits, and I find, that the Respondent is now,
and at all times material has been, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II THE LABOR ORGANIZATIONS INSOLvED
The Respondent admits, and I find, that International
Union of Electrical, Radio & Machine Workers, AFL
CIO CLC, and its Local 1000 (herein collectively referred
to as the Union) are labor organizations within the mean-
ing of Section 2(5) of the Act and since September 7, 1973,
the Union has been the exclh;sive representative for the
purposes of collective bargaining of the employees in a unit
described as follows:
All production and maintenance employees, including
group-leaders, leadmen, shop clerks, truckdrivers,
shipping and receiving clerks, welders, burners, fitters,
lay-out men and inspectors, but excluding all other
employees including all office clerical employees,
guards, watchmen and supervisors as defined in the
Act, employed by the Respondent at its San Antonio,
Texas, plant constitute a unit appropriate for purposes
of collective bargaining within the meaning of Section
9(hb of the Act.
III IHt A4. L(ii) D NFAIR I.ABOR PRA(- It ES
Following an organizational campaign in 1973, the
Union was certified as the exclusive representative of the
employees in a basic production and maintenance unit.
Contract negotiations took place which culminated in the
signing of a collective-bargaining agreement on February
6, 1974, which, by its terms, was to be in full force and
effect until February 6, 1975, and thereafter from year to
sear uinless either party, at least 60 days prior to the expira-
tion date. gave notice in writing to the other party of its
1358
MARKLE MFG. CO.
desire to terminate the contract. At the same time the con-
tract was executed, a settlement was reached concerning
outstanding charges before the National Labor Relations
Board involving certain of the Company's activity in con-
nection with the organizational campaign.
Prior to the expiration date of the contract, the parties
began negotiating for a new contract. There is, however,
neither testimony nor documentary evidence which indi-
cates that either party gave written notice to the other to
terminate the agreement. Thus, the contract may continue
in full force and effect. Whether the contract expired or not
on February 6. 1975, is not a particularly material issue
here but is potentially critical to the status of the employees
who went on strike July 8, 1975. Since the parties litigated
this case assuming that the contract had expired, it will be
treated as having done so, without such a finding being
specifically made.
The facts giving rise to the General Counsel's allegations
began roughly in October 1974, during the first year of the
contract, and continued throughout most of 1975. The var-
ious allegations will be treated by subject matter as they
appear in the complaints rather than chronologically.
A. The Roland Friese Violations of Section 8(a)(l)
The General Counsel alleged that on or about October 8.
1974. the Respondent's Vice President and General Man-
ager Roland Friese denied Feles M. Cantu. the union pres-
ident, a merit increase in violation of Section 8(a)(1).
Cantu is a fitter, which classification, pursuant to the
provisions of the contract, carries a wage range from $2 per
hour to $3.58 per hour. His last wage increase was for 22
cents an hour on February 12, 1974, which put him at $3.42
per hour or 16 cents per hour less than the top wage for his
classification. Accordingly, pursuant to section 3 of article
IX of the contract, Cantu was one employee whom the
Company agreed would be re-evaluated every 4 months
and considered for a wage increase if "in the opinion of the
Company," his work "substantially improved."
The General Counsel argues that the failure of the Com-
pany to give Cantu a wage increase in October 1974 was
the result of his being the union president and, in support
of this, offers principally the testimony of Linda Wilkerson
who had been an office secretary for the Respondent until
her discharge in 1974.
In brief, she testified that Plant Manager Louie Arcos. as
was the practice, in October submitted a handwritten list of
employees to be given wage increases. From her testimony.
the list would not go to Friese but would come directly to
her and she would make the appropriate notation on the
payroll records. On this occasion, however, Friese came in
and asked for the list. Friese took the list. scratched off
four or five names and stated, "If they want a goddamn
raise, they can go to the goddamn union." Of the two
names Mrs. Wilkerson can remember, Cantu's was one.
Friese testified that in fact Cantu was considered for a
raise in October but after the Company's evaluation of the
various salaries, and the fact that Cantu was near the top
of the fitter classification but was not considered to be the
top fitter, his name was eliminated. He denies making the
kind of statement Linda Wilkerson attributed to him.
The issue here is whether or not the Company interfered
with employees' Section 7 rights by denying the union pres-
ident a ment increase which he reasonable might otherwise
have received. It is true that the Compan? has the sole
discretion and is the sole judge of which emplosees are to
receive merit increases. And absent other factors. the ( om-
pany could very wa'll justify its failure to give Cantu an
increase in October.
However, there is a matter here of motivation exempli-
fied in the statement attributed to Friese by Linda Wilker-
son. Although there are factors surrounding Wilkerson's
discharge which tend to show that she is not a totalls inde-
pendent witness, on balance I choose to credit her testi-
mony over that of Friese. Observing her demeanor and her
particular lack of interest in this case. as opposed to what-
ever grievance she may have against the Companv as to her
own discharge, in juxtaposition to Friese's demeanor. leads
me to conclude that he said these words attributed to him
These words in th context of a rather bitter and ongoing
struggle between the Company and the Union show a mo-
tivation on the part of Friese to dens wage increases to
union activists. Productivity was not a real factor. I note
further that Cantu was passed over for an increase in June.
while 17 fellow employees received one. Twenty-one fellow
employees received increases in October. These facts do
not imply that Cantu would have received an increase
However, his participation in the arbitration proceedings,
in 1974 and other union activity and the fact that so mans
fellow employees got raises and he did not, tend to support
Wilkerson's testimony. In agreement with the General
Counsel, I conclude that Fnese in fact did violate Section
8(a)(1) of the Act when he denied Cantu a wage increase in
October 1974. Paragraph 7(a) should be sustained.
Since Cantu was only 16 cents below the top salary and
since 16 cents would be approximately a 5-percent in-
crease. it is concluded that he reasonably would have been
given an increase to the top of the salary range and should
he made whole retroactive to October 9, 1974, for 16 cents
per hour worked.
Friese is also alleged to have s iolated Section 8(a)( I) hs
threatening to discharge Cantu on October 23 during a
grievance session that they were having. The testimony in-
volving this matter consists of statements by Paul Javior.
the mnion's international field representative, (antu and
Friese. Generally. the parties are in agreement that d urinc
the grievance session there was an accusation bh (Cantu
along the lines.of Friese hasing fired union adherents and
having offered mones to employees to quit the Union. Jav-
ior and Cantu stated that at this point Friese got angrs and
said words to the effect "Mr. Cantu, sou sas another word
and 1'11 fire you."
Friese testified in general agreement with Cantu and
Javior but on the subject of firing people and offering
mone, he said in effect that "if [(antul did not refrain
from spreading these lies. I'm going to punch his card and
fire him." Friese further stated that Cantu never apologized
for making the accusation.
In short. aside fromn a couple of words, the parties agree
that during the grievance session Cantu provoked Flriese hs
stating categ{.r:callN that I riese had been offering mones
to union adherents to quit the Union The partics als(
agree that Friese vigorously denied this and went on to tell
Cantu that he would fire him if he did not stop talk:ng on
this subject.
1359
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is little question that Friese made a threat to fire
Cantu in the heat of a gnevance session. The question,
however, is whether this amounts to a threat in violation of
Section 8(a)( I). It appears to me that it does not. Whatever
Friese said was in the context of a grievance session and
whatever he said was to a large extent provoked by Cantu.
Friese's reaction appears to be more verbalism than a
meaningful threat to discharge Cantu because Cantu was
exercising a Section 7 right. Indeed, it is difficult to under-
stand the General Counsel's theory here. There is no alle-
gation that Cantu's participation in the grievance session
was the cause of Friese's threat. Rather the allegation is
that Friese made the threat without reference to any pro-
tected concerted activity. I cannot find a threat within the
context of a grievance session, particularly where such has
been provoked, to be violative of the Act. Paragraph 7(b)
should be dismissed.
