Piezo Technology, Inc.

National Labor Relations Board - Board Decisions

Dec 22, 1980

253 N.L.R.B. 900 (N.L.R.B. 1980)

DECISIONS ()F NATIONAL LABOR RELATIONS BOARD
Piezo Technology, Inc. and International Union of
Electrical, Radio and Machine Workers, AFL-
CIO-CLC. Cases 12-CA-8581 and 12 CA-
8778(1-2)
December 22, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 18, 1980, Administrative Law Judge
John M. Dyer issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed an answering brief to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) 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 affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
We agree with the Administrative Law Judge's
findings that Respondent violated the Act by issu-
ing a verbal warning to employee Sharon Morrison
because of her involvement in union activities. We
also agree with the Administrative Law Judge that
Respondent did not violate Section 8(a)(3) of the
Act by issuing a warning to and subsequently dis-
charging employee Reinaldo Medina because of his
involvement in union activity, and that other con-
duct as alleged in the complaint did not violate
Section 8(a)(1) of the Act. We do not agree, how-
ever, with the Administrative Law Judge's recom-
mendation to dismiss complaint allegations that Re-
spondent's February 15, 1979,1 speech violated
Section 8(a)(1) of the Act.
The Administrative Law Judge found that on
February 15 Respondent's vice president, Dinnan,
read a prepared speech to Respondents second-shift
employees. In the speech, Dinnan told employees
that: "If you are on strike, the Company can get
another person to take your place, and, if it bar-
gained fairly, once that person goes on your job,
you are no longer an employee of this Company."
(Emphasis supplied.) The Administrative Law
Judge found that Respondent's statement regarding
replacement rights was a "technical error" but that
it did not violate Section 8(a)(1) of the Act. The
Administrative Law Judge reasoned that since re-
placed economic strikers do not return to work as
wage earning employees after a strike, Respond-
' Unless otherwise indicated, all dates hereafter refer to 1979
253 NLRB No. 122
ent's statement did not create an erroneous impres-
sion as to whether replaced economic strikers
could return to work at the end of a strike. We dis-
agree. Respondent's statement about replacement
rights informs employees that if they support the
Union by engaging in an economic strike and are
replaced during the strike, they will no longer be
employees. Respondent's description of reinstate-
ment rights, however, is erroneous, since replaced
economic strikers maintain important employment
rights and are entitled to recall as jobs become
available. 2 In these circumstances, we find that
such a misstatement of Section 7 rights has a coer-
cive impact on employee participation in protected
concerted activity and constitutes an impermissible
threat to the right of employees to engage in pro-
tected concerted activity. Accordingly, we find
that Respondent violated Section 8(a)(1) of the Act
by threatening employees that if they engaged in
an economic strike and are replaced they will lose
their status as employees.
In addition, in its February 15 speech, Respond-
ent also told employees that:
Now, you may be told that nobody will know
who signed the cards and who did not. This is
not necessarily true. If the Union gets enough
cards, they will try to show them to the Com-
pany to say that they have a majority of the
employees signed up. If Company management
should look at them, we will well know who
signed the cards and who did not. Employees
are often told that by signing the cards they
are not obligating themselves in anyway. This
is not true and the employees should know the
facts.
The Administrative Law Judge found that this por-
tion of Respondent's speech did not violate Section
8(a)(l) because the description of the manner in
which Respondent might view employee authoriza-
tion cards was a proper statement of what could
happen. We disagree.
In Colony Printing and Labeling, Inc., 249 NLRB
223 (1980), we found that a similar statement by a
respondent violated Section 8(a)(1) of the Act. 3
The respondent in that case told its employees that
it strongly opposed the union, that signed cards are
often disclosed to the company, and that the em-
ployees should "be careful." We found that such a
statement was an implicit threat that the respond-
See lThe Laidlaw (Corporurion, 171 NI R 13I 6 (19K8), cnrfd 414 F2d
979 (7th Cir 1969), crt delied 397 U S 920 (1970). fior a full discussion
of cono)mic Itriker erIploIymCI t rights.
Sec a;l, o Ilobarr Brotheri (Co, 150 NLRI 956 ( h65), elnforcem lnt
denied 72 i :21 2)3 (6th l(i 1967), arld Spartan ManuJ/cturing (o., 150
NI.RIl 4X 9(1965), elfieicmenit denied 355 F 2d 523 (7th Cir 196))
900
I'IEZ() TECHIN()LOGY, INC
ent intended to engage in reprisals against those
employees who had signed union authorization
cards.
Although in the instant case Respondent did not
admonish its employees to "be careful," we find
that its statement, "we will well know who signed
the cards and who did not." constitutes an implicit
threat. As set forth previously, in the same speech,
Respondent violated Section 8(a)(1) of the Act by
threatening employees that if they engaged in an
economic strike and were replaced they would
cease to be employees. In the context of such
threatening and coercive conduct, Respondent's
warning that it could discover who signed cards
and who did not conveys the subtle message that
harm will come to employees as a result of the dis-
closure to Respondent of the names of employees
who signed authorization cards. In these circum-
stances, Respondent's warning that it could discov-
er the identity of employees signing union authori-
zation cards had a chilling effect on the right of its
employees to engage in conduct protected by Sec-
tion 7 of the Act. Indeed, it is difficult to imagine
what other purpose an employer might have in in-
forming its employees that it can discover the
names of card signers.4
While we do not doubt that [the employer's
president] proceeded carefully in attempting to
limit his communications to his employees to
the legally permissible, his words must be
judged by their likely import to his employees.
. . [O]ne who engages in "brinksmanship"
may easily overstep and tumble into the brink.
See also N.L.R.B. v. Gissel Packing Co.. Inc., 395
U.S. 575, 620 (1969).
AMENI)ED CONCLUSIONS OF LAW
Insert the following as Conclusions of L.aw 3
and 4:
"3. Respondent violated Section 8(a)(1) of the
Act by threatening employees with unspecified re-
prisals if they signed union authorization cards and
by threatening employees with a loss of employee
status if they supported the Union and engaged in
an economic strike.
"4. Except as set forth above, there is insufficient
record evidence to establish that Respondent en-
gaged in other conduct violative of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
' Nor can Respondent rel o~n its usc of subtle language to mask its
coercive message to cmploees As p!wled out hby he Seventh Circuit
Courl of Appeall In Wuvu,au Sr, ( rpoLr tn Lv , . R.B, 377 F 2d 3h),
372 (7th Cii Ith,7)
lations Board hereby orders that the Respondent.
Piezo Technology, Inc., Orlando, Florida, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Giving unwarranted verbal or other warnings
to employees engaged in union or concerted pro-
tected activities.
(b) Threatening employees with unspecified re-
prisals if the- sign union authorization cards.
(c) Threatening employees with a loss of em-
ployee status if they support the Union and engage
in an economic strike.
(d) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the rights guaranteed them in Section 7
of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Remove from its files or other records and
destroy any record of the verbal arning Respond-
ent gave to Sharon Morrison on August 31, 1979.
