Poly-America, Inc.

National Labor Relations Board - Board Decisions

May 28, 1999

328 N.L.R.B. 667 (N.L.R.B. 1999)

POLY-AMERICA, INC. 667
Poly-America, Inc. and Union of Needletrades, Indus-
trial and Textile Employees. Case 16–CA–18366
May 28, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On December 3, 1997, Administrative Law Judge Par-
gen Robertson issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, the General
Counsel filed a brief in response, and the Respondent
filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified below and to adopt the recommended Order,
which is modified to reflect the amended remedy.2
1. The judge found that the Respondent’s dye shop
leadmen, Lupe Rivera, Andy Farmer, and Lee Marsh,
and its reprocessing department junior foreman, Mike
Wichter, were agents of the Respondent because they
were “the authoritative communicators of information on
behalf of management regarding safety, housekeeping,
quality control, and production matters,” and that “the
employees would reasonably view the leadsmen as
agent[s] of management on other employment related
matters.” Contrary to the Respondent’s exceptions, and
for the additional reasons discussed below, we affirm the
judge’s agency findings.
It is well established that apparent authority results
from a manifestation by the principal to a third party that
creates a reasonable basis for that party to believe that
the principal has authorized the alleged agent to perform
the acts as to which agency is alleged. See generally
Dentech Corp., 294 NLRB 924 (1989); Service Employ-
ees Local 87 (West Bay), 291 NLRB 82 (1988). Thus, in
determining whether statements made by individuals to
employees are attributable to the employer, the test is
whether, under all the circumstances, the employees
“would reasonably believe that the employee in question
[the alleged agent] was reflecting company policy and
speaking and acting for management.” Waterbed World,
286 NLRB 425, 426–427 (1987).

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s 8(a)(1) and (3) findings, we find it unneces-
sary to pass on any of the judge’s findings regarding the alleged unlaw-
ful interrogation by Deaun Carpenter, including the judge’s finding that
Carpenter is a supervisor, because the unlawful interrogation allegation
is cumulative and does not affect the remedy.
In adopting the judge’s 8(a)(1) finding that Supervisor Jesse Ter-
razas unlawfully discarded union fliers, we note that the judge did not
conclude that Terrazas committed a separate violation of the Act by his
statement that he did not want any “trouble” with the fliers.
2 The judge inadvertently failed to include employees Britt Samson
and Brian Robinson in his make-whole remedy and Order for the 3
days they were unlawfully suspended and in par. 2(d) of the Order
stated the date of March 7, 1996, instead of November 10, 1996, the
date that the first unfair labor practice occurred. We have corrected the
remedy and Order accordingly.
Here, the record shows that virtually all of the infor-
mation and or directions emanating from the Respon-
dent’s managers to the employees flowed down to them
through the leadmen or the junior foreman. In the case of
the dye shop, this was accomplished in the weekly meet-
ings held by the leadmen with the dye crew employees.
These employees were informed of the weekly work
schedules as developed by the Overall Shop Supervisor
James Qualls and about any upcoming jobs or other
plans and/or revisions to such things as the Respondent’s
required toolbox lists. Qualls also testified that because
of his responsibility for two departments, he is not in the
dye shop on a daily basis. Further, we note that the judge
found that the employees, and especially the Spanish-
speaking employees, had little if any contact with the
admitted supervisors, who spoke mostly English, and if
these employees had problems they went to their lead-
men or the junior foreman who, in turn, communicated
the problems to management and vice versa. Therefore,
because we agree with the judge that the Respondent
used these individuals as conduits for relaying to the em-
ployees decisions, directions, and views of the Respon-
dent which could not be directly communicated by the
Respondent’s supervisors, we find that these employees
would reasonably have believed that the leadmen and
Junior Foreman Wichter were expressing management’s
antiunion views and acting on management’s behalf
when taking action regarding union activities. Zimmer-
man Plumbing & Heating, 325 NLRB 106 (1997).
2. The judge further found that the Respondent’s secu-
rity guards were agents because they were acting under
specific directions from the Respondent when they
blocked the striking employees from returning to the
plant, confiscated union literature from employees out-
side of the plant, confronted employees Britt Samson and
Brian Robinson regarding their union activities, and
videotaped employees Samson and Robinson and other
employees engaged in union activities. The Respondent
contends that it did not direct or authorize the security
guards to engage in any of the above described behavior
and that what videotaping did occur was merely to
document traffic congestion at its entrance gates because
of the union organizing activity. Finally, the Respondent
contends that there is no record evidence supporting the
judge’s findings.
Contrary to the Respondent’s assertions and for the
following reasons, we affirm the judge’s findings. Char-
les Kramer, Respondent’s management information
328 NLRB No. 88
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 668
service (MIS) manager and the person to whom the secu-
rity guards reported, testified that the security guards
were authorized to request persons to leave who were on
the property inappropriately. He also testified that
shortly after the union organizing campaign started, he
discussed with the guards the Respondent’s decision to
have them videotape the organizers. Kramer stated that
the reason for this decision was the Respondent’s con-
cern that there might be an accident because the organiz-
ers were creating congestion at some of the entrance
ways and were trespassing on the Respondent’s property.
We find that Kramer’s testimony is clearly an admission
by the Respondent that it had, in fact, authorized and
directed the security guards not only to remove off-duty
employees from its premises, but also to videotape its
employees and others while engaged in union activities.
Therefore, the record evidence supports the judge’s find-
ing that the unlawful acts of the security guards were
attributable to the Respondent.3
The Respondent further contends that if employees
Samson and Robinson had not trespassed on its property
or been insubordinate in refusing the guard’s request that
they leave, they would not have been videotaped and
ultimately suspended. For the following reasons, we find
that contention irrelevant to the question whether the
suspensions were lawful.
In Tri-County Medical Center, 222 NLRB 1089
(1976), the Board stated that “except where justified by
business reasons, a rule which denies off-duty employees
entry to parking lots, gates and other outside non-
working areas will be found invalid,” and a violation of
Section 8(a)(1). Id at 1089. It is undisputed that employ-
ees Samson and Robinson were distributing union litera-
ture to other employees in the Respondent’s parking lot
before their work shift began when they were asked to
leave by the Respondent’s security guard. The Respon-
dent has failed to demonstrate a valid business reason for
barring its employees and, in particular, employees Sam-
son and Robinson, from its nonwork areas during their
nonworktime. In addition, because, as found by the
judge, the Respondent’s no-distribution/no-solicitation
rules as applied to its nonwork areas are invalid, the im-
position of any discipline for violation of those rules is
likewise invalid. Although they were exercising rights
protected under Section 7 of the Act, Samson and Robin-
son did not engage in punishable insubordination when
they refused to stop distributing their union literature and
leave the Respondent’s outside nonwork area. See, e.g.,
Postal Service, 318 NLRB 466 (1995). Furthermore, the
Respondent has failed to carry its Wright Line4 burden of

3 We agree with the judge that even though the Respondent contends
that it was concerned with traffic congestion, that does not excuse the
open filming of employees not involved in traffic congestion but in-
volved in union solicitation.
4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
showing that, absent Samson and Robinson’s union ac-
tivity, it would have suspended them. Therefore, we
agree with the judge that the Respondent violated Section
8(a)(1) and (3) when it enforced its invalid no-
solicitation/no-distribution rule by ordering offduty em-
ployees Samson and Robinson to leave the premises and
by suspending them.
3. The judge found that the Respondent discharged Ja-
son Snow because of his union activities. The Respon-
dent has excepted to this finding arguing that Snow was
lawfully discharged at the end of his probationary period
for poor performance and that the Respondent had no
knowledge of his union activities. Contrary to the Re-
spondent’s contentions, we agree with the judge that the
Respondent violated Section 8(a)(3) and (1) by discharg-
ing Snow.
The judge found and, the record supports, that the Re-
spondent harbored antiunion animus. Further, the judge
found that the Respondent knew of Snow’s union orga-
nizing activities because Snow openly handed out union
pamphlets, attended union meetings, and talked with
other employees about the Union and because the Un-
ion’s organizing drive was not a covert operation. We
note in addition that Snow was singled out for frequent
questioning by the three leadmen whom we have previ-
ously found to be agents of the Respondent. It is a rea-
sonable assumption that just as information flowed down
from management to the leadmen, information resulting
from the leadmen’s unlawful questioning of Snow re-
garding his and other employees’ union preferences and
activities flowed upward from the leadmen to manage-
ment, particularly to their immediate supervisor, James
Qualls. In fact, Leadman Trinidad Rivera admitted that
he knew about Snow’s union activities, and the judge
specifically discredited Rivera’s claim that he did not tell
Qualls about Snow’s support for the Union.
We find further support for the finding that Snow’s
discharge was unlawful in the judge’s analysis of the
Respondent’s shifting explanation of its reasons for his
discharge. The Respondent first claimed that Snow did
not successfully complete his probationary period based
on unfavorable end-of-probationary-period evaluations
from the three leadmen, but these evaluations were never
produced by the Respondent. Later, after Snow was dis-
charged and unfair labor practice charges were filed, the
Respondent prepared a document stating that Snow was
discharged because he failed to get his safety shoes. A
third explanation for the discharge was offered at trial by
Leadman Rivera, who testified that Snow was not safety
oriented because he wore his glasses on the top of his
head, that he complained about the work all the time, that
he said that he was leaving, and that he was not a hard
worker. These after-the-fact, shifting reasons were dis-
POLY-AMERICA, INC. 669
credited by the judge as pretextual.5 In support of that
finding, we note that the Respondent failed to rebut
Snow’s testimony that none of these reasons were com-
municated to him at the time of his discharge. Further-
more, the Respondent has failed to produce any docu-
mentary evidence showing that Snow was ever notified
of or disciplined for these alleged deficiencies. Indeed,
the sole document provided by the Respondent to support
its claims was prepared specifically by Qualls in antici-
pation of this litigation. Therefore, we agree with the
judge that the Respondent’s reasons are pretextual in
nature and advanced in an attempt to hide its unlawful
motivation for Snow’s discharge. See, e.g., Limestone
Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d
799 (6th Cir. 1982); Shane Felter Industries, 314 NLRB
339, 342 (1994).
4. Finally, the judge found that Mike Wichter, the Re-
spondent’s agent6 and a junior foreman in its reprocess-
ing department, had violated Section 8(a)(1) when he
disparaged the Union by telling the employees that the
Union was no good, that it had threatened to burn the
plant, and that it would charge up to $300 in weekly or
monthly fees. The Respondent contends, inter alia, that
Wichter was merely telling the employees some of the
disadvantages of union membership and that his com-
ments did not violate the Act because it did not contain
any threats of reprisal or promise of benefit. We find
merit in the Respondent’s exception.
It is well settled that Section 8(c) of the Act gives em-
ployers the right to express their views about unioniza-
tion or a particular union as long as those communica-
tions do not threaten reprisals or promise benefits.7 Here,
Wichter was merely sharing with the employees his own
negative views about the union. Because these particular
comments by Wichter contained no threats or promises,
we shall reverse the judge’s finding that they violated
Section 8(a)(1).
However, we do agree with the judge that Wichter’s
further comments that the Union would cause the Re-
spondent to lower wages, hours, and overtime and that
job security would suffer violated Section 8(a)(1). We
find that Wichter’s comments crossed the line from
merely predicting economic consequences of unioniza-
tion to threats of reprisal, because there was no lawful
explanation based on objective facts as to why such a
loss of benefits would occur.8 We further agree with the
judge that Wichter’s response to the reprocessing em-
ployees’ questions as to why they did not receive the

5 A pretextual defense supports an inference of unlawful motive.
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966).
6 We agree with the judge that the record supports his agency find-
ings. Therefore, we find it unnecessary to pass on or rely on his subse-
quent reference to Wichter as a supervisor.
7 NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969).
8 See Quamco, Inc., 325 NLRB 222, 223 fn. 6 (1997).
promised pay for November 6 violated Section 8(a)(1).
Here, Wichter’s statement that “now that they were with
the Union he [Respondent] had decided not to pay”
clearly conveys to the employees that the reason the Re-
spondent withheld the promised pay was to retaliate
against them for their involvement with the Union. Fur-
ther, contrary to the Respondent’s contentions that this
matter was not fully litigated, the record shows that, not
only did Wichter testify on direct examination for the
Respondent as to his version of what he said, but em-
ployees Hector Vizcarra and Jose Aguilar gave mutually
corroborating testimony regarding Wichter’s statement.
The Respondent’s counsel cross-examined them on this
without at any time suggesting that their testimony was
irrelevant to issues in the case. Moreover, contrary to the
Respondent’s assertions, there was no representation by
counsel for the General Counsel that Vicarra’s and Agui-
lar’s testimony on this subject was merely for back-
ground purposes.
It is well established that the Board may find and rem-
edy a violation, even in the absence of a specified allega-
tion in the complaint, if the issue is closely connected to
the subject matter of the complaint and has been fully
litigated. Pergament United Sales, 296 NLRB 333, 334
(1989), enfd. 920 F.2d 130 (2d Cir. 1990). The com-
plaint specifically alleged that the Respondent’s supervi-
sors and agents threatened its employees with reprisals
because of their union activities. We therefore, find a
close connection between the additional violation and the
subject matter of the complaint, and as shown above,
also find that it was fully litigated. Based on the forego-
ing, we affirm the judge’s finding of an additional 8(a)(1)
violation. International Carolina Glass Corp., 319
NLRB 171, 174 (1995); Hi-Tech Cable Corp., 318
NLRB 280 (1995).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Poly-
America, Inc., Grand Prairie, Texas, its officers, agents,
successors, and assigns shall take the action set forth in
the Order as modified.
1. Delete paragraph 1(b) and reletter the remaining
paragraphs accordingly.
2. Substitute the following for paragraph 2(a) and
reletter the subsequent paragraphs.
“(a) Within 14 days of this Order, offer immediate and
full reinstatement to the below-named employees to each
of their former positions or, if those positions no longer
exist to substantially equivalent positions, without preju-
dice to their seniority or any of the rights or privileges
previously enjoyed.
“(b) Make them and Brian Samson and Britt Robinson
whole for all loss of earnings and other benefits suffered
as a result of the discrimination against them plus inter-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 670
est, in the manner set forth in the remedy section of the
decision:

