Phillips Control Corp.

National Labor Relations Board - Board Decisions

Jan 31, 1961

129 N.L.R.B. 1485 (N.L.R.B. 1961)

PHILLIPS CONTROL CORP., CIRCUIT COMPONENTS CORP. 1485
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. By discharging Annie Davis on August 5, 1959, and by discharging Paul A.
Johnson, Ozzie Ashley, ,and James Kent Murphy on August 7, 1959, Starkville has
discriminated in regard to the hire and tenure of employment of the above-named
employees , thereby discouraging membership in the Union , in violation of Section
8(a)(3) of the Act.
3. By engaging in the aforesaid unfair labor practices and the other acts and
conduct set forth in section III , A, above, Starkville has interfered with, restrained,
and coerced employees in the exercise of the rights guaranteed in Section 7 of the
Act, in violation of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) sand (7) of the Act.
5. Buck Creek Cotton Mills, the parent corporation of Starkville, is the successor
to Starkville and accordingly is obliged to assume the obligations and responsibilities
of the Company under my recommended order.
[Recommendations omitted from publication.]
Phillips Control Corp . and Circuit Components Corp. and Inter-
national Union of Electrical, Radio and Machine Workers,
AFL-CIO. Cases Nos. 24-CA-1248 and 34-RC-1325. Janu-
ary 31, 1961
DECISION, ORDER, AND CERTIFICATION OF RESULTS
OF ELECTION 1
On August 20, 1960, Trial Examiner A. Bruce Hunt issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent in Case No. 24-CA-1248, had not engaged in and was not
engaging in certain unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a brief in support thereof. The Respondent filed a reply
to the General Counsel's exceptions and brief.
The Board 2 has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
1 Pursuant to a stipulation for certification upon consent election , an election by secret
ballot was conducted by the Regional Director on February 16, 1960, in Case No.
24-RC-1325 . The tally of ballots showed 49 votes for petitioner , IUE ; 109 votes cast
:against petitioner ; and 9 challenged ballots. On February 23, 1960, the WE filed timely
objections to the election . As the objections involved the same conduct as the alleged
unfair labor practices , the Regional Director recommended that said objections be con-
solidated with the complaint proceedings for decision.
In accordance with the Regional Director's recommendation , the objections to election
in Case No . 24-RC-1325 , are hereby transferred before the Board, and consolidated with
the complaint proceedings in -Case No. 24-CA-1248, for decision.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers In connection with these cases to a three -member panel
,[ Chairman Leedom and Members Rodgers and Jenkins].
129 NLRB No. 180.
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Report, the exceptions and brief, and the entire record in the case, and
hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.
Having found that the Respondent has not engaged in unfair labor
practices as alleged in the complaint, and finding that the objections
to the election involve the same conduct alleged as unfair labor prac-
tices, the Board hereby finds that the objections to the election in Case
No. 24-RC-1325 are without merit. As the Petitioner failed to re-
ceive a majority of the valid votes cast in the election, we shall certify
the results of the election.
[The Board dismissed the complaint filed in Case No. 24-CA-1248.]
[The Board certified that a majority of the valid ballots cast in
Case No. 24-RC-1325 was not for International Union of Electrical,
Radio and Machine Workers, AFL-CIO, and that the said union is
not the exclusive representative of the employees of Phillips Control
Corp. and Circuit Components Corp., at their Rio Piedras, Puerto
Rico, plant, in the unit found appropriate.]
INTERMEDIATE REPORT
This proceeding involves allegations that the Respondents, Phillips Control Corp.
and Circuit Components Corp., violated Section 8(a)(1) and (3) of the National
Labor Relations Act, 61 Stat. 136. On various days between April 4 and 14, 1960,
inclusive, I conducted a hearing at Santurce, Puerto Rico, at which all parties were
represented.' The Respondent's motion to dismiss the complaint is hereby granted.