(b) Post at its Orlando, Florida. plant copies of
the attached notice marked "Appendix." 5 Copies
of said notice, on forms provided by the Regional
Director for Region 12, after being duly signed by
an authorized representative, shall b posted b Re-
spondent 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. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 12,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
Ir Is FURTHIER ORDERED that the complaint be
dismissed in all other respects.
' In the crilt that this ()rdtr is nfoiLcd I , :I Jud trlinl olf a linitcd
StatCS (Coul t if Appeals the "o~rds in ; le rillte rcAliing "Posted h
Order of the Natimal Lahor Relations Board" shall read "Posted P'ursu-
ant to a Judgment of the United States Court of Appeals Enftrcng anll
Order of the Nlatiolnal L.abtor Relatioln Board"
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF TIE
NATIONAi LABOR REILATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
D)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WVil.l. NOT unwarrantedly issue verbal or
other warnings to employees engaged in union
or concerted activities for the purposes of
their mutual aid and protection.
WE WIL.L NOT threaten employees with un-
specified reprisals if they sign union authoriza-
tion cards.
WE WII. NOT threaten employees with a
loss of employee status if they support a union
and engage in an economic strike.
WE WiL.L NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them
under Section 7 of the Act.
WE WILI. rescind and destroy the verbal
warning given to Sharon Morrison on August
31, 1979.
Our employees are free to become or remain
members of the International Union of Electrical,
Radio and Machine Workers, AFL-CIO-CLC.
PIEZO TECHNOLOGY, INC.
DECISION
STATEMENT OF THE CASE
JOHN M. DYIR, Administrative Law Judge: Interna-
tional Union of Electrical. Radio and Machine Workers,
AFL-CIO, herein called the Union, IUE, or the Charg-
ing Party, filed 8(a)(1) and (3) charges on April 6 and
September 4, 1979,1 against Piezo Technology, Inc.,
herein called Respondent or the Company. An order
consolidating cases and a consolidated complaint were
issued by the Regional Director for Region 12, on Octo-
ber 9.
The complaint alleges that Respondent issued warn-
ings to and terminated Reinaldo Medina and issued a
warning to Sharon Morrison, and that Respondent com-
mitted other independent violations of Section 8(a)(1) of
the Act.
Respondent's timely answer admitted the commerce
and jurisdictional allegations, the status of the Union and
the status of various supervisory personnel, but denied
that it had violated the Act in any manner although ad-
mitting that it had issued warnings to Medina and Morri-
son, and had terminated Medina.
The principal question is whether the warnings to and
termination of Medina were, at least in part, because of
his union adherence or whether they resulted from var-
ious acts and conduct of Medina. The answer to the
question is based on credibility, and I find Medina's ver-
sion of the events not to be fully credible. I conclude
that Respondent had cause for issuing warnings and for
the discharge, and that it did not terminate Medina be-
' Unless specifically staled otherwise, all events herein took place
during 1979.
cause of his union sentiments or activities. I find that Re-
spondent violated the Act in giving a warning to Sharon
Morrison, but find no other violations, and accordingly
will dismiss the remainder of the allegations.
The parties were afforded full opportunity to appear,
to examine and cross-examine witnesses, and to argue
orally at the hearing held in this matter on October 24,
25, and 26, and November 14 and 15, 1979, in Orlando,
Florida. The General Counsel and Respondent have filed
briefs, which have been carefully considered. On the
entire record in this case, including the exhibits and testi-
mony, and on my evaluation of the reliability of the wit-
nesses based on the evidence and their demeanor, I make
the following:
FINDINGS OF FACT
I. COMMERCE FINDINGS ANI) UNION STATUS
Respondent is a corporation engaged in the fabrication
and assembly of quartz crystals and electronic compo-
nents at its plant in Orlando, Florida. During the past
year, Respondent received at that location, directly from
points outside the State of Florida, goods and products
valued in excess of $50,000, and during the same period
sold and shipped, directly from its plant to locations out-
side the State of Florida, goods and products valued in
excess of $50,000.
Respondent admits, and I find, that it is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
Respondent admits, and I find, that the Union herein is
a labor organization within the meaning of Section 2(5)
of the Act.
11. THE AI.lGELD UNFAIR LABOR PRACTICES
A. Background and Facts
During 1979, Respondent's plant employed approxi-
mately 550 to 600 people on its first-shift operation and
another 50 people on its second-shift operation. The
second-shift personnel worked 4 days a week, 10 hours a
day, beginning in the evening at 4:45 p.m. Day-shift op-
erations finished usually by or before 4:30 p.m.
The building has an extensive first floor area and a
small second floor area. Apparently there is a large park-
ing lot around the building, and the plant may be entered
by production employees at a west gate and turnstile or
at two turnstiles located on the east side of the plant. In
addition, there is a main or front entrance, which is used
by office personnel.
The president of Respondent is William Horton, and
Vice President Dinnan is in charge of sales and produc-
tion. Under Dinnan is Production Manager Thompson,
and under him are four supervisors; beneath these super-
visors are employees who are termed line leaders or
group line leaders. Respondent maintains that these per-
sons are employees and not supervisors, while The Gen-
eral Counsel alleges that they are supervisors. The testi-
mony was not conclusive that they are supervisors, and
in the context of this case it does not make any differ-
ence whether they are or not.
902
PlIEZO TECHNOLOGY, INC
Also, directly under Horton is Charles Morris, the
plant supervisor, who had charge of the plant's mainte-
nance. Julie Sears is the director of administrative serv-
ices, and under her is Personnel Manager Susan Bobbitt.
There were previous unsuccessful attempts by various
unions to organize Respondent, which were resisted by
Respondent. The IUE started an organizing campaign at
Respondent with distribution of a leaflet at the plant on
February 14. Respondent attempted to answer this leaflet
with speeches given by Vice President Dinnan to the
second shift on Thursday, February 15, and two speech-
es to the day shift on Friday, February 16.
B. The Dinnan Speeches
Sharon Morrison testified that she attended one of the
day speeches on Friday, February 16, and that in his
speech Dinnan stated that the Company would know if
the employees signed union cards. According to her, he
also said that they did not have to agree to union de-
mands, and that the employees would be on strike. She
testified that Dinnan appeared to read from papers most
of the time.
Employee Donna Jean Gore testified that Dinnan said
the Company would know if they signed union cards
and could find out who had signed. She testified that
Dinnan was looking at a paper when he talked.
The General Counsel's third witness to the speech,
Mary Ann Muscato, testified that Dinnan said the Com-
pany would have access to a list of people who signed
union cards and would know who signed, that the cards
the employees signed might obligate them to pay union
dues. She testified that part of what Dinnan said ap-
peared to be read from a speech.
Dinnan testified that the text of the speech was pre-
pared by counsel for Respondent and himself, prior to
the speech. He said that the longer version of the speech
was read by him on the evening of Thursday, February
15, to the second shift. Dinnan testified that he shortened
the speech somewhat and gave the shorter version to
employees on Friday. He further testified that there were
no questions after the evening speech, but there were
some questions during the daytime speech and listed
those on an exhibit that was offered and received in evi-
dence.
The text of the longer speech, which was received in
evidence, contains the following statement:
Now, you may be told that nobody will know who
signed the cards and who did not. This is not neces-
sarily true. If the Union gets enough cards, it will
try to show them to the Company to say that they
have a majority of the employees signed up. If
Company management should look at them, we will
well know who signed the cards and who did not.
