Pak-Mor Mfg. Co.

National Labor Relations Board - Board Decisions

Apr 6, 1979

241 N.L.R.B. 801 (N.L.R.B. 1979)

Manufacturing
23-CA-6905,23-CA-6942,
3(b)
aflirm
lqc)
Pak-
&
2(a):
DeVaughn,
Ortiz,
Cames,
se-
' The Respondent has excepted certain credibility Anding made
Administntive B w d ' s established not t~ over-
d e an Administrative Judge's rrrolutionm respect credibility
unlesr c lu r prrponderance relevant evidence wnv inm ua
rcsolutiona incomet. St+d Dly Pruducts.
(1950), mfd. I88 F.2d carefully
examined record h d revming finding.
(1950),
(1977),
NOTICE TO
POSTED OF
NATIONAL LABOR REUTIONS
s u p
repre
McDaniel, De-
Aldana,
b
pez, Ortiz, Cames,
Martinez,
PAK-MOR MANUFACTURING COMPANY 801
Pak-Mor Company and International
Union of Electrical, Radio, and Machine Workers,
AFL-CIO-CLC. Cases
and 23-CA-7030
April 6, 1979
DECISION AND ORDER
On December 19, 1978, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief, and counsel for the
General Counsel submitted as his brief to the Board
his brief to the Administrative Law Judge.
Pursuant to the provisions of Section of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent,
Mor Manufacturing Company, San Antonio, Texas,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
1. Insert the word "other" after the word "any"
paragraph 1(f).
2. Substitute the following for paragraph
"(a) Offer Curtis McDaniel, Kevin Joe
Arocha, Jerxy Aldana, Robert Carrier, Michael Lew-
is, Robert Mickey, Lucio Lopez, Guadalupe
Mark Chistopher Jeffers, Oscar Martinez,
Ruben Escalera, Jimmy Guerrero, and Juan Barcenes
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their
Low Judge. It is the
to
policy
by the
Low with to
the of all of the
that the
NLRB 544
and Wall
362 (M Cir. 1951). We have
Inc., 91
the and no basis for his
niority or any other rights or privileges previously en-
joyed, and make them whole as provided in F. W.
Woolworth Company, 90 NLRB 289 and Flor-
ida Steel Corporation, 23 1 NLRB 65 1 for any
loss of earnings incurred from being laid off on Feb-
ruary 7, 1978."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
EMPLOYEES
BY ORDER THE
BOARD
An Agency of the United States Government
WE WILL NOT lay off or in any other manner
discriminate against employees because of mem-
bership in or activities on behalf of International
Union of Electrical, Radio, and Machine Work-
ers, AFL-CIO-CLC, or any other labor organi-
zation.
WE WILL NOT threaten to terminate opera-
tions, or in any other manner discriminate
against employees, to discourage them from
porting the Union as their collective-bargaining
representative.
WE WILL NOT threaten to withdraw terms and
conditions of employment in retaliation for se-
lecting the Union as collective-bargaining
sentative.
WE WILL NOT interrogate employees as to their
union sympathies and desires.
WE WILL NOT institute unilateral changes in
safety enforcement, disciplinary policy, and em-
ployee contribution rates toward health insur-
ance coverage without notification to, and con-
sultation with, the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of rights protected by the National Labor
Relations Act.
WE WILL offer Curtis Kevin
Vaughn, Joe Arocha, Jerxy Robert Car-
rier, Michael Lewis, Robert Mickey, Lucio
Guadalupe Mark Christopher
Jeffers, Oscar Ruben Escalera, Jimmy
Guerrero, and Juan Barcenes immediate and full
reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or
other rights and privileges previously enjoyed,
and pay them for any loss of earnings incurred
from being laid off on February 7, 1978, with
interest.
8(a)(1), (3),
the
secret-
committee.2
R-100
affected
welder/fitter
connection
Patino
Fmari,
Patino
' AU heMfler 1978, unku rhoam otherwirc. ' Respondent ia San Texas,
rale packing systema.
e x a u $50,000 directly cuatomm located
Texas. 'nd Respondent i8 mcaniag 2(6)
and organization
meaning See. 2(5).
3 waa three mar-loading pr*
d u d Respondent. cn-
pacitated l o a h . compacton, m i l m the wenll
opcned DufReld, wm daigned
expatllbly popular uria.
official
Hayden
Escalera Rodriquez
occumng
dimedit Ferrari's
~ e ~ r e k t a t k e pail
Jul4
e G h -
~ ~~ ~
Hayden
'A h a l werccd Counrel conrtitute
8(aMI) n b a d kstimony Robbim, Fora
Clarence Zigmond have was worthlaa Robbina
faster hi8 Conri- that q~urtcr-hour
-rated thought* decline find violation thu
medibly dacribed ~ ~ p e r i - da
uiled thi8 paragraph uc prohtively 8uppat pertinent dsg.-
tiom comolidatcd complints.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION and Aldana each further testified that on February 6 Fore-
man Julio Sattler, immediate supervisor of the R-100 line,
stated to them that production of an export order for Ku-
wait would be shifted to Virginia. He said this was just
DAVID G. HEILBRUN, Administrative Law Judge: This
consolidated case was heard before me, in San Antonio,
Texas, on August 15 and 16, 1978, based on complaints
alleging that Pak-Mor Manufacturing Company, herein
called Respondent, violated Section and (5) of
the Act by discriminatorily laying off employees, by insti-
tuting certain unilateral changes in wages, hours, or other
terms and conditions of employment without notification
to, or consultation with, International Union of Electrical,
Radio and Machine Workers, AFL-CIO-CLC, herein
called the Union, and by variously interrogating and threat-
ening employees.'
Upon entire record, my observation of the witnesses,
and consideration of post-hearing briefs, I make the follow-
ing:
FINDINGS OF FACT

