Mission Rubber Co., Inc.

National Labor Relations Board - Board Decisions

Mar 1, 1973

202 N.L.R.B. 33 (N.L.R.B. 1973)

MISSION RUBBER CO.
Mission Rubber Company, Inc. and Local 585, United
Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO. Case 21-CA-10651
March 1, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On October 30, 1972, Administrative Law Judge
Irving Rogosin issued the attached Decision, as
modified by an Erratum, in this proceeding. There-
after, Respondent filed exceptions and a supporting
brief and the General Counsel filed limited excep-
tions and a brief answering Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions 1 of the Administrative Law
Judge 2 and to adopt his recommended Order, as
modified herein.
1. The section of the Administrative Law Judge's
Decision entitled "The Remedy" does not clearly
indicate that each of the 14 employees who was laid
off, including those employees who have already
been reemployed by Respondent, is entitled to
immediate and full reinstatement to his former job
or, if such job no longer exists, to a substantially
equivalent job without prejudice to his seniority and
other rights and privileges. Accordingly, in order to
insure that each of the 14 employees laid off on
February 16, 1972, is afforded full and complete
reinstatement privileges, the third paragraph and
footnote 21 of the section of the Administrative Law
Judge's Decision entitled "The Remedy" are deleted
and the following are substituted therefor:
Having found that the 14 employees named in
the complaint, as shown in the Appendix, were
discriminatorily laid off on February 16, 1972,
and were not reinstated until various dates
between March 3 and April 6, 1972, it will be
ordered that Respondent make each of said
employees whole for any loss of pay such
employees may have sustained by reason of the
-1 In the absence of exceptions thereto, we adopt, pro forma, the
Administrative Law Judge's findings , that Respondent (1) violated Sec
8(a)(1) and (3) of the Act by discnmmatonly transferring to a new work
area and position , and by subsequently discharging, employee Francisca
Gutierrez , and (2) violated Sec 8(a)(1) of the Act by unlawfully
interrogating employees concerning their union and concerted activities,
threatening them with reprisals, engaging in, and creating the impression of
engaging in, surveillance of their union and other protected concerted
activities , and by distributing the notice attached to employees' timecards
202 NLRB No. 17
33
discrimination against them from the date each
such employee was laid off until the date of
reinstatement, together with interest; that Re-
spondent offer each of said 14 employees, includ-
ing those who have been reemployed by Respon-
dent,21 immediate and full reinstatement to such
employee's former job or, if such job no longer
exists, to a substantially equivalent job without
prejudice to such employee's seniority and other
rights and privileges, and make any such employ-
ees whole for any loss of pay they may have
suffered by reason of such discrimination from
the date of said layoff on February 16, 1972, to
the date of reinstatement or offer of reinstate-
ment, as the case may be, and offer immediate
and full reinstatement to Francisca Gutierrez to
her former job or, if such job no longer exists, to a
substantially equivalent job, without prejudice to
her seniority and other rights and privileges, and
make her whole for any loss of pay she may have
suffered by reason of the discrimination against
her from February 24, 1972, the date of her
discharge, to the date in June 1972, when she was
reinstated, without prejudice to her seniority or
other rights and privileges, with backpay comput-
ed in accordance with the Board's formula in
F. W. Woolworth Company, 90 NLRB 289, together
with interest at the rate of 6 percent per annum as
provided in Isis Plumbing & Heating Co., 138
NLRB 716.
11 Respondent contends that, with one or two exceptions, all
employees laid off on February 16 were recalled between March 3
and April 3 Direct evidence of the date of reinstatement was offered
only with regard to about half the laid-off employees In addition,
the record is unclear as to whether each of the employees who was
recalled was reinstated to his or her former job, or substantially
equivalent job, without prejudice to such employee's seniority and
other rights and privileges
2. We note that Respondent employs a significant
number of Spanish-speaking individuals. According-
ly, the Administrative Law Judge's recommended
Order is modified by requiring that the notice marked
"Appendix" be posted at Respondent's premises in
both the English and Spanish languages.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
on July 19, 1972
2 The Administrative Law Judge made certain inadvertent errors in his
Decision which are corrected as follows Under section III D I , the fourth
sentence of the second paragraph should refer to "Herrera's niece" and not
to "Medina's niece " In the fifth paragraph of the same section , in the first
sentence delete all reference to Plant Manager Jerry Hofberger , and change
the end of the fourth sentence to read, "6, in the pressroom of the rubber
department "
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that Mission
Rubber Company, Inc., Whittier, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the Administrative Law Judge's
recommended Order:
1. Substitute the following for paragraph 2(a):
"(a) Offer each of the 14 named employees,
including those who have been reemployed by
Respondent, immediate and full reinstatement to his
or her respective former job or, if that job no longer
exists, to a substantially equivalent job, without
prejudice to his or her seniority or other rights and
privileges, and offer Francisca Gutierrez immediate
and full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent job,
without prejudice to her seniority or other rights and
privileges."
2. Substitute the following for paragraph 2(e):
"(e) Post at its plant and office in Whittier,
California, in both the English and Spanish lan-
guages, copies of the attached notice marked
"Appendix." Copies of the said notice, on forms
provided by the Regional Director for Region 21,
after being duly signed by Respondent's authorized
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material."
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
engage in, solicit employees to engage in, or
create the impression that we are engaging in,
surveillance of union or protected concerted
activities of our employees.
WE WILL NOT in any other manner interfere
with, restrain , or coerce our employees in the
exercise of their right to self-organization, to join
or assist the above-named or any other labor
organization, to bargain collectively through
representatives of their own choosing, to engage
in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except
to the extent that such right may be affected by.
an agreement requiring membership in a labor
organization as a condition of employment, in
conformity with Section 8(a)(3) of the Act.
WE WILL offer each of the 14 employees named
below, as well as Francisca Gutierrez, immediate
and full reinstatement to his or her former job or,
if that job no longer exists, to a substantially
equivalent job, without prejudice to his or her
seniority and other rights and privileges and make
each of said employees whole for any loss of pay
such employees may have suffered by reason of
our discrimination against them. The names of
the 14 employees referred to above are:
Eusebio Quintero
Everardo Andrade
Margaret Ayala
Amelia Herrera
Antonio Loera
Faustina Cuellar
Alfonso Samaniego
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership of our
employees-in Local 585, United Rubber, Cork,
Linoleum and Plastic Workers of America,
AFL-CIO, or in any other labor organization, by
discriminating in any manner in regard to hire,
tenure, or any other term or condition of
employment by discharging, laying off, or in any
other manner discriminating against said employ-
ees, except as authorized in Section 8(a)(3) of the
Act.