Friese is also alleged to have violated Section 8(a)(1) on
February 7, 1975. by telling an employee that he should
terminate his employment if he was dissatisfied with Re-
spondent's collective-bargaining proposals. On this occa-
sion Friese was meeting with newer, apparently nonunion,
employees to explain the Company's bargaining position.
Cantu joined the meeting and an impromptu debate be-
tween Cantu and Friese ensued. Friese would state the
Company's position on a matter which would then be
countered by Cantu.
During this meeting, Friese did say something to the ef-
fect that if Cantu did not like the company proposals he
could quit. To find that this statement was made does not
require finding that Friese thereby violated Section 8(a)( ).
Indeed, there is no implied threat or promise implicit in
Friese's statement. Rather than being a threat, it is macho
rhetoric. I cannot conclude that Friese's statement is viola-
tive of the Act. Accordingly, I will recommend that para-
graph 7(c) be dismissed.
B. The Louie Arcos Allegations of Section 8(a)(l)
While the contract refers to a probationary period of 75
calendar days, there is nothing in it which indicates that at
the end of such period employees will be given a wage
increase, although such has been the practice of the Com-
pany. These wage increases were usually in the range of 10
percent of the employees' starting salaries.
The testimony with regard to paragraph 8(a) concerns
Benny Puente who stated that he talked to Arcos on his
75th day about a raise, and Arcos said that he "couldn't do
anything because of the Union. They were having prob-
lems with the Union." Arcos did tell him that he might get
a raise after they signed the contract.
On the other hand, Arcos testified that when he talked to
Puente about this matter he stated that Puente would be
getting a raise, most likely about 10 cents, and then Arcos
stated "but if you want to wait, if we wait, it will be more
aftei the contract is signed." Nevertheless Arcos testified
that he had planned to give Puente a raise until he checked
Puente's attendance record. Puente had missed so much
work during his probationary period that Arcos decided
not to give him a raise until he had completed more time.
The stores of Puente and Arcos are sufficiently the same
so as to conclude that there is no real factual dispute. Ar-
cos did say something to the effect that the probationar-y
raise would be different if and when a contract was signed
with the Union. I cannot find such a statement to be viola-
tive of Section 8(a)(l). Especially, I do not find that the
employee was told specifically that he was being denied a
wage increase because of the Union or even words to that
effect. Indeed, such would not be a reasonable interpreta-
tion of the sum of the testimony on this point. I shall rec-
ommend that paragraph 8(a) be dismissed.
Although somewhat out of order, there is an additional
allegation under Section 8(a)(3), that the Company vio-
lated the Act by failing to grant Puente the wage increase
at the end of his probationary period on March 2, 1975. As
indicated, the past practice of the Company, not incorpo-
rated in the contract, is to give employees who survive the
probationary period wage increases. However, an examina-
tion of the documentary evidence--a list of all employees
with dates of hire, classification. wage rate and most recent
raise-updated to July 1, 1975, shows that many do not in
fact receive wage increases following the probationary pe-
riod.
The undisputed testimony in this matter is that by
March 2, 1975, Puente had missed a substantial amount of
work during his first 75 days. Such on its face would be
sufficient justification to deny the wage increase which
goes with having completed the probationary period. Ab-
sent evidence of a discriminatory motive here or a showing
that the Company changed its practice of giving or with-
holding such wage increases, I cannot find that the matter
involving Puente violated Section 8(a)(3), and will recom-
mend that paragraph 9(e) be dismissed.
Arcos is further alleged to have threatened to take disci-
plinary action against an employee because that employee
questioned the Respondent's sincerity in making bargain-
ing proposals. This allegation presumably refers to events
involving machine operator Albert Almaraz and Arcos on
or about March 12, 1975. There is some testimony by Al-
maraz concerning his reaction upon seeing a bulletin board
notice concerning wage increases. However, from Almaraz'
testimony, the conversation he had with Arcos on that
same day referred not to his disparaging remarks concern-
ing what it would take to get a wage increase but rather to
his testimony in a previous arbitration hearing involving
his layoff. The sum and substance of both the Almaraz and
Arcos versions are that Arcos was unhappy with what Al-
maraz said about him at the arbitration hearing. Arcos
stated that he would prove that Almaraz was lying. Almar-
az testified that Arcos said that if he were fired he would
see to it that Almaraz was fired also. There is nothing in
the record tending to prove that Arcos threatened Almar-
az, or anybody el';e, because he had made disparaging re-
marks about the Company's contract.
While the substance of Almaraz' testimony is not denied
and is generally truthful, it does not appear to make out a
violation of Section 8(1). It appears rather that Almaraz
and Arcos had simply continued their dispute concerning
the layoffs after the arbitration hearing.
It is unexplained why Arcos thought that he was exposed
to discharge as a result of Almaraz' testimony at the hear-
ing, but he apparently thought he was. In any event, his
threat to take Almaraz with him in the event of discharge
would seem to relate not to Almaraz' protected concerted
activity, but to Arcos' imagined dispute with him over the
1360
MARKLE MFG. CO.
facts of the layoff. What Arcos and Almaraz discussed, I
consider to be rather trivial and outside the scope of the
general context of this situation. Obviously Arcos contin-
ued to be unhappy that his word was questioned at the
arbitration hearing not an unreasonable reaction. For an
unsophisticated person to make his feeling known in the
way he did does not relate to employees' protected activity
or the general context within which these cases arise. I do
not find Arcos' statement to contain a threat violative of
Section 8(a)( I). Accordingly. paragraph 8(c) will he recom-
mended for dismissal.
Louie Arcos is also alleged to have violated Section
8(a)( 1 ) by telling Jesus Navarro on or about April 20, 1975,
that he was being denied a wage increase following his
probationary period because of the Union. And the Com-
pany is alleged to have violated Section 8(a)(3) in denying
the wage increase.
With regard to Navarro. it is noted that he was hired as
a fitter at $3 an hour which was somewhat under the maxi-
mum rate for that classification but well above the mini-
mum. The $3 rate put him among the highest paid employ-
ees of the Respondent. Navarro testified that he had been
promised a wage increase following the end of his proba-
tionary period of 28 cents per hour. Arcos denied this. Ar-
cos did state that Navarro was reviewed for a wage in-
crease following the end of his probationary period, but it
was concluded that he was not a sufficiently skilled fitter to
justify an increase above $3 per hour. Arcos admitted that
he told Navarro, as he tells all new employees, that if he
showed he can do the work, is improving, and his atten-
dance is good, that he would get a wage increase at the end
of the probationary period.
Arcos testified that he did not feel that Navarro's work
justified an increase at the end of 75 days. Hence it was not
given.
On the other hand, Navarro stated that when asking Ar-
cos for a wage increase, Arcos "said that he could not give
me any raise when the Union and the Company was nego-
tiating because the Union would file charges against him
against the Company."
Certainly if Arcos made the statement attributed to him,
which I tend to believe he did, it was a reasonable pre-
diction. But I do not find that Arcos' bare statement in this
regard, particularly in the context of negotiations, was
meant to or did have the effect of undermining the Union's
status as the collective-bargaining representative. Rather, I
find that Arcos was simply telling an employee his concep-
tion of the realities of the situation as it then stood.
I therefore find that the statement attributed to Arcos is
not violative of Section 8(a)(l), and that paragraph 8(d)
should be dismissed.
There is no evidence that Navarro was discriminated
against in not receiving the wage increase because of his
union activity nor is there any real proof of disparate treat-
ment. As noted above, the Company does not have a uni-
form policy of granting wage increases to employees after
the probationary period. Some get raises and some do not:
and this appears always to have been the case. Given this,
and that Navarro was hired at a rate near the top. I am
more persuaded that not giving Navarro an increase after
his probationary period was as testified to by Arcos --that
Navarro had not sufficiently improved. It will be recom-
mended that paragraph 9(f) be dismissed.