AND

CONCLUSIONS OF LAW

On March 6, the Union was certified following a
ballot election that culminated an organizing campaign be-
gun in late 1977. By letter dated January 5, the Union had
informed Respondent of 25 named employees actively in-
volved in the effort as an in-plant On February
7, a decision of Jimmie Thurmond, Respondent's president,
was effectuated whereby 15 employees of the line
were laid off.' Written notification to each employee speci-
fied that the action should be deemed permanent in nature.
Of the individuals by this layoff, eight were listed
members of the in-plant committee. Approximately 12 of
the overall total were rehired by Respondent at various
times during March and April.
Robert Mickey, a hired September 5, 1977,
had originally contacted the Union. From this, certain em-
ployee meetings were conducted, authorization cards se-
cured, and union insignia worn in with a repre-
sentation petition filed January 6. Mickey testified with
corroboration from Jerry Aldana that on January 17, Fore-
man George told them both that Respondent would
never sign a union contract. These two employees were also
spoken with by Works Manager William on Janu-
ary 31, who stated on that occasion that the wearing of
insignia would be costly to employees. is also quoted
by employee Joe Arocha as saying, around January 9, that
Thurmond had intimated to the foremen how Respondent
would close down rather than accept unionization. Mickey
dates are in
engaged at Antonio. in the manufacture and
of refuse, shipping and annually selling and delivering
products valued in of to outside
that an employer within the of See.
and (7) of the Act that the Union is a labor within the
of
The R-100 the smallest of ranitation vehicles
by The manufacturing facility at San Antonio was
for various and of product
line. while a plant at Virginia, in 1973 primar-
ily to build the nu-loading
expressed in a foremen's meeting held by Thurmond, who
related the action to pending employee interest in the
Union. Earlier, about January 18, employee Larry Robbins,
while concealed in a work position under a vehicle, had
overheard Plant Manager Francis Furlong state to another
that if Respondent could rid itself of Mickey the
organizational effort would likely fail. Furlong's voice con-
tinued in saying the problem would be turned over to com-
pany lawyers and a police check would be run.
As further evidence, employees Jerry Aldana and Louis
Attaway each testified without contradiction to separate
conversations during late December 1977 with Foreman
George Sanchez, in which this supervisor alluded to known
union activity at the time, stating that persons involved
would, after detection, be turned in to Respondent's office
for termination from employment. Arocha also testified
without contradiction that on January 9, Night Superinten-
dent Jim stated a previously recommended pay
raise for Arocha would, along with others, be stopped be-
cause such employees' names appeared on the in-plant
committee list. Other uncontradicted testimony of employ-
ees Ruben and Jose established that on
January 10 and February 6, respectively, Foreman Walter
Delgludice cautioned that joining a union would mean loss
of money, while on the later date Ferrari said the wearing
of union buttons could cost an employee his job. At an
episode March 16, employee Michael Lewis testi-
fied that Ferrari remarked he would castrate Lewis for join-
ing the Union. I flat denial of the remark,
noting that Lewis had just returned to work that week from
the R-100 line layoff, and respective demeanor characteris-
tics of these witnesses favor Lewis' version?
Respecting allegations of Case 23-CA-7030, Union Field
Javior testified that bargaining sessions
commenced March 27 and continued into late when a
contract was achieved. Early in this course of negotiations,
Javior questioned a recent increase in health care premium
contributions required of employees and the current details
of Respondent's disciplinary policy. The premium increase
had been instituted following written notice to all employ-
ees from Respondent in which background of claims
ence was discussed and insistence of carrier Blue Cross and
Blue Shield on a premium increase was reported This noti-
fication alluded to union-promoted plans, which Respon-
dent considered of inferior nature. Sergio Rocamontes, who
became chief plant steward following certification of the
Union, testified that at an employee meeting on March 8
stated Respondent would enforce safety notions
more strictly as to protective glasses and loose shirttails,
incident by General to independent
violation of See. on of from which
man is to laid the Union and
would have to work to keep job. a
hiatus there two I to a on
point. Other uncontradicted or as just
in found to