Jose Gomez Anselmo Tapia
Jose Hernandez Hector Vizcarra
Jesus Hernandez Oscar Ceniceros
Jorge Lopez Juan Castillo
Juan Lopez Ubaldo Loya
Audencio Lopez Noel Lopez
Franscico Cansino Andrew Morales
Jose Luis Aguilar Lemuel Garcia
Hipolito Hernandez Fortunato Ruiz
Pable Lucero Jason Snow”

3. Substitute the following for relettered paragraph
2(e).
“(d) Within 14 days after service by the Region, post at
its facility in Grand Prairie, Texas, copies of the attached
notice marked “Appendix.”2 Copies of the notice, on
forms provided by the Regional Director for Region 16,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since November 10, 1996.”
4. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT promulgate and enforce a no-solicitation/
no-distribution rule which prohibits employees from en-
gaging in union activities on our premises during break,
lunch, before and after work.
WE WILL NOT threaten employees with loss of benefits
if they select the Union as their bargaining representa-
tive.
WE WILL NOT threaten employees that we had decided
to pay employees for time off because of an Immigration
and Naturalization (INS) raid but had changed our mind
because the employees went to the Union.
WE WILL NOT coercively interrogate employees about
their union activities.
WE WILL NOT threaten employees with isolation and
discharge if they sign union authorization cards.
WE WILL NOT threaten employees that the Union will
force those employees that sign with the Union to strike
and engage in picketing.
WE WILL NOT videotape employees’ union activities.
WE WILL NOT confiscate union materials from employ-
ees.
WE WILL NOT tell employees they have been fired be-
cause they engaged in a union and protected concerted
work stoppage.
WE WILL NOT threaten employees that we will lose and
reopen the plant because of employees’ union activities.
WE WILL NOT condition reinstatement of employees
that engaged in a union supported, protected concerted
work stoppage, upon their responding to the offer of re-
instatement within a short specified period of time with-
out proper business justification.
WE WILL NOT selectively trash union materials in the
employees’ breakroom.
WE WILL NOT discharge, suspend, or otherwise dis-
criminate against employees because they engaged in
union or protected concerted activities regarding terms
and conditions of employment with their fellow employ-
ees or with management, or otherwise engage in pro-
tected concerted activities for mutual aid and protection.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Order,
offer reinstatement to the below named employees to
their former positions or, if those positions no longer
exist, to substantially equivalent positions without preju-
dice to their seniority or any of the rights or privileges
previously enjoyed:

Jose Gomez Anselmo Tapia
Jose Hernandez Hector Vizcarra
Jesus Hernandez Oscar Ceniceros
Jorge Lopez Juan Castillo
Juan Lopez Ubaldo Loya
Audencio Lopez Noel Lopez

POLY-AMERICA, INC. 671
Franscico Cansino Andrew Morales
Jose Luis Aguilar Lemuel Garcia
Hipolito Hernandez Fortunato Ruiz
Pable Lucero Jason Snow

WE WILL make the above named employees and em-
ployees Brian Samson and Britt Robinson whole for all
loss of earnings and other benefits resulting from our
illegal suspensions and discharges less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of the Order,
remove from our files any references to the unlawful
terminations of the above named employees and the un-
lawful November 1996 suspensions of Britt Samson and
Brian Robinson and WE WILL, within 3 days thereafter,
notify the above named employees including Samson
and Robinson in writing that this has been done and that
the terminations and suspensions will not be used against
them in any way.

POLY-AMERICA, INC.

David Garza, Esq. and Elizabeth Kilpatrick, Esq., for the Gen-
eral Counsel.
David Dargene, Esq. and John Smart, Esq., of Dallas, Texas,
for the Respondent.
DECISION
PARGEN ROBERTSON, Administrative Law Judge. This matter
was heard in Ft. Worth, Texas, on July 21, 22, and 23, 1997.
The charge was filed on December 5, 1996, and amended on
January 14 and April 2, 1997. A complaint issued on April 4,
1997.
Respondent, the Union, and the General Counsel were repre-
sented and were afforded full opportunity to be heard, to exam-
ine and cross-examine witnesses, and to introduce evidence.
Respondent, the Charging Party, and the General Counsel filed
briefs. on consideration of the entire record and briefs, I make
the following findings
I. JURISDICTION
Respondent admitted that at material times it has been a
Texas corporation with a place of business in Grand Prairie,
Texas, where it has been engaged in the manufacture of plastic
products such as plastic bags and tarpaulins; that during the 12
months before complaint issued, in conducting those manufac-
turing operations, it purchased and received at its Grand Prairie
facility goods valued in excess of $50,000 directly from points
outside Texas; and that it has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the National Labor Relations Act (the Act).
II. LABOR ORGANIZATION
Respondent admitted that the Charging Party (the Union) has
been a labor organization at all material times, within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE ALLEGATIONS
Agency/Supervisor Issue
Respondent denied the supervisory allegations of the com-
plaint. The parties stipulated that Jimmy Green, plant manager,
is a supervisor. Green testified that Mike McGown, Brian
Keyes, James Nobert, Jesse Terrazzas, Cesar Esquivel, Stephen
Lindholm, and Grady Kelly are supervisors. The record shows
that those individuals alleged to be supervisors/agents were
supervisors or agents at material times with the exception of
Arnie Ramos, Deaun Carpenter, the security guards, and those
employees alleged as junior foremen and leadmen. Respondent
contest the General Counsel’s allegations that those employees
were supervisors or agents at material times.
Anthony Bertrand testified that Respondent’s supervisors are
generally salaried with authority to discipline. None of the lead
men or junior foremen have input into hiring, nor do they have
authority to grant raises and give promotions.
A somewhat unusual situation impacted on the supervisory
issue. Most of the supervisors material to these proceedings
spoke only English while most of the employees spoke only
Spanish. Some of the employees whose supervisory authority is
in question were able to speak both Spanish and English. Under
that situation any extensive communications between manage-
ment and Spanish speaking employees relied on those that
spoke Spanish on behalf of management.
Mike Wichter
The General Counsel alleged and Respondent disputes, that
Junior Foremen Mike Wichter was a supervisor and/or agent.
Jorge Lopez testified that he worked on the third shift in the
reprocessing department. His supervisor’s assistant was Mike
Wichter. Wichter wore white shirts similar to the supervisors.
Wichter gave the employees their work orders and he arranged
meetings for the employees. Lopez admitted that he received
disciplinary action while with Respondent but that Wichter
never signed any of those reprimands.
Hector Vizcarra was a grinder lead for Respondent in No-
vember 1996. His junior foreman was Mike Wichter. The jun-
ior foreman had authority to run the computers and check out
production. In the mornings, Wichter made a list of assign-
ments for each employee to a particular machine. He directed
the employees in selection of materials and he could move
employees from one job to another. Wichter could call the em-
ployees to meetings. Wichter unlike the supervisors, spoke
Spanish and had more contact with Vizcarra. Vizcarra testified
that Wichter never gave him a written warning, a raise in pay,
or a promotion.
Jose Luis Aguilar testified that Mike Wichter brought the
employees their daily schedule; he oversaw each employees’
assignment to a specific machine and he made sure that produc-
tion standards were met. Wichter could speak Spanish and Eng-
lish. The employees usually went to Wichter when they had a
problem. Aguilar testified that he was not hired by Wichter;
that Wichter did not give him a raise or a promotion and that
Wichter reported to someone unknown by Aguilar. He agreed
that when Mike Wichter threatened that the employees would
lose overtime, he had the impression that Wichter meant that he
too would lose overtime.
Michael Wichter testified that he has been a junior foreman
in reprocessing for 1-1/2 years. He does not consider himself a
member of management; and he does not have his own office.
He is hourly paid and is paid overtime for time over 40 hours
each week. He reports to Grady Kelly. He cannot hire, termi-
nate, suspend, layoff, promote, grant pay increases or de-
creases, grant bonuses, or discipline employees. Wichter esti-
mated that he spends 50 to 75 percent of his daily time
performing manual labor.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 672
Findings—Credibility
The evidence is not in dispute regarding the job duties of
Mike Wichter.
Conclusions
The undisputed evidence showed that Mike Wichter, a junior
foreman, wore a uniform similar to admitted supervisors. Both
Wichter and the supervisors wore white shirts. Wichter gave
work orders to the employees, made daily assignments to the
employees, directed employees in selecting materials, moved
employees between jobs, oversaw production requirements, and
arranged employee meetings. Wichter, unlike the supervisors,
spoke Spanish as well as English. The record shows that a sub-
stantial number of the employees in Wichter’s department
spoke only Spanish. Wichter was the only authoritative figure
that spoke directly to the employees. Employees usually went
to Wichter when they had problems.
Wichter could not discipline, hire, discharge, promote, or
grant wage increases to employees. He is hourly paid and
spends 50 to 75 percent of his time performing manual labor.
However, when an employer places an employee “in a posi-
tion in which the employees in his department look to him as an
authoritative communicator of information on behalf of man-
agement regarding safety, housekeeping, quality control, and
production matters, it is clear that the employees would tend to
reasonably view the leadman as an agent of the employer on
other employment related matters discussed in a similar con-
text. Southern Bag Corp., 315 NLRB 725 (1994). The evidence
illustrated that most of the employees in Wichter’s department
spoke only Spanish. Wichter wore the same uniform, a white
shirt, as recognized supervisors and he was the Spanish-
speaking employees only contact with management. Great
American Products, 312 NLRB 962, 963 (1993). Respondent
placed Mike Wichter in a position in which he was “the usual
conduit for communicating management’s views and directives
to employees, from the time of their hiring through their daily
accomplishment of their tasks.” Victor’s Cafe 52, 321 NLRB
504 fn. 1 (1996).
The full record and especially the evidence about November
14 show that the employees especially the Spanish-speaking
employees, had little if any contact with admitted supervisors.
When those employees had questions about their working con-
ditions they went to their respective foreman, junior foreman,
or leadman. It was to those people that the employees had their
only substantial contact with management.
In view of the full record, I find that the credited record
proved that Mike Wichter was an agent of Respondent as to the
matters alleged in the complaint.
Lupe Rivera, Andy Farmer, and Lee Marsh
The General Counsel alleged that Leadmen Farmer, Rivera,
and Marsh were supervisors or agents at material times.
Jason Snow testified that the leadmen assigned jobs and pro-
jects and would oversee the work. They would relay messages
to the employees from upper management. The leadmen held
weekly meetings when they would go over what had occurred
during the week explaining what had been done wrong or right.
James Qualls, the supervisor, did not attend those meetings.
Snow testified that he received feedback from the leadmen
and Qualls regarding his work during his probationary period.
Leadmen wore uniforms similar to those worn by rank-in-file
employees. The probationary employees wore different color
shirts. Probationary employee shirts and pants were green.
Leadmen and nonprobationary employees wore blue and fore-
men wore white shirts.
Luis Villa testified that his supervisor was James Qualls and
Qualls’ immediate boss was Jim Clay. Three leadmen worked
for Qualls, Lupe Rivera, Andy Farmer, and Lee Marsh. The
leadmen directed work and scheduled weekly employee work
meetings. Villa had little contact with James Qualls. Leadmen
relayed messages from Qualls to the employees. They trained
new employees. At one time, James Qualls told Villa there was
a chain of command. Matters had to first go through the lead-
man before coming to Qualls.
James Qualls testified that he is the supervisor over the ma-
chine shop and the dye maintenance area. There are about 12
employees in the dye shop with Leadmen Andy Farmer, Trini-
dad (Lupe) Rivera, and Lee Marsh. The leadmen are hourly
paid and wear the same colored shirts as the other employees.
The leadmen do not have authority to discipline, discharge,
grant pay raises, or promotions. The leadmen report to Qualls.
James Qualls testified that he consulted with the leadmen as
to their opinion of Jason Snow’s work during Snow’s proba-
tionary period.
Trinidad Rivera testified that he is a leadman in the dye de-
partment. He is hourly paid and receives overtime pay for work
over 40 hours a week. He estimated that he spends 75 percent
of his worktime performing mechanic’s duties. The parties
stipulated that Lee Marsh would testify similar to Trinidad
Rivera. Andy Farmer testified that he, like Trinidad Rivera, is a
leadman. He wears a blue shirt at work.
Findings—Credibility
The evidence is not in dispute regarding the job duties of
Rivera, Marsh, and Farmer.
Conclusions
Respondent argued that Rivera, Marsh, and Farmer are
leadmen. Their job duties include assigning jobs, overseeing
work, holding weekly meetings, relaying messages from man-
agement, and training new employees. The leadmen were the
first step in the chain of command. They were hourly paid and
spent 75 percent of their time performing mechanics duties.
The leadmen wore uniforms similar to rank in file employ-
ees. They wore blue shirts. They lacked authority to discipline,
discharge, grant pay raises, or promotions.
The General Counsel argued that where an employer has
placed the three leadmen in positions in which the employees
look to them as authoritative communicators of information on
behalf of management regarding safety, housekeeping, quality
control, and production matters, it is clear that the employees
would reasonably view the leadman as an agent of management
on other employment related matters discussed in a similar
context. Employees were told by supervision to go through the
leadmen before coming to the supervisor. Southern Bag Corp.,
supra.
The full record showed that the three leadmen were the “au-
thoritative communicators of information on behalf of man-
agement” and that management looked to them regarding labor
relations with the employees. As shown above Supervisor
James Qualls testified that he consulted with the leadmen as to
their opinion of Jason Snow’s work during Snow’s probation-
ary period. Qualls testified that he relied on the leadmen’s re-
ports in deciding to terminate Snow.
As shown above, the full record and especially the evidence
about November 14 show that the employees especially the
POLY-AMERICA, INC. 673
Spanish-speaking employees, had little if any contact with ad-
mitted supervisors. When those employees had questions about
their working conditions they went to their respective foreman,
junior foreman, or leadman. It was to those people that the em-
ployees had their only substantial contact with management.
In view of the full record, I am convinced that Leadmen
Farmer, Rivera, and Marsh were Respondent’s agents at mate-
rial times. Farmer, Rivera, and Marsh did not wear a white shirt
similar to Mike Wichter and admitted supervisors. However,
the three were shown to be the predominant communications
vehicle between the employees and management. Southern Bag
Corp., supra; Great American Products, 312 NLRB 962, 963
(1993); Victor’s Cafe 52, 321 NLRB 504 fn. 1 (1996).
Deaun Carpenter
Pedro Puerto’s supervisor was Walter Krietsinger in the fab
shop. Deaun Carpenter was his foreman. Carpenter assigned
work to the employees. He gave prints to the employees and
conducted some of the employee safety meetings. He also ex-
plained memos from personnel to the employees. Carpenter
ordered parts, materials, and supplies. He trained Puerto as well
as other employees.
Puerto’s supervisor, Walter Krietsinger, told Puerto that Car-
penter would assign his duties and oversee his work each day
and that Carpenter would keep the records including work or-
ders and timesheets.
Pedro Puerto testified that Foreman Deaun Carpenter wore a
blue shirt similar to the one worn by Puerto. He admitted that
he was not hired by Carpenter. Carpenter neither hires nor fires
employee. Puerto testified that Carpenter did suspend one em-
ployees that was a disciplinary problem. Carpenter told the
employee that he was suspended for 3 days. Carpenter then
took the employee to Supervisor Walter Krietsinger’s office
and then to Bill Davis’ office.
Carpenter does not promote employees nor does he approve
pay increases. After talking to Carpenter about a pay increase it
was necessary for Puerto to take the matter to Krietsinger.
Deaun Carpenter testified that he is one of three employees
in the fab shop. Carpenter testified that he is foreman and there
is a welder and a material handler. Carpenter wears a blue shirt
as do the rank-in-file employees. Carpenter is hourly paid, re-
ceives overtime pay, and reports to Supervisor Walter Kriet-
singer. Carpenter spends 90 percent of his time welding. He
cannot hire, fire, suspend, layoff, approve pay changes,
discipline, or transfer employees.
Findings—Credibility
The evidence is not in dispute regarding the job duties of
Deaun Carpenter.
Conclusions
The evidence showed that Carpenter was a foreman. He as-
signed work, held employees’ safety meetings, ordered parts
and materials, trained employees, explained communications
from personnel, would oversee work, maintained work orders,
and timesheets. Carpenter wore a blue shirt like the rank-in-file
employees. He did not have authority to promote, approve pay
increases, hire, fire, suspend, layoff, discipline, or transfer em-
ployees. He is hourly paid. The ratio of foreman to employees
in Carpenter’s situation was 1 to 3.
However, Carpenter, unlike Farmer, Rivera, and Marsh, did
discipline an employee and he was a foreman rather than a
leadman.
As shown above, the full record and especially the evidence
about November 14 show that the employees had little if any
contact with admitted supervisors. When those employees had
questions about their working conditions they went to their
respective foreman, junior foreman, or leadman. It was to those
people that the employees had their only substantial contact
with management.
I am convinced in view of the full record that employees
considered foreman to be supervisors. In view of that record I
am convinced that Carpenter was a supervisor or agent at rele-
vant times. Southern Bag Corp., supra, 315 NLRB at 725; Vic-
tor’s Cafe 52, supra, 312 NLRB at 504; Great American Prod-
ucts, supra.
Arnie Ramos
As shown here, Arnie Ramos acted as translator between Re-
spondent’s supervisors and the striking employees on the morn-
ing of the work stoppage. Ramos’ regular job was that of a
trainer of new employees.
Findings—Credibility
The evidence is not in dispute regarding Arnie Ramos.
Conclusions
The General Counsel argued that Ramos, as translator be-
tween management and striking employees, was shown to be a
spokesman for management. The General Counsel argued that
Ramos’ duties as a trainer of new employees including review-
ing company rules with those employees, providing safety edu-
cation, teaching them to work in their departments, answering
questions regarding company rules and policies and acting as a
conduit in communicating management’s views to employees
shows that Ramos was Respondent’s agent.
The record shows that Ramos was acting as Respondent’s
agent at times when he was acting as translator for management
employees. Victor’s Cafe 52, 321 NLRB 504 (1996); Great
American Products, 312 NLRB 962, 963 (1993).
The Security Guards
The record showed that Respondent’s security guards video-
taped employees engaged in union activities; directed employ-
ees engaged in union activities to leave the premises; blocked
striking employees from entering the premises; and were in-
volved in removing union literature from an employee’s pos-
session.
Findings—Credibility
The evidence is not in dispute regarding duties of the secu-
rity guards.
Conclusions
I find that the record showing that relevant actions by secu-
rity guards including blocking the strikers return to work, di-
recting employees engaged in union activities to leave Respon-
dent’s property and videotaping union activities of employees,
proved that those guards were acting as agents of Respondent.
The record shows that the guards were acting under specific
direction of Respondent’s management officials when they
blocked the striking employees from returning to the plant and
when they videotaped employees’ union activities. Sands Hotel
& Casino, San Juan, 306 NLRB 172 (1992).
IV. THE 8(A)(1) ALLEGATIONS
No-solicitation/no-distribution rule
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 674
Respondent’s employee handbook includes the following
provision:
SOLICITATION AND DISTRIBUTION OF LITERATURE
In the interest of maintaining a proper business envi-
ronment and preventing interference with work and incon-
venience to others, employees may not sell merchandise,
distribute literature or printed material of any kind, solicit
financial contributions, or solicit for any other cause dur-
ing working time or on the Company property.
Nonemployees are likewise prohibited from distribut-
ing material or soliciting employees on Poly-America, Inc.
premises at any time.

