Nueva Engineering

National Labor Relations Board - Board Decisions

Apr 16, 1984

269 N.L.R.B. 999 (N.L.R.B. 1984)

NUEVA ENGINEERING
Nueva Engineering, Inc. and Petroleum, Construc-
tion, Tankline Drivers & Allied Employees,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 5-CA-14620
16 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 7 July 1983 Administrative Law Judge
Sidney J. Barban issued the attached decision. The
Respondent filed exceptions and a supporting
brief,1 and the General Counsel filed a reply brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended
Order. 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Nueva En-
gineering Inc., Baltimore, Maryland, its officers,
agents, successors, and assigns shall take the action
set forth in the Order, except that the attached
notice is substituted for that of the administrative
law judge.
Respondent has requested oral argument. The request is denied as the
record, exceptions, and briefs adequately present the issues and the posi-
tions of the parties.
s Respondent has excepted to some of the judge's credibility findings
The Board's established policy is not to overrule an administrative law
judge's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
s The administrative law judge inadvertently failed to conform the
notice to the recommended Order. Accordingly, we shall modify the
notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discourage membership in or ac-
tivities on behalf of Petroleum Construction, Tank-
line Drivers & Allied Employees, International
Brotherhood of Teamsters, Chauffeurs, Warehuse-
men and Helpers of America, or any other labor
organization, by laying off or otherwise discrimi-
nating against employees in regard to their condi-
tions of employment.
WE WILL NOT coercively interrogate employees
concerning their activities on behalf of or in sup-
port of a labor union.
WE WILL NOT threaten employees with loss of
employment or other reprisal if they join or sup-
port a labor union. WE WILL NOT engage in sur-
veillance of employees because they are engaged in
or are suspected of engaging in activities on behalf
of a labor union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make Cecilia Leach whole for any loss
of earnings and benefits she may have suffered by
reason of her layoff from 16 August to 11 October
1982, with interest.
WE WILL notify here that we have removed
from our files any reference to her discharge and
that the discharge will not be used against her in
any way.
NUEVA ENGINEERING, INC.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge. This
matter was heard at Baltimore, Maryland, on January 6
and 10, 1983, upon a complaint issued on October 1,
1982, as amended at the hearing, based upon a charge
filed' by Charging Party Petroleum, Construction Tank-
line Drivers & Allied Employees, IBTCWHA (herein
the Union), on August 17. The complaint alleges that
Respondent Nueva Engineering, Inc. violated Section
8(a)(1) of the National Labor Relations Act, as amended
(herein the Act), by threatening employees with loss of
employment if they selected the Union as their bargain-
ing representative, by interrogating employees concern-
ing union activities and inclinations, and by engaging in
surveillance of union activities, and violated Section
8(aX1) and (3) of the of the Act by the layoff of Cecilia
Leach. Respondent's answer denies the unfair labor prac-
tices alleged, but admits allegations of the complaint suf-
ficient to justify the assertion of jurisdiction under the
Board's current standards (Respondent, while engaged at
Baltimore, Maryland, in the production of electronic cir-
cuit boards during a recent annual period, sold and
All dates herein are in 1982 unless otherwise noted.
269 NLRB No. 172
999
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shipped from its Baltimore facility goods and materials
valued in excess of $50,000 directly to points outside the
State of Maryland) and to support a finding that the
Union is a labor organization within the meaning of the
Act.
On the entire record in this case,2 from observation of
the witnesses and their demeanor, and after due consider-
ation of the briefs filed by Respondent and the General
Counsel, I make the following
FINDINGS AND CONCLUSIONS
I. THE FACTS
A. Introduction
At times material to this proceeding, about the middle
of August 1982, Respondent employed about 88 employ-
ees on 2 shifts in various departments, with production
foremen in charge of one or more departments. 3 In at
least two of the departments, shipping and inspection,
there were intermediate leadpersons to whom the em-
ployees reported, and who themselves reported to the
production foremen. The production foremen reported to
Thomas J. Pozzuoli, Respondent's vice president and the
general manager.
The complaint, as amended at the hearing, alleges that
a leadperson in the inspection department, Regina Brown
(herein R. Brown), is a supervisor and agent of Respond-
ent within the meaning of the Act. Respondent denies
this. This dispute will be considered immediately below.
