Old Western Mfg., Co.

National Labor Relations Board - Board Decisions

Aug 8, 1977

231 N.L.R.B. 193 (N.L.R.B. 1977)

OLD WESTERN MANUFACTURING COMPANY
Kenneth Jones d/b/a Old Western Manufacturing
Company and Shopmen's Local Union No. 624 of
the International Association of Bridge, Structural
and Ornamental Iron Workers (AFL-CIO). Cases
20-CA-11338, 20-CA-11123, and 20-RC-13375
August 8, 1977
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On November 12, 1976, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party, hereinafter called the Union, filed
exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
Respondent, herein also called the Company, is
engaged in the production of ornamental iron
products at its places of business located in Fresno,
California. At material times Respondent operated
two facilities herein called respectively the Butler
Street and G Street plants.
In January 1976,2 some of Respondent's employees
began discussing unionization among themselves
during their lunch breaks and eventually contacted
the Union and signed authorization cards. The
Administrative Law Judge found that during one of
these lunchtime discussions a number of employees,
including Floyd Cruz, signed a paper indicating that
they desired unionization. In the course of another
discussion, Earl Maxwell, lead welder at Butler
Street, asked Cruz how he felt about unions. Cruz
made an equivocal reply.3
The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
All dates herein are 1976 unless otherwise indicated.
:' On February 5, Cruz was discharged. allegedly for failing to call in sick
the previous day. The Administrative Law Judge found that Respondent's
asserted reason for Cruz' termination was pretextual and that he was
discharged because of his union activity. We agree with this finding and
231 NLRB No. 42
The Alleged Violations of Section 8(a)(1) of
the Act
The Administrative Law Judge found that on
February 5, after Cruz was discharged, Bart Camare-
na, Respondent's general foreman at Butler Street,4
told an employee, "I hate to see the guy go. He is a
good welder. He is a good worker. But I got
suspicions he's involved with the Union." The
Administrative Law Judge failed to make any
conclusions with regard to the complaint's allegation
that this statement violated Section 8(a)(1) of the
Act. We find merit to the General Counsel's
exceptions to the Administrative Law Judge's failure
so to conclude, inasmuch as Camarena's comment
could reasonably be construed by other employees as
a threat that they would receive similar treatment if
they became involved with the Union.
On February 13, the Union filed a petition with the
Board's Regional Office seeking a representation
election. On February 18, Camarena called a meeting
of unit employees at which he told them that
Respondent would not allow itself to go union; that
Respondent would have to "close up" if it had to pay
what the Union demanded; that the wages demand-
ed by the Union were those of certified welders and
if Respondent had to pay certified welders wages it
would lay off welders who were not certified; and
that if the Union became the employees' representa-
tive and there were a strike Camarena would use
guns and dogs if necessary to cross a picket line and
would run over strikers with his truck. The Adminis-
trative Law Judge found that the threat to close the
plant violated Section 8(a)(1) of the Act but failed to
make any conclusions regarding the other above-
described statements which he found were made by
Camarena at the same meeting and which were also
alleged in the complaint to violate Section 8(a)(1).
We find merit to the General Counsel's and the
Union's exceptions to the Administrative Law
Judge's failure to conclude that these comments were
unlawful. These statements were clear threats of
reprisal against employees for engaging in protected
concerted activity and, as such, violated Section
8(a)(1) of the Act.5
The complaint further alleges that either at the
February 18 meeting or at some time thereafter
adopt the Administrative Law Judge's conclusion, to which no exceptions
were taken, that Respondent violated Sec. 8(aX3) and (1) of the Act by
discharging Cruz.
4 The complaint alleged that Camarena was a supervisor within the
meaning of Sec. 2(11) of the Act and Respondent's answer admitted that
Camarena was a foreman but denied that he was a supervisor. The
Administrative Law Judge failed to make a specific finding as to his
supervisory status. Inasmuch as Camarena testified without contradiction
that he had the power to hire and fire employees, we conclude that, at
matenal times herein, he was a supervisor within the meaning of Sec. 2( 1)
of the Act.
5 We further conclude, as the Administrative Law Judge apparently did,
(Continued)
193
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent announced that it was instituting a new
warning system, and that the purpose of this
announcement was to discourage employees from
supporting the Union. The Administrative Law
Judge found that the warning system constituted
evidence of Respondent's union animus but failed to
make any findings as to whether the announcement
of the new procedure constituted an unfair labor
practice. We agree with the General Counsel and the
Union, as argued in their respective exceptions and
the General Counsel's brief to the Board, that the
purpose of announcing the new warning system,
under which an employee would be automatically
terminated after receiving three written warnings,
was to discourage union activity. In so concluding we
rely on the evidence that the new system was not
announced until after the Union filed its petition;
that it was announced at a time when Respondent
was in the process of committing other unfair labor
practices; and that, although Respondent at the
hearing asserted a business justification for the new
procedure, it is undisputed that its implementation
was, at best, haphazard. Accordingly, we conclude
that the announcement of the warning system
violated Section 8(a)(1) of the Act.
The Discharge of Daniel Cox
Daniel Cox began working for Respondent as a
production and maintenance employee in the spring
of 1975 and acted as the Union's observer in the
election. The Administrative Law Judge found that
Camarena expressed surprise at learning that Cox
was the Union's observer. On an unidentified date in
April, Cox received a written "Notice of Second
Warning" citing his "lack of attendance" on two
dates during the preceding month. Although Cox was
still working at the G Street plant, the slip was signed
by Camarena, the Butler Street foreman. Despite the
statement on the slip that it was a "second warning,"
the Administrative Law Judge found that Cox had
never previously received a written warning6 and no
exception was taken to this finding. Furthermore,
Cox's timecards for the dates specified on the
warning, which were admitted into evidence, indicate
that the disavowal notice posted by Respondent sometime after the
February 18 meeting was insufficient to constitute a repudiation of the
threats.