WE WILL NOT interrogate our employees con-
cerning their union membership, activities, and
sympathies; threaten them with reprisals because
of their union or protected concerted activities;
Bertha Medina
Carlota Olivares
Guadalupe Landeros
Linda Astorga
Alicia Camarena
Christine Arnold
Carlos Villanueva
WE WILL rescind the notice distributed to our
employees on July 19, 1972, and notify them of
such rescission by written notices attached to
their timecards.
All our employees are free to become or remain or
to refrain from becoming or remaining members of
the above-named or any other labor organization.
MISSION RUBBER
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
viduals, if presently serving in the Armed Forces of
the United States , of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
MISSION RUBBER CO. 35
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office , Eastern Columbia Building, Room
600, 849 South Broadway , Los Angeles , California
90014 , Telephone 213-688-5254.
DECISION
STATEMENT OF THE CASE
IRVING RoGOSIN, Administrative Law Judge: The
complaint, issued May 1, 1972, alleges that (1) about
February 16, 1972, Respondent laid off or discharged, and
has since refused to reinstate, 14 named employees;' (2)
about February 17, 1972, transferred employee Francisca
Gutierrez from her regular work area and position to a
different one, and failed and refused to return her to her
former work area and position, and, thereafter, about
February 24, 1972, discharged, and has since failed to
reinstate, said employee, all because of the union or other
protected concerted activities of said employees, thereby
engaging in unfair labor practices in violation of Section
8(a)(3); and (3) at various times, during February, March,
and April 1972, through named supervisors, committed
various acts of interference, restraint, and coercion,
including unlawful interrogation, solicitation to repudiate
the Union, surveillance and creation of the impression of
surveillance, threats of reprisals, including plant closure,
charges that the Union would report employees to the
immigration authorities, which would result in deportation
and consequent loss of employment, warning employees
against signing union authorization cards or engaging in
union or other protected concerted activities, and notifying
employees that Respondent would not rehire any who had
engaged in such activities, and warning them against
further involvement in union or other protected concerted
activities, thereby engaging in unfair labor practices within
the meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act.2
Respondent's answer admits the procedural and jurisdic-
tional allegations of the complaint; the supervisory status
of one but not two other persons named in the complaint;
the layoffs of the named employees; and the transfer of
employee Gutierrez from her regular position and station
to another, as alleged in the complaint, but denies
generally the remaining substantive allegations of the
complaint, including those relating to Gutierrez' discharge.
Hearing was held before me on July 18, 19, 20, 21, 26,
and 27, 1972, at Los Angeles, California. All parties`
appeared and were represented by counsel (no separate
appearance having been filed by or on behalf of the
Charging Party), were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to intro-
duce oral and documentary evidence relevant and material
to the issues, to argue orally, and to file briefs and
proposed findings of fact and conclusions of law. On the
third day of the hearing, the General Counsel moved to
amend the complaint to allege that Respondent had
engaged in a further act of interference the day before by
directing employees to cease engaging in union or
concerted activities. The motion was granted over Respon-
dent's objection. At the close of the evidence, the General
Counsel moved to conform the pleadings to the proof as to
formal matters not affecting the substantive issues. The
motion was allowed without objection. During oral
argument, Respondent moved to strike specified para-
graphs of the complaint for lack of evidence. Ruling on
said motion having been reserved, the motion is hereby
denied. Pursuant to an extension of time duly granted, the
General Counsel and Respondent filed briefs on October
2, 1972. No proposed findings and conclusions of law have
been filed by any of the parties.
Upon the entire record in the case, and based upon the
appearance and demeanor of the witnesses, and the briefs
of the parties, which have been carefully considered, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent's answer admits, and
it is hereby found that, at all times material herein, Mission
Rubber Company, Inc., a corporation, Respondent herein,
has been engaged in the manufacture of rubber and cast
iron products at its facility in Whittier, California.
In the conduct of its business, Respondent sells and ships
goods, products, and materials valued in excess of $50,000
annually directly to customers located outside the State of
California, and purchases and receives goods, products,
and materials valued in excess of $50,000 directly from
suppliers located outside the State of California.
The complaint further alleges, Respondent's answer
admits, and it is hereby found, that, at all times material
herein, Respondent has been an employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 585 , United Rubber , Cork, Linoleum and Plastic
Workers of America , AFL-CIO, the Union herein , is, and
at all times material herein has been , a labor organization
within the meaning of Section 2(5) of the Act.
' Eusebio Quintero, Everardo Andrade, Margaret Ayala, Amelia
Herrera, Antonio Loera, Faustma Cuellar, Alfonso Samamego, Bertha
Medina, Carlota Olivares, Guadalupe Landeros, Linda Astorga, Alicia
Camarena, Christine Arnold, and Carlos Villanueva
2 Designations herein are as follows the General Counsel, unless
otherwise noted, his representatives at the hearing; Mission Rubber
Company, Inc, Respondent, the Company or the Employer, Local 585,
United Rubber, Cork, Linoleum and Plastic Workers of America,
AFL-CIO, the Union or the Charging Party, the National Labor Relations
Act, as amended (61 Star 136, 73 Stat 519, 29 U S C. Sec. 151, et seq ), the
Act, the National Labor Relations Board, the Board. The original charge
was filed and served on February 17, 1972, an amended charge, on March
6, 1972
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Introduction
Mission Rubber Company, Inc., Respondent herein, and
Mission Clay Products Corporation, herein referred to as
the Rubber Company and Clay Products, respectively, are
separate but related corporations engaged in the business
of manufacturing cast iron and clay couplings for use in
joining pipe used in the construction industry. The clay
couplings are used in connection with clay pipes, which are
manufactured by Clay Products. Clay Products was
incorporated in 1951; the Rubber Company, in 1959. The
capital stock of Rubber Company is wholly owned by Clay
Products, and Ben B. Garrett is president and chief
executive officer; Walter N. Garrett, his son, vice presi-
dent; and Katherine R. Garrett, secretary-treasurer of both
corporations. Clay Products maintains plants at Fremont,
Corona, and Santa Fe Springs, and headquarters at
Whittier, Califorma, where the plant and office of the
Rubber Company are also located. In addition to his duties
at the Rubber Company, Walter Garrett is in charge of
Clay Products Northern Division at the Fremont plant,
which serves the territory north of Bakersfield and San
Luis Obispo. The Rubber Company's sales are made
almost exclusively to Clay Products, which is responsible
for 98 percent of all sales of products manufactured by the
Rubber Company. Only the Rubber Company, however, is
directly involved in these proceedings.
