Modern Steel Treating Co.

National Labor Relations Board - Board Decisions

May 19, 1969

175 N.L.R.B. 1084 (N.L.R.B. 1969)

1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George Glickley, Burton H. Graham , and Stanton F.
Graham , d/b/a Modern Steel Treating Company
and United Steelworkers of America , AFL-CIO.
Cases 13-CA-8187 and 13-CA-8655
May 19, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On January 21, 1969, Trial Examiner Sidney
Sherman issued his Decision in the above -entitled
proceeding, finding that Respondents had engaged in
and were engaging in certain unfair labor practices
and recommending that they cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that Respondents had not
engaged in certain other alleged unfair labor
practices. Thereafter, Respondents filed exceptions
to the Trial Examiner's Decision and a supporting
brief. The General Counsel filed an answering brief,
and the Charging Party filed a brief in opposition to
Respondents' 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
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
entire record in this case, including the Trial
Examiner's Decision, the exceptions and briefs, and
hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondents, George Glickley,
Burton H. Graham, and Stanton F. Graham, d/b/a
Modern Steel Treating Company, Chicago, Illinois,
their agents, successors, and assigns , shall take the
action set forth in the Trial Examiner's
Recommended Order.
In adopting the Trial Examiner 's findings of Sec. 8(aX5) unilateral wage
increases in February and May 1968 , we deem it unnecessary, on the
present record , to rely upon the Trial Examiner's second rationale for
which the Laney & Duke and King Radio cases are cited in his Decision.
TRIAL EXAMINER'S DECISION
SIDNEY SHERMAN , Trial Examiner : Copy of the original
charge in Case 13-CA-8187 was served upon George
Glickley, Burton H. Graham, and Stanton F. Graham,
d/b/a Modern Steel Treating Company' on December 24,
1967, and the complaint therein issued on April 30, 1968.2
On May 3, the Regional Director consolidated that case
for purposes of hearing with Case 13-RC-11330, and a
consolidated hearing was held before me on July 15, 16,
17, and 18. The issues litigated related to the eligibility of
certain voters in a Board election , alleged interference
with the election by Respondent, and alleged violations of
Section 8(a)(1), (3), and (5). After that hearing briefs were
filed by all parties. On August 12, 1968, the RC case was
severed and on September 16, I issued a "Trial
Examiner's Decision" in that case , containing
recommendations as to the disposition of certain
challenged ballots, and remanding the case to the
Regional Director for appropriate action . The Regional
Director' s subsequent action is set forth below.
A copy of the charge in Case 13-CA-8655' was served
upon Respondent on September 12, and a complaint in
that case issued on October 22, and at the same time the
Regional Director moved to reopen the record in the old
complaint case and consolidate it with the new case. That
motion was granted on November 22, and a further
hearing was held on December 3. The issues litigated at
that hearing related principally to the alleged
discrimination against Villareal. Briefs were thereafter
filed by all parties relating , inter alia , to the issues of the
new complaint.
Upon the entire record in the instant proceeding,
including my observation of the witnesses , I adopt the
following findings and conclusions.'
1. RESPONDENT ' S OPERATIONS
Respondent is a partnership, which, at its plant in
Chicago, Illinois , is engaged in processing metals.
Respondent annually receives directly from out-of-State
points metals valued at more than $50,000, and annually
ships more than $50,000 worth of its products to
out-of-State points. Respondent is engaged in commerce
under the Act.
II. THE UNION
United Steelworkers of America, AFL-CIO, hereinafter
called the Union, is a labor organization under the Act.
III. THE UNFAIR LABOR PRACTICES
The pleadings in the present , consolidated proceeding
raise the following issues:
1. Whether Respondent violated Section 8(a)(1) of
the Act by interrogation , by threats of discharge and
other reprisals for Union activity, and by unilateral
changes in wage rates?
2. Whether Respondent violated Section 8(a)(3) and
(1) of the Act by discriminatorily reducing the
Christmas bonus of Garza and Villareal?
3. Whether Respondent violated Section 8(a)(1), (3)
and (4) of the Act by discharging Villareal after he had
'Hereinafter collectively referred to as "Respondent."
'All dates hereinafter relate to 1968 , unless otherwise stated.
'Case 13-CA-8187 was originally consolidated with Case 13-RC-11330,
but was severed therefrom on August 12, 1968, and on November 22.
1968, 1 issued a telegraphic order consolidating the instant cases.
'For corrections of the transcript see In . 1 of the Trial Examiner's
Decision in the RC case, and my order of December 24, which is hereby
affirmed , except as to item 3 thereof. See fn . 28 below.
175 NLRB No. 175
MODERN STEEL TREATING CO.
testified in this proceeding?
4. Whether Respondent violated Section 8 (a)(5) and
(1) of the Act by refusing to recognize the Union, and
by unilateral changes in wage rates?
A. Sequence of Events
It is not disputed that ' on November 15, 1967, the
Union requested that Respondent bargain with it as the
representative of its employees , and that on November 15,
the Union also filed a petition for election in Case
13-RC-1 1330, that an agreement for consent election was
executed on November 22, and that the election was held
on December 15, 1967. The result was 15 votes for, and
13 against , the Union , with 6 challenged ballots. The
Union filed objeotioils to the - election . The Regional
Director consolidated the representation case with Case
13-CA-8187, and directed that a report be prepared
containing recommendations to the Regional Director as
to the disposition of the challenges and the objections. As
already related, a hearing was held before me in that
consolidated proceeding from July 15 through 18, and on
September 16, I issued ' the original Decision herein,
making certain recommendations as to the challenged
ballots and remanding the case to the Regional Director
for action on such recommendations .' On October 14,
Respondent filed exceptions to those recommendations.
On October 18, -the Acting Regional Director overruled
the exceptions , determined that the Union had received a
majority of the valid votes cast , and certified the Union as
the representative of Respondent' s production and
maintenance employees.'