Jesse Terrazas—November 14, 1996
Jesse Terrazas was identified as a supervisor by himself and
by Plant Manager Jimmy Green.
Jose Guerrero testified that he and his coworkers were in the
breakroom reading prounion fliers on November 13, 1996,
when Terrazas entered. Terrazas said that he did not want any
problem with the fliers. He collected all the fliers from the ta-
bles, crunched them, and threw them in the trash.
Mike Wichter testified that he remembered vaguely cleaning
up the breakroom in November 1996. He recalled, “[T]there
was a lot of trash cans, cups, bags, and stuff on the tables along
with a bunch of pamphlets.” He testified that he did not pay
attention to them. He and Jesse Terrazas would just go through
and clean up and throw stuff away. Wichter was asked if he
said anything about union literature while cleaning the break-
room. He testified that he said, “[T]hey should read it on their
break time or a time when we’re not getting paid; not on paid
company time.”
Jesse Terrazas denied telling anyone they cannot read union
literature in the break area. Terrazas denied taking any union
literature away from any employee except on one occasion.
When asked if he had ever taken anybody’s union literature,
Terrazas admitted picking up a couple of pieces of “those pa-
pers from different tables, but I pick up everything in general,
trash.”
Findings—Credibility
In view of the full record I am convinced that Jose Guerrero
testified truthfully. Both Mike Wichter and Jesse Terrazas ad-
mitted that Terrazas picked up and discarded union fliers in the
breakroom. I was impressed with Guerrero’s demeanor and I
credit his testimony.
Conclusions
I find that Jesse Terrazas was a supervisor at material times.
On November 13, 1996, the union organizing campaign was
not covert. The record illustrated that Respondent took a strong
position in opposition to the Union. There was no showing that
Respondent had a valid nondiscriminatory purpose in discard-
ing union materials. Terrazas did not tell the employees why he
needed to discard the union materials.
The credited testimony of Guerrero proved that supervisor
Jesse Terrazas discarded union fliers and threatened employees
with unspecified reprisals by telling them that he did not want
any trouble with the union fliers. Action Auto Stores, 298
NLRB 875, 897 (1990); Automotive Plastic Technologies, 313
NLRB 462, 463 (1993); Vemco, Inc., 304 NLRB 911, 927
(1991); CVN Companies, 301 NLRB 789, 890 (1991).
Michael Wichter—November 10, 1996
As shown here, Jose Luis Aguilar testified that a few days
before November 14, 1996, Mike Wichter talked to the em-
ployees. Wichter held a union flier in his hand and said that the
supervisors did not want to see any fliers. Among other things
Wichter said that the Union wasn’t any good for the employees.
Wichter tore up the union flier and threw it in the trash.
Michael Wichter denied telling anyone in the crew they were
not allowed to read union literature in the breakroom. He de-
nied telling anyone they could not discuss the Union at work.
He testified that the question was brought up to him and he
replied that it would be “much better idea if they waited off of
Company time, like on their breaks or when they’re maybe
away from the company or they’re just not on company time
because we were working.”
As shown above, Wichter testified that he remembered
vaguely cleaning up the breakroom in November 1996. He and
Jesse Terrazas would just go through and clean up and throw
stuff away. Wichter testified that he said to employees “they
should read it on their break time or a time when we’re not
getting paid; not on paid company time.” Wichter testified that
some of his shift employees were in the breakroom when they
shouldn’t be reading through stuff.
Findings—Credibility
Jose Luis Aguilar demonstrated good demeanor. As shown
here, I credit his testimony and do not credit the conflicting
testimony of Mike Wichter.
Conclusions
The credited evidence proved that Respondent, by its super-
visor and agent, Mike Wichter, prohibited employees from
distributing union literature on company premises during non-
worktime in nonwork areas (Ford Motor Co., 315 NLRB 609
(1994); Automotive Plastic Technologies, Inc., supra.) and dis-
carded union materials previously distributed by employees in
the breakroom Vemco, Inc., supra,, in violation of Section
8(a)(1) of the Act.
Andy Farmer—November 12, 1996
Around 5 minutes after he allegedly interrogated Luis Villa
on November 12, 1996 (see below), Andy Farmer returned to
Villa with an employee handbook. Farmer asked Villa to read
the handbook. As shown above, Farmer had highlighted the
provision dealing with solicitation and distribution of literature.
After Villa read the provision of the handbook, Farmer told
Villa that Villa was breaking company policy. Farmer asked
Villa where he was doing it again and Villa replied on company
property. Villa told Farmer that he was doing it during his
lunchtime, before and after work. Farmer asked Villa who
signed his checks. Villa replied, “Mr. Ross.”
After lunch that same day, Farmer asked Villa to ride with
him on a golf cart. Farmer told Villa that he had talked with
Clay and Clay had said that he was not going to stop Villa from
getting the Union with people as long as Villa did it on his own
time. Farmer said that he could do it before and after work and
during lunch but not during breaktime, which was company
time. Farmer told Villa that Farmer’s dad had worked in a un-
ion facility and that Farmer did not want anything bad to hap-
pen to Villa. Farmer told Villa that if he did not like it in the
Company now he would not like it when the Union came in. He
said that if the Union came in the contract will stipulate that
everybody’s duties will be and that if there was a shutdown
POLY-AMERICA, INC. 675
there would be layoffs. Farmer said that he would just hate to
see Villa outside the gate wishing he had a job.
On November 14, there was an employee meeting attended
by all three leadmen, Farmer, Rivera, and Marsh. Andy Farmer
started the meeting saying that he was just relaying a message
from Clay. Farmer said that it was prohibited to talk about the
Union while working. That the topic is too hot right now.
Farmer said that an employee caught talking about the Union
the first time would get a verbal warning; the second time a
written warning, and the third time the employee would be
taken upstairs to the big man who would decide the punish-
ment.
Villa recalled that Glenn Henderson said that was freedom of
speech. Leadman Lupe Rivera told Andy Farmer that the em-
ployer cannot prohibit the employees from talking about the
Union. Jason Snow said that questions had been allowed in
other meetings unlike here where no questions were permitted.
Farmer told the employees they could talk about anything else
except the “U” word. He told the employees they were replace-
able, this job was not given by God.
Trinidad Rivera recalled a meeting involving employees and
the other two leadmen, Marsh and Farmer, when the subject of
the Union came up. He recalled that Andy Farmer said some-
thing about which discussions were appropriate in the work
place regarding unions. He recalled that Glenn Henderson re-
sponded that was freedom of speech and Rivera told Farmer
that Henderson was right.
The parties stipulated that Lee Marsh would testify similar to
Trinidad Rivera.
Farmer recalled the meeting in November 1996. According
to Farmer he told the employees not to group up and talk about
the Union. He was told that he could not tell the employees
what they could not talk about and he reneged on his statement.
Farmer testified that he apologized and told the employees that
he could not tell them not to talk. He did say that they should
not group up.
Findings—Credibility
I was impressed with the demeanor of Luis Villa and Lead-
man Trinidad Rivera. Rivera appeared to testify without regard
to whether Respondent would be helped or hurt by his testi-
mony. I credit Villa’s testimony and to the extent there is no
conflict I also credit Rivera. I do not credit Rivera to the extent
his testimony conflicts with that of Villa.
I was not impressed with the demeanor of Andy Farmer.
Farmer was in position of defending himself against complaint
allegations and he appeared to be influenced by that position. I
do not credit Farmer’s testimony to the extent it conflicts with
credited evidence.
Conclusions
Andy Farmer gave Luis Villa a copy of Respondent’s em-
ployee handbook. The provisions dealing with solicitation and
distribution of literature were highlighted. As shown above
those provisions prohibited solicitation or distribution of litera-
ture “during working time or on the Company property.” The
Board has consistently found that broad prohibition violative of
Section 8(a)(1) of the Act.
Respondent’s agent, Andy Farmer, prohibited employees
from distributing union literature on company premises during
nonworktime in nonwork areas Ford Motor Co., supra; Auto-
motive Plastic Technologies, supra.
As to the meeting and Farmer’s comments that the employ-
ees could not talk about the Union, the testimony shows that
comment was clarified by the comments of Lupe Rivera. Riv-
era who held the same job as Farmer, told the employees that
Respondent could not prohibit their talking about the Union. In
view of my credibility determinations I do not credit Farmer’s
testimony that he apologized to the employees and reneged on
his statement that they could not discuss the Union. I find that
Farmer’s comments resulted reasonable tended to cause the
employees to restrain from engaging in union solicitation and
as such, constitutes a violation of Section 8(a)(1) of the Act.
Security Guards—November 14, 1996
As shown below, Britt Samson testified that he and Brian
Robinson passed out union fliers at the plant before work. A
security guard approached and asked Samson for his name and
badge number and to leave the property. Samson told the guard
they would not leave. A few minutes later, the guard returned
and asked if Samson would surrender his union materials in-
cluding cards and leaflets. Samson refused. He noticed two
other security guards in the distance and one appeared to be
filming Samson with a video camera. He noticed the guard
continued to film while he passed union materials to an em-
ployee.
Findings—Credibility
There was no dispute as to the credibility of this matter.
Conclusions
The record shows that the security guards were acting at the
direction of Respondent’s management or that their actions in
confronting Samson and Robinson, were condoned and pursued
by management. As shown here, both Samson and Robinson
were suspended from work because of their refusal to leave the
premises. The actions by Respondent’s agent and security
guard resulted in the enforcement of an illegally broad no-
solicitation/no-distribution rule in violation of Section 8(a)(1)
of the Act.
V. ADDITIONAL 8(A)(1) ALLEGATIONS
Michael Wichter
As shown above, I find that Michael Wichter was Respon-
dent’s agent during material times.
On November 10, 1996, Hector Vizcarra and a number of
coworkers including Jorge Lopez, were present in the break-
room when Mike Wichter talked about the Union. Wichter said
that the Union had threatened the plant; had threatened to burn
the plant; that the Union was not good for anything; they were
going to lower the employees’ extra hours, their overtime; the
Union was going to lower their wages; the employees were
going to be paid $300 a week in quotas; and that security was
not good.
Jose Luis Aguilar testified that a few days before November
14, 1996, Mike Wichter talked to the employees. Wichter held
a union flier in his hand and said that the supervisors did not
want to see any fliers. Wichter said that the Union wasn’t any
good for the employees; that they were going to cut down the
employees’ overtime; that the Union would charge a weekly or
monthly quota that could be up to $300. Wichter tore up the
union flier and threw it in the trash.
Hector Vizcarra and Jose Luis Aguilar testified about No-
vember 14, 1996. When Vizcarra arrived for work that day
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 676
some of his coworkers were complaining to Junior Foreman
Mike Wichter. Both Vizcarra and Aguilar testified that Wichter
said that the owner, Steve Ross, was going to pay us but now
that we were with the Union he had decided not to pay. Wichter
told the employees that since he was the one that gave them
their checks he could go into the office and make the employ-
ees’ claims but that wasn’t his job. He told the employees that
if the employees did not like it they could just punch out and go
take their claims to the office. Aguilar asked Wichter what he
should do as the other employees left to go to the office and
complain. Wichter told him to go back and punch out his time-
card and return to his house because he was not going back to
work then.
Michael Wichter denied telling anyone in the crew they were
not allowed to read union literature in the breakroom. He de-
nied telling anyone they could not discuss the Union at work.
He testified that the question was brought up to him and he
replied that it would be “much better idea if they waited off of
Company time, like on their breaks or when they’re maybe
away from the company or they’re just not on company time
because we were working.”
Wichter denied that he told anyone that the Union had
threatened to burn down the plant. He denied saying that Union
would charge $300 a month in dues. Wichter admitted saying
that the father of a friend from high school worked for a union
and Wichter told employees what he “paid in dues and other
things.” He denied saying the Union would prevent the em-
ployees from working overtime or they would get only mini-
mum wage if they elected the Union. Wichter denied telling an
employee that the Union would not cover medical benefits for
family members. Wichter admitted telling employees to check
out what the Union had to offer and saying that it was going to
be hard to beat the current company benefits.
Wichter testified that he remembered vaguely cleaning up
the breakroom in November 1996. He recalled, “[T]here was a
lot of trash cans, cups, bags and stuff on the tables along with a
bunch of pamphlets.” He testified that he did not pay attention
to them. He and Jesse Terrazas would just go through and clean
up and throw stuff away. Wichter was asked if he said anything
about union literature while cleaning the breakroom. He testi-
fied that he said, “[T]hey should read it on their break time or a
time when we’re not getting paid; not on paid company time.”
Wichter testified that some of his shift employees were in the
breakroom when they shouldn’t be reading through stuff.
Michael Wichter testified about November 14, 1996. Several
employees confronted him about why they didn’t receive
enough pay. Wichter told the employees there was nothing they
could do and they should wait until morning and talk to person-
nel. About 10 to 15 minutes into the shift, Wichter told the
employees “if you’re not going to work, you need to go ahead
and punch out and call in for your attendance point or whatever
and deal with it in the morning.” The employees punched out.
Findings—Credibility
I was impressed with the demeanor of Hector Vizcarra and
Jose Luis Aguilar. I do not credit the testimony of Michael
Wichter to the extent his testimony conflicts with credited evi-
dence. I make my credibility determinations in view of the full
record and the demeanor of Vizcarra, Aguilar, and Wichter.
Conclusions
The credited evidence proved that Mike Wichter told em-
ployees that the Union was no good, that the Union had threat-
ened the plant, had threatened to burn down the plant, and the
Union would charge up to $300 constitutes attempts to dispar-
age the Union, Kawasaki Motors Corp., 257 NLRB 502, 510–
511 (1981); Interstate Truck Parts, 312 NLRB 661 (1993); and
that the Union would cause Respondent to lower wages; hours,
and overtime and job security would suffer constitutes threats
with loss of benefits, Plastonics, 233 NLRB 155, 156 (1977);
Hamilton Plastic Products, 309 NLRB 678, 683 (1992), all in
violation of Section 8(a)(1) of the Act.
Wichter told the employees that Respondent’s owner was
going to pay them for November 6 but now that they were with
the Union he had decided not to pay. Those comments consti-
tute additional violations of Section 8(a)(1). Marshall Durbin
Poultry Co., 310 NLRB 68, 69 (1993). The General Counsel
admitted that violation was not alleged in the complaint. How-
ever, I find that the matter was fully litigated. Mike Wichter
testified and his testimony included his version of what was
said when he and the employees discussed their complaint on
November 14. International Carolina Corp., 319 NLRB 171
(1995); Carillon House Nursing Home, 268 NLRB 589 (1984).
Andy Farmer, Trinidad Rivera, and Lee Marsh
On November 12, 1996, Leadman Andy Farmer talked with
Luis Villa and employee Glenn Henderson. Farmer asked the
two employees who it was from their crew that was handing out
union cards. Villa replied that it was he that was handing out
union cards. Farmer shook his head and said that it could not be
Villa and asked if Villa knew what he was doing. Farmer asked
Villa if he knew what could happen to him and that he would
not make a big issue of it but it was making all of us look bad.
Jason Snow testified that he was questioned about union ac-
tivity by his leadmen, Trinidad Rivera, Lee Marsh, and Andy
Farmer. They asked him frequently about what percentage of
the employees had signed up for the Union and if Snow felt the
Union was going to get in.
Andy Farmer denied that he interrogated employees about
the Union. He admitted telling employees about his father’s
experiences while he worked for Stroh’s brewery in a union. He
denied saying that any employee would be punished or fired for
supporting the Union. Farmer denied saying that employees
that supported the Union could not work for the Company any
more but would have to work for the Union. He denied that he
ever threatened or interrogated Luis Villa about the Union.
Trinidad Rivera denied telling any employees they could not
read union literature in the break area; or that they were not
allowed to discuss the Union during work. Rivera denied that
he ever interrogated any employee about the Union. The parties
stipulated that Lee Marsh would testify similarly to Trinidad
Rivera.
Findings—Credibility
Luis Villa demonstrated good demeanor. I credit the testi-
mony of Villa. I was impressed by the testimony of Jason
Snow. As shown here his testimony was substantially corrobo-
rated by the testimony of others. I credit Villa and Snow.
I was also impressed with the demeanor of Leadman Trini-
dad Rivera except when he was testifying in defense of his own
conduct. Rivera appeared to testify without regard to whether
Respondent would be helped or hurt by his testimony. I credit
his testimony except to the extent it conflicts with credited
evidence.
I was not impressed with the demeanor of Andy Farmer.
Farmer was in position of defending himself against complaint
POLY-AMERICA, INC. 677
allegations and he appeared to be influenced by that position. I
do not credit Farmer’s testimony to the extent it conflicts with
credited evidence.
Conclusions
I find that Farmer, Rivera, and Marsh unlawfully interro-
gated employees about employees’ union activities in Novem-
ber 1996. At the time of those conversations the union organiz-
ing campaign was not covert and it was not shown that the
questioned employees were all known union advocates. The
record illustrated that Respondent took a strong position in
opposition to the Union. The information sought by Farmer,
Rivera, and Marsh included questioning as to which employees
were passing out union authorization cards; whether employees
knew what could happen to them for passing out union cards;
what percentage of the employees had signed union cards and if
employees felt the Union would get in. The record failed to
show whether all the employees were truthful in responding to
the interrogation. Luis Villa did admit that he was distributing
union cards. There was no showing that Respondent had a valid