Upon the entire record and my observations of the witnesses, I make the following:
FINDINGS OF FACT
1. THE RESPONDENTS
Phillips Control Corp. and Circuit Components Corp., each a Puerto Rican
corporation, are engaged in the manufacture of electrical equipment at Rio Piedras,
Puerto Rico, and, insofar as material here, their operations are conducted as an
integrated enterprise. The Respondents annually purchase goods and materials
valued in excess of $100,000 which are shipped to their plant from points outside
the Commonwealth of Puerto Rico and they annually ship products in excess of
that evaluation to points within the continental United States. There is no dispute,
and I find, that the Respondents are engaged in commerce within the meaning of
the Act.
II. THE UNION
International Union of Electrical, Radio and Machine Workers, AFL-CIO, is a
labor organization which admits to membership employees of the Respondents.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The complaint alleges inter alia, and the Respondents deny, that: (1) During
and after June 1959, supervisors (a) threatened employees with loss of employment
and with discontinuance of the Respondents' operations because of the Union's
organizational efforts, (b) invalidly interrogated employees concerning union ac-
tivities, and (c) promoted, assisted, and directed an antiunion movement among
employees; (2) during November 1959, the Respondents placed into effect a rule
prohibiting prounion activities on the Respondents' time and premises but did not
1 The transcript is hereby corrected at page 336, line 1, by substituting "addressed" for
"a threat."
PHILLIPS CONTROL CORP., CIRCUIT COMPONENTS CORP. 1487
apply the rule to the activities of antiunion employees; and (3) on November 12,
1959, the Respondents discharged Antonio Santiago because of his union activities.
Before considering the evidence which relates to the above allegations, we shall
consider certain earlier events.
B. Background
About March 1959, a number of employees expressed an interest among them-
selves in being represented by a labor organization. A paper was circulated among
them for signatures signifying which employees desired that the Union commence
organizational activity.2 Alfredo Roussel, then the Respondents' comptroller, learned
of the paper. He called Maria Resto, an employee who was a strong supporter of
the Union, to his office and spoke with her in the presence of George Ziegler, then
a vice president of the Respondents.3 Roussel told Resto to forget about the Union,
that the employees would lose by their organizational activities, and that, if the Union
should succeed in organizing the employees, the plant would be "taken away."
Roussel also asked Resto to disclose the identities of the employees who had prepared
the paper for signatures. The conversation lasted nearly 2 hours. Resto gave no
information to Roussel. A few days later, Roussel again spoke with Resto, saying
that he would give her any position in the plant which she wished if she would
disclose the identities of the union leaders. She professed ignorance of the subject .4
C. The events
During May or June 1959, the Union began to solicit members among the em-
ployees. During ensuing weeks, union handbills and insignia were distributed, em-
ployees were addressed at lunchtime through loudspeakers in automobiles parked
near the plant, and meetings were held at the Union's offices. On the other hand,
there was a countermovement by employees who opposed the Union and who also
distributed handbills. Upon a few occasions the Respondents themselves posted
notices.
As recited, Roussel was the Respondents' comptroller. There is no dispute that
he was a supervisor within the meaning of the Act. The Union apparently regarded
him at first as a minor secretary, however. During June or July the Union distributed
a handbill in which it asserted that "illegal tactics" were being used to coerce em-
ployees; that Roussel, "a mere office secretary" and "a company apple-polisher," had
made threats that the Respondents' operations would be returned to the States if
the Union's campaign were successful; that no factories had been removed from
Puerto Rico because of unions; and that the Union would file charges with the Board
if Roussel should continue his "ridiculous threats." The handbill also requested that
the Respondents be fair and instruct the supervisors and office personnel "in matters
related to legal conduct . " Not long after the distribution of that union hand-
bill, the Respondents posted a notice which recited that the Union had a "perfect
right" to try to become the employees' bargaining representative, that the Re-
spondents' attitude had been one of "hands off," that the Union's campaign had
been conducted with prudence, circumspection, and within the law, but that recently
the Union had resorted to falsehoods. The notice then recited that Roussel had
been accused falsely of having threatened employees that Roussel had asked the
Respondents for, and had received, permission to defend himself, but that the Re-
spondents did not necessarily endorse the remarks which Roussel would make. The
notice recited further:
we wish to emphatically state to you that we are neither against nor in
favor of said union; that this is a matter that is exclusively your own business,
and that we shall exercise no kind of influence nor shall we permit it on the
part of our supervisors, neither in favor nor against said union, as long as the
latter conducts itself correctly in its campaign and complies with the provisions
and the spirit of the law. Now then, we do want you to know that there is no
law that obliges any worker to belong to a union, and that if that is your
desire, this firm will respect it, and that it is not necessary to join any union
for this company to exercise justice . .. .