After the meeting Earl Maxwell, Respondent's lead welder, asked
employee Ralph Benavides how he was going to vote in the election.
Benavides replied that he was going to vote "no." In addition, on April 8, as
Benavides was waiting in line to vote in the election, Maxwell approached
him and told him that he could not vote and that, if he did, he would do
"straight time." an apparent reference to the fact that Benavides was on
parole.
As discussed below, the Administrative Law Judge failed to make any
findings as to Maxwell's alleged supervisory status. Such a finding requires
resolutions which we are unable to make as to the credibility of witnesses.
that he in fact worked 8 hours on each of the 2 days
in question.7
On Friday, April 30, Cox arrived for work at G
Street and was told by the foreman there to go over
to Butler Street. When Cox replied that his car had
broken down and he therefore had no transportation,
he was told to catch a ride with another employee.
Cox was also told to gather up his belongings, but
was not instructed to take his welding equipment.
When Cox arrived at the Butler Street facility,
Camarena asked him where his welding helmet was
and Cox replied that other employees had been using
it and he had not had time to look for it. After some
further discussion, Cox borrowed a helmet and went
to work. At lunchtime, Cox told Maxwell that he was
going to go pick up his car and would try to make it
back to work. Maxwell told Cox that he would relay
this information to Camarena but did not do so until
Cox failed to return from his lunch break. Cox did
not return to work that day but a friend informed
Respondent that Cox would not be back.
On Monday, May 3 (Cox's next scheduled work-
day), he was ill and did not report for work. A friend,
however, called Camarena and told him that Cox
would not be in that day and that he would try to see
a doctor. Camarena responded that Cox was not to
bother coming in unless he had a medical excuse.
The following day, when Cox reported for work,
Camarena asked for his medical excuse. When Cox
replied that he had not been able to see a physician,
Camarena told him he was discharged and prepared
a termination slip stating as the reason for the
discharge "lack of attendance 10 days in 2 months
and lack of working."
The Administrative Law Judge found that "Ca-
marena gave shifting reasons for the separation of
Cox and viewed in its totality Camarena's testimony
is not credible and I do not credit it," and that "at
the very least it must be said that the discharge of
Cox is surrounded by suspicious circumstances." The
Administrative Law Judge further found, however,
that "viewing the evidence in its totality Cox was
principally discharged for cause" and, therefore,
concluded that the discharge did not violate Section
8(a)(3) and (1) of the Act. We disagree with this
conclusion.
Assuming Maxwell's conduct discussed above constituted a threat and
interrogations in violation of Sec. 8(aXl) of the Act, such violations are
remedied by our Order herein, which requires Respondent to cease and
desist from violating the Act "in any other manner." We therefore find it
unnecessary to determine at this time whether Maxwell was a supervisor
within the meaning of Sec. 2(11) of the Act.
6 G.C. Exh. 9 is a "Notice of First Warning" addressed to Cox and
signed by Camarena. The notice is undated, the line for the employee's
signature acknowledging receipt is blank, and there is no evidence that Cox
in fact received the warning.
7 The Administrative Law Judge noted, however, that "no reliance can
be placed on the Company's timecards or on its other records which were
poorly kept."
194
OLD WESTERN MANUFACIURING COMPANY
Neither the record nor the Administrative Law
Judge's own findings support his conclusion that
Cox's discharge was not motivated at least in
substantial part by his union activity. Thus, although
Camarena testified that employee attendance was a
problem and that Respondent had consequently
posted new attendance rules in January, and al-
though one of the two reasons asserted for Cox's
termination was his lack of attendance, he had not in
fact violated any of the posted attendance rules.
Indeed, although Cox was terminated on May 4 after
he failed to provide a medical excuse for his absence
the previous day, Respondent's attendance rules only
required such an excuse if an employee failed to call
in for 2 consecutive days. Further, as noted above,
Respondent's recordkeeping was so haphazard that it
apparently would have been difficult, if not impossi-
ble, to ascertain the precise number of days Cox had
been absent during any given period.
As to Camarena's notation on Cox's termination
slip referring to "lack of working," there is no
evidence in support of this assertion other than
Camarena's discredited testimony, nor is there any
indication that Cox was ever warned or disciplined
for failure to work prior to his discharge.
The other violations of Section 8(a)(3) and (1) of
the Act found above clearly establish that Respon-
dent was adamantly opposed to any union activity in
the plant. It is also clear that Respondent was aware
of Cox's support of the Union, inasmuch as he acted
as the Union's observer at the election. Further, Cox
was not disciplined for his alleged lack of attendance
until after his union activity became known to
Respondent. In view of these findings and the
Administrative Law Judge's discrediting of Camare-
na's testimony as to the reason for discharging Cox,
we conclude that the General Counsel has shown by
a preponderance of the evidence that the asserted
reasons for Cox's termination were pretextual and his
discharge was at least in substantial part in reprisal
for his union activity," and therefore violated Section
8(a)(3) and (1) of the Act.9
The Objections and Challenges in Case 20-
RC-13375
The election in Case 20-RC-13375 was conducted
on April 8. The tally of ballots served on the parties
after the election showed that there were approxi-
mately 32 eligible voters, that 33 ballots were cast, of
which 13 were cast for, and 15 against, the Union,
and that there were 5 challenged ballots, a sufficient
number to affect the results of the election. Thereaf-
4 The Administrative Law Judge found that "Cox did in fact tell the
Company to discharge him." However. we find that even ifCox made such a
statement it was not the reason for his termination.