B. The Supervisory Status of R. Brown
The record shows that R. Brown assigned work to
employees in the inspection department and instructed
the employees as to what they should do, as well as as-
sisted them in their problems at work. When Respondent
decided to let certain employees go (by layoff or termi-
nation) on August 16, as discussed hereinafter, it was R.
Brown who selected the employees to be let go from her
department. These selections were approved by Poz-
zuoli.4
On the basis of the above, and the entire record, I find
that R. Brown is a supervisor and an agent of Respond-
ent within the meaning of the Act.
' The General Counsel's motion to correct the transcript, attached to
her brief, to which no objection has been received, is hereby granted.
3 The complaint alleges and the answer admits that one of these fore-
men, Howard Lee Brown (herein Foreman Brown or Brown), is a super-
visor and agent of Respondent within the meaning of the Act.
4 There is indication in Pozzuoli's testimony that he had expected the
production foreman in that department to make that selection. However,
Foreman Brown testified that Pozzuoli told him that Pozzuoli had asked
R. Brown to select the employees to be let go in her department. An em-
ployee who was terminated on August 16 from the inspection depart-
ment, Cheryl Langrehr, testified that Pozzuoli told her that R. Brown
had made the decision to discharge her. This testimony was undenied. I
am satisfied that Pozzuoli either told R. Brown to select the employees to
be let go or, at a minimum, approved her exercise of that authority.
C. Employee's Union Activities; Respondent's Alleged
Reaction
1. The week of August 9
Though there is some uncertainty as to the dates of
certain occurrences, it is clear that during the week prior
to Respondent's layoff of employees on August 16 the
Union began distributing leaflets at Respondent's plant
designed to encourage employees to join and support the
Union; some of these leaflets were posted in the plant.
During that week there were discussions about the
Union among the employees in which Cecilia Leach was
a particular proponent of the Union. A small number of
employees, including Leach, met with two union repre-
sentatives during that week at a nearby restaurant during
their lunch period (Leach was the only employee from
her department-the shipping room-to attend); and a
number of employees, including Leach, signed union
cards. 5
According to Leach, beginning sometime about the
first part of the week of August 9, Foreman Brown,
when passing her, would display a piece of union litera-
ture and make comments such as "pricken union," and
"union is not getting in here." She stated that this contin-
ued until she was laid off on August 16. On either Thurs-
day, August 12, or Friday, August 13, Foreman Brown
spoke to Leach, she said, in the foyer leading out of the
plant, stating to her that "if you don't like working for
this company and you are for all that Union business,
then why don't you work somewhere else because I
don't want no f-g union in here." Employee Cheryl
Langrehr, who was standing close by, substantially cor-
roborated Leach, though she attributed even stronger
language to Brown to the same effect. Leach stated that
she did not answer Brown, but walked to her locker and
eventually left the plant.
Foreman Brown denied that he used the words "f-g
union" to Leach on that Thursday or Friday. He was
not asked about the rest of the conversation and did not
testify about it. Three employees and the shipping room
leadperson, who were shipping room about that time,
testified that they did not hear Brown use those two
words to Leach. They did not testify concerning the sub-
stance of the conversation alleged by Leach.
Respondent argues (Br., pp. 2-5) that Leach's testimo-
ny should be considered suspect inasmuch as she was in-
consistent as to the dates of occurrences during the week
of August 9, because she testified at one point that she
was senior by 4 months to others in the shipping depart-
ment whereas she was senior to one such employee by
about 3 months only, and because her testimony was not
corroborated by Respondent's witnesses. Respondent fur-
ther asserts that her testimony should be viewed with
s I believe that the General Counsel's witness Langrehr was in error in
stating that she saw union literature during the latter part of July. I like-
wise do not credit Production Foreman Brown that he heard about union
activities 2 weeks before August 16, though he admittedly was aware
before that date that Leach and some others were engaged in union ac-
tivities. General Manager Pozzuoli agreed that he saw union literature
posted at Respondent's premises during the entire week before the
August 16 layoff.