2 The record does not disclose the number of employees at that time, but later in 1959
the number was approximately 180.
8 Roussel speaks both English and Spanish. Resto does not speak English. Ziegler does
not speak Spanish.
+ These findings are based upon the uncontradicted testimony of Resto. Prior to the
hearing, Roussel had been discharged and Ziegler's connection with the Respondents had
been terminated. At the time of the hearing, Ziegler was in California. For these reasons,
according to the Respondents , they chose not to call Roussel or Ziegler as a witness.
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About the same time, a notice to all employees was issued over Roussel's given
name, Alfredo. He asserted that: he had been accused "in contemptuous terms" of
having tried to coerce "fellow workers"; the accusations were "by all means false";
he had coerced no one to belong or not to belong to the Union; the Union having
engaged in falsehoods about him, it was not deserving of the support of his "fellow
workers"; and be was responding to the Union's accusations as an individual who
had been falsely accused and not as a spokesman for the Respondents.
During the same month, the Respondents posted another notice and distributed
individual copies to employees. The distribution was made by Supervisors Pablo
Marcano and Alejandro Mendez. The notice was the Respondents' reply to a hand-
bill which the Union had circulated concerning the need for air conditioning in the
welding department. The notice said that: Long before the Union raised the subject
of air conditioning, the Respondents had ordered air-conditioning equipment which
would be installed upon delivery to the plant; the Respondents' having ordered the
equipment demonstrated that they did not need the Union to tell them how to conduct
their operations; the Respondents were aware of their obligations as employers; the
employees should remember that the weather had been unusually warm; and the
temperature in the Respondents ' plant was lower than that in the plants of its
competitors.
On October 30, the Union filed with the Board's Regional Office a petition for
certification of representatives .5
During November , Supervisor Marcano spoke to Hector Ortiz, who was one of
the most active employees in the Union 's organizational drive .6 While Ortiz was
at a water fountain , Marcano came over and spoke in a low voice , saying that if
Ortiz did not cease his union activity he would be "screwed" and that the only way
he could "come out well" would be "to turn against the union." 7
During late 1959 and early 1960 , in anticipation of a coming election , the pro-
union and antiunion employees continued their efforts to persuade other employees
to their respective points of view . Various handbills were distributed. About
November 1, 1959 , a group of approximately one dozen prounion employees called
upon Ziegler , saying that some antiunion employees were leaving work a few
minutes early in order to be stationed outside the plant preparatory to distributing
antiunion handbills at quitting time , and asking that prounion employees be given
permission to leave work early for a similar purpose. Ziegler replied that he would
not allow the privilege of leaving work early to either the prounion or the antiunion
group . The question whether the Respondents nevertheless allowed the privilege to
employees among the antiunion group is discussed hereinafter.
On November 12, Antonio Santiago was discharged after 3 weeks ' employment
during which he was a probationary employee . His discharge also is discussed
hereinafter.
The contest between the prounion and antiunion groups was vigorous . One con-
tention which the antiunion group made in handbills concerned an employer named
Paragon who, according to the handbills , had gone out of business as soon as the
Union won an election because of false promises made by a representative of the
Union , leaving "a hundred odd heads of families without work and above all, in
misery." The antiunion group asked in the handbills what would happen if the
Respondents should cease operations as Paragon had, and whether the Union would
secure other employment for the Respondents ' employees or pay to those employees
an amount equal to their earnings.