Departments at the Rubber Company consist of the
clamp department, primarily involved in these proceedings,
in which are located the assembly, packaging, and
stamping departments, and a machine shop which serves
the clamp and rubber departments. The rubber depart-
ment, consists of a mill room, in which the material is
mixed, blended, and prepared, then sent to the pressroom,
where the product is actually fabricated. The volume of
work performed in the clamp department is necessarily
dependent upon the amount of work generated in the
rubber department, and due to the nature of the items
being manufactured, 60 or 70 percent of the employees in
the clamp department are involved in the manufacture of
cast iron couplings, the remainder being engaged in the
production of couplings for clay products.
For the past several years, peak employment at the
Rubber Company, reached principally during the year
1971, amounted to about 90. During such peak employ-
ment, Respondent's volume of sales amounted to approxi-
mately $200,000 a month, divided almost equally between
cast iron and clay couplings.3
During November 1971, when about 70 percent of the
work in the clamp department consisted of cast iron
related products, sales of cast iron couplings dropped
sharply. This resulted, according to Vice President Gar-
rett,4 from several factors, including the failure of the iron
coupling to withstand "thrust" or pressure tests by
3 The term "clay couplings" is apparently used to denote couplings
produced for use with clay pipe.
4 Unless otherwise indicated or required by the context, all further
references herein to Garrett are intended to apply to this individual
President Garrett did not testify.
s Unless otherwise stated, or required by the context, all events occurred
municipal officials and engineers, the incompatibility of
the product when used with fittings of unconventional
specifications, especially those produced by foreign manu-
facturers, alleged unfair competition by domestic manufac-
turers, including widespread disparagement of Respon-
dent's product and price cutting. Garrett testified that
Respondent did not become fully aware of the drastic
decline in sales until December and January. Consequent-
ly, according to him, Respondent resorted to three layoffs
in January, and the one on February 16, the subject matter
of this proceeding.
B. The Organizational Campaign
On February 3, 1972,5 Amelia "Molly" Herrera, a
spotwelder in the clamp department, communicated with
International Union Representative Howard E. Sharp and
arranged to have him meet with employees at the home of
Bertha Medina, another clamp department employee, the
following Sunday afternoon, February 6. Seven employees,
including Herrera, Medina, Faustina Cuellar, and Marga-
ret Ayala, among the named alleged discriminatees,
attended this meeting. Another meeting was held at
Medina's home the following evening, February 7, attend-
ed by 38 employees. A number of the employees signed
union authorization cards at either the first or second
meeting. Other employees signed cards in the plant. On
February 10, the Union filed a representation petition
(21-RC-12545) seeking to represent Respondent's employ-
ees.6 A copy of the petition was mailed to Respondent on
February 11, a Friday, which came to its attention on
February 14. The processing of the petition was "blocked"
by the filing of the unfair labor practice charges in this
case.
C. Interference, Restraint, and Coercion
On February 15, Floorlady Maggie Morales, through
Assistant Floorlady Edna "Virginia" Thompson, notified
the clamp department employees that a meeting was to be
held in that department after lunch. When they assembled
at her desk, Morales addressed them in Spanish, and began
by telling them that Garrett Sr. had sent for her, told her
that he had received a letter from the Union, and that
somebody wanted to start a union. She told the group that
Garrett had intended to speak to them but had decided to
have her do so instead. Present among the employees were
all but the two mill room employees, alleged to have been
discriminatorily laid off the following day.
Morales stated that the Company had a list of all
employees who had signed union cards and urged those
who had done so to notify the Union that they no longer
wanted it to represent them. As to those who had not
signed cards, Morales told them that if they were
approached to sign cards while in their automobiles, to
close their doors and roll up their windows. She also urged
during the year 1972
6 The unit described in the petition is as follows : All production,
maintenance , shipping, and receiving employees and truckdrivers employed
by the employer at its Whittier, California, plant, excluding all office clerical
employees, guards, professional employees and supervisors as defined in the
Act
MISSION RUBBER CO. 37
them to ignore anyone who might call on them at home to
sign cards.
Morales reminded them that the Company had assisted
some of them with their immigration papers, and warned
that the Union would deny membership to employees who
were in the country illegally, and report them to the
immigration authorities. She told them that the Union was
"no good," would promise them anything but that all it
wanted was their money. She stated that the Company did
not want a union, that it would not do either of them any
good; and that the Union had tried to get into another
plant without success. She warned that if the Union got in,
the Company would "go broke" and have to close the
plant, thereby depriving the employees, including her, of
jobs because the Company could not afford a union.
Antonio Loera, an assembly employee, remarked that
perhaps the Union would not do the Company any good
but that it would benefit the employees. When Morales
asked him whether he presumed to be speaking for the
other employees, he told her that she might as well know
that they were all involved.
Linda Astorga, a spotwelder, remarked that her husband
belonged to a union and that he had never experienced any
of the problems which Morales raised. When Astorga
protested that the Company was not paying the same
wages for the same work as other companies, Morales
retorted that no one was forcing her to work there, and
asked Astorga whether she, too, was involved with the
Union. Astorga acknowledged that she was.
Faustina "Tina" Cuellar questioned why the Company
was not paying the same wages as other companies, and
ventured that "all this could have been avoided" if the
Company had granted the employees a cost-of-living
increase. Morales retorted that the law allowed the
Company to pay a minimum wage, and that was what the
employees were receiving. Cuellar rejoined that the
Company was only paying the minimum wage because it
was compelled to do so by law.
Margaret Ayala suggested that Morales call for a show
of hands of employees who were not in favor of the Union,
and then put the question herself. Two employees, Anna
(Aldarte) Frances and Lupe Marquez, raised their hands,
and Morales told them to put their hands down. Morales
reproved the employees for "letting her down," after she
7 According to Herrera 's undisputed and credited testimony , a week or
two before Christmas , some 2 months before the organizational campaign at
the plant , she questioned Morales about the results of a union campaign at
Respondent 's Corona plant Morales told her that Garrett Sr had instructed
her to discharge any employee discovered talking about the Union This
episode undoubtedly prompted Morales' remark
8 The above findings are based upon the composite testimony of various
employees who attended this meeting Morales did not testify, Respondent's
counsel arguing that he did not call her because of the possible adverse
effect it might have on employee discipline and morale. Whatever
Respondent's reasons for not calling Morales as a witness , the testimony of
the employees stands uncontradicted , and it is found that Morales made the
statements as found above
9 Thompson did not testify, and these findings are based on Madrigal's
and Cuellar's uncontradicted , credible , and mutually corroborative testimo-
ny Although Respondent stipulated at the hearing that Morales was a
supervisor within the meaning of the Act, it denied the supervisory status of
Thompson Thompson was admittedly Morales' assistant, and the record
discloses that she has substituted for Morales , on a fairly regular basis, for
at least several hours once or twice a week She is the highest hourly paid
employee in the department In Morales' absence , Thompson assigns work
had told Garrett Sr. whom she referred to as "el viejito,"
["the old man"], that her employees had not been
responsible for the organizational activity. Herrera asked
Morales whether Garrett had said anything about a raise.