I The Youngstown Osteopathic Hospital Association, 224 NLRB 574
(1976)
ter, the Union filed timely objections to the election.
The Administrative Law Judge, through inadver-
tence, failed to discuss the merits of either the
challenges or the objections, both of which are
discussed below.
The Board agent challenged the ballot of Floyd
Cruz because his name was not on the list of eligible
voters submitted by Respondent pursuant to the
Stipulation for Certification Upon Consent Election
approved by the Regional Director on March 12.
The Union challenged the ballots of Earl Maxwell
and Frank Padilla on grounds that they are supervi-
sors, and the ballots of Dale Neal and Richard
Ripley on grounds that they are not unit employees
and, further, that they do not share a community of
interest with the employees in the unit stipulated by
the parties to be appropriate.
The Union's objections to the election allege that
Respondent "did threaten, discharge, and coerce
employees of the Company during the course of the
Union's organizing campaign." The Regional Direc-
tor, in her Report on Challenged Ballots and
Objections, Order Consolidating Cases, and Notice
of Hearing, issued May 20, concluded that the
challenges and objections could best be resolved by
being considered jointly with the unfair labor
practice allegations, and therefore consolidated
Cases 20-CA- 11123 and 20-RC-13375 for hearing.10
As to the challenged ballot cast by Floyd Cruz, as
discussed above, we agree with the Administrative
Law Judge that Cruz' discharge violated Section
8(a)(3) and (1) of the Act. Accordingly, we shall
order that the challenge to his ballot be overruled.
However, inasmuch as Cruz' ballot alone is not
determinative, we shall order that his ballot not be
opened until the remaining challenges are resolved,
as set forth below.
With respect to Maxwell, Padilla, Neal, and
Ripley, we conclude that on the present record we
are unable, in the absence of any credibility
resolutions by the Administrative Law Judge, to
determine whether or not any of these four individu-
als were eligible to vote in the April 8 election.
Accordingly, we shall remand this proceeding to the
Regional Director for the purpose of conducting a
further hearing on these issues.
With regard to the Union's objections to the
election, we have found above that Respondent
committed violations of Section 8(aX)() of the Act
during the critical period preceding the election.
Several of these unfair labor practices involved the
same conduct alleged by the Union to constitute
i° Case 20-CA-11338 was consolidated with Cases 20-CA 11123 and
20-RC 13375 by order of the Regional Director dated June 30.
195
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interference with the election. Having found that
certain of the conduct alleged in the Union's
objections occurred during the critical period and
constituted violations of Section 8(a)(1) of the Act,
we also conclude that there is merit to these
objections; we shall therefore not adopt the Adminis-
trative Law Judge's recommendation that the objec-
tions be overruled and a certification of results issue
in Case 20-RC-13375. On the contrary, we shall
withhold any certification pending a resolution of the
challenged ballots and, if the revised tally of ballots
issued, pursuant to the Order and Direction herein,
shows that a majority of the valid ballots were not
cast for the Union, we shall set aside the election and
direct a second election.
CONCLUSIONS OF LAW
I. Kenneth Jones d/b/a Old Western Manufac-
turing Company is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Shopmen's Local Union No. 624 of the
International Association of Bridge, Structural and
Ornamental Iron Workers (AFL-CIO), is a labor
organization within the meaning of Section 2(5) of
the Act.
3. By threatening employees with discharge, plant
closure, and layoff if they chose to be represented by
a labor organization for purposes of collective
bargaining and by threatening to use violence against
strikers or picketers if they engaged in protected
concerted activity, Respondent has violated Section
8(a)(1) of the Act.
4. By discharging employees Daniel Cox and
Floyd Cruz because of their union activity, Respon-
dent has violated Section 8(a)(3) and (1) of the Act.
5. The foregoing unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
Remedy
Having found that Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent discriminatorily
discharged employees Daniel Cox and Floyd Cruz
because of their union activities, we shall order that
Respondent offer them full and immediate reinstate-
ment to their former jobs or, if such jobs no longer
exist. to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges, and that it make them whole for any losses
they may have suffered by reason of the discrimina-
tion against them. Any backpay found to be due
them shall be computed on a quarterly basis in the
manner set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon at the rate of
6 percent per annum, as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Additionally, because Respondent's unfair labor
practices go to the very heart of the Act, we shall
issue a broad order requiring Respondent to cease
and desist from violating the Act "in any other
manner." Springfield Dodge, Inc., 218 NLRB 1429
(1975); N.L.R.B. v. Entwistle Manufacturing Compa-
ny, 120 F.2d 532 (C.A. 4, 1941).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Kenneth Jones d/b/a Old Western Manufacturing
Company, Fresno, California, his agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge, plant
closure, or layoff if they choose to be represented by
a labor organization.
(b) Threatening employees that violence will be
used against strikers or picketers if they engage in
protected concerted activity.
(c) Discharging or otherwise discriminating against
employees because of their union or other protected
concerted activity.
(d) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of the
right to self-organization, to form labor organiza-
tions, to join or assist Shopmen's Local Union No.
624 of the International Association of Bridge,
Structural and Ornamental Iron Workers (AFL-
CIO), or any other labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in concerted activities for
the purpose of mutual aid or protection, as guaran-
teed in Section 7 of the Act, or to refrain from any
and all such activities, except to the extent that such
right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Report-
ing and Disclosure Act of 1959.
2. Take the following affirmative action which is
designed to effectuate the policies of the Act:
(a) Offer reinstatement to and make whole employ-
ees Daniel Cox and Floyd Cruz in the manner set
forth in the section herein entitled "Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
196
OLD WESTERN MANUFACTURING COMPANY
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due and the rights of employment under the
terms of this Order.