6 This date is taken from the official records of the Board.
6 Ortiz' name appears incorrectly as "Hector Diaz" at page 399 , lines 7 and 8 ; page 404,
lines 7, 12, and 17; and page 480, line 7, of the transcript . These errors are hereby
corrected
7 The findings concerning Marcano's remarks are based upon Ortiz' testimony . Although,
as appears hereinafter, I cannot credit Ortiz' testimony in every instance, I credit it here.
In relating the incident at the water fountain, he appeared to me to be testifying truth-
fully. On the other hand, Marcano denied that he made the remarks, but his denial was
unconvincing The substance of his testimony is that he was uninterested in the union
activities, that he did not have time to pay attention thereto, and that he did not know
the identities of the employees who were most active in the Union. This testimony, as
given by Marcano, did not have the ring of truth. Moreover, Ortiz was well known in
the plant as a leader in the union movement. Too, Marcano, according to his own testi-
mony, asked for and received permission from Roussel to distribute to each employee a,
copy of the notice described above which was the Respondents' reply to a union handbill
concerning air conditioning.
PHILLIPS CONTROL CORP., CIRCUIT COMPONENTS CORP. 1489
On or about January 20, the Respondents posted a notice to employees 8 It dealt
with the Respondents' plans to expand operations in Puerto Rico "no matter what
you [the employees] may hear from other sources" by transferring certain specified
production operations from Illinois and by "integrating all production operations"
in Puerto Rico. [Emphasis supplied.] The notice recited also that it would be
"necessary to substantially increase the number of employees and to this end your
Management is now carefully considering plans for adjusting the wage structure
in such a manner that those of you who have helped us in the past will be rewarded
as you deserve , and in addition to offer an incentive for advancement to the new
personnel that will be employed ." On January 22, the Respondents posted another
notice, saying that "the new increased wage scale " would be announced during the
next week . The record does not disclose the details of the new wage scale and
there is no allegation that wage increases were granted as a means of defeating
the Union in the election which was to be held soon.
On or about February 1, according to the testimony of Resto , Supervisor Efrain
de la Rosa told her that if the Union 's campaign were successful , the Respondents
would "take the factory away ." On the other hand , De la Rosa testified for the
Respondents to the contrary . For reasons appearing below , it is unnecessary to
resolve the conflict.
Later during February , the election was conducted . The Union lost and thereafter
filed objections which were pending at the time of the hearing in this case.
D. Conclusions respecting the 8 (a)(1) allegations
The complaint alleges various acts in violation of Section 8(a)(1). The proof is
limited , however . For instance , the conduct in which Roussel and Ziegler engaged,
recited above under "Background ," occurred more than 6 months before the original
charge was filed instead of during the period alleged in the complaint . Certain
other allegations are wholly unsupported . The remaining issues are whether the
Respondents engaged in unfair labor practices with respect to (1) the acts of the
antiunion employees ; (2) Supervisor de la Rosa's alleged threat to Resto, described
above;9 and (3) Supervisor Marcano's warning to Ortiz, also described above.
The complaint alleges that the Respondents promoted , assisted , and directed the
antiunion movement and that ". . . employee adherents of the Union are prohibited
from distributing Union literature and/or engaging in Union organizational activities
on Company time and/or premises while . . . such privileges [ are granted] to
employees engaged in activities against the Union ." There is, however , no evidence
that the Respondents directed the antiunion movement , nor is there evidence that
they assisted in the preparation of the handbills which were distributed by the anti-
union employees . On the other hand , there is testimony that the Respondents
assisted and encouraged the antiunion movement by treating its adherents more
favorably in the distribution of handbills and by permitting supervisors to participate
in such distribution.lo
8 The notice was undated and the approximate date of posting is fixed by a comment in
the notice that Ziegler 's transfer to Puerto Rico on a permanent basis had been so recent
that he had been unable to meet the employees . The transfer occurred on January 15, 1960
BThe complaint does not allege that De In. Rosa's alleged threat was an unfair labor
practice , but the subject was fully litigated
10 There is evidence that the Respondents encouraged the antiunion adherents in other
ways upon two occasions , but this evidence is so unsubstantial as to warrant only a foot-
note First, Ortiz testified that, during the lunch hour one day, when the antiunion
employees inside the plant were cheering "Down with the union ," and the union ad-
herents were cheering "Hooray for the union," Supervisor Marcano, who is the plant's
principal foreman, told the latter group to cease making noise and to go outside the plant
if they wished to yell. Ortiz testified further that when he asked why Marcano would
permit one group , but not the other, to cheer in the plant , Marcano replied that the matter
was not Ortiz' "problem ." On the other hand, Marcano testified that the incident
occurred when he was using a portion of the lunch hour to do "paper work," that the
noise disturbed him, and that he told both groups to go outside if they wished to cheer.
Although Marcano at times impressed me as an untruthful witness, I believe that his
testimony in this instance should be credited In particular , I cannot find that Marcano
did not tell the antiunion group to cease yelling in the plant . Second, Ortiz testified
that on November 21, when two antiunion employees, Humberto Cruz and Emilio Ojeda,
were not working , they came inside the plant about 30 to 60 minutes before quitting time
and showed to employees a paper which was addressed to the Board and which was
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel contends that supervisors distributed antiunion literature.
The fact, however, is that Supervisors Marcano and Mendez did not distribute any
specific antiunion handbill insofar as the record discloses , but distributed instead
the single , noncoercive , above-described notice from the Respondents to the em-
ployees concerning air conditioning in the welding department . Ortiz identified two
additional persons , Humberto Cruz and Narciso Astasio , as supervisors and as
distributors of antiunion handbills, but neither Cruz nor Astasio has a supervisory
title and, indeed, the General Counsel does not contend that Cruz was a supervisor.
With respect to Astasio, the record shows that he is a tool- and die-maker who works
with one other employee, Ojeda, and that he checks the work of one or more em-
ployees, but the nature of the checks is not clear in the record. I conclude that the
evidence will not support a finding that Astasio is a supervisor in the statutory sense.
We have seen that about November 1, 1959, approximately a dozen prounion
employees called upon Ziegler, said that some antiunion employees were leaving
work a few minutes early in order to distribute handbills, asked for the same
privilege for themselves, and were told by Ziegler that no employee would be per-
mitted to leave early for that purpose. The General Counsel contends that, not-
withstanding Ziegler's statement, antiunion employees were granted the privilege of
leaving work early and, in addition, were permitted to distribute handbills on the
Respondents' property between the plant and the sidewalk, a distance of perhaps
70 feet, while the union adherents were required to stay on the sidewalk, entirely
off the Respondents' premises, when distributing handbills. Ortiz named several
employees who, according to his testimony, left work early to distribute antiunion
handbills upon occasions after the conference with Ziegler, and he testified also
that the distribution occurred between the plant and the sidewalk. Although none
of these employees was called as a witness to contradict Ortiz, certain facts pre-
clude my crediting his testimony. First, pursuant to a long-standing rule, super-
visors were permitted to cease work a few minutes early each day but the rule did
not apply to nonsupervisors, and Marcano testified that there was no change in the
rule during the months preceding the election. Second, Ortiz testified that the
Respondents gave a "direct order" to employees that no one would be permitted to
engage in prounion or antiunion propaganda inside the plant, and James Criscione,
who became manager of the plant during June 1959, testified credibly that the pro-
hibition applied to the Respondents' entire premises. Third, Criscione testified
further, without contradiction, that when he heard of the distribution of prounion
and antiunion handbills on the premises, he had separate conversations with Leticia
Diaz, a leader in the prounion group, and Cruz, a leader in the antiunion group, in
which he told them that such distribution must cease. Fourth, Andres Amador, a
witness for the General Counsel who was named by Ortiz as one of the approxi-
mately dozen employees who called upon Ziegler about November 1 to protest
alleged favoritism to the antiunion group in the distribution of handbills, identified
three persons as having been most active in distributing antiunion handbills and he
testified also that he saw them make such distribution only on the sidewalk. Fifth,
upon these facts I conclude that the Respondent took steps to prohibit the distribu-
tion of antiunion, as well as prounion, handbills anywhere on their premises. I con-
clude also that the record will not support a finding that the Respondents, having
taken such steps to limit the activities of antiunion employees, nevertheless dis-
criminated in favor of those employees by permitting them to cease work early in
order to prepare for the distribution of their handbills.
Turning to the alleged remark by Supervisor de la Rosa to Resto that the plant
would be moved if the Union were successful in its campaign, we have seen that
the remark allegedly was made within a few days after the Respondents posted an
emphatic notice that the plant's operations would be expanded considerably and
that new wage rates would be formulated in order, in part, to attract an enlarged
labor force. Resto had read the notice before De la Rosa allegedly made the re-
critical of the Union, and that, after the end of work that day, Cruz and Ojeda stood at
a door of the plant and solicited signatures of employees who were leaving. On the
other hand, Marcano testified that he had not seen Cruz and Ojeda in the plant that day
although later he heard of their solicitation of signatures outside the plant. In the
absence of evidence that any supervisor saw Cruz and Ojeda in the plant that day, I can-
not infer that any supervisor then knew the nature of their activity or the content of the
paper which they possessed . I conclude that the General Counsel has not sustained his
burden of proof with respect to the two incidents discussed in this footnote.
PHILLIPS CONTROL CORP., CIRCUIT COMPONENTS CORP. 1491
mark. I conclude that the remark, if made, by a supervisor to 1 employee of about
180, does not warrant a finding of an unfair labor practice because the remark
was contrary to the Respondents' emphatic notice so recently posted.
Turning to the remarks by Supervisor Marcano to Ortiz that the latter would
"be screwed" if he did not cease his union activity and that the only way he could
"come out well" would be "to turn against the union," I find that Marcano's re-
marks were violative of Section 8(a)(1) but that, since no other unfair labor
practice has been established in this case, a cease and desist order should not be
directed to the Respondents.
E. The discharge of Antonio Santiago
Santiago was hired by the Respondents on October 20, 1959, on a trial basis.
He was discharged approximately 3 weeks later, on November 12, -while he still
was a probationary employee. The reason given was that he had performed work
improperly.
The principal product of the plant is relays. Two components of a relay are a
pile-up and a coil. Santiago's work for about 2 weeks before his discharge was to
attach a pile-up to a coil by means of a screw, thereby forming a relay. Since
there are various types of relays, before a pile-up and a coil are attached, care must
be exercised that the specification number of one is identical with that of the other.
To guide an assembler, such as Santiago was, there was attached to each container
of pile-ups and to each container of coils a paper with a specification number. On
the morning of Santiago's discharge, he assembled 100 to 150 pile-ups of one specifi-
cation number to coils of a different number. That afternoon he was discharged
by Marcano on the ground of having made too many mistakes. The General
Counsel contends that Santiago was induced to misassemble the relays by his super-
visor, Angel Flores, so that a pretext could be had for discharging him and that
the real reason was his union activities." On the morning of the discharge,
Santiago noticed that certain specification numbers did not coincide and he re-
ported the matter to Flores who changed the number for the coils so that it co-
incided with the number for the pile-ups and who then told Santiago to assemble
them. Both Santiago and Flores were witnesses for the General Counsel. Santiago
testified that the misassembled relays were those on which Flores changed a specifi-
cation number. Flores testified to the contrary.
The heart of the General Counsel's proof concerning Santiago's discharge was to
have been the testimony of Flores who had executed two affidavits, one for the
General Counsel and another for the Union, which were very damaging to the
Respondents because the affidavits recite, in part, that Supervisor Marcano, in con-
versations with Flores, had said that a pretext must be found to discharge Santiago
because of Santiago's union activities. But Flores' testimony favored the Respond-
ents and he repudiated the affidavits, testifying flatly that he had lied in executing the
affidavits and that he had been motivated in lying because he had had a grievance
against the Respondents, he had wanted to "take reprisal against the" Respondents,
he had wanted to aid Santiago, and he had been assured that his affidavits would be
kept in confidence. As a witness, Flores painted himself as a willing perjurer. He is
unworthy of belief. Therefore, we turn to other testimony on the subject of San-
tiago's discharge.
Santiago joined the Union promptly after being hired by the Respondents. He
attended several union meetings, wore union insignia on a shirt pocket, and attached
union stickers to his automobile. Supervisor Marcano was aware of Santiago's
union sympathies. It cannot be said, however, that Santiago was as active in the
Union as a number of other employees. He had not been hired when other em-
ployees asked the Union to commence an organizational campaign. Too, insofar as
appears, he did not become a member of the organizing committee nor was he
among the approximately 12 prounion employees who conferred with Ziegler on No-
vember 1 as described above. Ortiz, Leticia Diaz, Resto, and certain other em-
ployees were more active in the Umon.
The General Counsel offered evidence that Santiago had a good work record in
certain respects and Santiago testified that he had not been criticized before the day
"The General 'Counsel asserts, and the Respondents deny, that Flores was a supervisor
within the meaning of the Act at the time of Santiago's discharge. The dispute need not
be resolved.
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his discharge . On the other hand, the Respondents offered evidence that Santiago
was deficient in certain respects and Marcano testified that Santiago had been
criticized. I believe that it is unnecessary to recite and weigh the evidence. This is
so because certain facts combine to dictate the conclusion that the General Counsel
has not sustained his burden of proof. First, Flores' affidavits have probative value
only in discrediting Flores' testimony and not in supporting a finding that Santiago
was invalidly discharged . 12 Second , Santiago had been at work only a brief period
on a trial basis and there is no doubt that he incorrectly assembled a large number
of pile-ups and coils on the day of his discharge. Third, Santiago was not especially
active in the Union, his display of union insignia on his clothing and automobile was
not unusual , and no supervisor spoke with him concerning his union sympathies.
Fourth, the disposition above of the alleged violations of Section 8(a) (1) preclude
a finding that the Respondents were hostile to the right of Santiago to engage in
union activities.
In summary , I recommend that the complaint be dismissed in its entirety.
12 Assuming arguendo that Flores occupied such a supervisory status that his affidavits
could be considered as admissions against the Respondents ' interest ( see Grove Shepherd
Wilson & Kruge, Inc., et at, 109 NLRB 209, 215 ), two sound reasons exist for rejecting
the affidavits as proof that Santiago was invalidly discharged : ( 1) Unlike some cases
before the Board in which witnesses did not repudiate , or sought unsuccessfully to repudi-
ate, their affidavits ( cf. County Electric Co., Inc., et at , 116 NLRB 1080 , Norrich
Plastics Corp ., 127 NLRB 150 ), in the instant case Flores successfully repudiated his
affidavits by branding himself as a deliberate , willing perjurer ; and (2 ) unlike a case in
which there was credible testimony that an affiant upon another occasion had made oral
admissions consistent with statements in the affidavit which he sought to repudiate
(Anthony C. Mark,tell, et at., 99 NLRB 399 ), here there is no evidence that Flores made
such oral admissions.
Aerojet General Corporation and International Union , United
Welders, Petitioner.' Case No. 21-RC-6191. January 31, 1961
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Wilford W. Johansen, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case,' the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations named below claim to represent certain
employees of the Employer.
3. No question affecting commerce exists concerning the represent-
ation of certain employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Petitioner seeks to sever a craft unit of welders from the exist-
ing production and maintenance unit presently represented by the
1 The name of the Petitioner appears as amended after the close of the hearing by
agreement of the parties.
2 The Employer also requested oral argument . This request is hereby denied as the
record , including the briefs , adequately presents the issues and positions of the parties-
129 NLRB No. 188.