purpose in seeking to determine the extent of its employees
union activity. Farmer, Rivera, and Marsh did not tell the em-
ployees why they needed the requested information and they
did not assure the employees against reprisals. The above con-
vinces me that the questioning by Farmer, Rivera, and Marsh
was coercive. There was no evidence offered regarding the
history of Respondent’s attitude towards its employees. Cooper
Tire & Rubber Co. v. NLRB, 957 F.2d 1245, 1255–1256 (5th
Cir. 1992); Baptist Medical Systems, 288 NLRB 1160 (1988);
Southwire Co., 282 NLRB 916 (1982); Rossmore House, 269
NLRB 1176 (1984); and Sunnyvale Medical Clinic, 277 NLRB
1217 (1985).
I find that Respondent, through actions of Andy Farmer,
Trinidad Rivera, and Lee Marsh, interrogated employees about
their union activities in violation of Section 8(a)(1).
Jesse Terrazas
Jesse Terrazas was identified as a supervisor by himself and
by Plant Manager Green. In view of that testimony and the full
record I find that Terrazas was a supervisor at material times.
As shown here, Jose Guerrero testified that he and his co-
workers were in the breakroom reading prounion fliers on No-
vember 13, 1996, when Terrazas entered. Terrazas said that he
did not want any problem with the fliers. He collected all the
fliers from the tables, crunched them, and threw them in the
trash.
Guerrero testified that Jesse Terrazas held a meeting with the
employees about 3 days after November 13, 1996. There were
about 20 or 22 employees according to Guerrero. Terrasas said,
“[T]hat those of us who signed on with the union were going to
work with the union and those who did not sign on with the
union were going to work with the company.” Terrazas said
that “if we wanted what happened to shift number four to hap-
pen to us, then if we signed, then the union is going to force us
to go outside with boards, signs.” Guerrero asked Terrazas if
those on the fourth shift were going to get their jobs back. Ter-
razas replied, “[T]hat they weren’t going to get their jobs back,
and that if we signed with the union, the same thing was going
to happen to us; we were going to be replaced.”
Jesse Terrazas denied telling anyone they cannot read union
literature in the break area. Terrazas denied saying anything to
discourage employees from supporting the Union. He denied
threatening any employees with punishment for supporting the
Union and he denied taking any union literature away from any
employee except on one occasion. When asked if he had ever
taken anybody’s union literature, Terrazas admitted picking up
a couple of pieces of “those papers from different tables, but I
pick up everything in general, trash.” Terrazas denied telling
the employees in the breakroom they would be fired for sup-
porting the Union; that they would have to work for the Union
and not for the Company; saying that something bad would
happen to someone that signed a union card; telling any em-
ployee they would have to strike if they voted Union or in order
to get the Company to recognize the Union; saying that em-
ployees would be paid $15 a day if they became a member of
the Union or that other employees had been fired for supporting
the Union.
Jose Herman Hernandez and Hermilio Balderas were em-
ployees that worked under Terrazas’ supervision. In regard to
the union campaign around November 1996, Hernandez and
Balderas denied hearing Terrazas say that employees would not
be allowed to discuss the Union; they denied hearing Terrazas
make threats about employees that were active in the Union;
seeing Terrazas throw away union pamphlets; hearing Terrazas
say he didn’t want to see union literature in the breakroom or
threaten to fire anyone if they signed a union card. Hernandez
attended weekly meetings held by Terrazas. He denied hearing
Terrazas say that other employees had been fired for supporting
the Union. On cross-examination Balderas denied that he had
seen union literature in the breakroom.
Findings—Credibility
As shown here, I credit the testimony of Jose Guerrero. I am
convinced that Jose Guerrero testified truthfully. Both Mike
Wichter and Jesse Terrazas admitted that Terrazas picked up
and discarded union fliers in the breakroom. I was impressed
with Guerrero’s demeanor.
I do not credit the denials of Jesse Terrazas and I do not
credit the testimony of Jose Herman Hernandez and Hermilio
Balderas to the extent their testimony conflicts with that of Jose
Guerrero. There was no showing that Hernandez and Balderas
were ever in position to overhear the matters recalled by Guer-
rero and their testimony conflicted with admissions from both
Terrazas and Wichter. I was not impressed with the demeanor
of Hernandez or Baleras.
Conclusions
The credited testimony of Jose Guerrero proved Terrazas
threatened the employees with isolation and discharge by tell-
ing them those that signed with the Union were going to work
for the Union and those that did not sign were going to work for
the Company and that the same thing that happened to the
fourth shift who would not get their jobs back, would happen to
those that signed with the Union. Guardian Industries Corp.,
313 NLRB 1275, 1277 (1994). His threat that the Union would
force those that signed with it to go outside with boards, im-
plies that a strike is inevitable in violation of Section 8(a)(1).
Classic Coach, 319 NLRB 701, 702–706 (1995).
The Security Guards
Pedro Puerto noticed a security guard remove a union flier
from an employee’s car as Puerto was waiting to pass through
security. The guard and employee appeared to be arguing.
Bruce Clark is a machine operator in the extrusion depart-
ment. He checks quality control. His immediate supervisor is
Kevin Wilson. Clark recalled seeing security guards out front
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 678
of Respondent’s plant on two occasions during mid-November
1996 appearing to videotape union employees handing out
union fliers. One of Respondent’s employees was holding up a
sign while the union people were passing out the union fliers.
As shown below, Britt Samson testified that he and Brian
Robinson passed out union fliers at the plant before work. A
security guard approached and asked Samson for his name and
badge number and to leave the property. Samson told the guard
they would not leave. A few minutes later the guard returned
and asked if Samson would surrender his union materials in-
cluding cards and leaflets. Samson refused. He noticed two
other security guards in the distance and one appeared to be
filming Samson with a video camera. He noticed the guard
continued to film while he passed union materials to an em-
ployee.
Charles Kramer is the management information service
(MIS) manager. Glenn Stallsmith is the guards leadperson. The
security guards report to Kramer. He admitted that at some
point after the union campaign started in November 1996, the
security guards started videotaping traffic congestion and that
sort of thing. Kramer testified they were concerned there might
be an accident because the union organizers were causing con-
gestion at the entranceway in a couple of places and they were
concerned about the organizers being on “the property.”
James Hicks is a security guard. He denied that he did any
videotaping during November 1996. He did see union organiz-
ers passing out materials to employees and that created traffic
congestion. There was an auto accident at the east entrance
during that time. Hicks denied that he or another security guard
forcibly took a leaflet from an employee.
Hicks was present when the employees came back onto the
company property on November 14. He does not speak Spanish
and did not talk to the employees. He testified that only one
security guard spoke to the employees and that was Jorge Gon-
zalez.
Deborah Bowser, another security guard, testified that union
organizers passing out materials during November 1996 created
traffic congestion. She denied that she ever took union hand-
outs or leaflets from an employee.
Anthony Bertrand is the purchasing manager. He testified
that Respondent opened a new entry into the plant on the east
side during the union campaign because of congestion at the
old entry. He first learned of the union organizing campaign
when he saw union people handing out leaflets at the plant
about a week after the November 6, 1996 Immagration and
Naturalization Service (INS) raid. Bertrand learned that a deci-
sion was made by Respondent to engage in videotaping because
of liability concerns over the traffic congestion. He learned that
one videotape was made. He admitted that Britt Samson and
Brian Robinson were seen in the parking area on the videotape.
Neither Samson nor Robinson was in a congested area.
Findings—Credibility
I was impressed with the demeanor of Charles Kramer, An-
thony Bertrand, Pedro Puerto, Bruce Clark, and Britt Samson.
I find that testimony of James Hicks and Deborah Bowser
was not probative of whether Respondent’s agents engaged in
the activities included in the testimony of Puerto, Clark, and
Samson. The testimony of Hicks and Bowser failed to establish
that either was in a position to rebut the other evidence.
Conclusions
Respondent contends that its security guards were not agents.
However, as shown above, the evidence proved that the guards
were acting under Respondent’s instructions when they video-
taped employees engaged in Union activities. I found they were
Respondent’s agents. Sands Hotel & Casino, San Juan, 306
NLRB 172 (1992).
The credited testimony of Bruce Clark and Britt Samson, as
well as admissions by Charles Kramer and Anthony Bertrand
proved that Respondent security guards videotaped employees
engaged in Union activity at the direction of Respondent. That
videotaping was conspicuous and constitutes violations of Sec-
tion 8(a)(1). Chester County Hospital, 320 NLRB 604, 618–
619 (1995). Even though Respondent contends that it was con-
cerned with traffic congestion, that does not excuse the open
filming of employees not involved in traffic congestion but
involved in union solicitation.
The credited testimony of Pedro Puerto proved that Respon-
dent’s security guard stopped a car and confiscated union litera-
ture. I find that constitutes a violation of Section 8(a)(1). Alson
Knitting, Inc., 301 NLRB 758, 760 (1991); CVN Companies,
Inc., supra, 301 NLRB at 790.
Arnie Ramos
Jorge Lopez and Hector Vizcarra testified that employees
that had walked off their jobs came to the plant at 8 a.m. on
November 15. The employees told the security guards that they
were ready to go to work and that they had been ready to return
to work the night before. Arnie Ramos came out. Ramos told
the employees they had been fired. Later others including
Jimmy Green came out. Vizcarra testified that the employees
told Green that they wanted to return to work but that Green
said they had been replaced and if Respondent needed them
they would be phoned. Hector Vizcarra said that the employees
said on several occasions to Green that they wanted him to give
them back their jobs.
Arnie Ramos testified that he is a trainer. On the morning of
November 15, 1996, he translated for Anthony Bertrand and a
group of employees. He recalled translating to the group of
employees that Bertrand said, “[D]ue to their refusal to return
to work the night before, a decision had been made to replace
them. And if that situation ever changed, the company would
contact them individually.” One of the employees asked if they
had been terminated. Bertrand replied no, they had been re-
placed. Ramos denied that Bertrand told any of the employees
they had been fired.
Findings—Credibility
As shown here, I credit the testimony of Jorge Lopez and
Hector Vizcarra in view of the full record and their demeanor.
To the extent there are conflicts I do not credit Arnie Ramos or
Jimmy Green.
Conclusions
I find on the basis of the credited testimony of Jorge Lopez
and Hector Vizcarra that employees were told they had been
fired on November 15, after the employees engaged in a strike.
By acting as translator of admitted supervisors, Arnie Ramos
was shown to be Respondent’s agent. His telling the employees
they had been fired for union and protected concerted activity
constitutes a violation of Section 8(a)(1). Victor’s Cafe’ 52, 321
NLRB 504 (1996); Great American Products, 312 NLRB 962,
963 (1993).
POLY-AMERICA, INC. 679
Anthony Bertrand
Luis Villa met with Anthony Bertrand on November 14,
1996. Bertrand told Villa that a note had crossed his desk that
Villa had requested a meeting with Ross. Villa said that he no
longer needed the meeting. While Villa was still in the office
Steven Ross, Respondent’s owner, came in and said to Bertrand
did he ever feel like he was a cat chasing a mouse and then
realized the mouse turned and started chasing him. As Ross
walked away he said that maybe he needed 6 months vacation
and would come back and reopen this Company. Bertrand said
that they knew that the Union had their things going but the
Company doesn’t worry about it now.
Jose Luis Aguilar testified that he met with Anthony Ber-
trand 2 or 3 days after November 14, 1996. Bertrand asked
Aguilar what had happened the day he had been fired and Agui-
lar explained everything. Bertrand said that he was sorry, but
that Ross had given orders the employees were to be replaced
but that Aguilar should go ahead and call because if there was
an open opportunity he could have his job back.
Anthony Bertrand recalled meeting with Luis Villa. He testi-
fied that Steven Ross walked in while he was meeting Villa and
as Ross walked in he was into a cat and mouse story. He re-
called that Ross made a comment that he needed a 6-month
vacation. Bertrand denied that Ross said anything about closing
the Company.
Respondent offered reinstatement to all the striking employ-
ees. By letters from Anthony Bertrand on various dates after
Bertrand met with the strikers beginning on November 18, each
employee was offered reinstatement. However, each of those
letters included the condition that if the employee did not “re-
spond and/or report to work by a specified time and date, the
employee’s employment would be terminated and the employee
would lose “any reinstatement rights under the National Labor
Relations Act.” As examination of the letters to the striking
employees shows that many of those employees were given
until a specific time on the date of the letter, others the follow-
ing day, two were given 2 days, three, Jose Luis Aguilar, Ub-
aldo Loya, and Hector Vizcarra, were given 4 days to report,
and another, Jesus Hernandez, was given 9 days to report. Jose
Hernandez was told that he had to report by 8:30 a.m. on De-
cember 26, 1996, even though his letter was dated January 3,
1997. Audencio Lopez received a letter dated January 9, 1997
stating that he had been terminated for failing to report on
January 5, 1997. The letter stated that Lopez had agreed to
report on January 5 during a January 2, 1997, phone conversa-
tion.
Findings—Credibility
As shown above, I credit the testimony of Luis Villa and
Jose Luis Aguilar. Their testimony was similar to that of An-
thony Bertrand. To the extent there are conflicts I credit the
testimony of Villa and Aguilar in view of their demeanor, the
demeanor of Anthony Bertrand and the whole record.
Conclusions
The record established that Anthony Bertrand possessed su-
pervisory authority. Bertrand is the production manager. He
had the authority and actually exercised the authority to put the
alleged striking employees back to work. I find that Bertrand
was a supervisor at material times.
I find that Ross’ comments to the effect that he may take a 6-
month vacation and reopen the plant, was an implied threat to
close the plant and constitutes violations of Section 8(a)(1) of
the Act.
Bertrand’s letters to the striking employees offering rein-
statement includes an illegal condition by requiring the em-
ployee to report before a specific time. As shown above in
many of the cases employees were given an unreasonable time
to report. Respondent failed to show a legitimate business justi-
fication for that condition. Sunol Valley Golf Club & Recrea-
tion Co., 310 NLRB 357, 376 (1993). I find that action by Ber-
trand involved misrepresented to employees of their rights un-
der the Act and constitutes violations of Section 8(a)(1). Gibson
Greeting, Inc., 310 NLRB 1286 (1993).
Deaun Carpenter
Pedro Puerto talked with Foreman Deaun Carpenter during
November 1996. Several employees were in the breakroom
when Carpenter asked Puerto if Puerto had one of those cards.
Puerto asked if Carpenter was talking about the union cards and
Carpenter said yes. Carpenter was interrupted by the telephone
and he left.
Deaun Carpenter denied interrogating Pedro Puerto about the
Union. He denied telling employees they could not read union
literature in the break area.
Findings—Credibility
As shown here, I credit the testimony of Pedro Puerto.
Conclusions
I find that Deaun Carpenter interrogated employee Puerto
about employees’ union activities in November 1996. At the
time of those conversations the union organizing campaign was
not covert and it was not shown that Puerto was a known union
advocate. The record illustrated that Respondent took a strong
position in opposition to the Union. The information sought by
Carpenter included questioning as to whether Puerto had a un-
ion card. Puerto was apparently truthful in his response. There
was no showing that Respondent had a valid purpose in seeking
to determine whether Puerto had a union card. Carpenter did
not tell Puerto why he needed to know if Puerto had a union
card and he did not assure Puerto against reprisals. The above
convinces me that the questioning by Carpenter was coercive.
There was no evidence offered regarding the history of Re-
spondent’s attitude towards its employees. Cooper Tire & Rub-
ber Co. v. NLRB, 957 F.2d 1245, 1255–1256 (5th Cir. 1992);
Baptist Medical Systems, 288 NLRB 1160 (1988); Southwire
Co., 282 NLRB 916 (1982); Rossmore House, 269 NLRB 1176
(1984); Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).
As shown above, I am convinced that Carpenter was a su-
pervisor or agent at relevant times. Southern Bag Corp., 315
NLRB at 725; Victor’s Cafe 52, 312 NLRB at 504; Great
American Products, 312 NLRB at 963.
The credited testimony proved that Carpenter engaged in
violation of Section 8(a)(1) by interrogating Puerto. Puerto was
not shown to be an open union advocate. Rossmore House,
supra.
Charles Allgood
Brian Robinson testified that around 2 weeks after the No-
vember 14, 1996 work stoppage, Chuck Allgood threw some
union literature in the trash in the breakroom. There were mate-
rials other that the union leaflets in the breakroom and Allgood
did not trash those. Allgood left after seeing Robinson.
Maintenance Manager Chuck Allgood testified that 61 em-
ployees report to him. He goes into employee breakrooms each
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 680
week to remove suggestions from the suggestion box. He testi-
fied that he does not recall picking up union literature and
throwing it away.
Findings—Credibility
I was impressed with the demeanor and the testimony of
Brian Robinson. Chuck Allgood was not impressive in his tes-
timony that he did not remember throwing away union litera-
ture. I credit Robinson’s account of that occurrence.
Conclusions
The evidence clearly established that Chuck Allgood was a
supervisor at material times. He admitted that as maintenance
manager, 61 employees report to him. I find that he was a su-
pervisor.
The credited evidence shows that Chuck Allgood selectively
trashed union literature in late November 1996. By that action
he unlawfully interfered with the employees’ right to distribute
union literature. CVN Companies, supra, 301 NLRB at 790.
I find that the General Counsel failed to prove 8(a)(1) allega-
tions other than those found herein.
VI. SECTION 8(A)(1) AND (3)
The General Counsel alleged that 19 employees engaged in
an unfair labor practice strike and made unconditional offers to
return to work; and that Respondent illegally discharged those
19 employees.
There is no dispute but that some of Respondent’s employees
engaged in a work stoppage on November 14, 1996. A dispute
followed events beginning with a raid by the U.S. Immigration