On October 22, the Regional Director issued a new
complaint in Case lr3-CA-8655, alleging that Respondent
had discriminated against Villareal , by refusing him
employment after , July 15, because, inter alia, he had
testified on that date in the above proceeding as a witness
for the General Counsel. Also, on October 22, the
Regional Director moved -to reopen the instant record and
consolidate the new complaint case with the old. That
motion was granted by a telegraphic order on November
22, and the hearing was resumed on December 3.
B. Discussion
1. The 8(a)(1) issue;
Garza testified that about 2 weeks before the election
H. Smith, an admitted supervisor, stated that all the
union adherents could be discharged and replaced the
same day and Garza attributed to Smith a preelection
threat that there would be no more Christmas bonuses
because of the employees' adherence to the Union.'
Despite Smith ' s denials, I credit Garza on the basis of
demeanor, and find that by the foregoing threats
Respondent violated Section 8(a)(1) of the Act.
Hernandez testified that a week before the election
Salabura, an admitted supervisor, asked him in effect if
another employee had, entered the country legally,
'No action was taken by me at that time with respect to the allegations
of the complaint case, pending the final disposition of the challenged
ballots.
'As the Union 's objections to the election were rendered moot by the
foregoing certification, there were no further proceedings on the objections.
'Garza also imputed to H. Smith preelection threats that there would be
no more raises because of the Union . However, as this was not alleged in
the complaint , and the issue was not adequately litigated, I base no finding
on such testimony.
1085
explaining that "because of this union business . . . he's
sending somebody to investigate him and anybody that
don't have papers." Hernandez added that during the
preelection period Salabura warned that, if the Union
came to represent the employees, the workweek would be
reduced from 48 to 40 hours, the employees would work
harder for less pay, the witness' hourly pay would be cut
to $1.75 from $2.55, and there would be no Christmas
bonuses that year because Glickley was incensed over the
employees' union activity.
While admitting that he discussed the Union with
Hernandez, Salabura insisted that his part in such
discussion was limited to pointing out that a union might
not be advantageous to the employees because of the
small size of Respondent's plant; and, he specifically
denied making the various statements attributed to him by
Hernandez. However, in two instances, such denials were
elicited from Salabura only after he had first given a
nonresponsive, argumentative answer to the question put
to him and he repeatedly pleaded a hazy recollection of
events during the preelection period. I was, moreover,
favorably impressed by Hernandez's demeanor, the
firmness of his recollection and the circumstantiality of his
testimony. Accordingly, I credit him and find that by
Salabura's foregoing threats of reprisal for union activity
Respondent violated Section 8(a)(1) of the Act.
Villareal's testimony concerning similar threats by
Schnabel' was contradicted by him. As the matter is
cumulative, and in view of an issue raised at the
December 3 hearing concerning the credibility of certain
testimony by Villareal at that hearing,' I make no finding
as to the foregoing alleged threats by Schnabel.
Moreles testified that within a period of 4 days before
the election Salabura twice asked him how he would vote,
that on election day, after the balloting, Salabura asked
the witness how he had voted, and that, when the witness
answered that he had voted for the Union, Salabura
declared that there would be some changes and
Respondent was going to "put more pressure on the rest
of the guys." While Salabura denied having any
conversation with Moreles about the Union, I credit
Moreles on the basis of demeanor, as well as Salabura's
aforenoted shortcomings as a witness, and find that by the
foregoing interrogation, considered in context, Respondent
violated Section 8(a)(1) of the Act.
Najd testified that during the preelection period both
Salabura and H. Smith told him that the Union would
not let him continue in Respondent's employ because he
was only a part-time worker. While Salabura entered a
denial, H. Smith admitted that he had told Neri and other
employees that he heard this had happened to certain
part-time welders in another plant, after it became
unionized, and he thought the same thing would happen at
Respondent's plant. Nojd also attributed to H. Smith a
statement that under the union wages would be lower
because the union scale was lower . Smith 's version was
that he told employees only that he did not think that the
union scale was as high as Respondent 's existing top rate.
Since both the foregoing incidents are merely
cumulative, and, since, even if Nojd's versions be credited,
the foregoing remarks of Salabura and Smith were at
least arguably merely predictions of the economic
consequences of unionization, no useful purpose would be
served by a final disposition of the allegations here
'The finding in the Decision in Case 13-RC-11330 that he was a
supervisor was approved by the Regional Director.
'See fn 30, below
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involved. Accordingly, I do not pass thereon."
Neri testified that 3 days before the election H. Smith
warned him that Respondent would bring immigration
inspectors into the plant before the election to check on
the employees' "papers," and that those who did not have
any papers would be sent back to Mexico. Garza testified
to a similar pre-election warning by Smith. On the basis
of an evaluation of demeanor, I credit such testimony,
despite Smith's denial. As the record suggests no other
reason for the foregoing warnings, and as they were
delivered in the context of a coercive, antiunion campaign
by Smith, as well as other supervisors," it is inferred that
the purpose thereof was to induce the Mexican employees
to avoid the risk of deportation by quitting their
employment before the election, thereb' reducing the size
of the prounion vote in the election. ' It is, therefore,
found that by Smith's foregoing remarks to Neri and
Garza Respondent violated Section 8(a)(1) of the Act.
Neri testified that several days before the election H.
Smith stated that Garza and all those who voted for the
Union would be discharged, that in mid-January Smith
threatened, that, after the representation case was
disposed of, all those who had voted for the Union would
be discharged," and that during the pre-election period
Salabura repeatedly threatened that Garza would be
discharged "because of the Union." Neri added that
during the pre-election period Smith and Salabura asked
him how he was going to vote, and the latter enjoined him
at the same time to think about his wife and baby.
Although Salabura and Smith disputed the foregoing
testimony, I credit Neri, as he appeared to be a sincere
witness, and as it has been found necessary to reject the
testimony of Salabura and Smith in other areas."
Accordingly, it is found that by the foregoing
interrogation and threats of discharge Respondent violated
Section 8(a)(1) of the Act.