1000
NUEVA ENGINEERING
caution because "she stands to benefit directly from a de-
cision adverse to Respondent." It is further asserted that
Langrehr should be disbelieved because she differs with
Leach as to the date the meeting with the union agents
took place and as to the date on which she overheard
the conversation between Brown and Leach at issue
here. Respondent also notes that Langrehr referred to
this incident only in the second affidavit which she gave
to the Board investigator, and even then the affidavit
refers to "Rob" when it should have referred to "Lee"
as speaking to Leach. Additionally, it is asserted that
Langrehr should not be credited because she had been
discharged by Respondent and therefore must be biased
or, as Respondent says, "disgruntled."
I have carefully considered these contentions. Howev-
er, the confusion as to dates-which did make an unfa-
vorable impression at the hearing-is not critical to the
resolution of this case and was clearly unintentional. The
testimony of three employees that they did not hear
Foreman Brown use the profanity attributed to him, in
the circumstances shown by the record, is not convinc-
ing that the conversation did not take place. And the fact
that Leach may benefit from this case, a matter which
has been carefully considered, does not ipso facto dis-
qualify her as a witness. See Fed.R.Evid. 601.6 As to
Langrehr, her explanations with respect to the affidavits
given the General Counsel's investigator were convinc-
ing and I accept them. As noted, Leach and Langrehr
corroborated each other as to the substance of the con-
versation.
On the other hand, Foreman Brown was an unimpres-
sive witness, appearing at times to be evasive, contradic-
tory, and lacking in candor. For example, Brown first
admitted and then denied within the space of two ques-
tions that he had heard that Leach was involved with
the Union. (Pozzuoli readily admitted that he had heard
"rumors" that Leach, among others, was involved.) Fur-
ther, concerning a time when Pozzuoli was openly
making speeches to the employees advising them of Re-
spondent's strong opposition to the Union, Brown, after
first testifying that he knew how Respondent "felt"
about the Union, then said that he did not "think" Re-
spondent wanted a Union and "It is hard for me to know
whether they wanted to." Pozzuoli testified that top
management had discussed the matter and was strongly
opposed to the Union. I do not believe that Foreman
Brown was unaware of this.
Of particular significance in considering the dispute
over this conversation is the fact that, though Foreman
Brown denied using the profanity noted, he did not deny
the substance of the conversation reported by Leach and
Langrehr. After considering all of the factors involved, I
credit Leach's testimony as set forth above. To the
extent that Foreman Brown's testimony is inconsistent, it
is discredited.
6 The Advisory Committee's note accompanying this rule states that
"among the grounds [of incompetency to be a witness] thus abolished [by
this rule] are... connection with the litigation as a party or interested
party. .. "
2. The week of August 16
a. Interrogation and threats
Leach testified that on Monday, August 16, leadperson
R. Brown came into Leach's work area in the morning
and bluntly asked her how she felt about the Union, to
which Leach said that she had no comment. R. Brown
denied that she had interrogated Leach.
On cross-examination, Leach gave evidence of a firm
recollection of this event, and, since I believe that she
would be unlikely to have fabricated the incident out of
whole cloth, I credit Leach in this matter.
Later that day, Respondent laid off or discharged a
number of employees, including Leach, as discussed
hereinafter. Also that day, Respondent's general manager
Pozzuoli spoke to gatherings of employees concerning
Respondent's reaction to the Union's attempt to organize
the employees.7
Langrehr and employee Nola Sue Coleman testified
that on August 16 Pozzuoli spoke to employees, estimat-
ed to be from 6 to 10 in number, gathered in the final
inspection room. According to Langrehr, the speech
took place about 2:15 in the afternoon. She stated that
Pozzuoli said that "there was going to be a big layoff in
the Company." (Leach, who was not present at the
speech been notified by Foreman Brown that she was
laid off.) Langrehr further stated Pozzuoli said "that the
owners of the company knew about the thing with the
union and that if the union was voted in, that the owners
of the company would take it back to a prototype shop
which meant that the company could be run with eight
to ten people. s And that you had to have signature cards
. . . in order to have a vote whether the union could get
into the company or not and if we voted the union in
there would be indefinite layoffs whereas right now it
would just be temporary layoffs." Langrehr recalled that
Pozzuoli said that the Union was "backed" by criminal
elements, that there was a lot of talk about the Union
and about layoffs, and that Pozzuoli said that he could
not say how long the present layoffs would be.
Coleman recalled only that Pozzuoli said he did not
want the Union in the Company and "gave a few exam-
ples why he didn't want them in there. That they resort
back to a prototype shop or something if the union did
get in."