Morales told her that that was not the purpose of the
meeting, and accused Herrera of "starting the Union."
When Herrera asked her why she assumed that, Morales
said, "Because you always talk to me about the union and
about raises ." 7 Morales then announced that she wanted
to know which employees sided with her and the
Company, and which did not. When no response was
forthcoming, Morales stated that she would have to tell
Garrett that the organizational activity had originated in
the clamp department.
Soon after the employees returned to work, Morales
engaged Francisca Gutierrez in a conversation at her work
station. Morales asked her if she had signed a card.
Gutierrez replied that she had not and asked why she was
being asked. Morales told her that she was always
"complaining about too much work," and that she was not
happy in her job. When Morales asked Gutierrez who was
signing up the employees, she said she did not know.8
At about the same time, Assistant Floorlady Thompson
approached Madrigal at her work station, near which
Cuellar was also working, and asked Madrigal whether she
had signed a union card. Madrigal replied, "I don't know
what you are talking about." Thompson continued, "Yes,
one of those cards that the union gives you." Madrigal said
that she had signed nothing but her paycheck. Thompson
then asked Cuellar whether she had signed a card and she,
too, denied it. Then, addressing Cuellar, Thompson said,
"Well, if you know anything about it, let me know; I'm
curious." Cuellar responded that she knew nothing about
it, and that she was "standing on [the] Fifth Amend-
ment." 9
It is, therefore, found that by Morales' statements at the
meeting of February 15, by her subsequent interrogation of
Gutierrez, and by Thompson's interrogation of Madrigal
and Cuellar, as described above, Respondent has inter-
fered with, restrained, and coerced employees in the
exercise of rights guaranteed in Section 7, thereby
interfering with , restraining , and coercing employees
within the meaning of Section 8 (a)(1) of the Act.io
to the employees and directs them in the performance of their jobs. She
assists them in any problems relating to their work or in the event of
breakdown in the welding equipment , and attempts to make such repairs as
do not require the attention of a mechanic She is earned on company
records as assistant floorlady, and there is evidence that she has authority
responsibly to direc t the work of employees in her department during
Morales' absence in other than routine fashion There is no evidence that
she has authority to hire or discharge , although there is evidence that she
"hired" one employee, who had previously been interviewed by Morales,
while the latter was on vacation Otherwise , there is no evidence that she
possessed any of the indicia of a supervisor as defined in the Act.
Nevertheless , it is evident that Respondent held her out to the employees in
her department , and that they reasonably believed her to be, acting as
Morales' surrogate [ sic] Moreover , it is clear from Thompson's remarks,
following so closely on the heels of Morales' remarks of similar import to
the assembled employees , obviously authorized by management, that
Thompson was expressing the views of management , and that Respondent
is bound by those remarks
10 For reasons stated in Sinclair Company v N L R B, 397 F 2d 157,
affd sub nom N L.R B v Gissel PacAing Company, Inc, 395 U S 575, 619,
(Continued)
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Discrimination in Regard to Hire and
Tenure of Employment
1. The layoff of February 16
On February 16, the day after Morales addressed the
employees in the clamp department, and 2 days after
Respondent became aware of the filing of the representa-
tion petition, Respondent laid off the 14 employees named
in the complaint, 12 of whom had been employed in the
clamp department, and 2, in the rubber department.
Nearly all were subsequently reinstated by April 3.
The employees learned of the layoff when they observed
a notice containing a list of names posted at the timeclock
as they checked out at the end of their shift at 3:30 in the
afternoon. Individual notices were also attached to their
timecards. Among the clamp department employees were
five who had voiced their sentiments at the meeting the day
before.[[ Also included in this group were Medina, at
whose home the union representative had met with
employees on two occasions, and Christine Arnold, whom
Morales knew to be Medina's niece . Alfonso Samaniego,
who had been interrogated by Morales earlier that
morning , and had admitted signing a union card, was also
among those laid off. Cuellar immediately questioned
Morales about the reason for her layoff. Morales told her
that the layoff was not of her doing, that it had been done
by the office. Under further questioning, Morales said,
"You know why. It is on account of the union." 12
Respondent firmly denies that the layoff of February 16
was motivated by reasons other than business expediency.
The timing of the layoff, it maintains , was no more than
coincidence.
That Respondent sustained a drastic decline in sales
between November 1971 and January 1972, especially in
December and January, can scarcely be gainsaid.13 After
attaining a peak of $132,000 in October 1971, sales of cast
iron couplings declined to $32,000 in December, rising to
$37,000 in January. During the corresponding period,
Respondent continued to manufacture cast iron couplings
at substantially the same rate, resulting, according to
Respondent, in a threefold increase in inventory from
approximately 70,000 units, in August, to approximately
217,000, in January. Respondent attributed the drastic
Respondent's contention that Morales' threat of plant closure was merely a
prediction of the probable consequence of unionization is rejected
i i Herrera , Cuellar, Ayala, Astorga, and Loera
12 Although Respondent did not call Morales to refute Cuellar's
testimony , it challenges her testimony regarding this statement on the
ground that Cuellar had failed to mention it in any of three separate pretrial
affidavits to Board agents In a fourth and final affidavit, however, obtained
by one of trial counsel for the General Counsel about a month before the
hearing, she did relate the substance of this alleged conversation While
Cuellar's explanation of her failure to mention the conversation in her
previous affidavits, that she was either not asked about it by the agents
investigating the case or that it was her own private business, is not
altogether convincing, it is found that her credibility has not been effectively
impeached, especially in the absence of a denial by Morales It is, therefore,
found that Morales made the remark on this occasion as testified to by
Cuellar Moreover, the remark is consistent with the statement made by
Morales to Herrera in December 1971, to the effect that Garrett Sr had
instructed Morales to discharge any employee whom she heard talking
about organizing a union The statement is also consistent with the
statement attributed to Walt Hansen, later detailed, when he told Quintero,
an employee who sought to return to work after his layoff on February 16,
decline in sales to unfair business practices by competitors,
including disparagement of Respondent's product (which
Respondent admitted was not altogether unjustified), price
reduction, rejection by its customers of defective and
unsatisfactory couplings, and incompatibility of its product
for use with pipe produced by foreign, as well as domestic,
manufacturers.