and Naturalization Service around November 6. Nor is it dis-
puted but that employees engaged in union activities. Plant
Manager Jimmy Green admitted that the Union began organiz-
ing Respondent’s employees in November 1996.
Respondent’s owner, Steven Ross, spoke to the mostly Span-
ish-speaking employees the night of the raid through an inter-
preter. Some of the employees understood Ross to say they
would be paid for that entire shift even if they elected to leave
work. Subsequently when the employees received their pay-
checks on November 14, some employees became upset when
they saw they were not paid for worktime missed on November
6. Because of that dispute several employees stopped working.
Hector Vizcarra and Jose Luis Aguilar testified about the
November 14, 1996, work stoppage. When Vizcarra arrived for
work that day some of his coworkers were complaining to Jun-
ior Foreman Mike Wichter. Both Vizcarra and Aguilar testified
that Wichter said that the owner, Steve Ross, was going to pay
us but now that we were with the Union he had decided not to
pay. Wichter told the employees that since he was the one that
gave them their checks he could go into the office and make the
employees’ claims but that wasn’t his job. He told the employ-
ees that if the employees did not like it they could just punch
out and go take their claims to the office. Vizcarra joined a
group of employees that refused to work. Aguilar asked Wich-
ter what he should do as the other employees left to go to the
office and complain. Wichter told him to go back and punch
out his timecard and return to his house because he was not
going back to work then.
Michael Wichter testified about November 14, 1996. Several
employees confronted him about why they didn’t receive
enough pay. Wichter told the employees there was nothing they
could do and they should wait until morning and talk to person-
nel. About 10 to 15 minutes into the shift, Wichter told the
employees “[I]f you’re not going to work, you need to go ahead
and punch out and call in for your attendance point or whatever
and deal with it in the morning.” The employees punched out.
Plant Manager Jimmy Green learned that approximately 30
employees had walked off the job on November 14. He met the
striking employees and spoke through an interpreter. Several
showed their paychecks to Green and said that they were short
some hours pay. Those employees argued that Respondent had
promised to pay employees for the entire November 6 shift
even though they went home. Jimmy Green asked the employ-
ees to return to work. He told them their dispute would be dealt
with the following morning.
Green testified that both he and subsequently Steven Ross,
spoke to the employees through interpreters during the work
stoppage. Respondent’s interpreter, Manuel Lopez, was with
Jimmy Green when Green spoke to the employees. Green ap-
pealed to the employees to return to work.
A union organizer approached the striking employees as they
were speaking with Respondent owner Steven Ross. Jorge Lo-
pez recalled that the union organizer was named Laura. Shortly
afterward approximately 19 of the employees left Respondent’s
property and gathered with the union organizer on an adjacent
road easement. Jimmy Green went out to speak to the employ-
ees. According to Green, the union organizer told him that the
employees were on strike and would not return until three de-
mands were met. The employees demanded to be paid for the
full November 6 and 14 shifts and that no one would be pun-
ished for walking off the job. Green told the employees that he
could not agree to pay them for November 6.
Jorge Lopez testified that the union organizer told Green that
the employees wanted to return to work but were afraid of re-
prisals. Lopez testified that the employees tried to return to
work but two security guards, an Anglo and a Hispanic,
stopped them at the door. Jorge Lopez told the security guards
that they were ready to go back to work. The security guards
told the employees they were fired. Lopez identified the Anglo
security guard as George Horea. He did not know the other
guard. Lopez testified that the security guard gave him a calling
card which shows Poly-America, Glenn Stallsmith along with
address, phone, and fax numbers. Hector Vizcarra and Jose
Luis Aguilar agreed that the striking employees decided to
return to work but that the security guards closed the door on
them. A Hispanic security guard interpreted an Anglo guard’s
comments. He said that the employees should leave, that they
had been fired and the guards had orders not to let them in.
Aguilar recalled that the security guard that spoke in Spanish
said that Ross had fired the employees because they were with
the Union.
Jorge Gonzalez was a security guard in November 1996. He
was on duty during the November 14 work stoppage. There
were two other guards with Gonzalez. When the employees
approached the security shack from the road easement Gon-
zalez asked them to stop. Gonzalez testified that when the em-
ployees approached the security shack “they were saying that
they wanted to come in, and we were told not to let them in.”
He had received instructions from Jimmy Green not to let the
employees into the facility.
According to Gonzalez the strikers did not say they wanted
to go back to work. Instead they said that they wanted to go in.
They asked Gonzalez in Spanish if they didn’t have jobs and
Gonzalez replied that he “was told not to let you guys in.”
POLY-AMERICA, INC. 681
Around 15 minutes later the strikers returned to the security
shack and told Gonzalez they wanted to get their lunchboxes
and stuff in the plant. Gonzalez told the strikers that he could
not let them in but that he would contact Jimmy Green. Gon-
zalez testified the guards were instructed to escort the strikers
in two at a time. However, the strikers ignored that instruction
and walked pass the guards into the plant.
James Hicks is a security guard. He was present when the
employees came back onto the company property on November
14. He does not speak Spanish and did not talk to the employ-
ees. He testified that only one security guard spoke to the em-
ployees and that was Jorge Gonzalez.
Vizcarra recalled that a member of personnel came out and
gave Jorge Lopez a card. That man told Lopez that so the em-
ployees would know who it was that fired them here is his card.
The Hispanic security guard interpreted that man’s comments
to the employees.
Under cross-examination Lopez agreed that the striking
group of employees delayed 9 or 10 minutes after Jimmy Green
talked to them on the road easement “trying to come to an
agreement about what” they were going to do.
Jimmy Green testified that Respondent decided to replace
the strikers about a half hour after he last spoke to the striking
employees. The first steps included immediately transferring
four or five extrusion employees to reprocessing. Some addi-
tional employees were transferred to reprocessing on the next
day. Green did not recall how many employees were trans-
ferred. He admitted that no employees were hired before sev-
eral current employees were transferred to reprocessing on
November 15.
Green, along with Anthony Bertrand and interpreter Arnie
Ramos met with the striking employees around 8 to 8:30 a.m.
on November 15. The employees were told that a decision had
been made to replace them.
Jorge Lopez, Hector Vizcarra, and Jose Luis Aguilar testified
that the strikers came to the plant at 8 a.m. on November 15.
The employees told the security guards that they were ready to
go to work and that they had been ready to return to work the
night before. The guards would not allow the employees in the
facility. The same security guard that gave Lopez a calling
card, told them they had been replaced. Vizcarra recalled that
Arnie Ramos came out and told the employees they had been
fired. Later others including Jimmy Green came out. Vizcarra
testified that the employees told Green that they wanted to re-
turn to work but that Green said they had been replaced and if
Respondent needed them they would be phoned. Hector Viz-
carra said that the employees said on several occasions to
Green that they wanted him to give them back their jobs. Agui-
lar recalled that two employees asked Green why they had been
fired. Green replied they had not been fired but replaced.
Arnie Ramos testified that he is a trainer. On the morning of
November 15, 1996, he translated for Anthony Bertrand and a
group of employees. He recalled translating to the group of
employees that Bertrand said, “[D]ue to their refusal to return
to work the night before, a decision had been made to replace
them. And if that situation ever changed, the company would
contact them individually.” One of the employees asked if they
had been terminated. Bertrand replied, “[N]o, they had been
replaced.” Ramos denied that Bertrand told any of the employ-
ees they had been fired.
On the night of November 14 Respondent decided to replace
the striking employees after the employees refused to return to
work. Anthony Bertrand addressed the striking employees the
following morning around 8 a.m. He told them that Respondent
had made the decision to replace them. Some of the strikers
asked about unemployment. Some asked if they had been fired.
Bertrand replied they had not been fired and they were wel-
come to come and meet with him if they would like to discuss
their status. None of the strikers said they wanted to go back to
work. The strikers were not scheduled to return to work until
that afternoon. Approximately 15 or 16 of the strikers did meet
with Bertrand starting on November 18.
Bertrand testified that almost every one of the strikers that
met with him beginning on November 18, stated they wanted
their job back. Bertrand told each of them they would be noti-
fied whenever an opening became available. All the strikers
were eventually offered reemployment. Bertrand testified that
he did not receive anything from the Union stating that the
employees wanted to return to work.
Anthony Bertrand told Jimmy Green that he had made ar-
rangements to meet with some of the strikers individually.
Jimmy Green testified that Anthony Bertrand told him on the
phone, that several of the employees told him during those
individual meetings basically they were ready to come to work.
Green testified that he did not believe that Bertrand held any of
those individual meetings before Monday, November 18.
Jorge Lopez testified that he met with Tony Bertrand on No-
vember 18. He testified that was the first occasion that he
talked with Bertrand about wanting to return to work. Lopez
testified that he was offered reinstatement in a meeting with
Bertrand on December 2, 1996.
After learning from Bertrand that some employees wanted to
return to work, Green notified Bertrand each time an opening
occurred in the reprocessing department. On those occasions
Respondent offered reinstatement to the former strikers. Em-
ployees were selected for recall by drawing names.
Findings—Credibility
The bulk of the record dealing with the November 14 work
stoppage is not in dispute. I credit the evidence showing that
employees walked off the job on November 14 over a pay dis-
pute. After the initial walk out a union representative joined the
striking employees and made demands on their behalf. Respon-
dent’s management officials recognized that representative as a
union employee. That evidence which shows that the employ-
ees engaged in a concerted activity strike by complaining to
management about their pay and that they continued to advance
their complaint with the assistance of a union agent showed the
employees engaged in union and protected concerted activity
with knowledge of management.
The primary factual dispute involves whether the striking
employees tried to return to work without condition and what
they were told by management.
Respondent argued that Plant Manager Green spoke to the
employees on the night of November 14 while the employees
were with the union representative on an easement just off
company property. The union representative made three de-
mands. She demanded that the employees be paid in full for
November 6 and 14 and that the employees be assured they
would not be punished for their actions on November 14.
Green testified that he replied that he could satisfy the em-
ployee demands that they be paid for November 14 and that
they would not be punished but that he could not assure them
they would be paid for November 6.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 682
Green testified that he returned to the plant and within 30
minutes they, management, had made the decision to replace
the striking employees. Following that decision several em-
ployees were transferred from elsewhere in the plant to reproc-
essing, in order to get the plant up and running.
It is undisputed that after talking with Green at the easement
on November 14, the striking employees tried to return to the
plant. The strikers were not allowed to return to the plant and
they were told either that they had been fired, that a decision
had been made to replace them or both. Those statements were
made to the striking employees by security guards at the direc-
tion of Respondent’s management and by translators of some of
Respondent’s management officials.
Jorge Lopez, Jose Luis Aguilar, and Hector Vizcarra testified
that the employees tried to return to work but were stopped by
security guards. Security Guard Jorge Gonzalez who was iden-
tified by Security Guard Hicks as the only guard that spoke to
the strikers, admitted that the strikers returned to security and
said they wanted to come in. Gonzalez testified that he told the
employees that Plant Manager Green had told the Guards not to
let the strikers in. It is not disputed that the guards did stop the
striking employees from returning to the plant. Gonzalez admit-
ted that the striking employees asked, “I[I]f they didn’t have
jobs” and he replied that he had been told “not to let you guys
in.”
In view of the witnesses demeanor and the admissions of
Jorge Gonzalez, I am convinced that Jorge Lopez, Jose Luis
Aguilar, and Hector Vizcarra were correct in their testimony
that they tried to return to work on the night of November 14,
but were stopped by the security guards and told they had been
terminated. Even the testimony of Gonzales which is not cred-
ited to the extent it conflicts with the testimony of Lopez, Agui-
lar, and Vizcarra, shows that when the employees asked if they
still had jobs he replied that he had been told not to let them in
the plant.
Conclusions
As to whether Respondent illegally discharged the striking
employees, I shall consider whether those employees were
discharged and, if so, whether the General Counsel proved
through persuasive evidence that the Respondent acted out of
antiunion animus. Manno Electric, 321 NLRB 278 fn. 12
(1996); Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
As shown above, there is no dispute regarding the November
14 work stoppage or that Respondent knew of that action by its
employees. Employees concerned with whether they had re-
ceived full pay for work on November 6, protested to manage-
ment and walked off the job. That fact was admitted by various
witness for Respondent including the plant manager. Avery
Leasing, Inc., 315 NLRB 576, 580 (1994); Matador Lines, Inc.,
323 NLRB 189 (1997); United States Service Industries, 314
NLRB 30, 33 (1994). It was also undisputed that a union repre-
sentative joined the striking employees in protesting to man-
agement on the night of November 14 and that management
knew of that activity. As shown above, that was admitted by
Plant Manager Green. Green testified that the union organizer
told him that the employees were on strike and would not return
to work until they were paid in full for November 6 and 14 and
Respondent agreed that none of the strikers would be punished.
The evidence is in dispute as to whether the strikers were
discharged.
As shown above, I am convinced that Jorge Lopez, Jose Luis
Aguilar, and Hector Vizcarra were correct in their testimony
that the striking employees tried to return to work on the night
of November 14, but were stopped by the security guards and
told they had been terminated. Even the testimony of Security
Guard Jorge Gonzales which is not credited to the extent it
conflicts with the testimony of Lopez, Aguilar, and Vizcarra,
shows that when the employees asked if they still had jobs he
replied that he had been told not to let them in the plant. Such a
comment reasonably tends to show that the employees had been
terminated.
The evidence is not in dispute but that Security Guard Gon-
zalez was acting pursuant to directions from Plant Manager
Green when he stopped the striking employees from returning
to the plant. Gonzalez admitted that he told that to the striking
employees.
Moreover, even if I should find that the employees were not
told they had been discharged, the evidence shows that Re-
spondent made the decision to refuse to reinstate the strikers
early after the strike started. As shown here, Plant Manager
Green testified that Respondent made the decision to replace
the strikers 30 minutes after he last spoke to them on the night
of November 14. Thereafter, Respondent, through statements
by its management officials which were translated to the strik-
ing employees as shown here, and by statements by the security
guards at the direction of management, told the employees they
had been discharged or replaced. In view of the fact that those
statements were made to the striking employees in the context
of their being prevented from returning to their jobs in the
plant, the testimony by Security Guard Gonzales illustrated that
Respondent conveyed to the employees that they had been dis-
charged. As shown in the testimony of Plant Manager Green, at
the time the decision was made to replace the strikers no one
had been transferred within the plant to replace any of the strik-
ers. At the time Security Guard Gonzales stopped the strikers,
no one had been hired to replace any of the strikers.
I must distinguish between a decision to replace and actual
replacement of the striking employees. The evidence shows that
Respondent made the decision to replace on the night of No-
vember 14 but the actual act of replacing the striking employ-
ees was another matter altogether. (See Gibson Greetings, 310
NLRB 1286 (1993), where the Board distinguishes between an
intent to permanently replace and the actual understanding
between employer and replacement as to whether the replace-
ment is permanent.) Respondent has the burden of going for-
ward as to proof that the striking employees were permanently
replaced or denied reinstatement for some other legitimate and
substantial business justification. Sunol Valley Golf Club &
Recreation Co., supra, 310 NLRB at 373, citing NLRB v.
Fleetwood Trailer Co., 389 U.S. 375, 378–379 (1967). Re-
spondent must show that the replacements were hired in a man-
ner that would show that the replacements were regarded by
themselves and the employer as having received their jobs on a
permanent basis. Gibson Greetings, supra.
Respondent failed to prove that it permanently replaced any
of the striking employees before they were discharged and be-
fore they were told they had been replaced. Some employees
were transferred from extrusion to reprocessing on the night of
the work stoppage and some thereafter. However, there was no
showing that any of those transferred employees were told any-
thing which caused them to regard themselves as having re-
POLY-AMERICA, INC. 683
ceived their jobs in reprocessing on a permanent basis. Sunol
Valley Golf Club, supra.
I find that the evidence failed to show that anyone replaced a
single striking employee before Respondent discharged all the
strikers and the evidence failed to establish that anyone re-
placed a striking employee at any time in a manner that would
show that the replacement was regarded, as having received his
or her job on a permanent basis. Sunvol Valley Golf Club, su-
pra.
I find that Respondent engaged in a violation of Section
8(a)(1) and (3) of the Act by discharging the following employ-
ees on the night of November 14, 1996, because of their union
and protected concerted activity:

Jose Gomez Anselmo Tapia
Jose Hernandez Hector Vizcarra
Jesus Hernandez Oscar Ceniceros
Jorge Lopez Juan Castillo
Juan Lopez Ubaldo Loya
Audencio Lopez Noel Lopez
Franscico Cansino Andrew Morales
Jose Luis Aguilar Lemuel Garcia
Hipolito Hernandez Fortunato Ruiz
Pable Lucero

Respondent made a number of arguments in its brief. Among
those was the argument that none of the striking employees
made an unconditional offer to return to work before November
18, 1996. As shown above, I credit the testimony showing that
the employees tried to return to their jobs on the night of No-
vember 14, but were stopped by security guards. There was no
showing that anyone ever said that the employees wanted to
return to work without condition. However, I credit the testi-
mony showing that the employees were told they had been
fired. Moreover, Security Guard Gonzalez admitted that when
the striking employees asked him on November 14 if they
didn’t have jobs, he replied that he had been told not to let the
strikers in the plant. Under the circumstances I am convinced
that the striking employees did, by their statements and actions,
show to Respondent’s agents their desire to return to work
without condition.
Even if I should find that the striking employees failed to
make an unconditional offer to return to work, I must question
whether that was necessary.
As shown here there was evidence that Respondent engaged
in conduct in violation of sections of the Act which was con-
temporanous with the employees’ strike. When the employees
questioned Mike Wichter about their pay early in their Novem-
ber 14 shift, Wichter told them that the owner was going to pay
them but now that the employees were with the Union he had
decided not to pay. Subsequently, when the employees tried to
return to work later on that shift they were discharged. How-
ever, the evidence was not clear that the employees struck be-
cause of Wichter’s statement. Instead I find that the record
failed to establish the Wichter’s comments resulted in either the
start or the prolongation of the strike. It appears from the evi-
dence that the employees may have struck over their perceived
pay shortage regardless of Wichter’s comment.
However, the record shows that Respondent’s action in dis-
charging the striking employees had the effect of prolonging
the strike. As shown above the employees tried to return to
work on the night of November 14 but were prevented by secu-
rity guards. As shown above the employees were told they had
been fired. That action had the obvious effect of prolonging the
strike. But for Respondent’s discharge of the strikers, they
would have ended the strike and returned to work. I find that
Respondent converted the employees’ economic strike to an
unfair labor practice strike by illegally discharging the above
named employees. Sunol Valley Golf Club, 310 NLRB 357,
371 (1993). In view of my findings here, I determine that all the
above stated striking employees are entitled to reinstatement
with backpay from the time of their discharges on the night of
November 14, 1996. It is not necessary for striking employees
to make an unconditional offer to return to work when, as here,
they have been discharged and are engaged in an unfair labor
practice strike.
Respondent suspended Britt Samson and Brian Robinson
Britt Samson has worked for Respondent as an apprentice
electrician since September 1995. He testified about seeing
union leaflets in the breakroom in November 1996. He attended
a union meeting that same night and signed a union authoriza-
tion card. The following morning Samson and Brian Robinson
passed out union fliers at a plant parking lot before work. Sam-
son appeared in the parking lot at 5 a.m. He was scheduled to
start work at 6 a.m. He admitted that he does not normally
show up that early.
Brian Robinson was an electrical apprentice during Novem-
ber 1996.
A security guard approached and asked Robinson and Sam-
son to leave the property. Both Robinson and Samson told the
guard they would not leave. A few minutes later the guard re-
turned and asked if Samson would surrender his union materi-
als including cards and leaflets. Samson refused. Samson no-
ticed two other security guards in the distance and one appeared
to be filming Samson with a video camera. He noticed the
guard continued to film while he passed union materials to an
employee.
After starting work Samson talked to other employees about
the Union. His supervisor told him to report to the office.
Charles Allgood and Roger Wooley were in the office with
Samson. Allgood asked Samson if he had been asked by a secu-
rity guard to leave the property and if he had left. Samson ad-
mitted that he had not left after the guard asked him to. Allgood
told Samson that was insubordinate action and he was being
suspended for 3 days. Britt Samson asked if Allgood realized
that the guard had acted in violation of the law in asking him to
leave. Allgood said that he did not care about that. After leav-
ing the office Samson returned to get a copy of the suspension
form and he saw Brian Robinson leaving Allgood’s office. The
parties stipulated that Brian Robinson was disciplined that same
day regarding not leaving the parking lot after being directed to
do so by a security guard. Allgood told Samson and Robinson
to go to personnel and they would have copies of the suspen-
sions. However, Joan Tasker at personnel told Samson and
Robinson that she knew nothing about the forms and Samson
never did receive a copy.
That evening the main entrance was blocked with barrels and
employees were directed to a different entrance on the east side
of the plant.
Samson testified there was no rule against being in the park-
ing lot before a work shift and that employees were routinely in
the parking lot during nonworktimes. The employee handbook
does provide that an employee may be suspended for 3 days for
insubordination.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 684
Maintenance Manager Chuck Allgood testified that 61 em-
ployees report to him. He issued personnel status change re-
ports to Brian Robinson and Britt Samson on November 14,
1996, after it was reported to him the two employees had re-
fused to leave the premises after directions from security. He
received the report from Security Supervisor Glenn Stall-Smith.
Allgood testified that Robinson and Samson were in violation
of Respondent’s no loitering policy by being on the premises
over one-half hour before their worktime. He admitted that he
suspended both Robinson and Samson for insubordination.
Allgood denied that he viewed any videotapes before suspend-
ing Robinson and Samson.
Anthony Bertrand is the purchasing manager. He testified
that Respondent opened a new entry into the plant on the east
side during the union campaign because of congestion at the
old entry. He first learned of the union organizing campaign
when he saw union people handing out leaflets at the plant
about a week after the November 6, 1996, INS raid. Bertrand
learned that a decision was made by Respondent to engage in
videotaping because of liability concerns over the traffic con-
gestion. He learned that one videotape was made. He admitted
that Britt Samson and Brian Robinson were seen in the parking
area on the videotape. Neither was in a congested area.
Findings—Credibility
The record is not in dispute that employees Britt Samson and
Brian Robinson were suspended from work because each re-
fused to leave Respondent’s property after being told to leave
by a security guard. At the time they were told to leave both
Samson and Robinson were distributing union materials to
other employees. There is no dispute but that Respondent
videotaped Samson and Robinson in the parking lot distributing
union literature to other employees.
Conclusions
As to whether Respondent illegally suspended Samson and
Robinson, I shall first consider whether the General Counsel
proved through persuasive evidence that the Respondent acted
out of antiunion animus. Manno Electric, supra; Wright Line,
supra; NLRB v. Transportation Management Corp., supra.
Samson and Robinson was engaged in union activity when
each was asked by a security guard to leave the premises. Both
were in Respondent’s parking area before the time set for be-
ginning work. The law is firmly established that an employer
engages in violation of Section 8(a)(1) by ordering offduty
employees engaged in distribution of union literature to leave
the premises unless it is shown that the order stems from a
business reason. Olathe Healthcare Center, 314 NLRB 54
(1994); Spring City Knitting Co., 285 NLRB 426 (1987). There
was no evidence of a business reason for the ordering of Sam-
son and Robinson off the premises. Moreover, as shown here,
Respondent videotaped Samson and Robinson engaged in dis-
tribution of union literature.
Respondent contended that it had no knowledge that Samson
and Robinson were engaged in union activities. That argument
was refuted by the credited evidence. The evidence showed that
Respondent’s agents, its security guards, knew about Samson
and Robinson’s activity in the parking lot. Moreover, the secu-
rity guards videotaped Samson and Robinson engaged in union
activity in the parking lot and Respondent obtained the video-
tape.
Respondent now contends that Samson and Robinson were
ordered off the premises because they were in violation of its
no loitering policy. However, the record does not support Re-
spondent. Neither Samson nor Robinson were disciplined for
loitering. Nothing was said to them by either the security
guards or supervision about loitering and Respondent failed to
show that it had a written no loitering rule.
I find that the credited evidence shows that Respondent en-
gaged in unlawful conduct by ordering Samson and Robinson
to leave the premises while they were engaged in distribution of
union literature in a nonwork area during their nonworktime.
The record shows antiunion animus. The General Counsel
proved prima facie, that Samson and Robinson were suspended
from work because of their union activity. Respondent, on the
other hand, failed to show that it would have suspended Sam-
son and Robinson in the absence of their union activities. There
was no showing that Respondent has ever disciplined anyone
for conduct similar to that of Samson and Robinson that did not
involve the Union.
Respondent Discharged Jason Snow
Jason Snow started working for Respondent in August 1996.
He worked on the dye crew on the morning shift under Super-
visor James Qualls. He was originally placed on a 120-day
probationary period. He reported to three leadmen, Trinidad
Rivera, Lee Marsh, and Andy Farmer.
Snow testified that he received positive feedback from his
leadmen and James Qualls regarding his work. Snow was never
disciplined for his work performance.
During the union organizing campaign Jason Snow handed
out union pamphlets, attended union meetings and talked to
other employees about the Union. He was questioned about
union activity by his leadmen. The three leadmen asked him
frequently about what percentage of the employees had signed
up for the Union and if Snow felt the Union was going to get in.
Snow admitted that he missed some work because of court
dates. He talked to James Qualls about his need to miss work.
Qualls told him that he would make an exception to the absen-
tee rule for Snow because Snow was turning into a “pretty good
dye crew mechanic.”
Jason Snow was terminated on December 2, 1996. James
Qualls told him that he had scored average or below average on
his performance evaluation and, out of concern that his per-
formance would get worse after his probationary period, they
had decided to let him go. Qualls said that Snow demonstrated
a lack of motivation and initiative and they felt he could not get
the jobs done without direct supervision over his work.
After his discharge, as Snow was being escorted out of the
building by Leadman Andy Farmer, he asked Farmer if he felt
Snow was being treated appropriately. Farmer answered the
“way he was going to answer everybody else the rest of the
day, which is, he would take the Fifth.” Farmer also said to
Snow, “I just basically want to tell you one thing; I think you
got a raw deal.” Later that night Snow went by the home of
Leadman Trinidad Rivera. Rivera said that “it was his opinion
that [Snow] shouldn’t have been terminated and he asked
[Snow] to keep that to myself because it could threaten [Riv-
era’s] job stability.”
James Qualls denied that he discussed the Union with Jason
Snow. He denied that anyone told him whether Snow was a
supporter of the Union and that he had suspicions as to whether
Snow supported the Union. Qualls identified a status change
form showing that Jason Snow was separated from his em-
ployment because he “Did not make probation unsuitable for
employment.”
POLY-AMERICA, INC. 685
According to Qualls he decided to terminate Snow at the end
of Snow’s probationary period because Snow failed to ever
obtain safety shoes; Snow failed to obtain required tools; and
Snow was lazy. Qualls testified that Snow had an attendance
problem that Qualls “tried to work with him on.” That was one
of the issues that helped seal Snow’s fate. James Qualls testi-
fied that he consulted with the leadmen as to their opinion of
Snow’s work. He denied that the union organizing campaign
had anything to do with Snow’s discharge.
Trinidad Rivera testified that Jason Snow performed poorly
during his probationary period. Snow was not safety oriented.
He wore his safety glasses on top of his head most of the time
and talked often of leaving the Company. Snow said the Com-
pany was a sweat shop. Snow was not a hard worker. Rivera
made a recommendation to James Qualls regarding his opinion
of Snow. Rivera testified that he knew that Snow was active in
the union campaign but he denied that he mentioned that to
James Qualls. Rivera testified under cross-examination that he
completed written evaluations on employees including Jason
Snow and that he rated the employees from 1 to 10. He turned
those evaluations in to James Qualls. Andy Farmer admitted
that he also gave his supervisor a written evaluation of Snow.
The parties stipulated that Lee Marsh would testify similar to
Trinidad Rivera.
Trinidad Rivera agreed that he met with Snow after Snow’s
discharge. He told Snow that he gave what he felt was a fair
evaluation. He denied saying to Snow that he had given Snow a
good evaluation. Rivera denied giving Snow a special com-
mendation for work on a 1986 dye project.
Andy Farmer testified that Jason Snow’s job performance
was not up to par. Snow frequently said that he was not happy
working for Respondent. Snow said that it was like working in
a sweat box. On one occasion Snow said in front of other em-
ployees that Farmer was a dick. Farmer told James Qualls of
that occurrence. Farmer denied that Snow received a special
commendation in connection with the 1986 dye project.
Findings—Credibility
As shown above, on the basis of the demeanor of the wit-
nesses and the full record I credit the testimony of Jason Snow.
To the extent their testimony differs I do not credit James
Qualls, Andy Farmer, or Trinidad Rivera.
Conclusions
As to whether Respondent illegally discharged Jason Snow, I
shall first consider whether the General Counsel proved
through persuasive evidence that the Respondent acted out of
antiunion animus. Manno Electric, supra; Wright Line, supra;
NLRB v. Transportation Management Corp., supra.
As shown here, the credited evidence clearly established that
Jason Snow engaged in prounion activities while employed by
Respondent and that Respondent knew that Snow was cam-
paigning on behalf of the Union. As shown above, I credit the
testimony showing that the three leadmen questioned Snow
about what percentage of the employees had signed up for the
Union and if Snow felt the Union was coming in.
The record established union animus. As shown above Re-
spondent engaged in numerous violations of Section 8(a)(1)
and (3) of the Act and its actions establish that it was strongly
opposed to the Union and willing to engage in unlawful con-
duct including discharge, to defeat the Union.
I am convinced that the General Counsel proved a prima fa-
cie case in support of the allegation that Snow was terminated
because of his union activities. Manno Electric, supra; Wright
Line, supra; NLRB v. Transportation Management Corp., su-
pra.. I shall consider whether Respondent proved that it would
have discharged Snow in the absence of union activity.
As shown above Respondent showed on his termination that
Snow was discharged because he did not make probation and
was unsuitable for employment. However, neither that nor the
subsequent argument Respondent made to support the dis-
charge are supported by credited evidence. There was nothing
in Respondent’s records to show that Snow was ever disci-
plined or criticized for his work before his discharge. The only
disciplinary record prepared before Snow’s discharge, indicated
that Snow had been absent from work. However, the record
showed that Snow did not miss enough work to subject him to
discharge.
Leadmen Farmer and Rivera testified to having prepared
written evaluations of Snow. However, none of those evalua-
tions were produced at trial. The only written document regard-
ing Snow other than regarding absenteeism, was a document
prepared after these unfair labor practice charges were filed.
That document written by Supervisor Qualls, added to the rea-
sons for Snow’s discharge. In addition to the contention that
Snow had not satisfactorily performed during his probationary
period, Qualls added that Snow had failed to supply required
equipment including safety shoes. Counsel for the General
Counsel correctly points out that such an effort demonstrates
that Respondent may be engaged in pretext in an effort to jus-
tify Snow’s discharge. Limestone Apparel Corp., 255 NLRB
722 (1981), enfd. sub nom. 705 F.2d 799 (6th Cir. 1982).
I find that the General Counsel proved that Respondent dis-
charged Jason Snow because of Snow’s union activities; that
Respondent may have engaged in pretext in order to justify its
discharge of Snow; and that Respondent failed to prove that it
would have discharged Jason Snow in the absence of union
activities.
CONCLUSIONS OF LAW
1. Poly-America, Inc. is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Union of Needletrades, Industrial and Textile Employees
is a labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent, by promulgating and enforcing a no solicita-
tion no-distribution rule which prohibits employees from en-
gaging in union activities on Respondent’s premises during
break, lunch, before and after work; disparaging the Union by
telling its employees that the Union is no good, had threatened
to burn the plant and would charge up to $300 in weekly or
monthly fees; by threatening the employees with loss of bene-
fits if they select the Union as their bargaining representative;
by threatening its employees that it had decided to pay employ-
ees for time off because of an INS raid but had changed its
mind because the employees went to the Union; by interrogat-
ing its employees about their union activities; by threatening its
employees with isolation and discharge if they signed union
authorization cards; by threatening that the Union will force
those employees that sign with the Union to strike and engage
in picketing; by videotaping its employees union activities; by
confiscating union materials from employees; by telling its
employees they had been fired because they engaged in a Un-
ion and a protected concerted work stoppage; by threatening to
close and reopen the plant because of its employees’ union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 686
activities; by conditioning reinstatement of employees that
engaged in a union supported, protected concerted work stop-
page, upon their responding to the offer of reinstatement within
a short specified period of time without proper business justifi-
cation; and by selectively trashing union materials in the em-
ployees’ breakroom; has engaged in conduct violative of Sec-
tion 8(a)(1) of the Act.
4. Respondent, by terminating the below named employees
because they engaged in a protected concerted work stoppage
that was subsequently supported by the Union; by converting
the employees’ economic work stoppage into an unfair labor
practice strike; by illegally discharging employee Jason Snow
and by illegally suspending employees Britt Samson and Brian
Robinson; because of their union affiliation and preference has
engaged in conduct violative of Section 8(a)(1) and (3) of the
Act:

Jose Gomez Anselmo Tapia
Jose Hernandez Hector Vizcarra
Jesus Hernandez Oscar Ceniceros
Jorge Lopez Juan Castillo
Juan Lopez Ubaldo Loya
Audencio Lopez Noel Lopez
Franscico Cansino Andrew Morales
Jose Luis Aguilar Lemuel Garcia
Hipolito Hernandez Fortunato Ruiz
Pable Lucero

5. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6),
(7), and (8) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
As I have found that Respondent has illegally terminated the
below listed employees and has illegally suspended Britt Sam-
son and Brian Robinson, in violation of sections of the Act, I
shall order Respondent to offer the below listed employees
immediate and full employment to each person’s former posi-
tion or, if that position no longer exists, to a substantially
equivalent position without prejudice to their seniority and
other rights and privileges, discharging if necessary all employ-
ees hired to replace them. I further order Respondent to make
the below listed employees whole for all loss of earnings suf-
fered as a result of the discrimination against them. Backpay
shall be computed as described in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as described in New Horizons
for the Retarded, 283 NLRB 1173 (1987). I recommend that
Respondent be ordered to expunge from its records any refer-
ence to the unlawful terminations and suspensions and to give
the below listed employees, Samson and Robinson, written
notice of such expunction and to inform all those employees
that Respondent’s unlawful conduct will not be used as a basis
for further personnel actions.

Jose Gomez Anselmo Tapia
Jose Hernandez Hector Vizcarra
Jesus Hernandez Oscar Ceniceros
Jorge Lopez Juan Castillo
Juan Lopez Ubaldo Loya
Audencio Lopez Noel Lopez
Franscico Cansino Andrew Morales
Jose Luis Aguilar Lemuel Garcia
Hipolito Hernandez Fortunato Ruiz
Pable Lucero Jason Snow

On the foregoing findings, conclusions of law, and the entire
record, I issue the following recommended1
ORDER
The Respondent, Poly-America, Inc., Grand Prairie, Texas,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating and enforcing a no-solicitation/no-
distribution rule which prohibits employees from engaging in
union activities on Respondent’s premises during break, lunch,
before and after work.
(b) Disparaging the Union by telling employees that the Un-
ion is no good, had threatened to burn the plant and would
charge up to $300 in weekly or monthly fees.
(c) Threatening employees with loss of benefits if they select
the Union as their bargaining representative.
(d) Threatening employees that it had decided to pay em-
ployees for time off because of an INS raid but had changed its
mind because the employees went to the Union.
(e) Interrogating employees about their union activities.
(f) Threatening employees with isolation and discharge if
they sign union authorization cards.
(g) Threatening employees that the Union will force those
employees that sign with the Union to strike and engage in
picketing.
(h) Videotaping employees’ union activities.
(i) Confiscating union materials from employees.
(j) Telling employees they have been fired because they en-
gaged in a union and protected concerted work stoppage.
(k) Threatening employees that it will close and reopen the
plant because of its employees’ union activities.
(l) Conditioning reinstatement of employees that engaged in
a union supported, protected concerted work stoppage, upon
their responding to the offer of reinstatement within a short
specified period of time without proper business justification.
(m) Selectively trashing union materials in the employees’
breakroom.
(n) Discharging, suspending or otherwise discriminating
against employees because they engaged in union or protected
concerted activities regarding terms and conditions of employ-
ment with their fellow employees or with management, or oth-
erwise engage in protected concerted activities for mutual aid
and protection.
(o) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of this Order, offer immediate and full re-
instatement to the below named employees to each of their
former positions or, if those positions no longer exist, to sub-
stantially equivalent positions without prejudice to their senior-

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
POLY-AMERICA, INC. 687
ity or any other rights or privileges previously enjoyed, and
make them whole for all loss of earnings and other benefits
suffered as a result of the discrimination against them plus in-
terest, in the manner set forth in the remedy section of the deci-
sion:

Jose Gomez Anselmo Tapia
Jose Hernandez Hector Vizcarra
Jesus Hernandez Oscar Ceniceros
Jorge Lopez Juan Castillo
Juan Lopez Ubaldo Loya
Audencio Lopez Noel Lopez
Franscico Cansino Andrew Morales
Jose Luis Aguilar Lemuel Garcia
Hipolito Hernandez Fortunato Ruiz
Pable Lucero Jason Snow

(b) Within 14 days of this Order, remove from its files any
reference to the termination of the above named employees and
to the November 1996 suspensions of Britt Samson and Brian
Robinson, and notify all those employees that this has been
done and that evidence of those disciplinary actions will not be
used as a basis for future personnel actions.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records, reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cility in Grand Prairie, Texas, copies of the attached notice
marked “Appendix.”2 Copies of the notice, on forms provided
by the Regional Director for Region 16, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since March 7, 1996.
(e) Within 21 days after service by the Region, file with the
Regional Director, Region 16, a sworn certification of a respon-
sible official on a from provided by the Region attesting to the
steps that the Respondent has taken to comply.

2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”