Leach testified that she came into the room at the last
part of the speech, and said, "I heard Tom Pozzuoli tell-
ing the people that this is not a threat to their job, but if
the union comes in he would have to lay off all the em-
ployees indefinitely and they would have to go back to
prototype, which meant that the company could be run
by eight to ten people and those people would be super-
visors."
I The indications are that Pozzuoli made more than one such speech to
employees on August 16 and thereafter. However, there is direct evi-
dence as to the substance of only one speech on August 16.
8 Respondent at the time had 88 employees. Pozzuoli explained at the
hearing that a prototype shop, in effect, makes a few electronic boards on
order as samples, so that the customer can see if they work. Such a spe-
cialty operation would need a few employees. Respondent, however, was
engaged in mass production of electronic boards.
1001
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In his testimony concerning what he said in the
speech, Pozzouli asserted, "Essentially all the speech said
was that we are losing money right now. We can't afford
any other expenses. If the Union got in they would make
demands. We could not meet them because we weren't
meeting our obligations as it was. Not meeting the obli-
gations would probably lead to a strike. If they went on
strike there was nothing we could do because we still
couldn't afford to meet the demands. At that point I said
the strike probably would go on forever and I am not
going to let the company disappear. If I have no employ-
ees, if I just have the eight to ten owners we will be a
prototype shop. That is all that would be left for us. And
I think that might be what happens when the union
comes in."
The problem presented causes me considerable diffi-
culty. We do not have in this case, as in many others, a
written copy of Respondent's speech to corroborate the
general manager's testimony. Indeed, Pozzuoli testified
that his account was only "essentially" what was said.
All of the accounts, including Pozzouli's, show that his
intent was to raise concern among the employees that
they would lose their jobs if they brought the Union into
the plant. All agree that he said that this would occur
upon the Respondent's becoming a prototype shop
which could be operated by 8 to 10 supervisors
("owners"). The difference between the accounts of the
employees and that of Pozzuoli is that the latter asserts,
based on a series of speculations (the Union would make
demands that Respondent could not meet because of its
financial condition, there would be a strike, the strike
would be protracted, the viability of the Company
would be threatened), that the employees were given to
understand that they would lose their jobs because of ac-
tivities of the Union rather than any intent of Respond-
ent to keep the Union out. Again, resolution of the issue
would be less difficult if there were some evidence that
justified Respondent's alleged speculations or other cor-
roboration of Pozzuoli's testimony. On consideration of
all the evidence, I am inclined to believe that the testi-
mony of the employee witnesses more nearly reflects
what Pozzuoli said and therefore credit Langrehr, Cole-
man, and Leach as set forth above. I do not credit Poz-
zuoli's explanation.
Closely paralleling the matters just discussed is a con-
versation which employee Charles Craig O'Neill asserts
that he had with Foreman Brown about a week or two
after August 16 in one of Respondent's offices. O'Neill
said that he asked Foreman Brown "what was the se-
crets going on downstairs." According to O'Neill,
Brown then replied that "there was no secrets. He said
there was some discussions about the company's prob-
lems with this here union trying to get in. And he said
. . .he'd explain to me what it was all about since Mr.
Tom [Pozzuoli] did not tell me himself." O'Neill said
that he had been busy doing other things when Pozzuoli
was giving his "little discussions." Brown continued,
O'Neill stated, that "[he] himself did not like unions and
he asked me how I felt about them. I told him I was for
them. He asked me why. I said because it would help
out my paycheck, give me more better insurance for
myself, and maybe paid holidays.... He also said that
if the union would get into Nueva that their alternative
would be to go into a proto shop, which would go to
minimum employees and therefore there would be a big
layoff and the shop would just become small where the
union wouldn't be able to get in at all."
Brown denied that "subsequent to the layoff occurring
or beginning" he ever had a conversation with O'Neill in
which Brown discussed with O'Neill "the statement that
Mr. Pozzuoli was alleged to have made on August 16."
Brown also denied that he "ever told O'Neill that if the
union got in the company would revert to a prototype
[shop]."