Coronel testified that the Sunday before the election
Salabura asked him why he was not at the Union
meeting, and stated that the witness would earn only $1.50
per hour under the Union instead of his current rate of
$2.60. Salabura professed to be unable to recall any
"For like reasons , I do not pass on conflicting testimony concerning a
remark by Rasmussen to Garza that Tom Smith (apparently , also, a
part-time employee) could not continue in Respondent 's employ, if the
Union came to represent the employees.
"See, particularly , the discussion above of a related incident involving
Salabura and Hernandez.
"Nojd testified that several weeks before the election Salabura disclosed
that he expected all the Mexican employees to vote for the Union , and the
others to vote against the Union . As Hernandez testified to a similar
remark by Salabura, and there was no denial by Salabura , I credit the
foregoing testimony and infer that Salabura 's views reflected that of
Respondent ' s management in general , including Smith.
"According to the witness , on this or another occasion Smith
embroidered this threat by specifying that the witness and Nojd would be
among those discharged. For reasons noted below , I credit such testimony,
despite Smith's denial.
"Respondent attempted to refute Neri's foregoing testimony by
producing at the hearing a former employee, Vera, who had voted for the
Union in the election , and who denied that he had heard the threats
ascribed by Neri to Salabura and Smith , or that he had heard them or
other supervisors discuss the Union.
However, none of the other witnesses at the hearing identified Vera as a
participant or bystander in any of the conversations about the Union
between the supervisors and the employees . Moreover , in view of the
admission by H. Smith that there were, in fact , general discussions of the
Union among the employees in Respondent 's lunchroom , in which he
sometimes participated , Vera's denial of any such conduct by Smith
reflects either on Vera's veracity or his competence to testify about the
matter.
discussion with Coronel concerning his attendance at a
union meeting, and denied generally that he had warned
any employee of a wage reduction under a union. As
Salabura did not unequivocally deny the interrogation, I
credit Coronel on that score. As for the wage cut threat,
based on demeanor and the other considerations cited
above affecting Salabura's credibility, particularly with
regard to his denial of a similar threat to Hernandez, I
credit Coronel. It is found that by the foregoing
interrogation and threat Respondent violated Section
8(a)(1) .'
Finally, it was stipulated that in February Respondent
unilaterally granted a 10-cent-per-hour raise to its 22
hourly employees, and that an additional 10-cent raise was
unilaterally given to four of them in May. The complaint
alleges that such increases independently violated Section
8(a)(1) of the Act,'° and the General Counsel (in his
second brief) cites Ralph Printing & Lithographing Co.,"
for the proposition that wage increases unilaterally
conferred during the pendency of objections to an election
are unlawful, where it is the employer's purpose to
influence the employees' choice should a second election
be directed. Such purpose may here be inferred from the
timing of the raises and the absence of any explanation by
Respondent for such timing.1s Accordingly, I find that by
such raises Respondent violated Section 8(a)(1).
2. The Christmas bonus issue
The General Counsel contends that Respondent violated
Section 8(a)(3) and (1) of the Act by reducing the 1967
Christmas bonus of Garza" because of his union activity.
It is clear from the record, particularly from the
testimony of Plant Manager Schultz, that Respondent
regarded Garza'" as a leader of the union movement, and
"Villareal testified that , when late in December 1967, he received a
Christmas bonus check in the net amount of $30, which was about $20 less
than his 1966 bonus , and complained to Schultz about the reduction, he
remarked , "This happened to you because you signed for the Union."
As Schultz' denial is corroborated by the evidence discussed below (fn.
19) that the reduction in the net amount of the check was due solely to a
bookkeeping error , I credit such denial.
"As to the 8(a)(5) allegation concerning such raises, see the discussion
below.
"158 NLRB 1353, enfd. 379 F.2d 687 (C.A. 8). Accord: Northwest
Engineering Co., 148 NLRB 1136; Triangle Plastics, Inc., 166 NLRB No.
86; 20th Century Glove Co., Inc., 165 NLRB No. 122; Gal Tex Hotel
Corp. 154 NLRB 338, 164 NLRB No. 70. See N.L.R.B. v. Exchange
Parts Co., 375 U.S. 405.
"While the record (TX Exh. 2) shows that most, if not all, of the
employees received raises in 1967, it was stipulated that these were merit
raises, and they were granted in varying amounts and on various dates. In
any event , there was no testimony that the 1968 raises were granted for
business reasons or to conform with a pattern established by past practice.
"The General Counsel made a like contention as to Villareal . However,
it was stipulated that there was no change in the gross amount of
Villareal's bonus ($50) as between 1966 and 1967, but only a reduction of
about $16 in the net amount. Glickley explained, without contradiction,
that such reduction was due to a bookkeeping error in computing the
amount to be withheld for income tax, and that the sum thus erroneously
withheld and paid over to the Government was recoverable by Villareal
through the usual tax refund procedure . I am inclined to credit Glickley's
foregoing explanation , in view of the corroborating evidence of
Respondent' s business records, and find that there was no real reduction of
Villareal's bonus, but only a deferral of his enjoyment of part of the bonus
until such time as he received his tax refund , and that such deferral was
the result of inadvertence. Accordingly, I will recommend dismissal of this
allegation . (In any case , any violation finding here would be cumulative,
and would not materially affect the remedy, any pecuniary loss suffered by
Villareal being merely nominal.)
"Garza was the Union 's "contact" man in the plant and its observer in
the election.
MODERN STEEL TREATING CO. 1087
$150 in 1966 to $50 in - 1967: Respondent's records for
1966 and 1967," show that the employees' Christmas
bonuses in each of these years ranged from $50 to $350,22
and, while some of the bonuses in the range above $200
were reduced by $50 in 1967 (which reduction Glickley
attributed to adverse business conditions ), the records
show that Garza's was the only one in the range below
$200 that was reduced in 1967, and the only bonus of any
size that was reduced by more than $50. Glickley
explained that in Garza 's case the reduction was effected
because it had been reported to Glickley that Garza had
quit his employment in August 1967, to take another job,
and that, although he had returned to Respondent's
employ in September, Glickley treated him for bonus
purposes as a new hire without seniority.