C. The Other Alleged Violations of Section 8faJ(3?
Fnese is said to have reprimanded employee Marvin
O'Neil on or about October 11. 1974, in violation of Sec-
tion 8(a){3). There is no question that O'Neil was repri-
manded as alleged. According to his testimony. he talked
to Diego Chapa, a fitter, during which discussion he made
some comment concerning the fact that union members
were being discharged on account of Chapa's activity. C'ha-
pa denied this. But one thing led to another and ultimatels
O'Neil was called into Friese's office and was reprimanded
for "harassing" Chapa. Then, according to O'Neil's testi-
mony, Fnese said, "Well it's all forgotten about then
right." And O'Neil said. "Well I guess so" and left, appar-
ently the parties agreeing that this was the end of the repri-
mand session.
However, after fi rther thought. O'Neil decided to file a
grievance against Friese for reprimanding him because, in
O'Neil's opinion, he had not in fact actually harassed Cha-
pa. The grievance was denied at the first step bh Foreman
Richard Hernandez.
Whether O'Neil was appropriately repnmanded is a
matter that should be considered under the grievance pro-
cedure of the contract. This in fact was done. O'Neil filed
the grievance which the Company considered and denied.
And no further action was taken.
The initial reprimand b5 Fnese, obviously, had nothing
to do with the grievance O'Neil later filed. Nor is there
evidence that the reprimand was related to O'Neil's union
activity. Indeed. O'Neil admitted that he and Chapa had
the discussion, hut he felt that there was no harassment.
Others certainly could have viewed it differently. In any
event, this matter has been handled under the contract.
The General Counsel argues. however, that a subsequent
written reprimand involving the Chapa incident was given
O'Neil and this must have been precipitated by O'Neil's
grievance. No such reprimand was brought forth. O'Neil
stating he lost it. On the other hand, Friese did not deny
giving O'Neil a written reprimand following the denial of
O'Neil's grievance. Also, the General Counsel points out
that in denying the grievance, Hernandez wrote "An inval-
id grievance as this, only proves the lack of good faith on
the part of the Union to maintain any kind of tranquility in
this plant." Given the uncontroverted facts, and the timing
of the written reprimand, the conclusion is inescapable that
O'Neil was reprimanded for having filed his grievance. The
Company seemed to consider an oral reprimand concern-
ing the Chapa matter sufficient. It formalized the repn-
mand only after O'Neil filed his grievance. To discriminate
against one for filing grievances is violative of Section
8(a)(3). and a finding will be so recommended. Farmers
Union Cooperative Marlerting Assn., 145 NLRB I (1963).
It is alleged that on or about January 27, 1975. Friese
reprimanded Feles Cantu in violation of Section 8(a)(3).
The Respondent admits the reprimand but denies a viola-
tion of the Act.
Cantu was holding a meeting of the employees at noon-
time in the plant. a rather common occurence. Neverthe-
less, Friese approached the meeting and announced that he
was going to listen in since it was being held "under his
roof." There ensued an exchange of words between Friese
and Cantu. This resulted in the written reprimand by
Friese in which he stated that Cantu had "behaved himself
1361
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cxtriemely disrespectful towards me, the general manager
of this plant. T his letter is to serve as an official reprimand
and final warning, that any further outburst by you, or
other disrespectful behavior will result in your immediate
dismissal."
Although the confrontation between Cantu and Friese
took place within the context of the collective-bargaining
negotiations, under a chord of less than harmonious rela-
tions, there is nothing particularly disrespectful in Cantu's
statements on January 27 so as to actually justify a written
reprimand. Rather. I agree with the General Counsel that
the reprimand was given to Cantu by Friese as a reaction
to (Cantu's obvious union activity at the time. To that ex-
tent it was violative of Section 8(a)(3) and (1) of the Act.
The reprimand is more than the tough-guy statements by
F riese discussed above. Employees were present during
this confrontation. and Friese's action was deliberate and
reflective. It is noted that Friese did not deny or dispute
either Cantu's version of the confrontation, which inciden-
tally was also corroborated by Robert Panita. This is not to
sa: necessarily that Cantu was absolutely right in regard to
everything he said to Friese at this time, but only that the
reaction of Friese was calculated and was clearly aimed at
Cantu in his position as union president and the union
activity. Therefore. I shall recommend that paragraph 9(b)
be sustained.
Ernest Reynolds is alleged to have been discharged on
Monday, March 3, 1975, in violation of Section 8(a)(3). In
substance, the evidence is that on the Sunday before.
Reynolds had gone to Houston to attend to a personal
matter and on returning, his automobile broke down. As a
result, he did not get back to San Antonio until about 6
o'clock in the morning, at which time he went to the plant.
At 7 o'clock he timed in but then determined that he was
too tired to work. Reynolds went to his leadman. Justo
Gonzalez. and told him the problem and that he would like
to go to his car and sleep for a couple of hours. Gonzales
told him that would be okay and to time out. Reynolds
stated, however, that he was unable to time out in that the
timecards were already gone from the rack.
He did go to his car and to sleep. At about 10 o'clock or
so, he was approached by Diego Chapa who asked Reyn-
olds to give him a ride home because he had just quit the
Company. Reynolds agreed and was seen leaving the park-
ing lot by Gonzalez. After taking Chapa home, Reynolds
went by a doctor's office for some minor attention and
then returned to the plant around 12:45 p.m. After a dis-
cussion between Arcos, Reynolds, and Gonzalez, wherein
Gonzalez stated that he had not given permission, Arcos
discharged Reynolds.
While I believe that Reynolds used poor judgment in not
timing out and not asking permission to leave the premises
to take Chapa home, I am nevertheless persuaded that he
did ask Gonzalez for permission to go to his car and this
was given. To the extent that Gonzalez testified to the con-
trary, I do not credit him.
I further conclude that at the time Arcos discharged
Reynolds, he was well aware that Reynolds was a member
of the Union. Arcos denied knowledge of Reynolds' union
membership on direct examination but admitted it on
cross.
There is some evidence that Plant Manager Friese may
have known about Reynolds' specific union activity-join-
ing the Union in December and passing out leaflets. Nei-
ther of these events, however, appears to be particularly
significant because it was Arcos and not Friese who de-
termined to discharge Reynolds. And Arcos admitted that
he knew that Reynolds was a member of the Union. I con-
clude that Arcos discharged Reynolds because of the union
activity in general and because Reynolds was a known
member.
Viewing the Reynolds' discharge in the context of the
total situation, it is more probable than not that the union
activity was the predisposing cause of Reynolds' discharge.
The record is clear that absenteeism, tardiness, and the
like are common at the Markle plant. Yet few, if any. em-
ployees are ever disciplined for this, much less discharged.
An occasional employee may not be given a raise at the
end of the probationary period if he misses too much work;
and other employees, after substantial absenteeism, have
been reprimanded and some have been disciplined by lay-
off. There is no instance of a discharge for one missing 4
hours of work, as in the case of Reynolds. But it is the
missing of work without permission and not that Reynolds
failed to time out, which the Respondent relies on to justify
the discharge.
Given the Company's past practice, had Reynolds not
come in until noon, at best he would have been given an
oral reprimand. Having started to work and then determin-
ing that he needed to rest does not seem to be substantially
different. It is, of course, the case that Reynolds should
have timed out and certainly, he is not entitled to be paid
for the morning of March 3. On the other hand, Reynolds
did talk to his leadman about this matter. I therefore con-
clude that Reynolds was not attempting to hide the fact
that he was not working during the morning of March 3.
Indeed, he was quite open about it. I basically credit Reyn-
olds' version of this matter, which is not fundamentally
different from that of Gonzalez or Arcos except in the mat-
ter of motivation. And I find that Arcos was motivated by
the existence of union activity. Therefore, a violation of
Section 8(a)(3) has been established, and I shall recom-
mend that paragraph 9(c) be sustained.
It is alleged that the Company in violation of Section
8(a)(3) reprimanded Albert C. Almaraz, Jr., on March 12.