Employees are often told that by signing the cards
they are not obligating themselves in any way. This
is not true and the employees should know the
facts.
The speech went on to say that the employees might be
signing a checkoff card, under which they would be ob-
ligated to pay dues. Dinnan also agreed that in that
speech he stated that if a person was on strike, the Com-
pany could get another person to take their place and if
the Company had bargained fairly, once the person went
on that striker's job, the striker was no longer an em-
ployee of the Company. This speech, Dinnan said, was
read only on Thursday night. The text of the speech,
which Dinnan testified was given on Friday to the day
shift, does not contain the statement concerning the pos-
sibility of the Company seeing authorization cards or the
statement about employees being replaced.
Dinnan's testimony on direct seemed to indicate that
he only spoke twice, once on Thursday and once on
Friday. Other evidence indicates that he gave two
speeches on Friday. From the testimony of the General
Counsel's witnesses, it seems clear that the Thursday
night speech was also given at least once on Friday. As
spelled out in the speech, the manner in which the Com-
pany could come to see the employees' union authoriza-
tion cards is a proper statement of what could happen.
Considering the employees' testimony here, and again
later in dealing with a speech from Julie Sears where
there was some contradiction between the General
Counsel's witnesses, I am inclined to doubt the versions
given by the General Counsel's witnesses on this occa-
sion. I believe that the speeches were read by Dinnan
and that he adhered to the text of the prepared speeches.
The comments of the General Counsel's witnesses would
indicate Dinnan read the speech.
Where employees are listening to a speech, some
things may make an immediate impression without the
person getting the full context of the statement. This is
what I believed occurred here. Therefore, I do not
credit the General Counsel's witnesses' statements about
how the Company could come to see employees' union
authorization cards.
The second statement about how a person could be re-
placed in an economic strike appears to make a technical
error as to whether a replaced striker is not an employee.
In the sense in which the Board construes it, a replaced
economic striker remains an employee following the re-
placement and has certain rights and elements of an em-
ployee for a period of time thereafter. In the context of
this speech and whether employees would return to
work after being replaced in an economic strike, the
answer is they would not return at that time as wage-
earning employees. Although this speech is technically
erroneous, it does not appear that it would have created
an erroneous impression among the employees as to
whether they would have returned to work at Respond-
ent following an economic strike in which they were re-
placed. Although a finding of a technical violation could
be made here, the facts do not appear to warrant it.
I therefore conclude that the allegations concerning
the Dinnan speeches have not been proven and accord-
ingly they are dismissed.
C. The Julie Sears Speeches
President Horton testified that in the fall of 1978 Di-
rector of Administration Sears planned to have meetings
concerning the profit-sharing plan. Ordinarily, a meeting
was held once a year to explain to employees the status
9(3
I)ECISIONS ()F NATIONAL I.AB()R RE.ATIONS 1()ARD
of the profit-sharing plan. Because Sears left on materni-
ty leave towards the end of 1978, a new schedule of
meetings was set up when she returned part-tine in
March and full-time in April.
In the Union's leaflet of February 14, a reference was
made to employee eligibility in the profit-sharing plan,
and Horton directed Sears to change the wording in the
summary of the plan to make clear what the eligibility
requirements for plan membership were. He directed that
she read the eligibility requirements verbatim from the
plan so that there could be no mistake.
A meeting on the plan was held for the top manage-
ment of the Company followed by a meeting for supervi-
sors and line leaders. At the first plan meeting with rank-
and-file employees, Itorton and Personnel Administrator
Susan Bobbitt sat in the meeting listening to Julie Sears'
presentation. At that time it was planned to have Bobbitt
make the presentations to employees in other meetings.
Each meeting had 20 to 25 employees present. At this
first meeting, Bobbitt took notes of the meeting and
wrote the names of most of the participants. Among
those present, according to her notes, were Sharon Mor-
rison, Mrs. Gore, and Mrs. Muscato, each of whom testi-
fied for the General Counsel, concerning statements at
this meeting.
Morrison testified that Julie Sears said the employees
who were under a union agreement could lose their
profit sharing, and that employees' money in the plan
would be frozen until they retired or quit. According to
Morrison, Sears said nothing about bargaining. Morrison
did agree that Sears made somie mention of the restric-
tions of ERISA in that there could be only one retire-
ment plan.
The General Counsel's witness, Gore, testified that
Scars said that those who joined the Union would have
the profit-sharing plan frozen and that the nonunion em-
ployees would continue as is and that union menibers
would have to start all over and would get nothing.
Gore agreed that RISA was mentioned by Sears and
that Sears pointed out a paragraph in a book and re-
ferred to a page stating those who were eligible for in-
clusion under the plan, and said that the eligibility had
been determined by the government. However, Gore
maintained that Sars said if the employees joined the
Union, their plan participation would be frozen. Theraf-
ter, she modified her testimony to say that if the employ-
ees joined the Union after voting it in, their plan partici-
pation would be frozen.
The General Counsel's witness, Mary Ann Muscato,
testified that Sears said that in the cv ent of a union con-
tract the profit-sharing plan would be frozen for those
under the contract, and they would no longer be able to
participate i the profit-sharing plan. Muscato stated
Sears said nothing about union negotiations, but did say
that the key word was agreement.
Muscato's testimony contradicts that of tihe other two
witnesses of the General Counsel, and is somewhat in
line with Respondent's testimony.
Julie Sears testified that she used flip charts to deron-
strate the various items in the plan and, following Dr.
Horton's direction, read from the plan the definition of
employee eligibility and stressed it because the Union
had raised a question about eligibility in its February 14
pamphlet. She stated that even after her presentation,
employees asked whether they would lose their profit
sharing if they joined the Union, and her answer then,
and in the other meetings, was that joining the Union
had no bearing on whether they would lose the profit-
sharing plan. She said there had to be a negotiated agree-
ment between Respondent and the Union, which had
been the subject of bargaining and if in such an agree-
ment the employees were covered by a pension plan of
some type, they could no longer be eligible for Respond-
ent's profit-sharing plan, since FRISA's government reg-
ulations provided there could only be one pension plan
for an employee.
I credit Sears and Muscato that the explanation of eli-
gibility given to employees was as Julie Sears testified,
and that nothing was said in these meetings by Respond-
ent that employees would lose their profit-sharing plan if
they joined the Union Both Horton and Bobbitt cor-
roborated that Sears read the eligibility section directly
from the plan. Sears further testified that she and Horton
rehearsed the answers to be given in the event such a
question was asked, since the point had been raised by
the Union's pamphlet. I find that the alleged violation
has not been proven, and accordingly will dismiss it.