Respondent argues that O'Neill's testimony "should be
viewed with extreme suspicion" (Br., p. 3) because he
did not give an affidavit to the General Counsel until he
had assertedly been discharged by Respondent for mis-
conduct.9 However, O'Neill explained, credibly it
seemed to me, that he had given his affidavit when the
General Counsel's agent located him for an interview. I
have previously indicated my lack of confidence in Fore-
man Brown's testimony. I credit O'Neill as to this con-
versation.
b. Surveillance
During the day on August 16, the Union distributed a
leaflet at Respondent's premises, which was also posted
in the plant, advising that there would be a union meet-
ing at the Landsdowne School that afternoon after work.
It is admitted that Respondent received a copy. Howev-
er, before the end of the workday, it was decided to
cancel the meeting, and word of this was circulated
among the employees.
After work that day employees Coleman, Langrehr,
and O'Neill were riding to Coleman's home in O'Neill's
vehicle on a road which passed the school grounds, a
normal route to Coleman's home, when they noted Fore-
man Brown and Robert Yeskir, another supervisor and
agent of Respondent, riding about in the school parking
lot. As the employees passed by, Brown and Yeskir
exited the school lot and followed the employees to
Coleman's residence.
The next day, Coleman told Brown that she "didn't
appreciate being followed home" from work. Brown
apologized for upsetting Coleman by following her the
previous day. Later, Brown told O'Neill that it was not
Brown's intent to follow the employees home, but that
"he was just trying to find the Union meeting ... there
was no one that showed up at the school and he [Brown]
thought that we going to another location where the
meeting would be held."
None of this testimony was denied.
c. The layoff
During the course of the workday on Monday, August
16, Respondent's supervisors in various departments told
9 O'Neill admitted the misconduct, but not that he was discharged.
Pozzuoli, who assertedly discharged O'Neill, was not asked about the in-
cident. However, for the purposes of this decision I have assumed that
O'Neill was discharged.
1002
NUEVA ENGINEERING
six employees that they were being laid off that day. °
Among those let go, Leach, who had been hired on Feb-
ruary 22, had more seniority than any of the others. She
also had more seniority than any of the employees in her
department who were retained (one employee had been
employeed approximately 1 month, a second about 2-1/2
months; and the third 3-1/2 months). When informed by
Foreman Brown, in the early afternoon, of her layoff,
she protested that she had more seniority and a higher
production level than the other employees in the ship-
ping room. When she asked why she had been chosen,
Brown would only say that as part of a layoff in the
plant he had chosen her .to laid off in the shipping
room' Later when she went to see Robert Yeskir for
her "layoff papers," he also could not tell her why she
had been laid off.
The General Counsel does not contend that the layoff
on August 16, in general, violated the Act, but asserts
that the choice of Leach to be one of those to be sepa-
rated from employment discriminated against her for her
union activities in violation of the Act.
The process by which it was decided how many em-
ployees were to be laid off, and when their identity was
ascertained, is difficult to ascertain on this record. It
seems clear that Pozzuoli was holding meetings with the
supervisors during the week of August 9 in which the
possibility or the probability of a layoff was discussed.
Pozzuoli said that he requested the supervisors to inform
him as to how many employees in their departments they
thought they could dispense with, so that Respondent
could determine how many employees should be let go.
With considerable uncertainty, Pozzuoli testified that this
was accomplished late on Friday, August 13, and that
the supervisors were instructed to lay off employees on
the following Monday. 12 Both Foreman Brown and
Pozzuoli agree that the supervisors were given no crite-
ria by which to determine who should be laid off, but
that Pozzuoli relied on the supervisors' individual judg-
ment.
Brown stated that he selected Leach for layoff because
she had refused his offer to permit her to substitute for
the shipping department leadperson, Rose Bundick,
while Bundick was on vacation for I week beginning
August 16, and thus, according to Brown, Leach "re-
fused advancement." Brown admited that he offered
Leach the assignment because he felt she was able and
capable. Respondent agrees that Leach was a good em-
ployee at her work. Leadperson R. Brown, about the
'o This was the number stipulated at one point by counsel. Pozzuoli
recalled the number as eight or nine. There is some confusion as to
whether Langrehr, who was not on the list stipulated by counsel, was
discharged or laid off on August 16. Respondent's counsel contends that
she was fired; she said that she was laid off. She was notified of her sepa-
ration in the afternoon but apparently worked to the end of the day,
which seems incompatible with discharge.