1975. The events concerning this reprimand apparently
took place on or about March 12, but the reprimand letter
was sent by Louie Arcos to Almaraz on March 19. In brief,
on Friday afternoon, March II, Almaraz was directed to
cut some 12-inch channels, and he cut them 10 inches.
This, according to the testimony of Arcos and Friese, was
considered to be a serious mistake justifying the reprimand
letter.
Although Almaraz tends to minimize his responsibility
for this, he did admit that in fact he miscut the channels
and that although directed to come to work on the follow-
ing day to finish the 12-inch channel job, he did not do so.
Thus, there is no question that Almaraz made a substantial
mistake which in normal circumstances would certainly
justify a written reprimand by the Company. The question,
however, is not whether there is some justification for the
Company's reprimand but whether in part the reprimand
was discriminatorily motivated-either to discourage Al-
maraz' union activity or motivated by the union activity in
general.
Almaraz was a known union adherent. Indeed, on the
!362
MARKLE N
afternoon of March 12, he testified at an arbitration pro-
ceeding on behalf of the Union. While I tend to discount to
some extent Almaraz' testimony concerning the way in
which management people looked at him at the arbitration
hearing and his professed fear, nevertheless, I do believe
that he was known by the Company to be a union person.
The Company takes the position that the Almaraz writ-
ten reprimand was in accordance with company policy and
submitted two written reprimands in 1973 to support its
position. Rather than supporting the Company, however,
the 1973 reprimands tend to prove that the Almaraz repri-
mand was discriminatorily motivated. Friese testified that
mistakes are common even though he attempted to make
conclusionary statements that the mistake by Almaraz was
more costly than normal. In any event, it is clear from
Friese's testimony that mistakes occur often; yet the wnt-
ten reprimand directed at Almaraz is the only one since
1973. Had there been others, the Respondent surely would
have produced them. It is therefore reasonable to infer
there were none. I conclude that the only written repn-
mand since October 1973 for a production mistake was
that directed at Almaraz.
Given as it was, in the course of the total factual situa-
tion here, and within a few days after Almaraz testified at
an arbitration hearing, it is concluded that the reprimand
was precipitated by the union activity in general and that
of Almaraz in particular. It is therefore violative of Section
8(aX3), and I shall recommend that paragraph 9(d) be sus-
tained. '
D. The 8(a)(5) Allegations
As will be apparent, many of the factual allegations set
forth in paragraphs 14 of the consolidated complaint and
10 of the complaint 2 make out violations of Section 8(a)(1)
and/or 8(aX3), if discriminatory motive were proved. How-
ever, none was alleged nor was there any particular at-
tempt to prove that the Respondent sought to discriminate
against union members, or otherwise interfere with, re-
strain or coerce employees by the specific acts set forth in
paragraphs 14 and 10. Nor is subjective bad faith in negoti-
ations alleged. Rather, the General Counsel rests his case
as to these allegations of 8(aX5) on the well settled pnnci-
ple that once a bargaining relationship has been estab-
lished, then the Company may not alter something which is
a mandatory subject of bargaining as defined in Section
9(d) (wages, hours, and terms and conditions of employ-
ment) without first giving the union an opportunity to bar-
gain about the change. N.L.R.B. v. Benne Katz, etc., d/b/a
Williamsburg Steel Products Co., 369 U.S. 736 (1962). To
change an item which is a mandatory subject under Sec-
tion 8(d) is legally tantamount to a refusal to bargain.
Further, "even after expiration of a collective-bargaining
contract, an employer is under an obligation to bargain
with the Union before he may permissibly make any unila-
teral change in those terms and conditions of employment
Respondent moved to correct the transcript at line 15. page 881. to read
"One Colorado" rather than "Bob Coronado." The Respondent's motion 1r
granted. and the transcript will be so corrected
' Par. 10 of the consolidated complaint alleges that actisitt descrlhed in
par. 9 thereof was discriminatoril) motivated The complaint in which par
10 alleged violations of the Respondent's duts to bargain is based on the
charge in Case 23-CA 5672 and was consolidated with the consolidated
complaint and its amendments
4FG. CO. 1363
comprising mandatory subjects within the meaning of § 8(d) of
the Act." Harold W. Hinson, d h b/a Hen House Market No.
3 v. N.L.R.B., 428 F.2d 133, 137 (8th Cir. 1970).
It follows, of course, that a company does not violate
Section 8(a)(5) in this respect where there has in fact been
no change from the status quo or where the change does
not relate to a mandatory subject of bargaining. Thus, to
prove a violation, the General Counsel must prove that the
Respondent initiated a change from the status quo affect-
ing a mandatory subject of bargaining without giving the
union a reasonable opportunity to bargain concerning it.
Failure to establish these facts by a preponderance of the
evidence necessarily requires dismissal of the allegation.
The General Counsel alleged that on or about May 5.
1975, the Respondent unilaterally granted Leadman Rich-
ard Valerio a 21-ctnt-per-hour pay increase and argued
that this unilateral action was violative of the Company's
duty to bargain with the Union. The General Counsel's
evidence was that Valerio's duties were the same before
and after the wage increase. The Respondent, on the other
hand, presented some evidence that his leadman duties in-
creased. which is why he was given the 21-cent-per-hour
raise.
It is noted that with the 21-cent-per-hour increase,
Valerio's rate was $3.90 an hour. The contract, under
which the parties continued to operate during negotiations.
contained a wage range for leadmen from $3 to $4.07 per
hour. There is nothing in the contract prohibiting the Com-
pany from giving wage increases to any employee in the
bargaining unit at any time it wishes. Since the Company is
not contractually prohibited from giving increases to em-
ployees, since Valerio's increase was within the range for
his job classification and since the Company does have a
management rights clause, it must be concluded that the
Company did not violate either the contract or its bargain-
ing duty by granting Valeno a wage increase, whether or
not his duties increased. Nor did the General Counsel cite
any authonty to the effect that a wage increase such as this
under these circumstances. even within the context of sub-
stantial unfair labor practices, is violative of the
Company's duty to bargain. Accordingly. I shall recom-
mend dismissal of paragraph 10(a).
The General Counsel alleged that beginning on or about
Apnl 23. 1975, the Respondent violated its duty to bargain
by allowing night-shift employees who were transferring to
the day shift to retain their 20-cent per hour night-shift
differential. Even if such were a violation of the Act, there
is no evidence to support the allegation and, accordingly, I
shall recommend that paragraph 10(b) be dismissed.
It is alleged that the Company violated its bargaining
duty by discontinuing. on or about May 1, 1975, its past
practice of informing the Union of those employees who
had been laid off. quit and/or been reprimanded. While
there is no real evidence that the Respondent in fact dis-
continued a past practice, the evidence also clearly shows
that the Respondent did not notify any union representa-
tive or the shop steward of disciplinary layoffs, as required
by article XXI. section 2, of the contract.
There were a number of disciplinary layoffs in May and
June 1975 which the Union was not informed of until July
10, 1975, after Javior's June 27 request. Having established
the practice by contract language, in not immediately in-
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forming the shop steward of these layoffs over a period of
time, the Company effectively changed its practice. Such
clearly is a mandatory subject of bargaining because it re-
lates to a condition of employment; namely, that the bar-
gaining representative will be notified of changes in em-
ployment status in order to represent the unit members. I
will therefore recommend that paragraph 10(c) be sus-
tained.
It is alleged that when the Respondent unilaterally estab-
lished the position of safety coordinator and appointed em-
ployee Vernon Marsalis to the position, the Respondent
breached its bargaining duty. There is no question the
events occurred as alleged on or about May 13, 1975. The
question, however, is whether by doing so, the Respondent
somehow engaged in activity proscribed by Section 8(a)(5)
of the Act. There is nothing in the contract which would
prohibit the Company from creating a position of safety
coordinator nor is there any particular reason why the Re-
spondent would be required to inform or negotiate with the
Union over creation of such position. The Company clear-
ly has a right under the contract to take whatever steps
necessary to insure safety rules. In addition, it appears that
since inception of the Union there has been a kind of
safety committee with representatives of management and
representatives of the Union participating. In the general
area of safety, the parties have had continuous negotia-
tions. Even though the Company effected a change, such
does not appear to be the sort of unilateral change which
amounts to a refusal to bargain. I shall recommend the
allegation to paragraph 10(d) be dismissed.