D. The Alleged Meeting lo Receive Grievance.s
The General Counsel's witness, Gore, testified that she
attended a meeting with P'resident lorton who stated
that the Company wanted to educate the supervisors and
the inc leaders lo solve problems in the plant and
\,autlod to know, t'oinl this group of employees 'what
their gripes were without dissecting the upervisors. Ac-
cording to Gore, they talked about paid sick leave, how
the line leaders were picked, the uneveness of wages,
and employees not being treated equally. She stated that
the company representatives who were present said they
would meet and decide whether to( improve anything at
a later time. Also, during this meeting there was talk
about the bomb threats the Company had, shortly before
then, undergone, and whether various chemicals in the
plant were dangerous. She further stated that as a result
of these talks nii inprosleminenls were nmade
Julie Sears testified that there ,was management discus-
sion about holding such sessions with employees, but she
wCtl on maternity leave before shei could bring such dis-
cussions to fruition, and after she returned to full-timc
work on April 1, they were met ith bomb threats on
each of the first 3 days of April.
There is no disagreement that Respondent receiv ed
threats of bombs being in the plant on April 1, 2, and 3.
and that as result the plant was evacuated for piobl.
of inme. r. Horton was leaving for a 2- or 3-week rip
on April 5 or 6, and a mecting of eployees was hur-
riedly set up for April 5. According to Sears, people
were hosen from various departments at random and
one o ;hi main topics discussed v as satety.
Dinnan, who attended the meeting with Ilorton, said(
that plant safety and the various chemicals that were
kept in the plant were discussed.
904
IIEZO() ECHNN()LOGY INC
Horton testified that this meeting. which lasted about
an hour, hit on a number of subjects, including the use of
cloth towels versus paper towels, and the question of
whether liquid nitrogen was dangerous or not. He as-
sured those present that it was an inert gas and harmless,
and that there was no fire hazard from any of the chemi-
cals the Company maintained on the premises. He said
he also discussed the questions of who owned the Conm-
pany, if the reason employees could not smoke in the
calibration area had anything to doit) with explosives and
assured them there were no explosives and that the no-
smoking rule was for other purposes.
Similar meetings were held on a monthly basis until
they seemed to tail off in August.
Basically, the General Counsel's allegation is that these
meetings were intended to produce gripes from employ-
ces to which the Company would respond in an effort to
undermine the employees' union loyalty.
However. the timing of this first meeting, immediately
after the bomb threats, and , ith the statement by Re-
spondent that they ould consider some of the items
raised by the employees and discuss them indepcndentlis
does not seem to be an assurance of recei ing ad ap-
proving employee grievances for the alleged purpose of
undermining the Union. In fact, as was stated by one of
the General Counsel's witnesses, no changes were made.
With Sears' testimony that these meetings had been
planned for some time prior to the advent of the Union
and with the testimony f Filter Department Manager
Carol Meehan that Respondent had left it up to indisidu-
al department heads whether to hold such meetings. and
that he had held them from the first of 1979 through that
year, it would appear that the: had nutt been designcd by
Respondent to undermine union affiliation, but were a
communications effort between Respondent's manage-
ment and te employees. Meehan stated that the meet-
ings he conducted were on ways and means to improve
efficiency and production and although at one time a
meeting delved into personalities, it was made clear to
the employees that such would not be permitted and that
the meetings were designed for production and efficiency
improvements, and nothing else.
I find that these meetings were not an effort by Re-
spondent to undermine union affiliation, and accordingly
will dismiss this allegation.
E. he Alleged No-Solicitatin Rules
Respondent had a no-solicitation rule which it amendl-
ed on March 29, 179, and issued a no-solicitation/no-
distribution rule. which had six subsections, one of which
provided as follows: "No employee shall enter or remain
in the building and other work areas for any purpose
except to report for, be present (luring, or conclude his
or her work shift." None of the other sections is at-
tacked, and the former rule is protected by Section 10(b).
The General Counsel maintains that prior to that time
employees had been permitted to come into the plant as
much as an hour early :ind sit in the cafeteria and discuss
whatever they wished. He alleged that this change was
made to prevent employees from discussing union luring
their off-duty times on Respondent's premises, and, as
such, it was an illegal no-solicitation rule.
Respondent explained that this rule was promulgated
about the same time as Respondent started a experiment
on "flex-timune." Under the experiment. which started with
two departments, employees were allowed to pick their
own starting time between 7 and a.m., and leac the
plant between 3:30 and 4:30 p.m. when they finished an
8-hour shift. Since employees were reporting for work at
varying times, Respondent wanted some control over the
periods employees ,.ere in the plant and whether the
should be at work stations. By changing the rule, Re-
spondent was attempting to insure that employees once
in the plant, were going to their work areas. Secondly,
Respondent as changing the manner of gainilg entry to
the plant as part of an overall plan which would provide
an automatic entry and punch-in by the use of encoded
plastic hadges to be used by the employees. These
badges operated the turnstiles at the plant entrances and
would allow employees to enter the plant only at the
times they were supposed to be in the plant. Respondenit
hoped to have in operation during the summer of 97
refinements of this system which, by using the encoded
badge, would punch in the employee's name and allow
the employee 5 minutes to get to his work tation. At the
conclusion of the shift. the badge would be used through
an optical reader to punch out for the employee and the
data would automatically be entered in a computer for
payroll and personnel purposes.
Under such a system it would be necessary to have
employees going to work directly after entering the turn-
stiles and to this end, the rule was gauged. However, Re-
spondent encountered problems with the optical readers
and at the time of this hearing the badges wcre only
being used to gain entry to the plant. The rule was not
enforced, and none of the General Counsel's witnesses
testified to any, enforrcement until, after some experimen-
tation with thile flex-tinie system, flex-time was put in
throughout the plant. he 5-minute rule was put ito
effect. according to the General Counsel's witness. Mor-
rison, during August. and was thereafter enforced Mor-
rison is the only one t( testify to such enforcement Re-
spondent indicated that it was not enforced as of the
time of the hearing.
In the interim, fromi the inception of the rule until the
time of the hearing, there was no enforcement of the 5-
minute rule. Employees were allowed to solicit during
their nonworking time inside and outside the plant and
during their various breaks. There is no testimony that
any employee was ever cautioned concerning soliciting
when the employee was on his own time and was solicit-
ing an employee who was also on his own time.
The wording of the rule is not such as would on its
face demonstrate that it was an illegal no-solicitation
rule. Respondent's explanation for the necessity of tile
rule, when it e entually got its badge system orking in
the plant. is adequate to demonstrate the reasons for its
imposition. With the rule not being enforced and there
being no testimony that it was enforced until August, ac-
cording solely to Morrison, Respondent's explaiatlon is
sufficient to sliho that the rule was not designed for the
purposes attributed to it by the General Counsel.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Therefore, I will dismiss this allegation of the com-
plaint.
F. Union Card Confiscation
This complaint allegation is based solely on an affida-
vit from Patti Mae Green, who for the year prior to the
hearing had been a supervisor. According to the affida-
vit, she noticed two employees during worktime, at their
workbenches, discussing a card and saw one of the em-
ployees sign a card. She discussed this event with an-
other supervisor and during a break period went to the
area and found on the bench a signed and an unsigned
card, which she presumed were union authorization
cards. She picked the cards up and took them to her su-
pervisor. The cards were never claimed and nothing
more was ever done regarding them.
On this basis, the General Counsel claims that Re-
spondent violated Section 8(a)(1) of the Act by confiscat-
ing a signed union authorization card.