" At the time Brown was the foreman over three departments. The
only person he chose for layoff was Leach.
t' Foreman Brown stated that he was informed (but not at a meeting)
a "couple of days" before August 16 that he must lay someone off. How-
ever, Brown also said that he did not remember specifically when he de-
cided to let Leach go. He said that "the decision was made several days
in advance [of the layoff] when we had the meetings about the cutbacks."
I am satisfied, as indicated hereinafter, that Brown's indefinite time refer-
ences are not reliable.
first of August, told Leach that Respondent's manage-
ment had refused to transfer Leach to R. Brown's de-
partment because Leach was "needed more in the ship-
ping room."
Leach stated that, when Foreman Brown asked her to
substitute for Bundick while the latter was on vacation,
he stressed that her job would entail seeing to it that 375
panels were shipped out each day and, if not, she "would
be in trouble." She was told that she would not be ex-
pected to perform supervisory functions and that the as-
signment would not involve a pay increase. Leach was
not informed that the assignment was a promotion or
that a refusal to accept would affect her employment.
Foreman Brown, on his part, asserted that he told
Leach that the job involved a lot of responsibility and, if
she did a good job, "it would be a feather in her cap."
He said that he told Leach that the workload would re-
quire a lot of work to get out, but denied that he said
what would happen if she did not get the work out. To
the extent that Brown's testimony conflicts with that of
Leach, I credit Leach.
Leach originally indicated to Brown that she would
accept the assignment, but, about a week before Bundick
was scheduled to go on vacation, Leach informed Brown
that she would prefer to remain in her own job, and that
she felt she could assist Respondent more in getting pro-
duction out in that way. 13 Brown made no comment and
selected another substitute for Bundick.
As a second reason for selecting Leach for layoff,
Foreman Brown asserted she was the highest paid em-
ployee in the shipping room and thus, presumably, Re-
spondent might save more money by letting her go. At
the time Leach, who, as has been noted, was the most
senior of the employees in the shipping room, was re-
ceiving $3.90 per hour. The other three employees in the
department were making $3.35.
According to Foreman Brown, raises were given to
Respondent's employees baed on merit; if they did good
work, they were given raises, otherwise not. It is thus
apparent that Leach's rate was her compensation for
doing her job well. The others seem to have remained at
the starting rate.
II. ANALYSIS AND CONCLUSIONS
A. Interrogation
As previously found, employee O'Neill was interrogat-
ed by Foreman Brown as to "how he felt" about the
Union, and why he was in favor of unionization, in a
context in which Brown not only made clear that an em-
ployee favoring the Union would be at odds with
Brown, but that bringing the Union in would constitute a
threat to the employees' employment. In the circum-
stances of this case, I find that Respondent thereby vio-
lated Section 8(a)(l) of the Act.
Is Leach said that she told Brown of her decision on Monday, a week
before Bundick went on vacation. Brown testified that Leach told him "a
couple of days" before Bundick was to leave. This is manifetly incor-
rect, since Bundick testified that she began training the employee finally
selected as her substitute on Monday, a week before her vacation began.
1003
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I see no purpose in discussing leadperson R. Brown's
questioning of employee Leach as to whether she fa-
vored the Union in a context not quite so obviously co-
ercive, inasmuch as that incident would not affect the
scope of the Order which will be recommended. It will
therefore be recommended that this alleged violation of
the Act be dismissed.
B. Threats
As noted above, the employees testified, and I have
found, that General Manager Pozzuoli, in a speech on
August 16, advised that if the Union were brought in Re-
spondent would cut back on its operations so that it
could be run entirely by supervisors, and the employees
would thus be laid off indefinitely. In discussing with
O'Neill what Pozzuoli was telling the employees, Fore-
man Brown conveyed the same message. I find these ac-
tivities to be threats of reprisal against the employees be-
cause of their union activities in violation of Section
8(a)(l) of the Act.' 4
C. Surveillance
It is not denied that, on the afternoon when a union
meeting had been scheduled to be held at a local school
(but which had been canceled, apparently unknown to
Respondent), Foreman Brown and Robert Yeskir, an-
other agent of Respondent, were riding around the
school parking lot about the time the meeting would
have been held. When several employees rode past the
school, Brown and Yeskir followed them until they ar-
rived at the home of one of the employees. Brown later
admitted to one of the employees that, when no employ-
ees showed up at the school for the scheduled meeting,
he and Yeskir followed the employees in an effort to find
out where the meeting was being held.