of the

I
MANUFA ,CTURING
Igna-
continuation 100
Thur-
Al-
dana.
Aldana
layof.
Production
pro-,
duction
comparison composition
o f
R-100
im~osition
f a d
1/2-hour
impermissibly
collective-
wnsul-
tation
8(a)(I), (3),
layoffs were
recall" dism-
employee reccgrk
Rapondent to mitimu
an indication em-
ployar infonned
cast doubt Rnpondcnt's
lqc)
PAK-MOR COMPANY 803
adding that a system of four-step disciplinary progression
would also from then apply. Soon after this, employee
tio Pena was reprimanded on a memorandum form.
Thurmond testified that his unionized Virginia plant was
facing a strike last summer and that, in anticipation of this,
materials, floor space, and new employees were marshaled
at San Antonio to commence R-100 production. The Vir-
ginia strike occurred, greatly curtailed operations ensued
there for nearly 3 months, and the Texas operation largely
compensated in terms of critical commitments for filling
Kuwait's order. Thurmond testified how loss of hoped-for
R-100 orders from Houston and two Venezuelan cities
caused him to reappraise of an R- line at
San Antonio, whereupon in consultation only with Ferrari
he decided to terminate it when a "batched" number of
units were nearly built. A few employees at the line were
retained to complete final assembly, while all 1977 hires
and Escalera, hired in 1976, were laid off as a group.
mond expressly denied any motivation beyond regular busi-
ness judgment, while Sattler agreed with his owner that no
foremen's meeting had preceded the action. Sattler flatly
denied the statements attributed to him by Mickey and
On the issue of general animus and verbalisms tending to
show true motivation, I credit General Counsel's witnesses.
Mickey and were particularly impressive in their
recollection, while Robbins' testimony stands without con-
tradiction. I discredit Sattler, who presented poorly and
with little likelihood that he was speaking the truth. From
this, several threats and occasional interrogation of employ-
ees were shown to have been impermissibly mounted, and a
basis was found to discount Respondent's claimed reason
for the abrupt group
Beyond this, the action claimed to have been reached
through seasoned executive judgment is odd, illogical, and
markedly pretextual in character. It is peculiar that Re-
spondent would fail to advise Control Manager
Edward Witt of the contemplated action, and written noti-
fication to employees is oddly legalistic or artificial, giving
little information as to why they must be laid off while
exaggerating it as permanent.' Most persuasive of all in dis-
counting Respondent's defense is that the San Antonio
capacity of R-100 vehicles represented its best as-
surance of fulfilling the vital Kuwait order. Overall, a mere
pretext is shown from the evidence, and Sattler's credited
utterance represents Respondent's true motivation. A plain
of the in-plant committee's with
those individuals abruptly laid on February 7 shows the
group was rich in union adherents and a tempting target of
this Respondent, whose hostility was voiced on several lev-
els. I infer from total evidentiary configurations that Re-
spondent singled out the production line for unlaw-
'The very fact that most employees of this group were rehired within 2
months tends to belie Respondent's claim that permanent and
without the "reasonable expectancy of that characteristically
franchises inactive from voting in an NLRB election. I
that charges were filed shortly after, and is entitled
damages to persons named thmin. However, there is no
rehired w m so upon returning to work, and on balance
thir entire factor tends to on assigned reason.
ful termination, in hope of avoiding unionization at its
principal facility.
With respect to the separate complaint in Case 23-CA-
7030, it is quite plain that Respondent disregarded legal
obligations arising from the certification. Blue Cross and
Blue Shield had advised Respondent by letter dated Febru-
ary 21 that appreciable monthly rate increases would be
made effective on April I . This gave Respondent over 3
weeks to both notify the Union of imminent change and
reflect on any alternatives which might have been pre-
sented. The bullish of rate increases. with simul-
taneous direct notification to employees refemng only most
disdainfully to the Union's reported health insurance op-
portunities, was all a direct and offensive derogation of cer-
tification benefits. It is similarly so with announced safety
enforcement and with promulgation of formally structured
reprimand notices in a form never used before. The spuri-
ous nature of Pena's reprimand in early April is highlighted
by testimony of Witt that its origin was unknown to him,