The Company allegedly breached its duty to bargain by
denying employee Jesus C. Gonzales "vacation pay" to
which he was entitled on May 23 and May 26. Briefly, the
General Counsel's evidence concerning this allegation is
that on the afternoon of May 21, Gonzales received a call
at the plant informing him that the father of a lady friend
had passed away. Gonzalez told Arcos that he would have
to be off the next day to attend to the burial arrangements.
Gonzalez went on to testify that he then did not work on
Thursday, May 22, or Friday, May 23, because Friday was
"my day" meaning that it was his birthday holiday, inas-
much as his birthday fell on Saturday, a nonworking day.
Monday, May 26, was Memorial Day and Gonzalez did
not work that day either.
Gonzales was not paid, of course for May 22 because he
did not work. Nor was he paid for May 23 or May 26,
although both of these under the contract were to be holi-
days. The Company argues that to be eligible for holiday
pay, an employee must work his last scheduled day prior to
the holiday and the first scheduled day following the holi-
day unless excused for either day. The Company takes a
two-pronged position: First, that Gonzales did not have
permission to be off May 22 and, accordingly, would not
be entitled to holiday pay for Friday or Monday pursuant
to the provisions of the contract; second, that under the
express terms of the contract, since Gonzales' birthday fell
on a Saturday, he would not be entitled to a birthday holi-
day.
I reject both arguments. Specifically, given Gonzalez' de-
meanor, I credit his version of the discussion with Arcos on
May 21. It is not unreasonable that, under the circum-
stances, Arcos would have given Gonzalez permission to
be off on Thursday, nor is it unreasonable that Gonzalez
would ask to be off. Indeed, such is more probable than
Arcos' version which is to the effect that Gonzalez stated
that he would be in to work on Thursday.
As to the matter of not being entitled to holiday pay
when one's birthday falls on Saturday, while such might be
a literal reading of the contract, it appears that in practice
it has not been so interpreted. Further, such an interpreta-
tion appears to be for litigation purposes. I believe that in
May 1975, Gonzalez and management were all of a mind
that one whose birthday fell on Saturday would be entitled
to Friday off.
I therefore conclude that Gonzalez was entitled to holi-
day pay for May 23 and May 26 under established prac-
tice, the denial of which amounts to a unilateral change of
a wage benefit as to Gonzalez. I shall recommend that
paragraph 10(e) be ,ustained. 3
In the parties' first contract there is a union dues-check-
off clause which has been implemented. At the initial bar-
gaining session for a successor contract, the Company stat-
ed its position that it was not going to agree to a
continuation of the union dues-checkoff clause. The
Company's principals stated that the reason for this was
that the Union was filing many charges and grievances
alleging discrimination against union members. If there
were no checkoff provision, then the Company would not
be in a position to know who was a union member and
who was not. Therefore, the Company could not be
charged with discrimination. This, in my view, is an emi-
nently reasonable position, given the Union's proclivity for
filing grievances and unfair labor practices alleging compa-
ny discrimination against union members.
Obviously, to deny a checkoff clause tends to some ex-
tent to undermine the Union and be inimical to its posi-
tion. However, in collective bargaining, a company cannot
be forced to yield to a particular provision advanced by the
union. H.K. Porter v. N.L.R.B., 379 U.S. 99 (1970). Nor did
the General Counsel submit any authority for the proposi-
tion that to refuse to agree to a checkoff provision violates
the Company's duty to bargain. Indeed, one of the princi-
ples of collective bargaining is that parties can take strong
positions with regard to subjects they agree to.
Nor can I conclude that by taking this position, the
Company evidenced a determination not to bargain in
good faith. In fact, the General Counsel does not argue
that the Company took its position with regard to the
checkoff clause in order to frustrate bargaining, which, had
it done so, would have been a factor in finding the Compa-
ny guilty of actual bad faith. Romo Paper Products Corp.,
220 NLRB 519 (1975). And the record as a whole, includ-
ing the Company's proposed "final offer" does not evi-
dence bad faith even within this factual setting. Simply
withdrawing a clause previously agreed to does not breach
Section 8(a)(5). Accordingly, paragraph 10(f) should be
dismissed.
It is alleged in paragraph 10(g) that since on and after
July 21, 1975, the Company has failed to furnish the Union
information concerning the addresses, number of depen-
In the conmplairt these 2 days were referred to as "vacation" rather than
"holiday' Such is not sufficiently serious so as to require dismissal of this
allegation I he matter has been full) litigated, with the Respondent not
claimilig prejudie bs [lie terminoilogg
:364
MARKLE MFG. CO.
dents. sex, promotions, and race of all employees in the
bargaining unit.
The Union is entitled to such information as is necessary
to prepare for contract negotiations or to police the ex-
isting contract. A..I..RB. v. Acme Industrial Co.. 385 U.S.
432 (1967).
There is a fair amount of correspondence, both before
and after the critical date wherein certain information was
requested h, the tInion and was given by the Company. It
may well be that the Company did not furnish the informa-
tion in a form most desired by the Union and it may very
well be that the Company made ever), effort to make things
as difficult as possible for the Union in this regard. How-
ever, such a conclusion would have to be inferred from the
other evidence. Even if justified. nevertheless all of the in-
formation requested by the Union was submitted prior to
the hearing in this matter. Thus. if there has been some
kind of a technical violation of the Company's bargaining
duty with regard to the furnishing of information, or the
foot-dragging manner in which it was done, it would not
effectuate the policies of the Act to issue a bargaining or-
der in this respect at this time. Accordingly. I shall recom-
mend that paragraph 10(g) be dismissed.
The same, however, cannot be said with regard to the
allegation that the Respondent breached its bargaining
duty by failing to furnish the Union attendance records of
all employees in the bargaining unit for the period January
1, 1975, on. Respondent agrees that it has not furnished
this requested information, arguing that the Union has not
submitted a legitimate reason for wanting such. There is
abundant evidence in the record that in fact the Respon-
dent has disciplined a number of bargaining unit members
because of their absenteeism. Such is sufficient for the
Union to have the absentee records of all bargaining unit
employees so as to determine appropriately how and in
what manner to approach the disciplinary action taken by
the Company. Such is legitimate for policing the collective-
bargaining agreement and, accordingly, should have been
furnished by the Company. The requested information
need only to be of potential relevance to giv,- rise to the
Company to furnish it. The Brooklyn Union Gas Companv.
220 NLRB 189 (1975). Failure to do so is a failure to abide
by its bargaining obligations. I shall recommend that para-
graph 10(b) be sustained.
In paragraph 14(a), it is alleged that on or about January
I, 1975, the Company unilaterally discontinued its past
practice of granting advances in pay to employees in viola-
tion of its bargaining obligation. While there is some testi-
mony that advances requested by an employee were de-
nied, there is abundant evidence that numerous advances
requested by employees after January 1, 1975. were in fact
granted under the Company's policy to give advances
where there is an emergency, usually medical in nature.
There is essentially no evidence that the Company either
discontinued or even changed its policy with regard to ad-
vancing money to employees. Accordingly, this allegation
should be dismissed.
It is alleged that on or about January 27. the Company
unilaterally altered its past practice of permitting union
meetings on company property during nonworking time;
and that the Respondent insisted that such a meeting be
carried on in the presence of Vice President and General
Manager Friese, all in violation of Section 8(a)(5).