(c) Post at its Fresno, California, facility copies of
the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the challenge to the
ballot cast by Floyd Cruz in the election held on
April 8, 1976, in Case 20-RC-13375 be overruled,
and that Case 20-RC-13375 be, and it hereby is,
severed from this consolidated proceeding and
referred to the Regional Director for Region 20 for
further processing, including issuance of a notice of
hearing, in accordance with the Direction below.
DIRECTION
It is hereby directed that a hearing in Case 20-RC-
13375 be held before a duly designated Hearing
Officer for the purpose of receiving evidence to
resolve the issues raised by the challenges to the
ballots cast by Earl Maxwell, Dale Neal, Richard
Ripley, and Frank Padilla in the election conducted
on April 8, 1976. The Hearing Officer designated for
the purpose of conducting such hearing shall prepare
and cause to be served on the parties a report
containing resolutions of the credibility of witnesses,
findings of fact, and recommendations to the Board
as to the disposition of the challenges. Within 10
days from the date of issuance of such report, either
party may file with the Board in Washington, D.C.,
eight copies of exceptions thereto. Immediately upon
the filing of such exceptions, the party filing same
shall serve a copy thereof on the other party and
shall file a copy with the Regional Director. If no
exceptions are filed to the Hearing Officer's report,
the Board will adopt the recommendations of the
Hearing Officer, and, thereafter, in the event the
revised tally of ballots shows that the Petitioner did
not receive a majority of the valid ballots cast, the
election shall be set aside and a new election
directed.
I In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all
employees these rights:
To engage in self-organization
To join, form, or help unions
To bargain collectively with representa-
tives of their own choosing
To act together for collective bargaining
or other aid or protection
To refrain from any or all of these things.
WE WILL NOT threaten employees with dis-
charge, plant closure, or layoff if they choose to
be represented by a labor organization.
WE WILL NOT threaten employees that violence
will be used against strikers or picketers if they
engage in protected concerted activity.
WE WILL NOT discharge or otherwise discrimi-
nate against employees because of their union or
other protected concerted activity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights described above, except to the extent
that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section
8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of
1959.
WE WILL offer reinstatement to Daniel Cox and
Floyd Cruz to their former jobs or, if those jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges, and WE WILL make them
whole for any losses they may have suffered by
reason of our discrimination against them, with
interest at the rate of 6 percent per annum.
KENNETH JONES D/B/A
OLD WESTERN
MANUFACTURING
COMPANY
197
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge: This case
came on for hearing before me in Fresno, California, on
September 2, 1976, based on a complaint issued by the
General Counsel on June 30, 1976. This case was
consolidated with the representation case. The initial
charge was filed by Shopmen's Local Union No. 624 of the
International Association of Bridge, Structural and Orna-
mental Iron Workers (AFL-CIO), herein called the Union,
on April 20, 1976, and a first amended charge was filed by
the Union on May 17, 1976. The complaint alleges that the
Company violated Section 8(a)(l) and (3) of the Act, and
the answer, while admitting certain allegations, denies the
commission of any unfair labor practices. Briefs have been
received from the General Counsel and Respondent, which
have been carefully considered.
Upon the entire record in this proceeding and having
observed the testimony and demeanor of the witnesses, I
hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Kenneth Jones d/b/a Old Western Manufacturing
Company, herein called Respondent, is a sole proprietor-
ship engaged in the production of ornamental iron
products at its places of business in Fresno, California.
During the past calendar year Respondent sold goods and
materials and supplies valued in excess of $50,000 to
Safeway, Inc. During the same period of time Safeway
received gross revenues in excess of $500,000, and during
the same period of time purchased goods and materials and
supplies valued in excess of $5,000 directly from suppliers
located directly outside the State of California.
Respondent admits, and I find, that it is an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2 (2), (6), and (7) of
the Act.
II. THE UNION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent, by Earl Max-
well, warned an employee that if he voted in favor of the
Union in a Board-conducted election he would be
terminated or suffer other economic reprisals.
On or about May 4, 1976, Respondent discharged its
employee Dan Cox because of his membership in, or
activities on behalf of, the Union.
It is also alleged in the complaint that the Respondent
unlawfully terminated the employment of Floyd Cruz also
because of his activity on behalf of the Union.
Respondent operates two plants, one located at Butler
Street and one located at South "G" Street in Fresno,
California, where he employed approximately 36 employ-
ees, including 12 welders. Respondent's general shop
foreman at Butler Street is Bart Camarena, who testified
without refutation that he had the power to hire and fire
employees. Directly under Camarena is Earl Maxwell,
Respondent's lead welder and its instructor for Respon-
dent's on-the-job welding trainees.
Camarena testified that the employees' attendance
during the preceding months had been bad and that,
during the Christmas vacation, he, Kenneth Jones, the
owner of Respondent, and John Lumsden, Respondent's
general manager, had discussed methods of improving
employee attendance. As a consequence of these discus-
sions, Respondent adopted the following attendance rules:
(a) An employee who missed 2 days of work would
either have to call in and notify Respondent that he was
going to be absent, or he would have to submit a
written medical excuse for the days he missed;
(b) An employee who missed three consecutive days
and who did not notify Respondent would be automati-
cally terminated; and
(c) An employee who missed three consecutive
Mondays would have to submit a written excuse for
each of the missed Mondays.