These factors, as they related to the decline in sales of
cast iron couplings, were discussed among top-level
management, consisting of the Garretts, General Manager
Edward J. Loftus, and Plant Manager Jerry F. Hofberger,
as late as February 10 or 11, when they allegedly decided
on the layoff of February 16. The situation had become so
desperate, according to Respondent, that President Garrett
counseled abandoning this phase of the business. Introduc-
tion of stricter quality control, however, as well as the
design of a new cast iron coupling by Loftus and
Hofberger, which was compatible with products which
were invading the market, and a 7-percent price reduction
to meet competition, reversed the trend of decline in sales.
Nevertheless, in January, Respondent laid off 15 employ-
ees, including the entire second shift in the clamp
department and about 6 in the rubber department of the
pressroom. It should be noted, however, that Respondent
normally made seasonal layoffs in January, due to
inclement weather, when building construction was usually
curtailed. It was not shown to what extent the layoffs in
January (5, 12, and 18) were due to seasonal factors.
Respondent's exhibits, consisting mainly of the graphs
previously mentioned, covered only the period from
August 1971 to January 1972. Under cross-examination,
however, Garrett admitted that by February, for which no
actual figures were introduced, sales had at least doubled
over the preceding month, and that between February and
June, monthly sales of iron couplings averaged $80,000, as
compared with $37,600, for January, and sales for
February in previous years of between $75,000 and
$80,000.14
It should be noted, too, that Respondent had reduced its
price of cast iron couplings by January 15, and, though
Garrett maintained that the actual price list was not in the
hands of its customers until sometime in February, it is
reasonable to assume that Respondent would not have
delayed notifying its customers of the price reduction until
that under instructions from Garrett Sr he could return to work only on
condition that he refrain from signing cards for the Union.
13 According to graphs, introduced in evidence , and prepared from
original company records, which were made available to' the General
Counsel, the following represents the volume of sales of iron couplings from
August 1971 to January 1972, with the corresponding number of production
employees during that period
Date Sales Employees
8/71 $128,787.25 86
9/71 89,912.07 77
10/71 132,917.28 83
11/71 79, 347.23 86
12/71 32, 729.22 84
1/72 37,611.70 52
14 Garrett's testimony that official sales reports were not available until
the 10th of the succeeding month has not been overlooked He conceded,
however, that he could approximate the volume of sales without awaiting
actual figures
MISSION RUBBER CO.
it could supply them with official price lists. By February,
Respondent had also introduced its newly designed,
compatible coupling. The salutary effect of this program
was soon reflected in the upsurge in sales of which
Respondent must surely have been aware well before the
February 16 layoff. Whether Respondent exercised good
business judgment under the circumstances in deciding on
the layoff is, of course, not the issue. It may well be that
Respondent chose to reduce its inventory by curtailing
production rather than speculate that the volume of sales
would continue to be favorable. It was not shown to what
extent the inventory had been depleted when Respondent
first began recalling laid-off employees 2 weeks later. Since
we are called upon to decide the complex issue of mo-
tivation, we cannot ignore all the relevant factors.
It is undisputed that there had been three previous
layoffs in January 1972, the last, on January 18, all
admittedly before the Union appeared on the scene.
Whether these layoffs were seasonal or due to the
exigencies of Respondent's operations, it can scarcely be
contended that they were motivated by Respondent's
opposition to the self-organizational activities of its
employees, which did not begin until early in February.
The February 16 layoff, however, because of its timing,
stands on a different footing. At first impression, it would
appear that since , with one or two exceptions, all the laid-
off employees were recalled between March 3 and April 3,
any inference of discriminatory motive in regard to the
layoff would be negated. It may be argued that, if, as is
contended, Respondent had laid off the employees in
reprisal for their union affiliation, it is unlikely that it
would have recalled virtually all the employees whom it
knew to be in favor of the Union. On the other hand, as
has been seen, the sharp increase in sales , which became
evident in February, presumably necessitated increased
production, and it is logical to assume that Respondent
would have recalled its laid-off employees rather than
attempt to recruit new and untested individuals. Manifest-
ly, Respondent's decision was dictated by reasons of
expediency. Moreover, Respondent could well have con-
cluded that the layoff had served its purpose as an object
lesson , and that the employees, sufficiently chastened,
would renounce the Union.
There are other circumstances tending to support a
finding of discrimination. With regard to the layoffs in
January, Respondent notified each of the employees
individually several days in advance in each instance.15 In
the February,layoff, Respondent, without prior notice to
the affected employees, posted a list of those to be laid off,
and attached individual notices to their timecards the very
day of the layoff. In fact, the evidence establishes that the
laid-off employees did not learn of the action until the end
of their shift at 3:30 p.m. when they clocked out. Garrett's
is According to the General Counsel's witnesses, Floorlady Morales
called each of the employees in her department to her desk and notified
them individually of the layoffs.
16 The list of employees was prefaced by the following statement:
NOTICE
RUBBER AND CLAMP DEPTS
LAY OFF NUMBER 2
The demand for our products has decreased further since our first
winter lay off of Jan 18. This requires that we lay off more people.
The following persons are laid off effective Feb 16th:
39
explanation, that he deliberately refrained from giving the
employees advance notice because of the adverse effect it
might have on their production in the interim , fails to
explain why the same reason did not obtain with regard to
the January layoffs, when, it is undisputed, advance notice
was, in fact, given. Nor does Garrett's explanation account
for his failure to notify Floorlady Morales and Plant
Manager Hofberger of the layoff until the morning in
question, considering his testimony that the decision had
been reached on February 10 or 11. Moreover, no reason
was advanced for posting the names of the employees to be
laid off, since each had been given an individual notice.
This justifies the inference that Respondent utilized the
posting as a warning to other employees of what union
adherents might expect in the future. The fact that the list
of names was prefaced by a self-serving statement that the
layoffs were due to decline in sales does not, of course,
establish this to be the fact.16
It is significant that, with the exception of 2 employees in
the rubber department, the remaining 12 laid off were all
clamp department employees. At the meeting the day
before, Floorlady Morales learned for the first time that,
contrary to her previous impression, the organizational
activity had been initiated in her own department rather
than in the rubber department. Leaving no doubt that she
regarded this an act of personal disloyalty, she announced
that she intended to notify Garrett Sr. that the clamp
department employees had been responsible for bringing
the Union into the plant.