While there is some dispute concerning notice to the
Company of the meeting, I am persuaded by the demeanor
of Feles Cantu that. as usual, he told Richard Hernandez
that at lunchtime he would like to have a meeting with
union employees. And Hernandez said "okay." It is undis-
puted that after the employees were gathered. Friese ap-
peared and stated, in effect, that the Union had not proper-
ly requested the meeting. Further, if the Union wanted to
hold the meeting on his property. he was going to be pres-
ent. thereafter. ('antu and his people left the building area
and held their meeting on the parking lot which is also, the
Respondent's counsel properl, points out, "company prop-
erty."
The thrust of the General Counsel's position is that
though in the past, employees had been allowed to hold
meetings inside the building on their lunchtime simply by
telling management they wished to do so, then on January
27. management refused to allow them to do so.
I am persuaded that the Union's factual position is es-
sentially accurate, and really does not differ substantially
from that of the Company except with regard to when and
in what manner Cantu asked for permission to have the
meeting.
However, I do not find in this incident that the Compa-
ny altered its past practice. What happened is that Friese,
as he has so many times, decided to take a confrontation
position with regard to the union membership. In this con-
text, such amounted to interference with protected concert-
ed activity in violation of Section 8(a)(1).
Again, as correctly pointed out by Respondent's counsel.
the activity here is not alleged to be an independent viola-
tion of Section 8(aXI). But it was fully litigated; thus a
finding of an independent 8(aX I) violation can be entered.
As to paragraph 14 (b), insofar as it alleges violations of
Section 8(a)(5), it should be dismissed. As to Friese's activi-
ty with regard to the meeting of January 27, the allegation
should be sustained as a violation of Section 8(a)(l).
Paragraph 14(c) alleges that in February 1975 the Com-
panv discontinued its past practice of reviewing employees
for merit increases each 4 months. While the evidence
shows that no merit increases were given in February, the
evidence does show that a large number of employees were
given increases in June. Therefore, factually, the General
Counsel has not sustained his burden of proof with regard
to this allegation and it should be dismissed.
David Andrade started work for the Company in March
1974 and continues to be employed. During 1974, accord-
ing to the undisputed testimony, he worked more than
1.600 hours. He was given a vacation in February 1975
which the General Counsel alleges was contrary to the con-
tract provisions and amounted to a unilateral change of the
Company's vacation policy in violation of Section 8(a)(5).
Interpreting the testimony on this point most favorable
to the General Counsel, I nevertheless conclude that An-
drade was entitled to a vacation of 4 and, very probably, 5
days in February 1975 pursuant to the clear provisions of
the contract. Since he did not work the entirety of the qua-
lifying year. he then was entitled only to a prorated vaca-
tion based upon I day for each 400 hours worked. At the
time that Andcade was given his vacation which was near
the anniversary date of his employment, he very easily
could have worked more than 2.000 hours and thus have
been entitled to 5 days of vacation. It may be that under
1365
'366 DECISIONS OF NATIONAL
the (Cormpany's policy. as reflected in the contract. An-
drade was not actually entitled to a vacation until after the
anniversar¥ date of his employment He was given it 2 or 3
weeks prior. If such is the case, the variance from company
practice or the contract terms is of trivial significance. In
no event is it a unilateral change or a breach of contract
amounting to an undermining of the Union. Nor is there
evidence in this regard that the Company discriminated
against union members hby favoring a nonmember. In
short, I conclude that factually the General Counsel failed
to sustain his burden of proof and that paragraph 14(d)
should he dismissed.
In paragraph 14(e), the General Counsel has alleged that
certain named employees were unilaterally granted pay in-
creases in violation of the Company's bargaining obliga-
tion. The General Counsel argued that since the contract
contains no language permitting the employer to confer
raises upon employees at the completion of their proba-
tionary periods and since the Union's business agent did
not know that the practice existed, the Company was not at
liberty to do so. Therefore, the Company violated its bar-
gaining obligation by granting such increases.
It should be noted that most of the wage increases given
to the employees named in paragraph 14(e) were explained
by Superintendent Arcos to have been given at the end of
the 75-day probationary period. As to the others, one was a
delayed probationary increase; and another was an in-
crease to bring the employee up to the statutory minimum
wage; another was a delayed merit increase: and two were
increases because the employees had been promoted to
leadmen. Clearly, the employer has the right to give an
employee a wage increase upon promotion, and certainly
must increase employees' wages where there has been a
change in the minimum wage under the Fair Labor Stan-
dards Act. Thus the only real question in this allegation is
whether the probationary raises, the delayed probationary
raise, and the delayed merit raise were unilateral changes
in the company practice.
It is noted that there is no evidence of a discriminatory
motive with regard to these raises nor is there an allegation
to that effect. That is, there is no indication that the Com-
pany intended to discriminate against union employees by
giving nonunion employees the raises indicated. This alle-
gation must stand or fall upon the contention that there
was no past practice of giving employees raises at the end
of the probationary period and that by doing so, the Com-
pany somehow breached its bargaining obligation.
I find from the totality of the record evidence, particu-
larly including the credited testimony of the General
Counsel's witness, Linda Wilkerson, that the Company's
past practice had been to give employees raises at the end
of the probationary period. She testified that this had been
the policy during her term of employment and that the
wage increase varied with the particular individual. I find it
also credible that sometimes the wage increase at the end
of the probationary period was delayed pending the em-
ployee further demonstrating his entitlement to it or not
given at all. Similarly, I find it credible that a merit in-
crease could be delayed for the same reasons, and to grant
a delayed merit increase or delayed probationary increase
would not be violative of Section 8(a)(5) or any other sec-
tion of the Act absent a clear policy to the contrary or a
discriminatory motive.
LABOR RELATIONS BOARD
Notwithstanding Javior's testimony that he did not
know that increases were given at the end of the probation-
ary period, I nevertheless find that such has always been
the practice, and the practice continued on even under the
contract. The Respondent in granting the wage increases
set forth in paragraph 14(e) did not violate the Act in any
respect. Cf. Grede Foundries, Inc. Milwaukee, 205 NLRB 39
f1973). Accordingly, thii allegation in the complaint
should be dismissed.
The General Counsel alleged in paragraph 14(f) that
since April I. 1975, the Respondent has hired new employ-
ees in identical job classifications but at higher rates than
those being given to bargaining unit members already em-
ployed.
The basic facts contained in this allegation are largely
undisputed. There Ore a number of new employees who
were hired in job cla ;sifications of fitter, welder, and helper
at higher hourly rates than some older employees were
earning. The question is whether or not such is an unfair
labor practice within the meaning of Section 8(a)(5) of the
Act as being a unilateral change, or for some other reason.
The General Counsel offered evidence to establish that
mans of the new employees were less competent in their
jobs than some of the older employees who were earning
less money per hour. While I question the competency of
such testimony generally, for purposes of this matter, it can
be assumed that the relative ability to do the assigned job
would weigh in favor of the older employees. Thus, to hire
new employees at higher rates may not be good practice.
But is it unlawful?
There is nothing in the record to indicate that the Re-
spondent deviated from its past practice. It is noted that
each employee here under consideration was hired at a rate
within the wage range for his particular classification.
Many factors, of course, go into the wage to be given a new
employee, including his professed experience and how des-
perately the employer needs a particular employee at a par-
ticular time. Upon this record, I find that the Company's
hiring practice with regard to the beginning rate has not
changed.
This activity could be violative of the Act if it were
shown that the Respondent sought to undermine the bar-
gaining status of the Union by bringing in new nonunion
employees at higher wages, or that the Respondent sought
to discriminate against current union members by hiring
nonunion employees at higher wages. The possibility of
either certainly cannot be discounted, given in the total
factual situation here. However, to find a violation does
require proof of motive. Such has not been established or
even alleged. I cannot assume, absent some evidence, that
the Respondent sought to undermine the Union or to dis-
criminate against union employees in its hiring practices.