Garza denied that he had quit in August. His account
of the matter was that early in August he decided to take
his allotted 2-week vacation , gave notice of his intention
to one of Respondent's office employees, who approved
and made a record of, his departure date, to Assistant
Plant Manager Rafferty and to his immediate supervisor,
H. Smith , informing the latter that he was going to
Mexico. Garza added that he drove to Mexico, but his
return was delayed by heavy rains in Mexico , necessitating
his wiring Respondent on August 23, as follows:
Since I came heavy rains can't get out.23
According to Garza, when he finally returned from
Mexico early in September, Rafferty asked him how he
had negotiated the return trip, and, when he answered that
he had driven back,,Rafferty commented, "I thought you
came back by boat."
None of the foregoing testimony was contradicted by
Respondent 's witnesses . In fact, both Schultz and Rafferty
acknowledged that they were aware of Garza's departure
for Mexico in August and that they assumed at the time
that it was a vacation trip, and , while Schultz disclaimed
any knowledge of Garza 's wire, it is inferrable from his
testimony, as well as Rafferty's, that they were aware of
the reason for Garza's late return.26
Accordingly, it is found that Garza did not quit in
August but went to Mexico on his vacation , returning as
soon as weather conditions permitted.
There remains to be considered Glickley's contention
that he, nevertheless, believed that Garza had quit.
Glickley explained that he,had been told by Schultz that
H. Smith, Garza's immediate supervisor, had reported
that Garza had quit in August and obtained a better job
elsewhere. However, H. Smith denied that he had made
any such report23 and Schultz denied ( 1) that he had any
information about the reason for Garza' s absence in
August other than that he had gone to Mexico on
vacation, or (2) that he had told anyone that there was
any other reason for such absence. Moreover , neither
Glickley nor any other of Respondent's witness disputed
Garza's testimony that , upon his return from Mexico, he
found his timecard still in the rack , and there was no
testimony by any of Respondent' s witnesses that the card
had at any time been removed from the rack.
"See TX Exh. 1.
"According to Glickley, the relative size of a particular bonus was
determined, inter alia, by the recipient's seniority.
"A copy of such wire was received in evidence and verified by Garza.
"Schultz admitted that Garza might have told him of the flood
conditions encountered in Mexico , and Rafferty acknowledged that he
might have asked Garza, upon his return , about his navigational problems.
"He professed to have no further recollection of the circumstances of
In view of all the foregoing circumstances, I find that
Garza did not quit, that Smith did not report to Schultz
that Garza had quit, that Schultz did not so report to
Glickley, and that the explanation offered by Glickley at
the hearing for the reduction in Garza's bonus was not the
true one.
The fact that Glickley would thus improvise an
explanation for his action with regard to Garza's bonus,
considered in conjunction with the fact that, as found
above, Respondent's supervisors warned during the
preelection period that Respondent would change its
Christmas bonus policy in reprisal for the employees'
union activity, is persuasive that Glickley's true motive for
reducing Garza's bonus was his prominence among the
Union adherents. It is concluded that by such action
Respondent violated Section 8(a)(3) and (1) of the Act.
3. The discharge of Villareal
Villareal had worked for Respondent a total of about 4
years, his last job being on the sandblasting machine. His
competence as an operator of that machine was
acknowledged by Respondent. Plant Manager Schultz
admitted at the hearing that he regarded Villareal (and
Garza) as the most active proponents of the Union. On
July 8, Villareal suffered an injury while at work, was
referred by Respondent for medical treatment, and did not
return to work during the ensuing 7 days because of that
disability. On July 15, Villareal testified extensively at the
opening session of the instant hearing as a witness for the
General Counsel. In the afternoon of the 15th he received
a telegram notifying him that his mother in Mexico was
ill and urging him to come to her. After showing the
telegram to his supervisor, H. Smith, who indicated
approval of Villareal' s taking leave at that time, he
departed for Mexico by automobile." On July 24, while
still in Mexico, he wired Respondent that he was under
medical care and would return when able to do so, and he
did not, in fact, return to Chicago until September 8.
When, on September 9, he spoke to Schultz about
reporting for work, Schultz indicated that his return
would have to be approved by Glickley, who was then out
of the city and was expected back within a few weeks. On
September 11, Villareal filed with the Board the charge in
Case 13-CA-8655, alleging that he had been
discriminatorily discharged on September 9. It is
undisputed that, when several weeks later, he succeeded in
contacting Glickley, the latter rejected his request to
return to work, and, when asked for the reason, referred
to the fact that Villareal's charge was then pending before
the Board.27
As to the reason for his failure to rehire Villareal on
September 9, Schultz testified that late in August,
Glickley, before leaving on an extended trip to California,
instructed him that, if Villareal applied for rehire, he was
to be referred to Glickley, but did not explain the reason
Garza's absence in August 1967.
"He had already received Glickley's approval of a 2-week vacation, to
begin after July 15.
"Ghckley testified that he also told Villareal that business was "a little
slow." Villareal denied this, and Glickley was at a loss to explain plausibly
why he made no reference to that reason in a pretrial statement given by
him to a Board agent purporting to set forth the substance of his
conversation with Villareal on that occasion . In any case, even if it be
assumed that Glickley did mention a lull in business activity , it is clear
that, for reasons which appear below, that circumstance would not affect
the result herein . Accordingly, I do not deem it necessary to resolve the
foregoing conflict.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for this instruction. Glickley gave a rather confused
version of this conversation, which, construed most
favorably to Respondent, was that he issued a blanket
instruction on that occasion to Schultz to refer to Glickley
anyone who applied for rehire, and that, upon being asked
by Schultz about Villareal, Glickley affirmed that
Villareal was to be referred to him.zs Glickley explained
that it was at that time Respondent's policy, due to
adverse business conditions, to attempt to reduce its work
force by not filling vacancies, except in the case of
essential jobs, and that hiring was otherwise limited to
temporary employees. However, in view of the foregoing
apparent conflict between Schultz and Glickley, and since
Schultz impressed me on the whole as a more candid
witness than Glickley, I credit Schultz and find that the
only instruction given him by Glickley on that occasion
was that, if Villareal sought to return to work, he was to
be referred to Glickley, and that there was no blanket
instruction by Glickley as to returnees in general, nor any
other explanation for Glickley's direction as to Villareal.