It is not disputed that Camarena posted the above rules at
the timeclock on January 5 and on the following day
personally informed each employee of the existence of the
new attendance rules. Although the written posted rules
did not indicate what would happen to an employee who
missed 2 days of work and who neither called in nor
provided a medical excuse, Camarena testified that he
informed employees on January 6 that they would be
terminated under these circumstances, and that this was a
firm policy that would apply in the future.
In the month of January, the Butler Street employees
began holding meetings among themselves to discuss the
possibilities of organizing Respondent. In January employ-
ees met approximately four times during their lunch break
to discuss the matter of unionization. These meetings took
place in the Butler Street parking area and attracted
anywhere from 10 to 20 of the approximately 36 employees
working at Butler Street. Both Cox and Cruz attended
these employee meetings. During one of these meetings, the
employees passed among themselves a paper which they
signed if they desired unionization; Cruz was one of the
employees who signed that paper. At another of these
meetings Maxwell approached the employees and intruded
himself into the conversation. Maxwell informed the
employees that he had once before gone through unioniza-
tion, and that he did not feel that they, the employees, were
qualified to stay together. During this discussion Maxwell
asked Cruz what he felt about unions; Cruz responded "If
it comes, it comes." The record also shows that on
Wednesday, February 4, Cruz was sick and unable to
report for work and he had another employee, Camacho,
notify Camarena of this fact. Cruz was well and reported
for work the following day. As Cruz approached the
timeclock to punch in, he was stopped by Camarena.
Camarena told Cruz that he had been missing too many
days, and that if he did not have a doctor's excuse for the
day he had just missed, he could not come back to work.
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OLD WESTERN MANUFACTURING COMPANY
Cruz informed Camarena that he did not have a doctor's
excuse and was in turn told by Camarena that he was fired.
Later that afternoon, Camacho overheard Camarena
telling another employee "I hate to see the guy go. He is a
good welder. He is a good worker. But I got suspicions he's
involved with the Union."
On February 13, after having secured a sufficient
number of authorization cards from employees, the Union
filed a representation petition seeking a unit of Respon-
dent's production and maintenance employees. On Febru-
ary 18, Camarena notified all the Butler Street employees
that he was calling a meeting that morning, to be held
during the morning break at the timeclock. Approximately
30 employees attended this meeting, including Cox,
Camacho, Benevides, and Maxwell.
The meeting was admittedly called because Camarena
wanted to talk to the employees about the Union. The
General Counsel alleges that Camarena then told the
employees that Respondent would not allow itself to go
union, that Respondent could not afford to pay the
Union's wages, and that Respondent would have to close
up if it had to pay what the Union demanded. Camarena
further told the employees that the wages demanded by the
Union were certified welders' wages, and that, if Respon-
dent had to pay certified welders' wages, it would lay off its
employees and hire certified welders. None of Respon-
dent's welders, with the exception of Camarena and one
other employee, were certified welders, and Camarena
pointed this out to the employees by telling them that they
were unskilled laborers and lucky to have a job of any
kind. Camarena went on to say that the employees'
chances were 90 to 100 percent certain that they would
have to go out on strike to obtain their demands.
Camarena continued by saying that he would use any
means necessary to cross a picket line, that he would use
guns and dogs if he had to, and that he would run striking
employees over with his truck. It is also alleged that when
the meeting was over, Maxwell approached Benevides and
asked him how he was going to vote in the upcoming
representation election. Benevides replied he was going to
vote no.
The complaint alleges that Earl Maxwell is a welding
supervisor which allegation is denied by Respondent. The
testimony in the record shows that, while Maxwell did
instruct welders and assigned them to their jobs, he did not
have the authority to hire or fire employees and he also had
no authority to recommend such action. The only persons
in the Company's employ who had the authority to hire
and fire were the owner of the business, Jones, and
Camarena.
Respondent contends that he posted a disavowal notice
on the timeclock in which he said, among other things, that
certain statements, such as Union would use guns and
sticks to prevent any employee from going to work, were
not authorized and certain things should not have been
said and do not represent the position of the Company.
The notice also stated that, if a strike or picketing
occurred in connection with union organization, Old
Western Manufacturing Company would in no way engage
in any physical confrontation with those on the picket line,
nor condone such action by any other person. However,
should the Union resort to physical means of preventing
any employee from working, it would pursue any and all
legal remedies available to prevent such conduct. The
notice concludes with the statement "The law prohibits the
use of violence by either side engaged in a labor dispute,
and Old Western Manufacturing will abide by the law."
The notice was signed by Kenneth Jones.
On April 8 a representation election was conducted
among Respondent's production and maintenance employ-
ees. The election took place at both the Butler Street and
"G" Street locations and Cox served as the Union's
observer at both places. When Camarena noticed that Cox
was acting as the Union's observer, he stated his surprise to
Cox. At the Butler Street location Benevides was waiting to
vote when Maxwell approached him. Maxwell then told
Benevides he couldn't vote and that if he did, he would do
"straight time." This reference to straight time refers to the
fact that Benevides was on parole and it is alleged by the
General Counsel that this was a threat that Benevides
would be returned to jail. The results of the election were
13 votes cast for the Union, 15 votes against it, and 5
challenged ballots which are determinative of the election.
Immediately after the election Respondent advised all of
its G Street supervisors and foremen to "go easy" on Cox.
Sometime in the month of April, Cox received his first
warning slip; although Cox was still working at G Street at
the time the slip was issued by Camarena, Respondent's
Butler Street foreman. Cox testified that the warning slip
was brought over to him at G Street by Ripley, salesman
for the Company, and that, although the warning slip itself
indicated that it was Cox's second warning, it was in fact
the first warning. He had never received any other written
warning.
On Friday, April 30, Cox reported to work at G Street
where he had been assigned for the past 2 months. When
Cox arrived at G Street, he was told by Jay Higbee,
Respondent's construction crew foreman at G Street, to
pick up his things and to go over to Butler Street. Higbee
did not tell Cox to take his welding equipment with him.
When Cox informed Higbee that his car had broken down
that morning and that he did not have any transportation
to Butler Street, Higbee told him to catch a ride with
Richard Ripley. Cox gathered up his belongings and rode
with Ripley over to the Butler Street plant.
When Cox arrived at Butler Street, he reported to
Camarena and asked him what work he was to do.
Camarena asked Cox where his welding helmet was and
Cox replied that other employees at G Street had been
using it and he did not know where it was that morning and
that he had not had time to look for it since he had to hurry
to catch a ride with Ripley. The General Counsel further
alleges that Cox then asked Camarena if he was being
permanently transferred back to Butler Street. Camarena
replied that he was and that if he didn't like it, to quit. Cox
allegedly informed Camarena that he was not going to quit,
and that Camarena would have to fire him if he wanted to
get rid of him.
Camarena also told Cox that, if he found out that Cox
had been absent the previous Tuesday, he would be fired.
Camarena did not discharge Cox that morning, however,
and Cox borrowed a welding helmet from Maxwell and
199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went to work. Cox did not complete his workday that
Friday. At lunchtime he informed Maxwell that he was
going to pick up his car which had broken down that
morning and he would try to make it back to work if he
could. Maxwell told Cox that he would tell this to
Camarena. However, Maxwell did not tell Camarena
where Cox had gone until Cox had failed to return to work
during the lunch period. Cox did not return to work that
afternoon, encountering more difficulties with his car than
he had expected, and, when he realized he would not be
able to return to work, Cox had his girl friend inform
Respondent of this fact.
Monday, May 3, was Cox's next scheduled workday. On
that day, Cox was ill and could not report for work. Cox
had his girl friend contact Camarena to inform him that he
would not be in that day and he would try to see a doctor.
Cox's girl friend telephoned Camarena and delivered this
message. Camarena told her to tell Cox, unless Cox had a
medical excuse, not to bother coming in. Cox was given
this message by his girl friend. Cox reported to work the
following day. As soon as he arrived at Butler Street,
Camarena approached him and asked him for a medical
excuse. Cox explained to Camarena that he did not get to
see a doctor the day before. Camarena told Cox that he
was terminated and told him to wait in his office while he
prepared a termination slip. Camarena then prepared a
termination slip which stated as the reason for Cox's
termination, "Lack of attendance, 10 days in 2 months, and
lack of working."
Daniel Cox began working for the Company on April 15,
1975, and was let go May 4, 1976.
Early in February, the Company called a meeting at
which Bart spoke, "warning all the employees that if the
Union came in, they were not offering the things we really
wanted and the Company would not go union. He would
not allow the Company to go union. If he had to pay
employees what the Union would ask for, he would get
certified welders."
Bart also said "if we ever went on strike he would cross
picket lines no matter what he had to do." He also said that
he was going to bring his dogs and a gun across picket
lines, even if he had to run employees over with his truck.
"The Company would not be able to afford what the
Union would ask for and as a consequence they would
have to go out of business and close the shop."
The General Counsel elicited from witness Benevides
testimony concerning the talk given by Bart. Benevides
corroborated what Camarena said and also stated that Earl
Maxwell asked him how he was going to vote.
Cruz started to work for Respondent on November 12,
1975, and was discharged on February 5, 1976. The reason
for the discharge was that he was out sick and did not bring
a doctor's excuse. Cruz testified that another employee,
John Gutierrez, who was also out sick, had no doctor's
certificate. He was at first fired and then called back to
work and told that in the future that if he was out sick to
bring a doctor's excuse. By this testimony Cruz was in
effect saying that the rule with respect to absences was
disparately being applied in the plant.
There is considerable testimony in the record that Cruz
built a table on his own time and with some of the
Company's material in the shop. He had permission to do
this but the Company charged him $25 which was taken
out of his paycheck. Cruz was very exercised about this
withholding from his salary and made a considerable fuss
over the matter. The Company took the position that if
Cruz wanted his $25 back they would give it to him but he
had to bring back the table that he had made on their time
and with some of their materials.
The Company was faced with a serious absentee
problem. As a consequence of which, a meeting was called
among Camarena, Lumsden, and Jones. This meeting
resulted in the rules which were posted above the timeclock
and which are itemized supra. Camarena testified that
neither Maxwell nor Padilla are supervisors. He also
testified that he first found out about the Union on
February 9, 1976, when the men passed around a sheet
with signatures of those in favor of the Union.
Camarena further testified that Cruz was away 2 days in
succession. When asked if he had an excuse he said "I
don't have to give you nothing. The other guys aren't
giving you no excuse." Camarena also testified that Cruz,
in addition to the fact that he would not produce an excuse,
told Camarena to go to hell. At which point Camarena
testified that he said, "Well, you can come to work any
time you want, start any time you want, when I have a
written excuse."
Camarena testified that Cox was never fired. Dan Cox
asked to be fired. He went on to say that Dan Cox told him
that he was tired of working and asked the Company to fire
him. He wanted to collect unemployment insurance
because he was tired of working. This fact was testified to
by employee Throop.
The General Counsel produced witness Jay Higbee who
testified that he was a foreman and that he was fired for too
many absences. He was not involved in union activity. Cox
was in Higbee's crew. Higbee described him as a poor
worker. He would leave his job without permission.
Further, Cox was late or absent 50 percent of the time. He
was very unreliable and the Company could not depend on
him.
Employee Ripley, the Company's salesman, testified that
he was in the office when Floyd Cruz came in. Cruz asked
for his job back. A discussion ensued about the iron table.