What is more significant, however, is that within a day or
two after the layoff, Respondent hired three employees for
the clamp department. According to the uncontradicted
testimony of Minnie Madrigal, a spotwelder in the clamp
department, who, incidentally, was not among those laid
off,'7 Joyce Ray and Maria Cervantes were hired as "gun"
operators and Yolanda Nerey as a spotwelder, all in the
clamp department, the day after the layoff or soon
afterward. Both Nerey and Cervantes had been previously
employed by Respondent, Nerey having worked there until
about 2 weeks before the February layoff. In addition,
according to Madrigal, on about March 15, well before the
last of the laid-off employees had been reinstated,
Respondent hired two new employees, Pedro Piceno and
Dolores Gonzales.18
• The record further discloses that, despite Respondent's
position, that at the time of the February layoff its purpose
was to curtail production and reduce its excessive invento-
ry, it was actually urging the remaining clamp department
employees to increase production. Thus, according to
Kathy Macias, a spotwelder, about a week after the
February layoff, Morales told her that she would have to
speed up her production because output was lagging. In
another discussion Morales told Macias that , as she was
17 Madrigal 's length of service dated from July 8. 1968, some 6 months
less than Assistant Floorlady Thompson, who had the longest service in the
department. Since Respondent contends that it attempted to make the
layoffs according to length of service , with exceptions related to its
operating requirements , in view of Madrigal 's experience and competence, it
is not surprising that Respondent did not lay her off despite her known
union sympathy.
is The record does not disclose what jobs these two employees were
hired to perform , but evidently they were assigned to the clamp department.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
well aware, she, Morales, was in trouble because of the
Union, and that she would have to assign Macias
additional duties because she was earning more than the
other girls. Macias reluctantly agreed. Morales returned
later and told her that she was making her responsible for
changing and setting tips on the welding equipment
whenever necessary. Thereafter, Morales also assigned
Macias to work on assembly, in addition to her other
duties. There was also evidence that, following the layoff,
employees in the clamp department were shifted around to
vanousjobs.
On March 2, before Respondent recalled any of the laid-
off employees, Morales criticized Madrigal for not working
hard enough, for slowing down production and urging the
girls in the clamp department to do the same. Morales told
her that if she did not convince the girls to get out
production, she would "take further steps." Madrigal
denied engaging in a slowdown or urging the others to do
so, and defied Morales to fire her because she was not
responsible for any slowdown. Madrigal protested that she
had been working harder than ever, that the girls were
being overworked, and called attention to the shortage of
help, reminding her that one of the women had been
disabled due to a back condition.19 Considering Respon-
dent's contention that the layoff was caused by the drastic
decline in sales and the corresponding increase in invento-
ry, Morales' efforts to obtain increased production further
impugns Respondent's motive for the layoff.
It is of further significance that, although Respondent
had never followed seniority in effecting layoffs prior to
the February layoff, in the most recent layoff, on advice of
counsel, it undertook to follow seniority as far as practical.
Nevertheless, in instances where it decided that strict
seniority might deprive it of its most experienced and
versatile employees, such as machine operators, welders,
and the like, it disregarded strict seniority. Yet, despite this
policy, Respondent laid off Loera and Samaniego, both
machine operators. Herrera, a spotwelder whose length of
service in the clamp department dated from March 24,
1969, fifth longest in point of service, whom Morales had
admittedly suspected of having instigated the union
activity, was also among those laid off. Respondent's
contention that she was merely an assembler, incapable of
operating other equipment, is contradicted by the credible
and mutually corroborative testimony of Herrera and
Macias, her fellow-employee, as to the wide variety of jobs
she actually performed.
Ayala, initially hired on January 7, 1969, was the fourth
longest in point of service and had never previously been
laid off. Though working as a packer at the time of the
layoff, she, too, had worked at a wide variety of jobs in the
clamp department. On the other hand, Alfredo Rodriguez,
a packer with less service than Ayala, was retained.
Astorga, an experienced welder, who testified, without
contradiction, that Morales had assured her long before
the advent of the Union that she would never be laid off
due to decline in production, was also laid off. She had
been one of the outspoken union advocates at the meeting
19 During this encounter , Morales accused Madrigal and her husband of
being "union leaders" and told her that she had witnesses to prove it When
Morales named Eusebio Quintero as the source of her information,
the day before. Although originally hired in May 1968,
Astorga's employment was interrupted twice for maternity
reasons. That Respondent , nevertheless , regarded her as
one of its senior employees in point of service is suggested
by the fact that Respondent had at first considered her to
be eligible for 2 weeks ' vacation but later reconsidered and
denied her any vacation whatever.
Finally, it seems more than coincidence that Francis
(Aldarte) and Marquez, the two employees who indicated
at the meeting the day before that they were not in favor of
the Union, were not laid off.
Mention should also be made of an incident which
occurred about the first week in April, after most of the
laid-off employees had been recalled. Eusebio Quintero, a
mill room employee who had not been recalled , went to the
plant and spoke to Walt Hansen , working foreman in the
mill room. Hansen asked Quintero whether he was working
and wanted to'return to the plant. Quintero said that he
wished to return, and Hansen said that he would take it up
with Garrett Sr. and let him know on Monday. On
Monday, April 3, Quintero called Hansen to find out if a
decision had been reached . Hansen told Quintero that
Garrett had instructed him to reinstate Quintero only if he
agreed not to sign up with the Union. Quintero agreed,
stating that all he wanted was to return to work . Hansen
told him to call next day to find out definitely whether he
was to be reinstated. Next evening, Hansen confirmed to
Quintero that Garrett had agreed to his reinstatement, and
again warned him against signing up with the Union.
Quintero was thereupon reinstated on Thursday, April 6.
Although Hansen did not testify, and Quintero's testimo-
ny stands uncontradicted , Respondent denies that Hansen
was a supervisor within the meaning of the Act. The record
establishes, however , that Hansen , though designated by
Respondent as a working foreman, was in complete charge
of the mill room and the highest paid employee in that
department. Although he performs work himself, such as
mixing ingredients , he assigns work to the employees in the
department, responsibly directs them in their work tasks in
more than a routine manner, has authority effectively to
recommend hiring and discharge of employees and
granting time off , and, according to General Manager
Loftus, his recommendations are accorded great weight. It
is found that Hansen was a supervisor within the meaning
of the Act, and that his statements to Quintero are
attributable to Respondent. The fact that Hansen inter-
viewed Quintero about returning to work and, after
conferring with Garrett , Sr., accomplished his reinstate-
ment, is persuasive evidence of his supervisory status.