The employees hired were not so demonstrably inferior to
older employees as to merit such an inference. Nor is there
evidence, other than the Company's basic posture vis-a-vis
the Union, to justify such an inference. To find a violation
of the Act with regard to the Company's hiring practices
requires proof. I find that the General Counsel has not
sustained his burden in this regard. Even rejecting or dis-
crediting some or all of the Respondent's evidence does not
amount to affirmative evidence constituting fulfillment of
the General Counsel's burden. Ri-Del Tool Mfg. Co., Inc.,
199 NLRB 969 (1972). Accordingly, paragraph 14(f)
should be dismissed.
MARKLE MFG. CO.
I he General C(ounsel alleged in paragraph 14(g) that on
or about Mla! 2, 1975. the Respondent unilaterally institut-
ed absentee rules providing for discipline of emplo)ees in
the event the rules were breached. The specific rule con-
templated in this paragraph is the tardiness absentee rule
which stated that in the event of excess tardiness or absen-
teeism, the employee in question would receive a discipli-
nary layoff.
While this allegation may well state an 8(a)(5) violation.
the facts do not support it. Specifically, the Respondent
brought forth documentary evidence which shows, for in-
stance, that a notice was posted on February 19. 1974.
signed by Friese that, "You are reminded that habitual or
repeated tardiness or absenteeism is a violation of compa-
ny rules, and that appropriate disciplinary action will be
taken against any employee who violates this rule."
A similar notice was posted on January 6, 1975. On
April 24. 1974, a notice concerning nine employees and
their habitual tardiness and/or absences was sent bs way
of an official reprimand. On June 26. 1974, a reprimand
directed to four employees was sent by Friese. On October
5, 1974. employee Roy Arcos was given a disciplinary lay-
off as a result of excessive absences. Similarly, on August
20, 1974, Jesse Alvarez was terminated because of exces-
sive unexcused absences. On September 26. 1974, Reynal-
do Gonzalez was discharged for excessive absences.
The uncontradicted documentary evidence submitted by
the Company more than amply rebuts the testimony of
Cantu and Pineda to the effect that prior to May 1975 no
action was taken by the Company concerning tardiness or
absenteeism.
The General Counsel argues, however, that the
Company's rule became dormant in January 1975 and was
not enforced until May. Thus, to reinstitute the rule consti-
tuted a unilateral change in violation of the Act. While
there is no particular evidence of notices, reprimands. lay-
offs or discharges between January and May 1975, I can-
not therefrom conclude that the Company's policy
changed or was dormant during that period. It may well be
that employees then were not tardy or absent. In any event.
I conclude from the totality of the evidence that the Gener-
al Counsel has failed to sustain a factual basis upon which
the violation of the Act can be found with relation to para-
graph 14(g), and it should therefore be dismissed.
Paragraph 14(h) relates to 14(g) and alleges certain
named employees were given discriminatory layoffs when
the Company implemented its new absentee/tardiness rule.
Having found that the rule is not violative of the Act, en-
forcement of the rule in May and June 1975. absent evi-
dence of a discriminatory motive or disparate treatment,
would likewise not be violative. The General Counsel has
come forward with no evidence that only union members,
for instance, were laid off for absenteeism. Nor is there
other evidence of an antiunion or discriminatory motive in
effectuating the layoffs.
While I conclude that in much of its dealings with the
Union, the Respondent has not acted in total good faith.
nevertheless, it is entitled to run its business during these
protracted periods of conflict and negotiations. With re-
gard to the question of absenteeism and tardiness, it does
not appear that the Company treated these employees dif-
ferently than it had treated employees in the past. Certain-
ly to enforce by disciplinary layoff an absentee tardiness
rule is not unreasonable and these employees, as opposed
to Reynolds. were habitual violators and had been given
warnings.
Again. I find that the General Counsel has failed to sus-
tain his burden of proving a factual basis for the allega-
tions in paragraph 14(h), and, accordingly, it should be
dismissed.
It is alleged in paragraph 14(i) that on May 3. the Re-
spondent posted a rule which became effective by May 14.
resulting in a unilateral institution and/or reinstitution of
regulations relating to job safety and providing for discipli-
nary action in the event employees did not follow the
safetr rules with regard to wardrobe. The General
Counsel's witnesses generally state that with the appoint-
ment of Marsalis a' safetl coordinator in May 1975 there
was a crackdown or the wearing of hardhats, safety shoes,
and safety glasses. However, the testimony of these wit-
nesses certainly leaves open the conclusion that the Com-
pan) had always had rules relating to the wearing of hard-
hats, safety shoes, and eyeglasses: and Friese so testified. It
is incredible to believe that a manufacturing company
would not have safety rules and would not seek to enforce
them, if for no other reason than insurance requirements. I
must find that the General Counsel has not factually sus-
tained the allegations that there was a promulgation of
safety rules in May 1975.
Further, the testimony of the General Counsel's witness-
es shows that there were safety meetings from the inception
of the contract in February 1974 on a monthly basis. At
these meetings, members of management and members of
the Union were present. Further, in May 1975, Cantu took
the position that the rules should be strictly enforced but
should not be enforced disparately.
In any event, based upon the totality of the evidence, I
cannot find that any of the rules with regard to safety
which the Respondent sought to have the employees obey
were unreasonable, arduous, unilaterally instituted, or dis-
criminatorily motivated. On the contrary, it seems quite
reasonable to require employees in manufacturing con-
cerns to wear hardhats, steel-toe shoes, and safety glasses.
There is little doubt that not every employee or every
member of management obeyed the safety rules every day.
This fact, however, does not imply a violation. Finally,
there is no evidence at all that the Respondent sought to
enforce these rules by any kind of disciplinary action. The
totality of the evidence is that Respondent appointed a
safety coordinator, giving Hernandez' duties to Marsalis.
who then spent much of his time going around telling peo-
ple that they should wear steel-toe shoes and hardhats.
There is simply no evidence that any employee was ever
warned that he would be discharged or was in fact disci-
plined in any way for failure to wear the safety shoes or
hardhats. Finally, I think it would be imminently unrea-
sonable to enter an order requiring the Respondent to
withdraw its safety rules. I therefore will recommend that
paragraph 14(i) be dismissed.
At the beginning of and during negotiations, the Union
requested that the Company furnish certain information.
In paragraphs 14(j) and (k), the General Counsel alleged
that the Respondent's failure to furnish two categories of
information amounts to a violation of Section 8(aX5). Spe-
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I)F.( ISIONS () NAI IONAL. I.ABOR RE L.ATIONS BOARD
cifically, the General Counsel alleged that the Respondert
failed to furnish the Union's request for "all complaints
and charges filed against the (Compans under the Equal
Pay Act, Title VII. Executive Order 1 1246. arid state em-
ployment practice laws and copies of each complaint and
charge .... " Also, it is alleged that the Company refused
to furnish "information concerning the number of persons
hired in each classification during the last 12 months with a
breakdown as to race, sex, and Spanish surnamed emnplos
ees, showing sex of all Black and Spanish surnamed em-
ployees."
As discussed above, it is settled that the emplover has an
obligation to furnish the Union, upon request, with infor-
mation which is necessary for negotiating a new contract
or administering an existing contract. N.L.R.B. v. Ame
Industrial Co., supra.
Thus the question here is whether the particular items of
information requested were necessary for the Union to ne-
gotiate a new contract or to administer an existing one.
Secondly, if the information were necessary, there is a
question as to whether or not the Company substantially
complied with the request.
The Union, of course, owes a duty of fair representation
to all unit employees. Vaca v. Sipes. 385 U.S. 895 (1966).
There is in the contract a nondiscrimination clause. In con-
nection with enforcing this clause. the information request-
ed concerning charges filed under various antidiscrimina-
tion acts certainly relates to this clause and the Union's
duty of representation. Also, charges filed sgainst the
Company under these various antidiscrimination acts po-
tentially are material to negotiating a new contract, specifi-
cally with regard to altering the nondiscrimination provi-
sions. I therefore conclude that the Union does have a right
to this information. I further find that the Company's EEO
I report was not substantial compliance with the Union's
request. Accordingly, I shall recommend that paragraph
14(j) be sustained and the Company ordered to furnish
copies of all charges filed against it under the Equal Pay
Act, Title VII, Executive Order 11246, and state fair em-
ployment practice laws, from the beginning of the first con-
tract on February 6, 1974, to the date of compliance.