Cruz said $25 was too much money and at this point the
Company said bring the table back and we'll give you your
$25 back. Cruz asked about getting his job back. He was
told he could have his job if he would apologize to Bart
Camarena. He said he would not apologize to him. At this
point Cox allegedly said "Why don't you fire me. Go ahead
and fire me."
The testimony of Ripley was corroborated by employee
Walter Bispo. He testified that Jones offered Cox his job
back. Further that no one knew that Cox was interested in
the Union until the day of the election when he appeared
as an observer for the Union. With respect to reporting to
work on time Ripley testified that in a 5-day week Cox
would come to work about 3 out of every 5 days.
It should be remarked at this juncture that discipline in
the plant was rather lax and that recordkeeping was very
casual. Also that the timeclock was out of order for a while
and many of the timecards were punched with the date
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OLD WESTERN MANUFACTURING COMPANY
February when it really should have been March. No
reliance can be placed on the Company's timecards or on
its other records which were poorly kept.
Credibility
There are significant conflicts between the testimony of
the General Counsel and Respondent's witnesses, particu-
larly with respect to what was stated at the February 18
meeting, and with respect to the circumstances surrounding
the termination of Cruz and Cox. For example, Camarena,
according to the General Counsel, specifically denied that
he had ever stated to an employee that another employee
had been discharged because of his suspected union
involvement or that he threatened employees with plant
closure, layoff, and strike violence at the February 18
meeting. I do not credit Camarena with respect to the
threats about violence because, unless he made the
statements which he allegedly did make, there would be no
reason for the Company to post a disavowal notice. In
addition, the General Counsel's witnesses testified that
Cruz was absent on Wednesday, February 4, and notified
Respondent of this fact and was discharged the following
day for failing to provide a medical excuse which
Camarena had demanded. Camarena also testified that
Cruz had been absent not I but 2 days, that it was only
after Cruz had returned from his 2-day absence that he
asked for a medical excuse and attempted to start an
argument with him in front of the entire crew. Cruz was not
terminated, but merely told that he could come back
anytime that he had a medical excuse. Camarena also
denied that Camacho had ever notified him that Cruz was
to be absent. Both Cruz and Camacho testified that Cruz
was absent only I day, and that Cruz returned to work on
Thursday, not Friday as Camarena asserted. As between
Cruz and Camacho they told a more convincing story than
Camarena. They both testified in a direct and forthright
manner in response to questions asked not only by the
General Counsel but also by Respondent.
In addition, Camarena's basic assertion that Cruz was
never discharged is in complete contradiction to an earlier
position taken by Respondent. Thus, in a letter dated April
26, 1976, sent by Respondent's then attorney to the
Regional Director for Region 20, Respondent stated the
following with respect to the employment status of Cruz
whose vote in the April 8 representation election had been
challenged by Respondent:
The Company has challenged a single vote, namely
Floyd Cruz, Jr. On February 13, 1976, Mr. Cruz was
terminated as a result of his failure to provide a written
medical excuse for absence from work, as required by
an announced and posted Company policy ....
It is clear from the quotation which appears above that
Respondent's position clearly contradicts Camarena's
assertion that Cruz was never terminated. It is the
contention of the General Counsel that Camarena omitted
a conversation he had with Cox on a Tuesday in which he
said that Cox would be fired if Camarena found out that he
had been absent on that Tuesday. The General Counsel
points out that, since Camarena had already been informed
by Ripley that Cox was being sent back to the Butler Street
location because of his alleged attendance problem, there is
no apparent reason why Camarena would tell Cox he was
going to check up on his prior attendance. Camarena's
omission of the Tuesday references and the attempt,
according to the General Counsel, to conceal the already
clear implication in his statement implies he was looking
for a reason to discharge Cox. There is also considerable
confusion in the testimony of Camarena as to when he
actually fired Cox. Camarena's explanation was that he did
not fire Cox but that he had checked his attendance and he
found out that he was frequently away from work. He
informed Cox that if he didn't want to work, that he would
have to let him go. From this conflict in the testimony it
appears that Camarena was unsure of the reason for Cox's
discharge or that he was concealing the real reason.
Camarena gave shifting reasons for the separation of Cox
and viewed in its totality Camarena's testimony is not
credible and I do not credit it. Furthermore, Camarena's
testimony with respect to what he stated to the employees
at the February 18 meeting cannot be credited because of
the statements of Camarena with respect to his insistence
that if the Union put out a picket line he would go through
it even if he had to run pickets over with his truck.
Camarena denied that he had made any such statement but
Cox's testimony was corroborated by Benevides and also
by Camacho. I credit the testimony of Benevides and
Camacho and am persuaded that Camarena did in fact
threaten to run over employees who were blocking the
entrance to the plant if there was a strike and if pickets
were surrounding the plant.
Furthermore, it should be again mentioned that if
Camarena did not make any of the threats which he has
been charged with having made there is no explanation
whatever for the Company's posting of a disavowal
statement. With respect to the disavowal notice it should be
pointed out that it is vague, speaks in general terms, and
there is no evidence that it was posted shortly after the
meeting of February 18 when Camarena apparently made
the threats. I am also persuaded that Cox did in fact tell the
Company to discharge him because this statement was
corroborated by a fellow employee who overheard the
comment made by Cox.
Concluding Findings and Analysis
There is some question about the supervisory status of
Maxwell. Employees who worked under him testified that
he was in charge of Respondent's welders and did little
production work of his own, assigned them their work,
decided which of them would do what jobs, was responsi-
ble for seeing that they performed their work properly, and
would inform them if their work was unsatisfactory. The
General Counsel takes the position that Maxwell's authori-
ty to direct the work of other employees and to use
independent judgment in assigning them work is sufficient
to establish him as a supervisor. This argument was
advanced by the General Counsel and in any event it must
be said that Maxwell appeared to be clothed with apparent
authority to act as a supervisor. In any event it is clear that
so far as the employees who worked under his supervision
are concerned they regarded him as a supervisor and any
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statements made by him were similarly regarded as the
expression of the attitude of Respondent.
Be that as it may, there is sufficient other evidence in the
record to show that Camarena did in fact threaten
employees with the closure of a plant and this statement
standing alone is sufficient to find Respondent guilty of a
violation of Section 8(a)(l). I so find.
With respect to the discharge of Cox and Cruz, there is
some doubt in my mind that either of these men were
discharged because of engaging in union activities. As to
Cox, it is clear that he had demonstrated his interest in and
sponsorship of the Union by virtue of the fact that he was
the Union's observer during the election that took place in
the plant. Furthermore, there is uncontradicted evidence in
the record to show that at the time the employees passed
around a sheet of paper upon which appeared the names of
the employees who were interested in the Union that this
kind of activity either was known or should have been
known by Respondent. The Company had noticed that a
union was trying to get into the plant. The Company also
demonstrated its animus toward union activity by the
comments made by its admitted supervisor, Camarena. It is
equally true and I am convinced that this fact has been
demonstrated in the record that Cox did goad the
Company into discharging him. He was frequently absent,
frequently tardy, and oftentimes left the plant without
permission before the end of the day's work. From these
facts it is clear that the Company had good cause to
discharge Cox. However, it is a well-settled principle of law
that where a discharge is motivated by mixed reasons,
some having to do with union activity and some having to
do with his failure to perform his job properly, such mixed
motives do provide the basis for finding the discharge was
for union activities. If a substantial part of the reason for
his discharge related to his union activities, then his
discharge has been held to be due to union activities. I am
not persuaded that based on the preponderance of the
evidence in the record he was discharged because of his
interest in and sponsorship of the Union. Certain it is that
frequent absences, arriving at work after the starting time,
and failure to perform his duties satisfactorily together
constitute good cause for his discharge. I find that viewing
the evidence in its totality Cox was principally discharged
for cause and I therefore recommend that the allegations
concerning him be dismissed.
As to Cruz, much of the evidence revolves around the
fact that he made a table out of metal on the Company's
property with their permission and with the use of their
material. The Company's charging him $25 which was
withheld from his pay because of this table incident seems
to indicate that he was disaffected from the Company.
There is some evidence in the record that at the time of his
termination Camarena told an employee that "the guy"
had been terminated because of his suspected involvement
with the Union.
As a defense to Cruz' discharge, Respondent variously
asserted that Cruz was absent for 2 days and never notified
Respondent, Cruz was never discharged, and, in any case,
Respondent had no knowledge of Cruz' union activities
prior to his discharge.
Respondent's assertion that Cruz missed 2 days was not
only contradicted by the more credible testimony of Cruz
and Camacho, but also makes illogical Respondent's
contemporaneous assertion that Cruz was never terminat-
ed, which itself conflicts with another earlier position taken
by Respondent. Finally, Respondent's assertion that it was
unaware of Cruz' union activity prior to his discharge is not
only belied by the knowledge acquired by Maxwell, and by
Camarena's postdischarge statement, but is not plausible.
The record establishes that Cruz' activities were neither
concealed nor secret; he attended at least three open
employee meetings, at one of which Maxwell was also in
attendance and one at which he openly signed a prounion
petition. These employee meetings attracted well over half
of Respondent's 36 employees. Camarena himself admitted
that he had friends in the shop, that these employees had
spoken to him about the Union, and that one employee
went so far as to disclose the identity of union supporters.
Camarena had four brothers working for Respondent and
at least one of them spoke to him about the Union.
Respondent seeks to have the Administrative Law Judge
believe that it did not know of Cruz' activities prior to his
discharge, and did not learn this until 4 days after Cruz had
been discharged.
From all of this information the General Counsel takes
the position that Respondent's purpose in discharging Cruz
was to rid itself of a known union supporter and to stem
organizational activities among its employees.
The General Counsel contends that Cox's alleged
requests to be fired were not relied on by Camarena. The
record shows that Respondent had knowledge of Cox's
union activity. Respondent's animus is demonstrated by a
history composed of threats, interrogations, and the newly
installed warning system which had never previously been
established prior to the commencement of union activities
in the plant. At the very least it must be said that the
discharge of Cox is surrounded by suspicious circumstanc-
es. However, I am not persuaded that the substantial
evidence on the record considered as a whole establishes
that Cox was discharged because of his union activities.
Therefore, I recommend that the discharge of Cox be
dismissed. The General Counsel did not sustain his burden
of proof that Cox was discharged because of his union
activities.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occurring
in connection with the interstate operations of the
employer, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices proscribed by Section 8(aX 1) and (3), I shall
recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
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OLD WESTERN MANUFACTURING COMPANY
CONCLUSIONS OF LAW
1. Kenneth Jones d/b/a Old Western Manufacturing
Company is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Shopmen's Local Union No. 624 of the International
Association of Bridge, Structural and Ornamental Iron
Workers (AFL-CIO), is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening employees that the plant would close
down if the Union came in and making unreasonable
demands, Respondent is guilty of having violated Section
8(aX 1) of the Act.
4. The discharge of employee Cruz since it has all the
earmarks of a discriminatory discharge supports my
finding that Cruz was in fact discharged because of his
organizational activities in support of the Union in
violation of Section 8(aX3) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
203