It is, therefore, found that Hansen 's remarks to Quintero,
in which he exacted a promise from him to refrain from
engaging in union activity as a condition of reinstatement,
furnish additional support for the conclusion of unlawful
motivation for the February 16 layoff. It is further found
that, by such remarks, Respondent has also interfered with,
restrained , and coerced employees in the exercise of rights
guaranteed under the Act, in violation of Section 8(a)(1).
On the basis of the foregoing findings of fact , and upon
Madrigal challenged her to have Quintero confront her. Morales said that
that would not be necessary , that Quintero had also given the information
to Plant Manager Hofberger
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
well aware, she, Morales, was in trouble because of the
Union, and that she would have to assign Macias
additional duties because she was earning more than the
other girls. Macias reluctantly agreed. Morales returned
later and told her that she was making her responsible for
changing and setting tips on the welding equipment
whenever necessary. Thereafter, Morales also assigned
Macias to work on assembly, in addition to her other
duties. There was also evidence that, following the layoff,
employees in the clamp department were shifted around to
various jobs.
On March 2, before Respondent recalled any of the laid-
off employees, Morales criticized Madrigal for not working
hard enough, for slowing down production and urging the
girls in the clamp department to do the same. Morales told
her that if she did not convince the girls to get out
production, she would "take further steps." Madrigal
denied engaging in a slowdown or urging the others to do
so, and defied Morales to fire her because she was not
responsible for any slowdown. Madrigal protested that she
had been working harder than ever, that the girls were
being overworked, and called attention to the shortage of
help, reminding her that one of the women had been
disabled due to a back condition.19 Considering Respon-
dent's contention that the layoff was caused by the drastic
decline in sales and the corresponding increase in invento-
ry, Morales' efforts to obtain increased production further
impugns Respondent's motive for the layoff.
It is of further significance that, although Respondent
had never followed seniority in effecting layoffs prior to
the February layoff, in the most recent layoff, on advice of
counsel, it undertook to follow seniority as far as practical.
Nevertheless , in instances where it decided that strict
seniority might deprive it of its most experienced and
versatile employees, such as machine operators, welders,
and the like, it disregarded strict seniority. Yet, despite this
policy, Respondent laid off Loera and Samaniego, both
machine operators. Herrera, a spotwelder whose length of
service in the clamp department dated from March 24,
1969, fifth longest in point of service, whom Morales had
admittedly suspected of having instigated the union
activity, was also among those laid off. Respondent's
contention that she was merely an assembler, incapable of
operating other equipment, is contradicted by the credible
and mutually corroborative testimony of Herrera and
Macias, her fellow-employee, as to the wide variety of jobs
she actually performed.
Ayala, initially hired on January 7, 1969, was the fourth
longest in point of service and had never previously been
laid off. Though working as a packer at the time of the
layoff, she, too, had worked at a wide variety of jobs in the
clamp department. On the other hand, Alfredo Rodriguez,
a packer with less service than Ayala, was retained.
Astorga, an experienced welder, who testified, without
contradiction, that Morales had assured her long before
the advent of the Union that she would never be laid off
due to decline in production, was also laid off. She had
been one of the outspoken union advocates at the meeting
19 During this encounter, Morales accused Madrigal and her husband of
being "union leaders" and told her that she had witnesses to prove it. When
Morales named Eusebio Quintero as the source of her information,
the day before . Although originally hired in May 1968,
Astorga 's employment was interrupted twice for maternity
reasons . That Respondent, nevertheless , regarded her as
one of its senior employees in point of service is suggested
by the fact that Respondent had at first considered her to
be eligible for 2 weeks ' vacation but later reconsidered and
denied her any vacation whatever.
Finally, it seems more than coincidence that Francis
(Aldarte) and Marquez, the two employees who indicated
at the meeting the day before that they were not in favor of
the Union , were not laid off.
Mention should also be made of an incident which
occurred about the first week in April, after most of the
laid-off employees had been recalled . Eusebio Quintero, a
mill room employee who had not been recalled , went to the
plant and spoke to Walt Hansen , working foreman in the
mill room . Hansen asked Quintero whether he was working
and wanted to return to the plant . Quintero said that he
wished to return , and Hansen said that he would take it up
with Garrett Sr. and let him know on Monday. On
Monday, April 3, Quintero called Hansen to find out if a
decision had been reached . Hansen told Quintero that
Garrett had instructed him to reinstate Quintero only if he
agreed not to sign up with the Union . Quintero agreed,
stating that all he wanted was to return to work . Hansen
told him to call next day to find out definitely whether he
was to be reinstated . Next evening, Hansen confirmed to
Quintero that Garrett had agreed to his reinstatement, and
again warned him against signing up with the Union.
Quintero was thereupon reinstated on Thursday, April 6.
Although Hansen did not testify , and Quintero 's testimo-
ny stands uncontradicted , Respondent denies that Hansen
was a supervisor within the meaning of the Act. The record
establishes , however , that Hansen , though designated by
Respondent as a working foreman , was in complete charge
of the mill room and the highest paid employee in that
department . Although he performs work himself, such as
mixing ingredients , he assigns work to the employees in the
department , responsibly directs them in their work tasks in
more than a routine manner , has authority effectively to
recommend hiring and discharge of employees , and
granting time off , and, according to General Manager
Loftus, his recommendations are accorded great weight. It
is found that Hansen was a supervisor within the meaning
of the Act, and that his statements to Quintero are
attributable to Respondent . The fact that Hansen inter-
viewed Quintero about returning to work and, after
conferring with Garrett, Sr., accomplished his reinstate-
ment, is persuasive evidence of his supervisory status.
It is, therefore, found that Hansen 's remarks to Quintero,
in which he exacted a promise from him to refrain from
engaging in union activity as a condition of reinstatement,
furnish additional support for the conclusion of unlawful
motivation for the February 16 layoff. It is further found
that , by such remarks , Respondent has also interfered with,
restrained , and coerced employees in the exercise of rights
guaranteed under the Act, in violation of Section 8(a)(1).
On the basis of the foregoing findings of fact , and upon
Madrigal challenged her to have Quintero confront her. Morales said that
that would not be necessary , that Quintero had also given the information
to Plant Manager Hofberger.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTICE
UNION MEN HAVE BEEN AROUND OUR
PLACE TRYING TO GET CARDS SIGNED. DO
NOT SIGN. YOUR COMPANY IS AGAINST IT.