Similarly, I conclude that the Union is entitled to infor-
mation requested concerning the number of persons hired
in each job classification with a breakdown as to race, sex.
and Spanish surname. This information, however, has been
furnished to the Union. Although the Company was resis-
tant in supplying the information and, before doing so,
substantial correspondence was engaged in between the
Company, the Union, and the Regional Office of the Na-
tional Labor Relations Board, I nevertheless find that the
Company has now complied with its obligations in this
respect and, accordingly, will recommend that paragraph
14(k) of the complaint be dismissed.
In paragraph 14(1), the General Counsel alleged that the
Company either discharged or constructively discharged
employee Joe Medina and disciplined other employees in
connection with their failure to abide by the safety rules
discussed in the allegation in paragraph 14(i).
Joe Medina was a relatively new employee. He did not
have safety shoes when he went to work and he was told by
Marsalis that he would have to have them. Medina asked
Marsalis during these conversations to give him a break, to
allow him to wait a couple of weeks until he had the $20 or
so to buy the shoes. The Respondent maintains that it had
a ssstem whereby the safety shoes could be bought and the
cost deducted in srr all amounts from the employee's pay-
check. Medina. on the other hand, stated that he was not
aware of this. Whether such situation actually exists and
whether Medina wias told about it is not of great materiali-
tv because I find that Medina was neither discharged nor
constructirely discharged for failure to wear safety shoes.
Medina testified that on July 7 Marsalis told him that he
would have to get the safety shoes "or else." This caused
Medina to walk off the job. Medina either knew, or should
have known, that Marsalis did not have the authority to
discharge him. In any event, in a situation such as this, a
reasonable man would have contacted a known supervisor,
either Hernandez o: Arcos, or even Friese, before assum-
ing that he could no longer work. I cannot find that the
action of Medina in walking off the job was a reasonable
reaction to the statement of a fellow employee, even one
who had been imbued with the authority to tell employees
to comply with the safet) rules.
Accordingly, I find that the General Counsel has not
factually established that Medina was either discharged or
constructively discharged. Further, as stated above, I find
that there was no unilateral institution or reinstitution of
the safety rules: nor by having Marsalis post a notice and
tell employees about the safety rules did the Company dis-
criminate against union members.
Finally, there is no evidence at all that any other em-
ployee was disciplined in an), manner for failure to comply
with any of the safety rules. Accordingly, paragraph 14(1)
should be dismissed.
D. The Strike
The Respondent's employees engaged in a strike com-
mencing on July 8. 1975, presumably ending with the em-
ployees' request to return to work on December 23. The
General Counsel alleged this to be a strike caused by the
Respondent's unfair labor practices, and the parties as-
sumed that such is an ultimate issue here. There was some
evidence brought forward by the General Counsel con-
cerning why employees struck, including evidence that
they were motivated in part at least by the Respondent's
alleged unfair labor practices, as well as to get the contract
settled. Apparently, although there is no evidence of such,
upon request for reinstatement, the Respondent advised
the Union that the employees were economic strikers and
had been permanently replaced, but they would be hired
on a nondiscriminatory basis when vacancies occurred.
Others would not be rehired because of picket line vio-
lence. The Union thereafter filed an additional charge
against Respondent alleging the discriminatory discharge
of unfair labor practice strikers.
It is my judgment that there is insufficient evidence in
this record to determine fully the status of these strikers.
Nor is it necessary to a full and complete resolution of the
issues before me to find whether the strike was economic or
unfair labor practice. Although alleged in the complaint to
be an unfair labor practice strike, no remedy is sought con-
1368
MARKLE MFG. CO.
cerning this matter. To find an unfair labor practice strike
would not change the order I shall recommend. Therefore,
determination of the issue is premature.
Whether the no-strike provision of the contract, if it was
still in force, caused the strikers to lose their status as em-
ployees pursuant to the provisions of Section 8(d) of the
Act or not, and generally what status the strikers now en-
joy are matters which need to be considered on a fuller
record than is before me. No administrative determination
concerning the status of the strikers, now that they have
requested reinstatement, has been made. Accordingly, no
decision with regard to their status or the rights of the
Company should be made. I shall recommend that para-
graph 12 be dismissed as not stating a substantive violation
of the Act to be remedied.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTIC(ES L PON
COMMERCE
The activities of the Respondent set forth in section 11I.
above, occurring in connection with its operations set forth
in section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
v. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8(a)().,
(3), and (5) of the Act, I shall recommend that it be ordered
to cease and desist therefrom and to take appropriate affir-
mative action designed to effectuate the policies of the Act.
Having found that in other respects alleged, the Respon-
dent did not violate the Act. I shall recommend that those
allegations be dismissed.
CONCLUSIONS or LAW
I. Markle Manufacturing Company of Sar. Antonio is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union of Electrical. Radio & Machine
Workers, AFL-CIO-CLC. and its Local 1000, are labor
organizations within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees including
group leaders, leadmen, shop clerks, truckdrivers, shipping
and receiving clerks, welders, burners, fitters, layout men,
and inspectors, but excluding all other employees including
all office clerical employees, guards, watchmen, and super-
visors, as defined in the Act, employed by the Respondent
at its San Antonio, Texas, plant, constitute a unit appropn-
ate for purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. The Respondent violated Section 8(a)(1) by denying
employee Feles M. Cantu a merit wage increase on or
about October 18, 1974.
5. The allegations set forth in paragraph 7(b) have not
been sustained.
6. 1The allegations set forth in paragraph 7(c) have not
been sustained.
7. -The allegations set forth in paragraphs 8(a). (b). (c).
and (d) have not been sustained.
8. The Respondent violated Section 8(a)(3) by giving
employee Marvin O'Neil a written reprimand on or about
October I 1, 1974, for having filed a grievance.
9. The Respondent violated Section 8(a)(3) of the Act
by on or about January 27. 1975, reprimanding Feles M.
Cantu because he was engaging in union and other protect-
ed concerted activities.
10. The Respond nt violated Section 8(a)(3) by discrim-
inatorily discharging employee Ernest Reynolds.
I1. The Respondent violated Section 8(a)(3) by on or
about March 12, 1975, reprimanding employee Albert C.
Almaraz, Jr.
12. The allegations set forth in paragraph 9(e) have not
been sustained.
13. The allegations set forth in paragraph 9(f) have not
been sustained.
14. The Respondent violated Section 8(a)(5) by on or
about May 1, 1975, discontinuing its practice of informing
the Union of those employees who had been laid off, quit,
and or been reprimanded.
15. The Respondent violated Section 8(a)(5) by denying
to employee Jesus L. Gonzalez holiday pay to which he
was entitled on Max 23 and May 26, 1975.
16. The Respondent violated Section 8(a)(5) by failing
and refusing since August 5. 1975, to furnish the Union
with information requested concerning attendance records
of all employees in the bargaining unit from January 1.
1975.
17. The Respondent violated Section 8(a)(5) by failing
since on or about December 6, 1974, to furnish the Union
with information concerning complaints and charges filed
against the Compan? under the Equal Pay Act, Title Vll.
Executive Order 11246. and state employment practice
laws.
18. The Respondent violated Section 8(a)(1) when its
Vice President and General Manager Roland Friese inter-
fered with, restrained, and coerced employees in connec-
tion with a union meeting held on or about January 27,
1975.
19. The allegations set forth in paragraphs 10(a), (b), (d),
(f) and (g) of the Complaint dated October 3, 1975, have
not been sustained.
20. The allegations set forth in paragraphs 14(a). (b) (in-
sofar as it alleges a violation of Section 8(a)(5) ). (c), (d),
(e). (f). (g). (h). (i), (k). and (1) have not been sustained.
[Recommended Order omitted from publication.]
1369