notwithstanding that he participated in bargaining with the
Union and was Respondent's spokesman as to disciplinary
policy.
In addition to various utterances attributed to Respon-
dent's agents, General Counsel presented testimony that on
February 2 Thurmond spoke to assembled employees, stat-
ing that should the Union win bargaining rights at the
Texas plant negotiations would start from zero and that
employees were with a three-pronged choice that
might include their being laid off. Thurmond's version of
his 1 - meeting was that he sought to describe all
matters as subject to negotiation and presented three
choices to employees, including resigning from the firm or
awaiting the outcome of contract bargaining. Thurmond
did not recall the third choice he posed, and I readily credit
General Counsel's witnesses as to what they heard voiced.
Thus, the fact is that zero bargaining was
mentioned, causing reasonable belief among listeners that
benefits would be lost for choosing the Union, rather than
from give-and-take results of good-faith collective bargain-
ing.
Accordingly, I render as conclusions of law that Respon-
dent has interrogated employees concerning their union ac-
tivities, threatened employees with reprisal for wearing in-
signia or for selecting the Union as their
bargaining representative, threatened to withdraw terms
and conditions of employment in retaliation for selection of
the Union, discriminatorily laid off employees, and insti-
tuted unilateral changes without notification to, or
with, the Union, and has thereby engaged in unfair
labor practices within the meaning of Section
and (5) of the Act.
Disposition
Upon the foregoing findings of fact, wnclusions of law,
and the entire record, and pursuant to Section of the
Act, I hereby issue the following recommended:
1.
o f ,
McDaniel, DeVaughn,
Ortiz,
JefTers, Esca-
lera.
F. W. Coyany, 90 (1950),
(1977),
o f
backpay
Sec.
Regulat~ons ' e n f o r d
recommended Sec.
purposes.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Reinstate Curtis Kevin Joe
Arocha, Jerry Aldana, Robert Carrier, Michael Lewis,
The Respondent. Pak-Mor Manufacturing Company.
San Antonio, Texas, its officers, agents, successors, and as-
signs, shall:
Cease and desist from:
(a) Laying or in any other manner discriminating
against, employees to discourage their support for Interna-
tional Union of Electrical, Radio and Machine Workers,
AFL-CIO-CLC, or any other labor organization.
(b) Threatening to terminate operations, or in any other
manner discriminate against employees, to discourage them
from supporting the Union as their collective-bargaining
representative.
(c) Threatening to withdraw terms and conditions of em-
ployment in retaliation for employees' selecting the Union
as their collective-bargaining representative.
(d) Interrogating employees as to their union sympathies
and desires.
(e) Instituting unilateral changes in safety enforcement,
disciplinary policy, and employee contribution rates toward
health insurance coverage without notification to, and con-
sultation with, the Union.
(f) In any manner interfering with, restraining, or coerc-
ing employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
In the event no exceptions are filed as provided by 102.46 of the
Rules and of the National Labor Relations Board, the findings.
conclusions, and Order herein shall, as provided in 102.48
of the Ruler and Regulations, be adopted by the Board and become its
findings, conclusions. and Order, and all objections thereto shall be deemed
waived for all
Robert Mickey, Lucio Lopez, Guadalupe Mark
Carnes, Christopher Oscar Martinez, Ruben
Jimmy Guerrero, and Juan Barcenes to their former
positions of employment, without prejudice to seniority or
other rights and privileges, and make them whole as pro-
vided in Woolworth NLRB 289
and Florida Steel Corporation, 231 NLRB 65 1 for
any loss of earnings incurred from being laid on Febru-
ary 7, 1978.
(b) Preserve and, upon 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 neces-
sary to analyze the amount of due under the terms
of this Order.
(c) Post the attached notice marked "Appendix" at its
San Antonio, Texas, place of business.' Copies of this no-
tice, on forms provided by the Regional Director for Re-
gion 23, after being duly signed by Respondent or an autho-
rized representative, shall be conspicuously posted by it
immediately upon receipt and be maintained by it for 60
consecutive days thereafter in all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that such notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 23, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
In the event that this Order is 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."