Respondent argues (br. pp. 17-18) that, inasmuch as
the complaint alleges that Brown and Yeskir were "en-
gaged in surveillance of employees who were engaged in
activities on behalfof the Union," and on this occasion the
employees followed were not in fact engaged in union
activities, the evidence does not support the allegations
of the complaint. However, the record is clear that on
this occasion the supervisors did engage in surveillance
of the employees, and that the supervisors did so because
they thought that the employees were engaged in union
activities. In the circumstances, it was not unreasonable
for the employees to assume that they were being fol-
lowed to see if they engaged in union activities, and the
supervisors' conduct thereby served to inhibit, restrain,
and coerce employees in their union activities in viola-
tion of Section 8(a)(1) of the Act. Though the complaint
was somewhat inartistically drawn, there is no showing
that Respondent was in any way misled thereby.
14 As has been previously noted, Pozzuoli asserted that he was merely
speculating that the employees would lose their jobs because of action by
the Union. However, Respondent presented no basis for such alleged
speculation either to the employees or at the hearing. In the absence of
any basis for such alleged speculation, Respondent's assertion clearly im-
plies that Respondent would retaliate against the employees because of
their union activities. See, e.g., Fred Lewis Carpets, 260 NLRB 843 (1982).
D. The Layoff
On August 16, Respondent terminated six to nine em-
ployees. Of these, the General Counsel contends that
only Cecilia Leach was let go in violation of the Act. By
most ordinary standards it would seem that she would be
one of the last employees Respondent would want to
lose. She had more seniority than any other employee in
her department (the shipping room and, indeed, had
more seniority than any of the other employees let go on
August 16. She was better skilled in the operations of her
department than any of the other employees in the ship-
ping room and had received substantial merit increases
because of the quality of her work, whereas the other
employees had received none. Leach testified, and it is
not denied, that Respondent's supervisors had often com-
plimented her on her work. About 2 weeks prior to her
layoff, Respondent had refused to transfer Leach to an-
other department because of her value to the shipping
room. The foreman over the shipping room, Lee Brown,
about this same time had offered to permit Leach to sub-
stitute for the shipping room leadperson for a week, be-
ginning on August 16, while the leadperson was on vaca-
tion. Leach refused the offer. Nevertheless, it is strange
that Foreman Brown would thereupon select her, his
most experienced employee in the department, for layoff
at the very time the leadperson was on vacation and at a
time Respondent was anxious to get a large amount of
production shipped.
Foreman Brown, who chose Leach for layoff, knew of
her union activities, and was himself clearly opposed to
the employees' union activities, particularly evidencing
his displeasure concerning the Union to Leach by going
out of his way to express his hostility by means of pro-
fanity in statements that the Union would not get in Re-
spondent's operations and by advising Leach that if she
did not like working for Respondent, "and you are for
all that Union business, then why don't you work some-
where else, because I don't want no f-g union in
here." 1'
Brown's asserted reason for picking Leach for separa-
tion do not, in the circumstances of this case, bear up
well under analysis. His main justification for selecting
Leach for layoff was that, by declining his offer to
permit her to substitute for the shipping room leadperson
for 1 week, Leach had "refused advancement." But
Leach was told that this assignment was not a promo-
tion, would not involve any supervisory duties, and
would not entail any increase in wages. Nor was she told
at any time that refusal to accept the assignment would
affect her employment status with Respondent.
Brown secondly asserted that he selected Leach for
layoff because she was the highest paid employee in the
department and her layoff would thus, presumably, save
Respondent more money. But this is a non sequitur.
Under Respondent's system, Leach was the highest paid
because she was the most capable and able. There is no
indication that those employees retained (one of whom
16 The Board has held on numerous occasions that such statements
constitute implied threats of discharge. See, e.g., Intertherm., Inc., 235
NLRB 693 (1978). Fred Lewis Carpets, supra.
1004
NUEVA ENGINEERING
had been employed about I month) could have efficient-
ly taken over Leach's work or saved Respondent any
money thereby. Indeed, as has been noted, it is particu-
larly odd that Respondent should have laid off its most
experienced person at the very time the leadperson in
that department was scheduled to go on' vacation. 6
In the circumstances of this case, and upon the entire
record, I find that the reasons given for the layoff of Ce-
cilia Leach are pretextual, and that, in fact, Respondent
laid off Leach because of her union membership and ac-
tivities. 7
Upon the above, and the record as a whole, I find that
Respondent, by the layoff of Cecilia Leach on August
16, 1982, violated Section 8(a)(3) and (1) of the Act.