As to the reason for his rejection late in September of
Villareal's application, Glickley cited three factors - (1)
the fact that at that time there was no need for Villareal's
services, (2) the fact that Villareal had been gone for
nearly 2 months and had not given any definite date when
he would return, and (3) the fact that Villareal had filed a
charge with the Board alleging his discriminatory
discharge on September 9, which Glickley erroneously
believed prevented him from rehiring Villareal while the
charge was still pending. As shown below, Glickley
ultimately placed his main, if not sole, reliance on the first
of these factors, which will next be considered.
Despite the alleged lack of work for Villareal, it is
admitted that Respondent hired two men within a few
weeks after September 9, to work on Villareal's old
machine. As to one of these, identified only as "Mike,"
Schultz acknowledged that he was hired in September,
some weeks after Villareal's unsuccessful application, as a
furnace helper; that at the time Respondent was "quite a
bit behind," and Mike assisted in the operation of the
sandblaster, but was eventually relieved of this work
because Schultz did not think he could ever become a
competent in that job; and that Mike was currently
working as a furnace helper. According to Schultz, the
other new hire was employed about September 18, and
Schultz attempted to instruct him in the operation of the
sandblaster, but he quit after a few days because the job
was "too dirty" for him. The fact that Respondent would
thus attempt to train inexperienced men, in preference to
taking back an experienced and admittedly competent
operator like Villareal, let alone Schultz's admission that
Respondent was "quite a bit behind" at the time, suffices
"The transcript at this point shows the following testimony by Glickley
Q. Directing your attention to August of 1968 approximately , did you
give any instruction to Mr Schultz with reference to Villareal if he
returned
A I think I did . I was going away and things were pretty slow and I
said if anybody called back - he said , " What about Jose , what if he
comes back9" I said, "Have him see me "
On December 24, 1 issued an order proposing to correct the foregoing
(in conformity with my recollection ) by adding "refer them to me" after
"called back " The General Counsel objected to this correction as in
conflict with his notes and recollection However , even if Glickley did not
expressly say so on the stand , it is evident that the proposed correction
reflects the sense of his testimony , since, otherwise , there would be no
explanation as to what prompted Schultz's question regarding Villareal
Accordingly , while I have decided , in view of the General Counsel's
objection , not to correct the record , I construe Glickley's testimony in the
manner stated in the text
to preclude giving any credit to Respondent's economic
defense."'
As to the prolonged and indefinite nature of Villareal's
absence, Glickley admitted that Sanchez was absent for
about the same length of time as Villareal and that
Respondent did not know in advance when he would
return, other than that he would return whenever he was
discharged by his doctor. It is thus clear that his case, at
least so far as Glickley was then aware," was on all fours
with Villareal's. Yet, Sanchez was taken back on
September 9, the very day that Schultz refused to rehire
Villareal. Moreover, Glickley, himself, indicated that, in
any case, he probably would have taken Villareal back
had there been any need for his services at the time, thus
falling back exclusively on the economic defense, which
has been found to be without merit.
Finally, Glickley assigned as a reason for his rejection
of Villareal's application the fact that the issue of the
legality of Respondent's refusal on and after September 9
to rehire him was then pending before the Board, and, as
already related, it is undisputed that Glickley cited this to
Villareal as a reason for not reemploying him. The record
shows that, upon consulting counsel the next day, Glickley
was told that this was not a proper reason for refusing
employment and Glickley testified that he was assured by
counsel at the same time that he did not have to take
Villareal back if he had no need for his services. Thus, in
effect, Glickley again reverted to the economic reason,
heretofore rejected by me, as the sole basis for his action.
In view of the shifting and untenable nature of the
reasons assigned by Respondent for its refusal to rehire
Villareal, and in view of Respondent' s strong union
animus , as reflected in the many unfair labor practices
"While, in view of the foregoing evidence as to the situation in
September, the matter may not be strictly relevant , it may be noted that,
contrary to the assertion in Respondent's second brief, the record does not
show that the number of hourly employees was reduced from 35 in
December 1967, to 22 late in 1968 The number in fact increased from 21
to 22 (See G.C Exh. 2, and TX Exh I and 2) While there were, in
addition , 14 salaried employees on the earlier date , there was no evidence
concerning any reduction in their number other than Schultz ' admission
that there had been no such reduction during the latter half of 1968.
"In an attempt to impeach Villareal' s testimony that his return to
Chicago was delayed by an aggravation of his on-the-lob injury, which
required medical attention in Mexico , Respondent introduced in evidence a
copy of a report by Dr. Walker, who on October 14, examined Villareal in
Chicago, which report, in relating Villareal's medical history, makes no
reference to any medical treatment in Mexico However, this report clearly
could not have influenced Glickley's prior rejection of Villareal's request
for reinstatement , and Glickley did not contend that any skepticism as to
Villareal's reason for tarrying in Mexico influenced that decision It may
be urged that , if, as the report implies , Villareal, contrary to his testimony,
failed to tell Dr Walker about any medical treatment in Mexico, such
omission would reflect on the credibility of Villareal' s testimony
concerning such aggravation , as well as his credibility in general However,
it should be pointed out in this regard that there is no material conflict
between that part of Villareal's testimony on which I rely and that of
Respondent' s own witnesses Accordingly, even if it be assumed that
Villareal gave Respondent a false reason for remaining in Mexico, and that
he is therefore not entitled to be credited where contradicted, such
assumption would not affect any of the findings herein
Glickley also sought to distinguish Sanchez' case from Villareal's on the
ground that Glickley was specifically asked by Schultz whether to take
Villareal back, but was not so asked about Sanchez , and that Sanchez was
therefore rehired without consulting Glickley. However, this explanation
fails to account for the failure of Glickley , upon learning of the rehire of
Sanchez , to take any action with regard thereto , particularly in view of
Glickley's admission that there was no great need for the services of
Sanchez Moreover, this explanation assumes the veracity of Glickley's
previously rejected testimony that his instruction to Schultz regarding
Villareal was prompted by an inquiry from Schultz.
MODERN STEEL TREATING CO.
found herein, it is concluded that such refusal was because
of Villareal's prominence in the Union movement, and,
more immediately, because of his role as a major witness
for the General Counsel in the instant proceeding."
It is therefore found that, by refusing on and after
September 9, to take Villareal back, Respondent violated
Section 8(a)(1), (3), and (4) of the Act.
4. The 8(a)(5) issues
a. The refusal of recognition
1. The appropriate unit
It was agreed , and it is found , that the following unit is
appropriate for bargaining:
All Respondent's production and maintenance
employees , excluding truckdrivers , office clerical
employees , guards , and supervisors as defined in the
Act.
2. Union's majority status
As already related, on the basis of the election held on
December 15, 1967, the Union was certified on October
18, as the representative of Respondent's employees. The
General Counsel contends that, in addition, on the basis
of authorization cards signed by employees before
November 15, 1967, the Union should be found to have
been the statutory representative of the employees in the
foregoing unit on and after that date, and that
Respondent's admitted refusal to recognize the Union at
any time between November 15, 1967, and October 18
(the certification date) should, therefore be deemed
unlawful.
The General Counsel placed in evidence 18 signed
cards, authorizing the Union to represent the signatory in
collective bargaining, and at the hearing Respondent
conceded that the cards were in fact signed by unit
employees who knew what they were signing , and there is
no contention that the cards were invalid for any reason.
Seventeen of the cards bear dates prior to November 15,
1967, and the 18th (Sinde's) is dated November 16, 1967.32
Even if one does not rely on the last card, the remaining
17 would constitute a majority, as it was stipulated that
on November 15, 1967, there were 30 in the unit (not
counting Haggerty, Ra§Irtussen. Schnabel, Salabura, and
H. Smith, all of whom have heretofore been determined in
Case 13-RC-11330 not to be eligible).
It is found therefore that on and after November 15,
1967, the Union represented a majority of the employees
in the appropriate unit.
"The General Counsel urges a finding that Respondent 's action was also
motivated by the filing of the charge on behalf of Villareal on September
l l However, it may be pointed , out that, although late in September
Glickley cited to Villareal the pendency of the charge as an obstacle to his
return , such filing obviously could not have influenced Respondent's prior
action of September 9. While I do not doubt that , by filing the charge,
Villareal further alienated Respondent , a finding that this contributed
materially to his loss of employment necessarily presupposes that
Respondent would ultimately have taken Villareal back, despite his other
prounion activities, had he not filed the charge As it would not affect the
result , no useful purpose would be served by determining whether that
would in fact have been the case . Accordingly, I do not pass on that issue.
"G.C. Exh. 3B.
3. The demand and refusal
1089
There is no dispute that on November 15, the Union
made a bargaining request , that Respondent did not reply
thereto , and had not at the time of the July 15 hearing
complied with that request . In its brief Respondent
appears to contend that the Union ' s bargaining request
was defective because, while the Union therein stated that
it represented Respondent 's employees , it failed to specify
that it represented a majority of such employees.
However , it has been held that where , as here , a union
couples a request to bargain for an employer 's employees
with a claim to represent such employees , it is implicit
that the Union is thereby claiming to have been
designated by at least a majority of such employees and to
be therefore the lawful representative of the entire unit."
Accordingly , it is found that there was a proper
demand on November 15, and that such demand was in
effect rejected."
4. The good-faith doubt issue
When asked at the hearing why he did not recognize
the Union, Glickley answered, inter alia ,35 that it was his
belief that the Union did not represent the majority of the
employees, but he offered no reason for this belief.
Under current Board policy, it seems that, even though
a respondent expressed no doubt about a union's majority
status prior to a Board hearing, and even then offered no
explanation for entertaining such a doubt, those
circumstances would not suffice to establish bad faith.36 It
accordingly becomes necessary to consider whether, as the
General Counsel contends, Respondent demonstrated its
bad faith and rejection of the principle of collective
bargaining by the various coercive acts found above. Even
if one considers only those occurring before the election,
the multiplicity and nature of such incidents - coercive
interrogation, repeated threats to discharge all Union
adherents, threats of drastic cuts in hours and wage rates,
threats to eliminate the Christmas bonus, and threats of
investigations by immigration authorities - suffice to
demonstrate that Respondent was bent on utilizing the
preelection period to undermine the Union's majority
status. Nor did this policy change after the election. While
the challenges and objections were still pending and there
was still a real prospect that a new election would be
directed, Respondent took measures calculated to insure
that the result of any such election would not be favorable
to the Union. These measures included the reduction in
the Christmas bonus of Garza, who was admittedly
regarded, together with Villareal, as the leader of the
union movement among the employees, the renewal of
threats to discharge union adherents, the unilateral wage
increases in February and May, and, finally, the
discriminatory discharge of Villareal in September.
In view of the foregoing, it is found that Respondent's
failure to recognize the Union was not motivated by any
good-faith doubt of its majority status but rather by a
"Lincoln Manufacturing Co. Inc, 160 NLRB 1866, 1876-77
"Respondent's failure to reply to the Union' s bargaining request was not
excused by the filing of the representation petition . International Metal
Specialties, Inc, 172 NLRB No. 39
"His only other reason - that he had received no request for
recognition - has already been considered.
"This seems to be the thrust of John P Serpa, Inc, 155 NLRB 99,
which has not yet been expressly overruled on that point by the Board,
despite court reversal of that decision (376 F.2d 186 (C.A. 9)). But cf H &
W Construction Co , Inc, 161 NLRB 852
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desire to gain time to undermine that status ," and that by
such withholding of recognition Respondent violated
Section 8(a)(5) and (1) of the Act."
b. The wage increases
As already noted , it was stipulated that in February
Respondent 's 22 hourly paid employees received a raise of
10 cents per hour, and that Respondent did not notify, or
bargain with , the Union concerning that raise ; and that, in
addition , in May, Respondent unilaterally granted an
additional increase of 10 cents per hour to four of those
employees . The complaint alleges that by such increases
Respondent violated Section 8(a)(1) and (5) of the Act,
and the 8 (a)(1) violation , as an independent violation, has
already been considered . In his initial brief filed herein the
General Counsel contends that by these raises Respondent
violated Section 8(a)(5) because they were granted
unilaterally at a time when Respondent was obligated to
bargain with the Union, citing Falls Dodge, Inc., 171
NLRB No. 200 and U-Tote-M of Oklahoma, Inc., 172
NLRB No. 21. In those cases the Board predicated the
respondent 's duty to bargain about wage increases on its
prior bad-faith refusal to recognize a union which had
obtained valid authorization cards from a majority of the
employees . In view of these authorities , and as it has been
found here that Respondent's refusal to recognize the
Union on November 15, 1967, was unlawful, it is
concluded that Respondent 's subsequent unilateral action
in granting wage increases was also violative of Section
8(a)(5).
Moreover , the fact that the Union was eventually
certified affords a separate ground for finding that the
wage increases were unlawful . While the Board has held
that an employer , who files objections to an election, may
properly refuse to bargain during the interval between the
election and the certification of the Union," it seems
equally well settled that an employer may not during that
interval unilaterally alter working conditions." Thus, in
Laney & Duke , supra, and King Radio , supra, the union
received an undisputed majority of the votes cast and the
respondent filed objections to the election , which were
ultimately overruled and the union was certified. In both
cases, the respondent unilaterally changed working
conditions while the objections were still pending. In
"The fact that Respondent consented to an election does not preclude
such a finding. Bernel Foam Products Co. Inc, 146 NLRB 1277, 1284
(fn. 9).
"Glickley testified that during the preelection period he had told Schultz
and Rafferty that he would not tolerate any discussion of the Union, pro
or con , and to see that H. Smith and Salabura complied with this
instruction Rafferty and Schultz corroborated this testimony and Schultz
added that he repeated Glickley 's admonition to the two other supervisors.
However, Smith testified that the only instruction he received was from
Glickley, himself, and that all that Glickley told him was that the Union
had filed a petition and not to "harass " the employees , and Salabura's
testimony is silent in this regard . It is clear from the foregoing that , even if
one credits Respondent 's witnesses , there was no specific instruction to the
supervisors to refrain from interrogation or threats of reprisal for union
activity , but only a vague warning either against discussing the merits of
union representation or against harassing employees In any case, it has
been held that a neutrality instruction , which, as here , has been honored
only in the breach by lower echelons of management, does not preclude a
finding that a refusal by top management to recognize a union was in bad
faith . Furr's Inc.. 157 NLRB 387, enfd. 381 F 2d 562 (C.A. 10). Moreover,
here, Glickley's own union animus was amply demonstrated , not only by
Salabura 's disclosure to Hernandez that Glickley was incensed at the
employees ' union activity and would visit reprisals therefor , but also by
Glickley's own unfair labor practices - namely , the reduction in Garza's
bonus , the wage increases , and the discharge of Villareal.
Laney & Duke , in finding that such unilateral action
violated Section 8(a)(5), the Board stated that the
respondent acted as its peril in taking such action,
knowing that the union had won the election and
represented a majority of the employees; and, King Radio
reached the same result on like facts . It may be
contended that the instant case is distinguishable on the
ground that here , unlike those cases, when the unilateral
action was taken, it was not yet known whether the Union
had obtained a majority of the valid votes cast in the
election, there being sufficient challenges to affect the
result , which challenges had not yet been resolved.
However, in both situations the ultimate issue of the
union ' s majority status was in doubt , there being a
difference only as to the reason for the doubt. Moreover,
absent any showing of urgent economic need for granting
raises , or effecting other changes in working conditions, it
would impose no great hardship on an employer to require
him to maintain the status quo pending the resolution of
any challenges (or objections ). Accordingly, I deem the
principle of Laney & Duke applicable here and,
particularly in the absence of any showing of need for
such action , find that, in granting the unilateral raises
described above, while the challenges and objections were
still pending, Respondent acted at its peril, and that, it
having been ultimately determined that the Union was
validly designated by a majority of the employees in the
election of December 15, 1967, such unilateral raises must
be deemed, for that reason as well, to have violated
Section 8(a)(5) of the Act.
IV. THE REMEDY
It having been found that Respondent violated Section
8(a)(1), (3), (4), and (5) of the Act, it will be
recommended that it be required to cease and desist
therefrom and take appropriate, affirmative action. Such
action shall include an offer of reinstatement to Villareal,
and reimbursing him for any loss of earnings suffered
since September 9, by reason of the discrimination against
him. Backpay shall be computed in accordance with the
formula stated in F. W. Woolworth Company, 90 NLRB
289; interest shall be added to backpay at the rate of 6
percent per annum. (Isis Plumbing & Heating Co., 138
NLRB 716.) Interest shall be similarly added to any sum
due Garza because of the discriminatory reduction in his
Christmas bonus.
In view of the obvious language barrier, it will be
recommended that the usual posted notices be
accompanied by a Spanish translation.
In view of the nature of the violations found herein,
particularly the discrimination against Villareal, a
potential threat of future violations exists, which warrants
a broad cease and desist provision.
CONCLUSIONS OF LAW
1. The following unit of Respondent' s employees is
appropriate for collective bargaining:
All production and maintenance employees , excluding
truckdrivers , office clericals , guards, and supervisors as
defined in the Act.
"Harbor Chevrolet Company, 93 NLRB 1323; Trinity Steel Company,
Inc, 103 NLRB 1470.
"Laney A Duke Storage Warehouse Co, Inc ., 151 NLRB 248, enfd
396 F .2d 859 , 869 (C.A. 5); King Radio Corporation, Inc , 166 NLRB No
70.
MODERN STEEL TREATING CO.
2. Since November 15, 1967, the Union has been the
statutory representative of the employees in that unit.
3. By failing and refusing on and after November 15,
1967, to recognize - or bargain with the Union as such
representative, and by granting- wage increases in February
and May 1968 , without consulting the Union , Respondent
violated Section 8(a)(5) and (1) of the Act.
4. By coercively interrogating employees about their
union sentin%ehts or activities , and threatening them with
reprisals for such activities , and granting raises to induce
them to refrain therefrom, Respondent has violated
Section 8(a)(1)-of the Act.
5. By reducing Max Garza's 1967 Christmas bonus in
reprisal for his union activities , Respondent has violated
Section 8(a)(3) and (1) of the Act.
6. By refusing on and after September 9, to permit Jose
Villareal to return to work , in reprisal for his union
activity and for his giving testimony under the Act,
Respondent has violated Section 8(a)(1), (3), and (4) of
the Act.
RECOMMENDED ORDER
Upon the entire record in the proceeding and the
foregoing findings of fact and conclusions of law, it is
recommended -that George .Glickley, Burton H. Graham,
and Stanton P. Graham , d/b/a Modern Steel Treating
Company, Chicago, Illinois, (herein collectively referred to
as ."Respondent"), their agents, successors , and assigns,
shall be required to:
1. Cease and desist from:
(a) Failing or refusing to recognize and bargain with
United Steelworkers of America, AFL-CIO, as the
exclusive representative of all employees in the
aforedescribed unit.
(b) Granting wage increases without consulting that
union, or an other union, as the statutory representative
of their employees.
(c) Discouraging membership in, and concerted
activities on behalf of, United Steelworkers of America,
AFL-CIO, or any other labor organization, by
discriminating against employees in regard to their hire or
tenure of employment or any term or condition of
employment.
(d) Threatening employees that it will discharge them,
subject them to immigration inspections , reduce their
wages or hours of work, or visit other reprisals upon them
because of their concerted or union activities.
(e) Coercively interrogating employees about their
union sentiments.
(f) Threatening to reduce, or reducing, employees'
bonuses because of their union activities.
(g) Granting wage increases to induce repudiation of a
union.
(h) In any other manner, interfering with, restraining,
or coercing its employees in the exercise of their right to
self-organization , to form, join , or assist the above-named
Union, or any other labor organization , to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid of protection,
or to refrain from any or all such activities , except to the
extent permitted by the provisos in Section 8(a)(3) of the
Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Bargain , upon request, with United Steelworkers of
America , AFL-CIO, as the exclusive representative of the
1091
employees in the unit described above, with respect to
rates of pay, wages , hours of employment, and other
conditions of employment, and embody any understanding
reached in a signed agreement.
(b) Make whole Joe Villareal and Max Garza, in the
manner set forth in the section of the Trial Examiner's
Decision entitled "The Remedy," for any loss of pay they
may have suffered by reason of the Respondent's
discrimination against them, and offer to Villareal
reinstatement to this former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges.
(c) Notify Jose Villareal if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Selective Service Act, as amended, after discharge
from the Armed Forces.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination or copying, all
payroll records , social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amounts of backpay due
under the terms of this Order.
(e) Post at Respondent's plant in Chicago, Illinois,
copies of the attached notice marked "Appendix,"
together with a companion notice containing a Spanish
translation thereof." Copies of said notices, on forms to
be provided by the Regional Director for Region 13, shall,
after being duly signed by Respondent's representative, be
posted by Respondent immediately upon receipt thereof,
and maintained by it for a period of at least 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 insure that such notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of receipt of this
Order, what steps Respondent has taken to comply
herewith."
IT IS FURTHER ORDERED that all allegations of the
complaint relating to violations other than those found
above be, and they hereby are, dismissed.
"If this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended
Order of a Trial Examiner" in the notice. In the further event that the
Board's Order is enforced by a decree of a United States Court of
Appeals, the words , "a Decree of the United States Court of Appeals
Enforcing an Order" shall be substituted for the words "a Decision and
Order."
"If this Recommended Order is adopted by the Board, this provision
shall be modified to read "Notify said Regional Director in writing , within
10 days from the date of this Order, what steps the Respondent has taken
to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
After a trial at which all sides had the chance to give
evidence, the Trial Examiner decided that we violated the
National Labor Relations Act, and ordered us to post this
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice.
The Act gives all employees these rights:
To engage in self-organization
To form , join , or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
aid or protection; and
To refrain from any or all of these things
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT threaten to fire you , to bring in
immigration inspectors , to cut down your wages, hours
or bonuses , or cause you any other harm because of
your membership in or support of a union.
WE WILL NOT reduce your Christmas bonus because
you are supporting a union.
WE WILL NOT ask you whether you are for the union
or how you feel about the union.
WE WILL recognize United Steelworkers of America,
AFL-CIO, as the only collective-bargaining
representative of our employees in the bargaining unit,
which is:
All production and maintenance employees , excluding
truckdrivers , office clericals , guards and supervisors.
WE WILL NOT give our employees raises without first
taking it up with the Union, and we will not give them
raises to show them that they do not need a union.
WE WILL bargain , on request, with United
Steelworkers of America , AFL-CIO, on wages, hours
and conditions of employment , and any agreement we
reach will be put in writing and signed.
WE WILL offer to take back Jose Villareal at his old
job and pay him for all the wages he lost because we
refused to take him back on September 9, 1968, and we
will pay Max Garza that part of his 1967 Christmas
bonus which was not paid to him because he was for
the Union.
All our employees are free to belong , or not to belong,
to United Steelworkers of America , AFL-CIO.
Dated By
GEORGE GLICKLEY,
BURTON H. GRAHAM,
AND STANTON F.
GRAHAM, D/B/A MODERN
STEEL TREATING
COMPANY
(Employer)
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office, 881 US
Courthouse and Federal Office Building, 219 South
Dearborn Street, Chicago , Illinois 60604, Telephone
312-353-7597.