As Respondent's brief argues, there is no indication
that the employees knew who took the cards or what
happened to them. Respondent also argues that since the
signing took place during a work period in a work area,
that such was in violation of the Company's no-solicita-
tion/no-distribution rule and was not protected, concert-
ed activity, and that the removal of such cards by Re-
spondent did not violate the Act.
With the cards lying in plain sight on a workbench in
a work area, and noting the circumstances under which
one of the cards was signed, I do not find that Respond-
ent's removal of these cards from that area constituted a
violation of the Act. There is no testimony that these
cards were otherwise signed or were the subject of a
confrontation, but only that they were left, apparently, in
plain sight after being signed at a time when company
rules forbade such action. In the peculiar circumstances
here, I would not find that Respondent's removal of
those cards violated the Act and accordingly will dismiss
this allegation.
G. Reinldo Medina
Reinaldo Medina started his employment with Re-
spondent on May 18, 1979, as a janitor under Larry
Longest and had to serve a 90-day probationary period.
According to Medina and other witnesses, when he first
started he was a "speedball," worked very hard and
quickly in performing his duties, and performed more
duties than the person who preceded him in that posi-
tion.
Medina testified that around August 22, after he had
completed his probationary period, he went to a union
meeting and on Friday, August 24, became a union com-
mittee member and started wearing a union button.
On August 16, Longest met Medina in the cafeteria
and attempted to explain that under the flex-time sched-
ule employees were using the cafeteria at irregular hours,
and that he was concerned that with a wet floor an em-
ployee might slip and fall. He told Medina he wanted
him to use hot water and much less water so that danger
could be avoided until Respondent found some other
way or time to clean the floor without endangering em-
ployees.
Medina, who originally was from Cuba, speaks with a
fairly heavy accent, and was a somewhat nervous wit-
ness and had difficulty understanding English. According
to Longest, Medina bitterly resented Longest's telling
him how to do his work, stating that he had been doing
this job for a number of years, was competent and knew
what he did and if Longest was unhappy with him, he
was prepared to resign. Longest spoke to Medina for a
number of minutes and was not satisfied that he had
gotten his message across and sought help from Re-
spondent's personnel department. Personnel Director
Susan Bobbitt and a bilingual secretary, Maria Gomez,
came to assist Longest in making the explanation clear to
Medina. William Morris, the plant superintendent under
whom Longest worked, became involved in the situation
and they all met with Medina and attempted to explain
the situation to him. Medina was further upset that
Longest had corrected him in front of a number of Span-
ish women. According to Gomez, Medina said he did
not like to be corrected in front of other people, that he
had a lot of pride and asked that in the future if there
were to be any corrections, it be done in a private
manner. Medina was assured that he was doing a good
job and this was only a safety measure that was being
taken. Medina apparently had been told by a number of
the Spanish women that he was working too hard and
that Longest was telling him how to do his work and to
slow down and that he should have done so all along.
On Wednesday, August 29, Medina was pushing a
loaded trash can, which rested on a small dolly with
wheels, through the shipping and receiving area out the
door to where he would dump the trash. There is a sill
at the doorway which gave the small dolly wheels sonic
problem. At that point Medina turned around and at-
tempted to pull the trash can over the sill. Part-time jani-
tor Bud Kelch, who had previously been talking to
Longest concerning getting repairs on his Volkswagen,
was leaving through the same area to go get an estimate
on his car. When Kelch got to the doorway, Medina was
in the doorway with the trash can. Kelch started to push
the cart to help Medina through the doorway and
Medina told him to take his hands off it. Kelch did so,
and Medina then stopped moving and stood there look-
ing at him. Kelch, who was in a hurry, then started to
push the trash can through the doorway again. He stated
that Medina appeared to resist his doing so, but that
eventually they moved the trash can through the door-
way, at which time he let go of the trash can and
Medina pushed it over towards Kelch, spilling some of
the contents on Kelch in the direction of the shipping
and receiving room.
Medina testified that Kelch came along and pushed the
cart and turned it over in Medina's direction so that it hit
Medina's leg and spilled on him. Medina said that Kelch
left and he yelled at Kelch, asking why he had done it,
but that Kelch did not pay any attention and kept walk-
ing. Medina said he would call Longest to have Kelch
come back and pick up the trash. Medina called Longest
who came to the scene. Medina said he told Longest that
906
PIEZO TECHNOLOGY, INC.
Kelch had thrown the garbage and trash on his leg but
that Longest did not seem to be paying any attention to
what he was saying. After waiting for Longest to say
something, Medina muttered something about there
being something wrong and Longest said to go get his
trash cart and go on to work. Medina left the trash
where it was and took his cart and went through the rest
of the plant removing trash. He stated that he did not
pick up the trash because he had not heen told to do so
by Longest, who had told him to go do other work.
Longest testified that he was paged to the shipping
room where he found an irate Medina who said Kelch
had done this on purpose. Longest said Medina was ex-
tremely angry and picked up the trash can and more
trash dropped out of it and that Medina was slinging the
trash can around. Longest said he did not say anything
in particular to Medina, and Medina walked away. With
the help of an employee from the shipping room, Long-
est picked up the rest of the trash and put it outside.
Morris testified that Longest reported to him that
Medina said Kelch had pushed the trash can over on him
and had refused to pick it up, claiming that Kelch should
do so and Medina had created an additional scene by ac-
cusing Longest of siding with Kelch. Morris told Long-
est it might get serious and to check with someone who
had been in the area so that he could interview them.
Morris interviewed several people and decided that even
if the trash had been dumped by Kelch, whlich was no
certainty, that there was no reason for the scene sw hich
Medina had made. He told Longest to bring Medina to
his office, along with Maria Gomez to aid in talking to
Medina. Morris talked to Medina and got his version of
the incident. Shortly thereafter, President Horton as inll
Morris' office and Morris related the incident to him, i-
eluding Medina's allegation that Longest and Kelch were
conspiring against him. Horton asked Morris to deter-
mine in which direction the trash can was pointing im-
mediately after the incident since Kelch said it was
pointing into the room, which would indicate that it had
been spilled onto Kelch and not Medina.
After determining from Kelch and Longest that it
pointed into the room, Morris had Medina brought back
to his office. Medina claimed the can had been pushed
on him and that Kelch needed to grow up, that he had
no respect for people and looked down on Medina.
Morris asked Medina why he was so upset even if the
trash had been pushed over. Medina said that Kelch and
Longest had been plotting to provoke him. Medina said
he had been so angry at Kelch he wanted to strike him.
When asked why they would wish to provoke him,
Medina pointed to his union button.
According to Morris, Medina admitted that he had
slowed down his work pace but said he was still doing
more than the man he replaced. Morris assured Medina,
in response to a question, that he did not intend to fire
Medina.
Medina testified that in both visits to the office on
Wednesday, Morris told him that six witnesses said the
incident did not happen the way Medina told it. Medina
disputed that six witnesses had been around.
Medina testified that in the second meeting Maria
Gomez spoke to him in Spanish, asking whether he
would like to be transferred to another job and that she
told him Piezo was a good outfit and was like a family to
him, that he did not need a union. He said he told her
she was for the Company and he was for the Union.
Medina testified that Morris said the Company had been
working to save money to put in the business and the
Union wanted to come in and ruin it and he could not
stand for that. He said he told Morris that the Union had
to come in. A similar conversation occurred when
Medina was discharged, and I believe Medina confused
the two occasions. Gomez said Medina was going too
slow on his job and he told her she did not know any-
thing about the job, that he was doing more than the
man he had replaced.
On the following day, Medina was told to go to
Morris' office where he found Gomez, Morris, and
Larry Longest. Medina reported that Morris said they
were giving him a warning for slowing down and also a
second warning for creating a disturbance. Medina said
he could not work any faster and did a better job than
anybody the Company had ever had Morris said Long-
est had complained Medina ,sas slowing down. Accord-
ing to Medina, Gomez asked why he was wearing a
union button and he told her that it was his job protec-
tion. lie said that a large portion of the conversation and
some argument was i Spanish and he told Gome he
should not he charged with the "boy's" throwing gar-
bage on his leg. He also told Gomez that she had not
correctly translated his statenents. Medina refused to
sign te '. arning slips and Morris told Gomez to sign
thelnl. Medlina did not testify that he told Gomez not to
do so.
I ongesl stated that during this meeting, after Medina
had refused to sign thle warning notices, Morris asked
G(omez to sign as a witness that Medina had read the no-
tices and refused to sign them. Medina said the notices
were not true and told Gomez something in Spanish and
shook his finger at her. speaking in a loud and angry
manner. longest said Gomez was apparently upset and
shortly thereafter, Susan 1o3bbitt came in, the notices
were reread. and Bobbitt signed as a witness
Gomez testified that in this Thursday meeting Morris
stated that the witnesses said Medina, and not Kelch, had
started the incident, and Medina replied that those were
lies, saying that Kelch and Longest were conspiring
against him. When Medina refused to sign the warning
notices, Morris asked her to sign as a witness, and
Medina in Spanish told her not to do so if she knew
what was good for her and shook his finger at her. He
also told her that she should join the Union, that the
Company would do to her what they were doing to him.
She said she could take care of herself and when she
could not, she would go to hell. He said that she was a
base, low woman, implying that she was a prostitute, and
she replied that he was threatening her. He said that she
was trying to take his job away and she should not sign
the papers, that something would happen to her. Shortly
thereafter, Bobbitt came in and signed the papers.
Morris testified that oni the previous day President
Horton had told him to write a warning for Medina's
907
DECISIONS ()F NAII()NAL LABOR RELAI ()NS BO()ARI)
slowdown, since Medina had admitted it, in addition to
the incident warning notice.
At the Thursday meeting, Morris read the warnings to
Medina and Medina replied they were all lies. When
Morris asked why. Medina pointed to his union button.
Morris said lie did not know if the persons who had
given him the statements were for the Union or not be-
cause he could not ask whether they were or not.
Medina asked about having a union representative aind
Morris said the Company did not recognize the Union.
He said Medina had created a scene without any reason
and if Medina had a problem, he should have gone to
Longest or to the personnel office and niot create a scene
in the plant. Medina refused to sign the warnings and
when Morris asked Gomez to do so, Medina told her not
to and shook his finger at her, and when asked why,
Medina said because she was Spanish. Morris then asked
Bobbilt to come in, the notices were read again and she
signed as a witness.
Sharon Morrison testified that on Wednesday evening
Medina called her and said he did niot feel that CGomei
had properly translated his remarks in the office that day
and asked her to go with him to the office the next day
to see about getting the statements and also to ask
whether he should be paid overtime for having been
held over. She agreed to meet him and they met around
4:30 on Thursday. Medina told her he had received the
warning notices as they were proceeding through the
hallway towards the office, when they met Bobbitt and
Gomez. Morrison said she asked for copies of what had
been said in the meetings and Bobbitt refused to give her
any. About that time, Dinnani came up and she told
Dinnan Mcdina felt that he had been harassed and that
Bobbitt had said they had six statemenits from fellow em-
ployees regarding Medina's slowing down in his work
and she did not feel that Medina had slowed down.
Maria Gomez and Medinla had a separate conversation in
Spanish in the interim. Bobbitt said Medina had threat-
ened Gomez and Medina said they were all liars, point-
ing to Dinnan, Gomez, aid Bobbitt. Morrison put her
arm on Medina to quiet him down, and they left.
Dinnan testified that he had met Morrison, Medina,
Gomez, and Bobbitt in the corridor and asked what w;is
going on. B obbitt told him that Morrison was demanding
some statements and that she did not know of any. lie
asked Morrison what she wanted and she replied the
statements associated with the writeups. Seeing the
warning notices in her hand, Dinnan said she had all shc
was going to get. According to Dinnan, Medina started
demanding the statements and hitting the palm of his
hand with his other hand. Shortly thereafter, the meeting
broke up.
President 1Horton testified that on Thursday Supervisor
McCluskey told him a line leader had reported that
Medina had been soliciting union cards on company
time He told McCluskey to tell Susan Bobbitt about it.
and he later told Bobbitt to get the facts. Hortn said
that on Thursday line leader Schiver told him Medina
had been slowing down considerably in his work.
Respondent offered testimony from a line leader and
two employees that on Thursday Medina had come into
their work area and asked the employees to sign union
cards. ()ne of the employees stated that Medina had
given her a union card on the previous day, and on
Thursday he asked her to sign it and give it back to him.
Both of the employees were working at the time and the
line leader told Medina not to talk union business to em-
ployees on company time. Medina denied he had done so
but the employee told the line leader Medina had been
soliciting her.
A former employee-organizer, Norma Livingston, tes-
tified that on Thursday Medina told her he had gone
into a work area and asked two girls to sign union cards
arid the line leader had told him riot to do that and that
the line leader had gone to the supervisor concerning it.
About 5:30 p.m. on Thursday. Horton met with Bob-
bitt and Diinan. hey told hinm what had happened in
Morris' office and in the hallway. Horton said that he
knew Bud Kelch and had a good opinion of him and
thought that Medina was paranoid. They agreed that
Medina probably should be fired. but Horton said he
wanted to check out if Medirna had made threats to
Gomez.
Respondent's records demonstrate that Medina entered
the plant twice on Friday morning, once around 7 a.m.
and again shortly before 8 a m. Employee Julianna Smith
testified that she was in the cafeteria about 7:05 am. and
saw an obviously upset Medina there, saying loudly that
there was more justice for criminals than for Piezo em-
ployees and that he was going to be fired. She left the
cafeteria shortly thereafter and met line leader Geraldine
Agner and told Agner not to go in the cafeteria, that a
man in there was very upset. Agner said she understood
Medinia had threatened Longest on one occasion arind
wanted someone to warnl l.onigst.
Ngner went into the cafcteria and saw Medina walking
back arid forth. talking i a loud oice and talking to em-
ployees while shaking his arms. She sat down beside an-
other employee and Medina came over to them, saying
that the Company was going to fire him and tomorrow it
could be them. lie said he was not going to take any
orders from Longest and left the cafeteria shortly there-
after. She left by another door, but heard Medina outside
tihe building yelling and went to an exit and observedl
Meldina inside the turnstile stopping people and talking te
them. After a few minutes, Medina wenlt outside the
turnstile and she saw hiln talking to incoming employees.
waving some papers in his hand, and eventually he sat
on a bench ext to a woman.
Sharon Morrison testified she got to work on Friday
about 7:20 a.m. and was outside when Medina ap-
proached her. She sat on a bench near the turnstile, and
Medina would get up and talk to employees coming into
the plant, showing them his warnings, and asking them
to read them, arid saying he was going to be fired and
they could be fired too. Medina was not dressed in his
work clothes. Morrison did not knrow whether Medinia
had heen in the plant prior to the time she got there.
Medina testified that he was outside the plant front 7
until 7:3(0 a.m., when he went into the cafeteria and
showed three ladies his warning notices. He said he
thereafter started work about 7:55 am. At another point
in his testimony, Medina testified he stayed outside the
9(8
PIEfZO T CNOLOGY. INC
plant and finally went into the plant about 7:45 and
talked to people in the cafeteria for 5 or 10 minutes
before he started work. He denied that he was gesturing
with his hands, but admitted he was upset.
In the interim, Horton got to the plant early in the
morning and on his way in heard a story that Medina
had threatened Longest. Hie checked this out and found
it was incorrect, that there had been no threat. He met
Gomez and talked to her for 10 or 15 minutes. She told
him it was hard to translate from Spanish into English,
but that Medina had made a threat against her person
and property. She also told Horton that she had seen
Medina outside the plant that morning and that Medina
had apologized for calling her a low woman, and she
had explained to Medina that she was at the meeting to
translate and to witness that the warnings had been read
to him.
Gomez testified that she had seen Medina outside the
plant on Friday morning and told him she was only
there as a witness and was not there to harm him and
apologized for there being a misunderstanding She also
testified that she felt Medina was violent and was afraid
of him. She told Dr. Horton on Friday morning she was
afraid Medina might do something to her or her car, and
Dr. Horton moved her car to the front of the building
where it could be observed.
After his discussion with Gomez, Horton met Gerry
Agner and heard from her of Medina's actions in the
cafeteria. ie asked whether Morrison had been involved
and Agner said no, that Morrison had tried to calm
Medina down after he went outside. Horton then went
to Morris' office and told Morris that Medina had to go,
that the events in the cafeteria were just too much in ad-
dition to the threats to Gomez. lie told Bobbitt th it
Medina was not to be allowed to come back on ompan>
property. Horton's main reason for the discharge as
that Medina had threatened Gomez and he would not
allow any employee to threaten another and remain with
the Company.
Morris testified that on Friday morning ongest told
him Medina had created a disturbance in the lunchroom
that morning and he then decided Medina would have to
go. Morris met Horton who said he had investigated the
threats to Gomez and credited her. Morris told Horton
about the disturbance in the cafeteria and said he felt that
Medina, after having received a warning about creating a
disturbance the previous day and then creating a new
disturbance that morning, left them with no choice hut
to let Medina go. Morris said that neither Bobbitt nor
Horton told him about Medina's sliciting and he as-
sumed that there was a unanimous decision to fire
Medina and, in view of the threat to GComez, that
Medina should be warned not to conic back on the corn
pany property.
Around 9 a.m., Longest told Medina to report to
Morris' office. Medina testified he knew he was going to
be fired and had worn his good clothes so he could go
job hunting later. After receiving the notice to report to
Morris' office, Medina said he asked one of the employ-
ees to sign a union card before going to Morris' office.
Medina denied that he had made any such solicitations
prior to Friday morning. Morris read the discharge
notice to Medina, who said he was expecting it and had
worn his good clothes to go job hunting. He said the
reasons for the discharge were lies and asked for his pay-
check, saying there would be a union at Piezo. Medina
asked why union and management could not be friendly.
that he had worked at another place where they were
friendly. He was told that at the other place presumably
management and the owners were not the same. but here
they were, that they had invested in the Company and
did not want outsiders capitalizing on what they had
done. Morris said Medina would not be there if a union
ever did get in. Medina said he was being discharged be-
cause of his union hutton. Morris denied that and said
Medina as being discharged for creating another dis-
turbance after being warned, and thalt Medinia had been
told that if he had a problem, to conic and see them, not
to stand and shout about it. After receis ing his check,
Medina left.
The breadth and scope of Respondent's testimony con-
cerning MNedina's activities was not matched by Medina's
denials. It seems clear that Medina's testimony w as not
accurate. Respondent's witnesses o'c a full and coln-
vincing picture of Medina's actions concerlning the trash
can incident, the soliciting of union cards, the threats to
Goinlz and Medina's actions on Friday, both inside the
plant and out. It is clear that Medina as sure he as
going to be discharged after rccing the warnings on
Flhursday. His actions on Friday, ,hilch are at least par-
tially admitted, ha\e almost the appearance of badgering
Respondent to discharge him. Clcarly, Morris felt that
Medina's Friday actions were a flagraiit violatioin of the
previous warning for creating a disturba.nce and merited
discharge. Horton apparentl felt that was the final
Straw, hbut ' as convinced after talking to Gomez that the
threals to her were scrlous enough to Aarrant Niedina's
disc harge.
Medina's union activities consisted of wearing a union
button for approximatel 5 I w.ee k and soliciting union
cards on company time on at least two occasions in io-
latioi of a valid no-solicitation rule. Medina testified that
he had also solicited employees to sign union cards other
than on conipany y time. His testimony seas not corrobo-
rated. The corroborated, credible testimony in this in-
stance is that Medina solicited on Company tine and
that he reated two rather serious disturbancts, in addi--
lion to threatening a fcllos emplo!ec, alnd that Responl-
ent considered it had more than sufficient grounds to ter-
mninate him.
Medina's testimony appeared to confuse the events at
the several meetings he had in Morris' oft'ice. and I do
not consider hint to he a elitahle , itness in reciting
I do not find that Medina's wearing of a union button
or his union advocacy played a role in his discharge. It is
possible that the Company was happy that a union advo-
cate presented it with reasons to discharge him., but there
is no testimony to so establish. he fact is that Respond-
cint did have sufficient good reasons to terminate Medina.
Apparently somnic of Respondent',, management felt, as
v,ill he seen below, that Medina had been used h\by union
adsvocates and was provoked into his actions, but there is
I)ECISIONS ()F NATIONAL LABOR RELATIONS BOARD
no evidence to back up that feeling. Medina was a proud
individual who felt he had been embarassed and slighted
by Kelch and members of Respondent's management and
rather loudly resented what he felt were undue slights.
There was some problem with understanding one an-
other and apparently some slight clash of cultures but, in
any event, Medina gave Respondent cause for discharg-
ing him. I find that there is insufficient evidence to estab-
lish that the discharge was in any substantial measure
caused by Medina's union advocacy. Accordingly, I will
dismiss the 8(a)( ) and (3) allegations concerning Me-
dina's termination.
H. Ilhe Warning to Sharon Morrison
Around 11:30 a.m. on Friday, Morrison was told to
report to the office and there met Dinnan and Roger
Thompson, along with her supervisor, McCluskey.
Dinnan said that Medina had been there that morning
and the Company did not like people demanding things
of others and did not like her demanding from Susan
Bobbitt copies of statements that had been made and he
was giving her a verbal warning. She asked what the
warning was for and Dinnan said it was for disrupting
work. She asked where she had disrupted any work and
he said that the meeting in the hallway had occurred in a
work area. She told him she did not understand how that
could be because it was after 4:30 p.m., and she did not
understand that a hall was a work area.
Dinnan testified that he had a meeting with Morrison
in McCluskey's office on Friday and that he told her she
was getting a verbal warning for creating a disturbance.
According to him, she said it would not happen again
and nothing much more was said. Asked what the dis-
turbance was, he said "Well, the conversation we had in
the hall was kind of loud. We don't really put up with
that kind of stuff on the plant floor." Dinnan was then
asked if he meant that people were talking in a loud fash-
ion and he said yes, that it was disturbing to him and
that Susan Bobbitt was upset.
Morrison thought about the verbal warning during the
day and became upset about it because this was the first
warning she had received in the 5-1/2 years she had
been working there. That evening she went to the per-
sonnel office and asked to see Dr. Horton. Horton,
Dinnan, and Bobbitt met with her and she asked Horton
if he knew about the verbal warning she had received
that morning. He said that he did, and Dinnan asked
what about it. She told them she wanted to clarify why
she should get a verbal warning since it was after 4:30
p.m. the previous day and they had met in the hallway.
She asked if it was going to stand on her record and was
told yes. Horton asked how she could have a clear con-
science and sleep at night when she had used someone
like Medina. She said she had not done anything to
Medina, that Medina had sought out the IUE and joined
it because he believed in it. During the conversation she
said Horton asked why she thought Piezo needed a
union but went on talking without giving her a chance to
answer the question. Also during the conversation,
Horton asked how she could be a good employee if she
believed the things in the handbill. She said that she did
believe them, but she was still a good worker. She testi-
fied that the conversation went on for about 20 minutes.
Dr. Horton testified that the IUE had put out a hand-
bill entitled "IUE contacts OSHA," which said in effect
that the Company had many hazardous working condi-
tions and chemicals and insufficient ventilation and ques-
tioned whether the Company really cared about the
people and stated that it had contacted OSHA to come
in and investigate. On the handbill were the names of the
IUE card-signing committee, including Morrison, Mary
Muscato, Reinaldo Medina, and some 27 other names.
Also attached to the IUE handbill was a newspaper clip-
ping about "whistle blowers," that is people who com-
plained to OSHA and were protected by OSHA. Horton
stated that he had seen this IUE handbill immediately
prior to the meeting with Morrison on the afternoon of
August 31 and in the meeting talked to her about some
of the subjects mentioned in the handbill. He corroborat-
ed that Morrison started the conversation concerning her
verbal warning. Dinnan said something to Morrison
about how could she believe the stuff the Union put out.
She said that she did and that she wrote most of it, in-
cluding this last one about OSHA. Horton said that upset
him and he said so, telling her it was very misleading
and distorted. They each said they did not trust the
other. He said that the person who wrote that handbill
was either badly misinformed or deliberately misleading.
He told her that they had three OSHA inspections in the
last 3 years, the last one some 6 to 8 months ago, and
said he did not understand why she did not know of
those inspections since there had been a minor penalty
with respect to the punch press, and a notice concerning
it had been put on the bulletin board. He also told her
that they had an industrial hygienist come into the plant
several months ago and Morrison said she did not know
anything about that. He told her she should have known
about it because Bobbitt had talked to her about it a
week or so prior to that time. Also, he said that people
were wearing sampling devices concerning the chemicals
and she could have seen that. They then talked about the
chemicals and that there was no clear evidence, as far as
he was concerned, that the chemicals caused chemical
pneumonia. He then agreed he told her she should be
ashamed of the way Medina was being used. She replied
that he had fired Medina, not her. He did not recall
asking her any questions about why she thought the
Union would help in the plant.
In regard to these two meetings, Respondent claims
that the meeting in the hallway was actually a work
area. When questioned closely concerning it, Respondent
witnesses produced no evidence that there were any
other employees anywhere in the area. The only answers
were that it was possible that other employees had been
in the area. As to defining the area as a work area, both
Dinnan and others testified that this was a hallway or
corridor, not that it was an area where anybody worked.
Respondent finally stated that the only people who
would work in that area would be the janitorial people
and there was no testimony that any were present during
this meeting. Further, there is no testimony that at any
time Morrison was loud in her statements or in her con-
910
(l I
versation. She admitted, as did others, that Medina did
get loud and that there was some kind of argument be-
tween Medina and Gomez.
The point is that Bobbitt and Dinnan stood there talk-
ing to Morrison. They did not ask or direct that the
group move to any other location.
Respondent's warning was on the basis that she cre-
ated a disturbance in a work area. The only disturbance
that Dinnan testified to was that he was upset and that
Bobbitt was upset. There is no testimony or evidence
that there was any disturbance caused in a working area
where employees were present. The fact is that this oc-
curred shortly after 4:30 p.m., when the first shift or
most of it would have been gone, and prior to the
second shift coming to work. What occurred does not fit
the warning given to Morrison who was engaged in con-
certed, protected activities. Therefore, I find that this
warning was improper, and should be rescinded by Re-
spondent and removed from her personnel file since it
was a violation of Section 8(a)(l) of the Act, under all
the circumstances.
In regard to the question by Horton, it is clear that
Morrison was a member of the union organizing commit-
tee. Her name was on the union leaflet and she had told
Horton and the others present that she had authored the
leaflet. The meeting then became a discussion of the pros
and cons of union organization and was not an interroga-
tion in the normal sense, particularly since it was not
meant other than as a rhetorical question from the
manner in which it was asked and the manner in which
Dr. Horton continued talking. Therefore I conclude that
this question was not unlawful interrogation and did not
violate Section 8(a)(1) of the Act, and will accordingly
dismiss the allegation.
I. Summary
In summary, the only violation I find in this case is ;he
giving of the verbal warning to Sharon Morrison. Ac-
cordingly, an affirmative Order remedying this violation
will be recommended and the remainder of the allega-
tions will be dismissed.
111 TIE tFF1ICT OF i.f UNFAIR ABOR PRACICE( O1
CONMIERCEI
The activities of Respondent, as set forth in section 11,
above, and therein found to constitute an unfair labor
practice in violation of Section 8(a)( 1) of the Act, occur-
ring in connection with Respondent's business oper-
ations, as set forth in section 1, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
IV. t1 RMFDY
Having found that Respondent committed an unfair
labor practice in giving a verbal warning to Sharon Mor-
rison in violation of Section 8(a)(1) of the Act, I reconi-
mend that it withdraw such verbal warning from Morri-
son's personnel records, destroy it, and strike any refer-
ence whatsoever to it from her personnel records or any
other record which Respondent maintains. I further rec-
ommend that Respondent cease and desist from giving
verbal or other unwarranted warnings to employees en-
gaged in union or concerted activities.
CONCI USIONS OtF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by
its discriminatory giving of a verbal warning to Sharon
Morrison on August 31, 1979.
[Recommended Order omitted from publication.)
PIFZO FE:CIHN(LOGY, INC`