III. RESPONDENT'S REQUEST THAT THE GENERAL
COUNSEL DISCLOSE FILE MATERIAL
At the close of the General Counsel's presentation of
evidence, Respondent's counsel requested that counsel
for the General Counsel "deliver to me perusual any evi-
dence that she has which tends to exculpate my client of
liability," stating that he was relying upon the Supreme
Court's decision in Brady v. Maryland, 373 U.S. 83
(1963). In the absence of voluntary compliance with his
request, Respondent sought an order to compel the Gen-
eral Counsel to comply. Respondent admitted that he
had no indication that the General Counsel had any such
material. I denied Respondent's request for an order to
the General Counsel to comply with Respondent's re-
quest. Those tribunals which have passed upon that issue
have held that Brady v. Maryland is not applicable to
proceedings before the Board. See North American Rock-
well Corp. v. NLRB, 389 F.2d 866 (10th Cir. 1969); Erie
County Plastics Corp., 207 NLRB 564, 570 fn. 29 (1973),
enfd. 505 F.2d 730 (3d Cir. 1974).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By coercively interrogating employees concerning
their union adherence and sympathies, by threatening
employees with reprisal if they selected the Union as
their bargaining agent, and by engaging in surveillance
of employees thought to be engaged in activities on
behalf of the Union, Respondent engaged in conduct in
violation of Section 8(a)(1) of the Act.
4. By laying off Cecilia Leach because of her activities
on behalf of and membership in the Union, Respondent
violated Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
16 At one point Brown suggested that he was concerned about placing
a lower paid employee in the shipping room (as a substitute for the lead-
person) over Leach, a higher paid employee. However, as Brown told
Leach, no supervisory relationship was involved. The time interval was
only 5 days, and Leach had, in fact, consented to this situation.
'7 It was stipulated that Respondent recalled Leach to work "effective
October I ," but that Leach declined the offer.
THE REMEDY
It having been found that Respondent has engaged in
and is engaging in unfair labor practices in violation of
the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that Respondent discriminated
against Cecilia Leach in violation of the Act, but that
Respondent offered Leach reinstatement effective Octo-
ber 11, 1982, which she has declined, it will be recom-
mended that Respondent make her whole for any loss of
pay or benefits which she may have suffered as a result
of the discrimination against her by payment to her of a
sum of money equal to what she would have earned as
wages and other benefits from August 16, 1982, the date
of the discrimination against her, to October 11, 1982,
less her net interim earnings during that period, with in-
terest thereon, to be computed in the manner prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), and Flori-
da Steel Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co., 138 NLRB 716 (1962).
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended t B
ORDER
The Respondent, Nueva Engineering, Inc., Baltimore,
Maryland, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discouraging membership in or activities on behalf
of a labor organization by discriminating in regard to the
hire and tenure of employment of employees or in regard
to any term or condition of employment.
(b) Coercively interrogating employees concerning ac-
tivities on behalf of or support of a labor organization.
(c) Threatening employees with reprisal if they joined
or supported a labor organization.
(d) Engaging in surveillance of employees because
they are engaged in or are suspected of engaging in
union activities.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed under Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Make Cecilia Leach whole for any loss of earnings
and benefits she may have suffered by reason of the dis-
crimination against her in accordance with the provisions
set forth in the section hereinabove entitled "The
Remedy."
(b) Expunge from its records any references to the
layoff of Cecilia Leach on August 16, 1982, and notify
her in writing that this has been done and that evidence
t1 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1005
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of this unlawful layoff will not be used as a basis for
future personnel action against her.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to effectuate the Order herein.
(d) Post at its Baltimore, Maryland operations copies
of the attached notice marked "Appendix."' 9 Copies of
1 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
the notice, on forms provided by the Regional Director
for Region 5, after being signed by Respondent's author-
ized representative, shall be posted by Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER ORDERED that the complaint be and it
hereby is dismissed as to alleged violations of the Act
not found hereinabove in this decision.
1006