Upon learning of this, the General Counsel moved to
amend the complaint to allege this conduct to be further
violative of Section 8(a)(1). There was no evidence as to
who had distributed the notices or of the circumstances
under which this had been done . Although Respondent's
counsel was evidently taken by complete surprise, and
represented that he had not been consulted beforehand,
had had no prior knowledge of this activity , and asserted
that the principal management representatives had been
present at the hearing , he, nevertheless , assumed full
responsibility on behalf of his client for the action. While
expressing some reservation as to the illegality of the
conduct , he agreed to have Respondent repudiate the
notice by appropriate means. In light of Respondent's
other similar acts of interference , the notice can hardly be
regarded as protected free speech . It is, therefore, found
that , by the conduct described , Respondent has engaged in
additional acts of interference , restraint , or coercion. Since
there has been no showing that Respondent has taken any
action to disavow or repudiate its conduct in this regard, it
will be recommended that it be required to take appropri-
ate action.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described 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.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following conclusions of
law:
1. Mission Rubber Company, Inc., Respondent herein,
is, and at all times material herein has been, an employer
engaged in commerce and in a business affecting com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Local 585, United Rubber, Cork, Linoleum and
Plastic Workers of America, AFL-CIO, is, and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminatonly laying off 14-employees, named
in the complaint, on February 16, 1972, and thereafter
failing to recall all said employees until various dates
between March 3 and April 6, 1972, and by discriminatori-
ly transferring Francisca Gutierrez on February 17, 1972,
from her regular work area and position to another work
21 Respondent contends that, with one or two exceptions, all employees
laid off on February 16 were recalled between March 3 and April 3 Direct
evidence of the dates of reinstatement was offered only with regard to about
area and position, and failing to restore her to her former
work area and position, and thereafter on February 24,
1972, discharging said employee, all because of their union
and concerted activities to discourage membership in a
labor organization, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3),
thereby interfering with, restraining, and coercing employ-
ees in the exercise of rights guaranteed in Section 7, in
violation of Section 8(a)(1) of the Act.
4. By unlawfully interrogating employees concerning
their union and concerted activities, threatening them with
reprisals, engaging in and creating the impression of
engaging in surveillance, and by the other acts and
conduct, as found above, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
5. The unfair labor practices found above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act, it will be recommended that Respondent be
required to cease and desist from such practices and take
certain affirmative action designed to effectuate the
policies of the Act.
In view of the nature and extent of the unfair labor
practices in which Respondent has been found to have
engaged, and to effectuate the policies of the Act, it will
also be recommended that Respondent be required to
cease and desist from engaging in any other unfair labor
practices.
Having found that the 14 employees named in the
complaint, as shown in the appendix, were discriminatorily
laid off on February 16, 1972, and were not reinstated until
various dates between March 3 and April 6, 1972, it will be
recommended that Respondent make each of said employ-
ees whole for any loss of pay such employees may have
sustained by reason of the discrimination against them
from the date each such employee was laid off until the
date of reinstatement, together with interest; that Respon-
dent offer any of said 14 employees who have not already
been reinstated21 immediate and full reinstatement to such
employee's former job, or, if such job no longer exists to a
substantially equivalent job without prejudice to such
employee's seniority and other rights and privileges, and
make any such employees whole for any loss of pay they
may have suffered by reason of such discrimination from
the date of said layoff on February 16, 1972, to the date of
reinstatement or offer of reinstatement, as the case may be,
and offer immediate and full reinstatement to Francisca
Gutierrez to her former job, or if such job no longer exists,
to'a substantially equivalent job, without prejudice to her
seniority and other rights and privileges, and make her
whole for any loss of pay she may have suffered by reason
of the discrimination against her from February 24, 1972,
the date of her discharge, to the date in June 1972, when
half the laid-off employees The above provision is intended to cover any
employees who may not actually have been previously reinstated
MISSION RUBBER CO. 43
she was reinstated, without prejudice to her seniority or
other rights and privileges, with backpay computed in
accordance with the Board's formula in F. W. Woolworth
Company, 90 NLRB 289, together with interest at the rate
of 6 percent per annum as provided in Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10 (c) of the Act, I hereby issue the following
recommended: 22
ORDER
Mission Rubber Company, Inc., a corporation, its
officers, agents, successors and assigns shall:
1. Cease and desist from:
(a) Discriminating in regard to the hire or tenure of
employment or any term or condition of employment of
any employee by discharging, laying off or in any other
manner discriminating in regard to the hire or tenure of
employment or any other term or condition of employment
of its employees to discourage membership in a labor
organization.
(b) Interrogating employees concerning their union
membership or affiliation or other protected concerted
activities, threatening them with reprisal therefor, engaging
in, soliciting them to engage in or creating the impression
that it has engaged in surveillance of union or protected
concerted activities of employees.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the Act, as
amended.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer any of the 14 named employees, who have not
previously been reinstated, immediate and full reinstate-
ment to their respective former jobs, or if those jobs no
longer exist, to substantially equivalent jobs, without
prejudice to their seniority or other rights and privileges,
and offer Francisca Gutierrez immediate and full reinstate-
ment to her former job or, if that job no longer exists, to a
substantially equivalent job, without prejudice to her
seniority or other rights and privileges.
(b) Make each of said 14 named employees, including
any who have not been previously reinstated, whole for
any loss of earnings such employees may have sustained by
reason of Respondent's discrimination against them by
payment of the sum of money each would have earned
from the date of the discrimination against them on
February 16, 1972, to the date of offer of reinstatement or
to the date of actual reinstatement , as the case may be, less
net earnings of each such employee during such period.
Make said Francisca Gutierrez whole for any loss of
earnings she may have suffered as a result of Respondent's
discrimination against her as set forth in The Remedy
section herein . Loss of earnings shall be computed in the
manner set forth in the section entitled "The Remedy."
(c) Rescind the notice distributed to employees on July
19, 1972, and notify employees of such rescission by
written notices attached to their timecards.
(d) Preserve and, upon request, make available to the
Board, or its agents, for examination and copying all
payroll records, social security records, timecards, person-
nel records and reports, and all other records necessary or
useful to determine or compute the amount of backpay due
if any.
(e) Post at its plant and office in Whittier, California,
copies of the attached notice marked "Appendix." 23
Copies of the notice on forms provided by the Regional
Director for Region 21, after being signed by a duly
authorized representative of Respondent, shall be posted
immediately upon receipt thereof and maintained by it for
a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to ensure that such notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of receipt of this
Decision, what steps Respondent has taken to comply
herewith.24
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, andrrecommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
23 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
24 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 21, in writing , within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith."