Pre-Cast Mfg. Co

National Labor Relations Board - Board Decisions

Nov 7, 1972

200 N.L.R.B. 135 (N.L.R.B. 1972)

PRE-CAST MFG. CO. 135
Pre-Cast Mfg . Co and John Anderson and Richard
Ramirez and Eddie Lucero and Vivian Reyes and
Frank Pena. Cases 28-CA-2436-1, 28-CA-
2436-2, 28-CA-2436-3, 28-CA-2436-4, and
28-CA-2436-5
November 7, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 28, 1972, Administrative Law Judge'
Irving Rogosin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in opposition to the Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Pre-Cast Mfg. Co.,
Phoenix, Arizona, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IRVING RoGOSIN, Trial Examiner: The consolidated
complaint, hereinafter referred to as the complaint, issued
January 12, 1972, as amended at the outset of the hearing,
i Designations herein are as follows: the General Counsel, unless
otherwise noted, his representative at the hearing; Pre-Cast Mfg. Co.:
Respondent, the Company or the Employer; Construction, Production and
Maintenance Laborers Union, Local No 383: the Union; the individuals
named as Charging Parties in the caption of the complaint, the Charging
Party or Parties, as the context may require; the National Labor Relations
Act, as amended (61 Stat 136, 73 Stat. 519, 29 U.S C. Sec. 151, et seg.), the
Act; the National Labor Relations Board, the Board. The individual
charges were filed by Anderson, Ramirez, and Lucero, in Cases
28-CA-2436-1, -2, -2, and -3, respectively, on October 12, 1971; by Reyes
and Pena, in Cases 28-CA-2436-4 and -5, on October 18, 1971. All
charges were duly served on Respondent
z Although served with notice of all proceedings, Eddie Lucero did not
alleges that Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Act.
Specifically, the complaint alleges that (1) since about
October 11, 1971, Respondent, by its supervisors or agents,
has (a) interrogated employees regarding their union and
concerted activities; (b) announced that it did not intend to
permit its employees to become unionized, irrespective of
the number of employees desiring union representation;
and (c) on about October 14, 1971, through a supervisor,
interrogated employees regarding their activities during
nonworking time and warned them against discussing a
union during working or nonworking time, thereby
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act; (2) on October 11, 1971,
discharged John Anderson and Richard Ramirez, and on
October 12, Eddie Lucero; and, constructively discharged
Frank Pena and Vivian Reyes, on or about October 14,1971,
by assigning them more arduous and less agreeable work
tasks, thereby causing them to terminate their employment
with Respondent, because they had joined or assisted the
labor organization or were suspected of sympathizing with
the formation of a labor organization, or had engaged in
other concerted activities, thereby violating Section 8(a)(3)
of the Act.'
Respondent's answer admits, with minor exceptions, the
procedural and jurisdictional allegations of the complaint,
but denies generally the remaining allegations, as well as
the commission of any unfair labor practices. Simultane-
ously with the filing of the answer, Respondent filed
motions to sever the five consolidated cases, under Section
102.33, and to make more definite and certain, or, in the
alternative, to strike, specified paragraphs of the com-
plaint, under Section 102.15 of, the Board's Rules and
Regulations. A memorandum in opposition to Respon-
dent's motions was filed by counsel for the General
Counsel and, upon order of the Regional Director, the
motions were referred to a Trial Examiner for ruling. On
February 4, 1972, Trial Examiner Louis S. Penfield issued
an order denying each of said motions.
Hearing was held before me from February 23 to
February 29, 1972, both inclusive, at Phoenix, Arizona. All
parties appeared and were represented by counsel, the
Charging Parties appearing in pro per,2 were afforded full
opportunity to be heard, to examine and cross-examine
witnesses, to introduce oral and documentary evidence,
relevant and material to the issues, to argue orally, and to
file briefs and proposed findings of fact and conclusions of
law. At the outset of the hearing, Respondent renewed its
motions to sever and to make more definite and certain or,
appear in person or by counsel. At the conclusion of the General Counsel's
case, Respondent moved to dismiss the complaint as to him for lack of
evidence of a prima facie case. The record shows that Lucero, classified as a
laborer, one of the employees present during union discussions in the
coffeeshop, was discharged the same day as Anderson and Ramirez. No
evidence was offered , however, regarding the circumstances surrounding his
discharge. The motion to dismiss was granted, subject to reopening, in the
event he appeared before the close of the hearing. Lucero did not appear
thereafter, and no request was made to reopen. Nevertheless, to prevent
forfeiture of any rights he may have, in the event his failure to appear may
have been due to unavoidable circumstances, the ruling is modified to
provide that the dismissal is without prejudice.
200 NLRB No. 31
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the alternative, to strike. The motions were denied.
When subsequently renewed, as were the motions to
dismiss as to all Charging Parties, the motions were denied.
Renewed, prior to the close of the hearing, ruling on the
motions to dismiss was reserved. The rulings are disposed
of in accordance with the findings and conclusions
hereinafter made. Respondent argued orally on the record
and counsel for the General Counsel responded. Pursuant
to extensions of time duly granted, the General Counsel
filed a brief on May 1, 1972; Respondent filed a brief, with
proposed findings and conclusions attached, on April 28,
1972. Since Respondent's proposed findings of fact and
conclusions are in narrative form, they have been disposed
of by the findings and conclusions hereinafter made.
Upon the entire record in the case, and based upon the
appearance and demeanor of the witnesses, and the briefs
of the parties, which have been carefully considered, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent's answer admits, and
it is hereby found that, at all times material herein, Pre-
Cast Mfg. Co., Respondent herein, a corporation duly
organized under the laws of the State of Arizona, with its
principal office and place of business in Phoenix, Arizona,
has been engaged in the manufacture of precast concrete
and related industrial products.
During the 12-month period preceding issuance of the
complaint, Respondent manufactured, sold, and distribut-
ed concrete and related products valued in excess of
$100,000, of which products valued in excess of $100,000
were furnished to Arizona Public Service Company, among
others, which furnishes annually services valued in excess
of $50,000 outside the State of Arizona, where said
company is located.
At all times material herein, Arizona Public Service
Company has been a corporation duly organized under the
laws of the State of Arizona, maintaining its principal
office and place of business in the city of Phoenix, and has
been continuously engaged in the business of operating a
public utility, including the production, distribution, and
sale of electricity and natural gas.
During the year preceding January 1971, Arizona Public
Service Company sold and distributed products, the gross
value of which exceeded $500,000, and during the same
period said company provided goods and services, valued
in excess of $50,000, in interstate commerce, directly to
customers located in States of the United States other than
the State of Arizona.3
It is, therefore, found, on the basis of the foregoing and
upon the entire record, that, at all times material herein,
3 Although Respondent denied, for lack of sufficient knowledge, the
original allegations of the complaint with respect to the Arizona Public
Service Company, after the introduction of the formal exhibits, the General
Counsel amended that allegation of the complaint in the manner recited
above in the text. Respondent stipulated to the granting of this amendment,
with the request that his responses to the remaining allegations be deemed
applicable to the amendment as well. No evidence was offered to contradict
or challenge the allegations in this amendment to the complaint. Official
notice has been taken of the Board's decision in Arizona Public Service
Respondent has been an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Construction, Production and Maintenance Laborers
Union, Local No. 383, herein called the Union, is, and at
all times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act .4
III. THE UNFAIR LABOR PRACTICES.
A. The Issues
1. Whether Respondent, through Plant Superintendent
John Tompkins, interrogated employees regarding their
union and concerted activities; announced to its employees
that Respondent did not intend to permit its employees to
become unionized irrespective of the number of employees
desiring union representation; and interrogated employees
regarding their activities during nonworking time and
warned them against discussing the Union either during
working or nonworking time.
2. Whether Respondent discriminated in regard to the
hire and tenure of employment of its employees to
discourage membership in the Union by (a) discharging
John Anderson and Richard Ramirez, on October 11,
1971, and Eddie Lucero, on October 12, 1971, (b) assigning
more arduous and less agreeable work tasks to Frank Pena
and Vivian Reyes between October 12 and 14, 1971, and
failed and refused to reinstate said employees [in (a) and
(b) ] because of their assistance to a labor organization,
because they were suspected of sympathizing with the
formation of a labor organization or because they had
engaged in other concerted activities for the purpose of
collective bargaining or mutual aid or protection; and (c)
whether Richard Ramirez was, at the time of his discharge,
a supervisor within the meaning of Section 2(11) of the
Act.
3. Whether, by the foregoing conduct, Respondent
interfered with, restrained, or coerced its employees in the
exercise of rights guaranteed in Section 7, thereby engaging
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
B. Introduction
Respondent has been engaged in its present operations
for 15 or 16 years, employing approximately 20 hourly paid
production and maintenance employees at its plant in
Phoenix. Its officers consist of Harry C. Tompkins, Sr.,
president, and Teresa C. Tompkins, his wife, secretary-
treasurer and bookkeeper. Prior to August 3, 1971, Harry
C. Tompkins, Jr., their son, was plant superintendent. On
Company, 188 NLRB No. 1 (1971), asserting jurisdiction over that public
utility.
4 Although Respondent denied, for lack of knowledge, the Union's
status as a labor organization , there is ample evidence to support this
finding. See also Kennedy v. Construction, Production and Maintenance
Laborers' Union Local 383, AFL-CIO, 199 F.Supp 775 (D.C. Ariz), cited by
the General Counsel, in which the union was found to be a labor
organization
PRE-CAST MFG. CO. 137
August 2, 1971, John W. Tompkins, another son, was
appointed plant superintendent to succeed Harry C.
Tompkins, Jr. Respondent's production and maintenance
employees have never been represented by a labor
organization. In connection with its operations, Respon-
dent has occasion to perform installation work at various
building sites. Respondent became a party to, and is still
bound by, a Master or Basic Crafts Agreement, dated
November 8, 1965, covering carpenters, teamsters, labor-
ers, and finishers on work performed at the jobsite.5 There
is no collective-bargaining agreement between Respondent
and Local 383 covering production and maintenance
employees working inside Respondent's plant. Respondent
contributed to the Arizona Basic Crafts Health and
Welfare and Pension Trust Fund and, during October
1971, contributed to this fund on behalf of employee
Chavez, an hourly employee who worked in the plant, a
member of Local Union No. 383, for 161 hours worked on
an outside project.
When John Tompkins became plant superintendent,6 on
August 2, 1971, he instituted a series of disciplinary rules
relating to absenteeism, among other subjects. The employ-
ees regarded these as "grade school" or "school boy rules,"
which they bitterly resented.
This, in part, led to discussions about the need for union
representation. Discussions were held at the plant, both
during working and nonworking time, and at a local
coffeeshop, as well as at a bar, frequented by the
employees. The discussions occurred on nearly every
occasion when groups of employees, including the discri-
minatees who were prominently identified as union
sympathizers, assembled. At some of these discussions,
which took place at the bar, Felix Padilla, Respondent's
foreman, an admitted supervisor, was close by and in a
position to overhear the conversations.
Late in August or early September, Anderson went to the
Union, where he obtained information about initiation
fees, dues, and other aspects of union membership.
Anderson relayed the information to the employees in
discussions at the bar. In one discussion, Padilla, who was
present, made the statement, according to Anderson's
credited testimony, that the men would "never get the
Union in because John (Tompkins) just wouldn't let it in.
He would just fire us all before he let it go, that he would
just shut the gate." About a week before his discharge on
October 14, discussed hereinafter, Anderson again visited
the Union and discussed the matter of organizing Respon-
dent's employees with Assistant Business Representative
and Dispatcher Hatfield. Hatfield referred him to another
union representative who advised Anderson how to
proceed. Thereafter, Anderson circulated a handwritten
"petition" among employees whom he had not previously
canvassed about the Union to determine the extent of
5 This finding is based upon the undisputed and credited testimony of
James Hatfield, assistant business representative of Local 383. The fact that
Respondent agreed, out of apparent necessity, to be bound by the Master
Agreement, insofar as it applied to outside work performed at thejobsite by
its plant employees, does not establish, as Respondent appears to suggest,
that it was not opposed to the unionization of those employees with regard
to their production work. According to the undisputed testimony of
Anderson and Ramirez, they had each worked on jobsites away from the
plant but were paid at the production rate. Anderson further testified that
employee interest. On Friday, October 8, Anderson again
called at union headquarters to obtain authorization cards
for distribution among the employees. Arriving late, he was
told by a union agent to pick them up the following
Monday. As will presently appear, Anderson was dis-
charged on Monday, before he had an opportunity to
obtain the cards.
C. Discrimination in Regard to Hire and Tenure of
Employment; Interference, Restraint, and Coercion
1. The discharges
(a) John E. Anderson
John E. Anderson was hired by Respondent as a
carpenter in November 1970, at an hourly rate of $2.50. At
the time of his discharge he was earning $3.50 an hour,
having received four raises, in increments of 25 cents an
hour, the last effective May 2, 1971. He was hired by Harry
Tompkins, Sr., and worked under Foreman Padilla's direct
supervision, producing various products manufactured at
the plant. For a period of time, while Harry Tompkins, Jr.,
was still plant superintendent, Anderson served as a
leadman. As previously noted, he led discussions with
employees regarding union affiliation, both at the plant
and the coffeeshop, and later made the initial contact with
the Union. During his discussion with Business Represent-
ative Hatfield, he informed him that about 75 percent of
the employees were prepared to sign a "petition," and
asked his advice about how to proceed. Next day,
Anderson circulated the petition, which stated that the
employees wished to be represented by Local 383. This
activity occurred for the most part during the lunch period
or when he encountered employees in the plant areas.
There were some 15 or 20 hourly employees working there
at the time. Anderson submitted the petition for signature
to some four employees, whom he identified at the hearing
by their given names or nicknames.
After work, Anderson called the Union, and notified the
business agent that the employees were ready, and that he
would call for the authorization cards. He was told that it
would be too late that evening but to call for the cards the
following Monday after work. He was discharged that
Monday. On Monday morning, before work, Anderson
and a number of the employees, including the other alleged
discriminatees, were at the coffeeshop as usual . Anderson
told them that he intended to procure the union cards that
night. He later mentioned this to employees whom he
encountered at the plant. Anderson, however, was dis-
charged later that day and did not call for the cards.
Sometime before lunch, Anderson encountered Ramirez
near the drinking fountain, and told him that he was
getting the union cards that night and would bring them
when he was hired by Harry Tompkins, Jr, he was asked if he belonged to
the Union. He told him that he had a withdrawal card. Later, John
Tompkins told him that the Company had a working arrangement under
which production employees working outside the plant were required to be
umon members, and that whenever ' he had occasion to work at a jobsite,
installing concrete boxes, he was to say that he was a umon member.
5 Unless otherwise indicated , all references to Tompkins hereinafter
apply to John Tompkins, plant superintendent.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into the plant next day, remarking, "We [are] going to push
the Union in." Anderson asked Ramirez whether he would
sign a card, and the latter told him that he would. When
Anderson warned him that it might be necessary to go out
on strike for as long as 6 months and asked him whether he
was prepared to do that, Ramirez told him that he was.
During this conversation, Anderson observed Richard
Carter, another employee, in the immediate vicinity, a few
feet away.? When the conversation ended, Carter went into
Tompkins' office. Anderson started toward Tompkins Sr.'s
office to look for some tools. Anderson was in that office
for several minutes. When he left, he saw Carter and
Tompkins Jr. leaving the latter's office together. It is
reasonable to infer that Carter overheard the conversation
between Anderson and Ramirez, and promptly reported it
to Tompkins. This inference is supported by Padilla's
admission at the hearing that he teamed of the union
organizational activity, and Anderson's role in circulating
the petition, from Carter on October 11, and by Tompkins'
admission that Padilla told him the same day that
Anderson had been trying to get a petition signed.
Sometime that day, Anderson conveyed a message to
Foreman Padilla that Lucero would not be in. During this
discussion, or in another the same day, Anderson told
Padilla about his intentions regarding the Union.
On the basis of this evidence, and other evidence
presently discussed, there can be no' doubt that Respon-
dent was aware of the union activity in the plant, and of
Anderson's role therein, prior to the time he was dis-
charged.'
Monday was not a regular payday, but, at about 10:30
that morning, Anderson observed Tompkins getting out of
his truck with a "handful of checks in his hand," an
unusual occurrence according to Anderson.
Soon after lunch, Anderson learned from Padilla that
Ramirez had been discharged. Anderson was also told by
Carter that Lucero, too, was being discharged. At about 2
or 2:30, as Tompkins was passing Anderson, he asked him
if he was one of the employees who had signed a union
authorization card. Anderson replied that he not only
intended to sign a card, but that he also planned to
distribute cards to the employees. Tompkins remarked,
"We'll see about that," "See you later," or something to
that effect.
At about 3 or 3:30 that afternoon, when Anderson
walked into Tompkins' office, the latter asked him for his
tools. Tompkins then told Anderson that he would have to
lay him off because work was becoming slack and handed
him two checks, one for his previous week's pay and the
other for that day's work. After examining the checks,
Anderson asked Tompkins the reason for his layoff.
Tompkins repeated what he had said about work being
slack. Anderson then asked him why he did not follow
seniority and lay off the more recently hired employees.
Tompkins replied that Anderson was earning more than
7 Carter was hired on January 20, 1971, at $2.50 an hour. On June 7,
1971, his rate of pay was $3.75 an hour. Although classified as a laborer
during the entire period of his employment, the record indicates that he
drove a forklift truck, performed finishing work and inspections and kept
timecards on the employees. On January 31, 1972, he was placed on salary,
at $162 a week.
8 In view of this more direct evidence of company knowledge of union
most of the newer employees, and that it would be more
economical to retain them because the Company would
have the use of two employees for the wages it had been
paying him. Anderson became excited, and chided Tomp-
kins, asking if he was that "chicken-shit about having the
Union come into the place." Unabashed, Tompkins
allowed that he was, repeating the epithet, and declared
that "there was never going to be a union in the shop and if
anybody tried, all they had to do was get rid of the top men
and that-get rid of them and it wouldn't come in." As he
started to leave, Anderson remarked that there must be
something he could do to "get even with [Tompkins]."
Tompkins retorted, "What are you going to do, come back
like Rocco and his little friends did?-9 Anderson replied
that he was not that low as to return at night and "destroy
the plant just because one man don't know how to handle
people," and left. Anderson was returning to his car, when
he remembered that he had not inquired about his vacation
pay and unemployment compensation. He started back to
the office, and, encountering Tompkins outside, asked him
about his vacation check. Tompkins rebuffed him and
remarked sarcastically that he, Tompkins, was "too
chicken-shit" to give him vacation pay. Anderson then
asked Tompkins what he intended to state as the reason for
discharge on his unemployment compensation application
so that their reasons would agree. Tompkins replied, "I
don't care what you put down on there, you aren't going to
be able to draw unemployment anyway, I'll stop it any way
I can." Anderson rejoined, "You really must hate people
that try to make a decent living by putting a union in a
company like this." Vowing that the "union [would] never
get in," Tompkins irately ordered him off the premises, and
told him that if he was not gone in 2 seconds, he would
have him forcibly ejected.
Tompkins did not categorically deny the statements
attributed to him by Anderson. Instead, he made a blanket
denial that he ever told any of the employees that he would
not permit them to become unionized, denied interrogating
them, especially the discriminatees, concerning their union
activities during working or nonworking time between
October 11 and 15, or telling them that they were not to
discuss the Union, at any time. Finally, he summarily
denied that he had ever interfered with, restrained, or
coerced any of the employees in regard to their organiza-
tional activities. Under these circumstances, and in view of
the positive and credible testimony of the witnesses
imputing such statements to him, it is found that
Tompkins' blanket denials are insufficient to overcome the
more positive testimony of these witnesses.
It is, therefore, found that, by Tompkins' interrogation
of, and statements to, Anderson, detailed above, Respon-
dent has interfered with, restrained, and coerced employees
in the exercise of rights guaranteed in Section 7, thereby
violating Section 8(a)(1) of the Act.
Among the rules instituted by Tompkins after he became
activity prior to the discharges of the alleged discnminatees, it is
unnecessary to rely on the so-called "small plant doctrine" advanced by the
General Counsel.
9 Reference was apparently to some Spanish-American employees who
had allegedly engaged in malicious mischief at the plant after having been
discharged.
PRE-CAST MFG. CO. 139
plant superintendent, in August 1971, was one relating to
absenteeism . Under that rule, an employee who failed to
report for work without notifying Respondent, and without
a satisfactory excuse, would be warned for the first
infraction, laid off for 1 week without pay, for the second,
and terminated, after the third. It is undisputed that
Anderson was absent on a number of occasions, some due
to illness or personal business, and that, in some instances,
he failed to notify Respondent or furnish a satisfactory
excuse.
According to Respondent, Tompkins and Padilla dis-
cussed the possibility of terminating Anderson during the
week of August 11. Anderson was absent from work on
August 26, 27, 31, September 1, 2, 3, 1971, presumably
without notifying Respondent or furnishing a satisfactory
excuse. Anderson was laid off, without pay, for the week
between September 5 and 11, 1971.10
Respondent contends that Anderson's attitude and work
performance deteriorated after this disciplinary layoff.
Anderson candidly admitted that his attitude changed but
denied that this was because of the layoff, attributing it,
instead, to Tompkins' relations with the employees.
Anderson denied that he had received any complaints
about his work and testified that Foreman Padilla had
never criticized him unfavorably about his work from the
time of his disciplinary layoff until the time of his
subsequent discharge. It will be recalled that, during part
of the time, prior to his layoff Anderson had been
performing the work of a leadman, and it is doubtful
whether he would have been assigned to this job if his work
had been unsatisfactory.
According to Respondent, after a discussion with
Padilla, Tompkins decided to terminate Anderson on
Friday, October 8, 1971. Because Tompkins was away
from the plant that day, Anderson was not terminated then
but was discharged the following Monday, October 11,
under the circumstances previously related.
Respondent maintains that Anderson was terminated for
the following reasons: (1) unsatisfactory attitude; (2)
questioning the foreman's authority; (3) slowing down and
telling other employees, to slow down and not work so
hard; and (4) garnishment of his wages.
(1) Although Respondent offered no specifics regarding
Anderson's change in attitude, it is evident that, like other-
employees, he was disgruntled over the stringent rules
which Tompkins had introduced, and this undoubtedly
was reflected in his attitude. Be that as it may, there is no
evidence that Respondent called him to task on this score.
Tompkins maintained, however, that Anderson's pro-
duction declined following his return from his layoff but
produced no records to support this contention, basing his
conclusion on Anderson's work on two projects without
furnishing details.
(2) As to questioning the foreman's authority, Anderson
conceded that about 2 weeks before his discharge, when
the men were under pressure to get out a special order, he
did question Padilla's judgment in that regard.
(3) Anderson also conceded that he had told the men to
slow down on occasions because he felt that they were
being required to work too hard.
(4) With regard to the garnishments of Anderson's
wages, the record discloses that Respondent had received
three garnishments during the second or third quarter of
1971. As to one of these, Anderson made arrangements to
take care of it. As to the remaining two, Anderson
disclaimed liability on one, and with regard to the other,
after investigation by Respondent's counsel, and ascertain-
ing that it involved a written contract with a bank,
Respondent obtained a copy, which it kept, without
discussing the matter further with Anderson.
It may be noted, in passing, that the notation on the
reverse side of Anderson's employment application states
that he was "laid off" rather than discharged on October
11, 1971. Lest it be assumed that Respondent was merely
using the term "laid off" interchangeably with that of
discharge, it is significant that with regard to similar entries
on the employment applications of Ramirez and Lucero on
the same day the action taken is stated as "fired." The use
of the term "laid off," in Anderson's case, is consistent
with his testimony that Tompkins told him at the time of
his exit interview that he was being terminated because
work was slack. What is significant, however, is the fact
that, despite Respondent's contention that in taking action
it considered all of the grounds for discharge advanced at
the hearing, none of these grounds were mentioned to
Anderson when he was discharged. Instead, he was merely
told that he was being terminated because work was slack.
It may be taken as datum that an employer may
discharge an employee for any reason, or, indeed, for no
reason at all, provided only that he is not motivated by
reasons proscribed by the Act; i.e., to encourage or
discourage membership in a labor organization. It is
equally well established that the burden is on the General
Counsel to prove discrimination rather than on the
employer to establish justification for the discharge. Once
the General Counsel has established a prima facie case of
discrimination, however, the burden shifts to Respondent
to establish that the discharge was nondiscriminatory.
Even if it be assumed that the conduct of which
Respondent complained may have warranted discharge,
the crucial question remains whether the reasons advanced,
or any of them, were, in fact, the real reasons or whether
Respondent utilized those reasons as a pretext for
eliminating a union protagonist, where the employer is
opposed to the union sympathies and activities of its
employees. Knowledge of the employee's union or concert-
ed activities or, at the very least, suspicion that he was
engaged in those activities, is, of course, indispensable in
establishing discrimination. There is abundant evidence
here that Respondent had actual knowledge of Anderson's
activities, as shown by Plant Superintendent Tompkins'
admission based on information he received from Foreman
Padilla, as well as the circumstantial evidence that Carter
undoubtedly reported this to Tompkins, immediately after
10 Entrees on the reverse side of his employment application, purportedly and September 11, a Saturday. There was no showing whether those were
representing a compilation of his absences , include the following notation- regular workdays. According to these notations , Anderson did not work on
"9/5 - 9/11 sent home without pay (Absent Without Notice)." According to September 13 or 14 either.
the calendar, September 5, 1971, was a Sunday, September 6, Labor Day,
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overhearing a conversation between Anderson and Rami-
rez. It is, therefore, found that Respondent was aware of
the union activities of its employees, and Anderson's
participation therein , prior to terminating his employment
on October 11, 1971.
The acts of interference, restraint, and coercion in which
Respondent, through Plant Superintendent Tompkins and
Foreman Padilla, engaged establish beyond question its
opposition to the self-organizational rights of its employ-
ees. In view of Anderson's prominent role in undertaking
to organize the employees; Respondent's antipathy, if not
outright hostility, to the unionization of its employees; its
blatant animosity toward Anderson, as evinced by Tomp-
kins' remarks to Anderson during his exit interview; its
failure to notify Anderson of complaints regarding his
work attitude and alleged derelictions, at any time prior to
his discharge, or to warn him that he faced the risk of
discharge for those reasons; and Tompkins' statement to
Anderson that he was being laid off because work was
slack, it is found that, in discharging Anderson on October
11, Respondent was motivated, in whole or in part, by his
union or concerted activities, and by a purpose to
discourage membership in a labor organization, rather
than by the reasons advanced by it at the hearing, which
were utilized as a pretext to justify his discharge.
It is, therefore, found that by the termination of
Anderson, under the circumstances detailed, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(3) and by such conduct and by Tompkins'
interrogation of and statements to Anderson, as well as
those of Padilla, previously detailed, Respondent has
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed under the Act, in violation of
Section 8(a)(1).
(b) Richard Ramirez
Richard Ramirez was hired as a cement finisher on
about July 17, 1969, at a starting rate of $2.25 an hour. As
of the date of his discharge, on October 11, he was
receiving $4.15 an hour, having received increases in
increments of 25 cents, except for one raise of 15 cents.
With one exception, he was never criticized unfavorably
about his work or deportment."
Respondent contends, however, that at the time of his
discharge, Ramirez was a supervisor within the meaning of
the Act, hence excluded from its protection. The General
Counsel, on the other hand, contends that Ramirez was, at
most, a leadman, whose "natural alignment" was with
rank-and-file employees rather than with management.
It is undisputed that Ramirez did not have authority to
hire, transfer, suspend, lay off, recall, or possess any of the
other indicia of supervisory authority, as defined in Section
2(11), with the possible exception of authority "responsibly
to direct" employees with whom he worked. According to
Respondent, Ramirez was listed on its payroll records, as
early as September 28, 1970, as a foreman at the hourly
rate of $3 .65. The record establishes , however, that Padilla
was the only foreman in Respondent 's employ, vested with
any significant supervisory authority. Nevertheless, Padilla
testified, while Harry Tompkins, Jr., was plant superin-
tendent he summoned Padilla and Ramirez to his office
and told them either that Ramirez would be Padilla's
assistant or that he would be assistant foreman . Tompkins
said that Ramirez would "be in charge of making the boxes
and the lids" and that he wanted "the place cleaned up or
straightened out" so that it would function more efficiently
and productively. According to Padilla, he and Ramirez
met with the plant superintendent thereafter two or three
times a week before or after working hours , but after a time
Ramirez was no longer included in these meetings.
Padilla testified that Ramirez' status remained un-
changed after John Tompkins became plant superintend-
ent, although Tompkins told him that he did not want
anyone except Padilla coming to his office . Padilla relayed
the word to the employees and told them that if they had
any problem or needed anything, to report it to him, and
he would take it up with the plant superintendent.
In a pretrial affidavit to a Board agent , dated October 13,
1971, Ramirez stated, "My job was that of a Foreman. I
was in charge of the Meter Box Department." It is evident
from his overall testimony , however, that Ramirez did not
regard himself as a foreman , in the statutory sense, and did
not consider that he possessed any actual supervisory
authority. Although at times Ramirez had charge of as
many as eight men, five on the day of his discharge, his
duties in regard to them consisted primarily of instructing
them in their tasks. He regulated the concrete which they
mixed, kept their timecards (until relieved of this chore by
Carter), and maintained a record of material used and the
number of boxes produced.
The meter boxes, made of concrete, were produced on a
machine referred to as the "red machine," which had been
designed and built by former Plant Superintendent Harry
Tompkins, Jr., and used initially on an experimental basis.
The machine was regarded as "dangerous " even after it
was put into regular operation and had caused at least one
serious accident . Ramirez was the only person qualified to
operate this machine, except for one other employee who
operated it on a regular basis. Consequently , Ramirez
frequently operated the machine when the regular operator
was absent or required relief.
Under normal operations, three employees were assigned
to work in the meter box department, and two employees
in the meter lid department. From time to time additional
employees were assigned to those departments , as needed,
the highest total number of employees in any one day
amounting to eight. Ramirez had no authority to assign
additional employees and was obliged to make requests for
such help to Padilla. Padilla, rather than Ramirez,
scheduled the work on a daily basis, decided which work
was to be given priority , and reassigned members of
Ramirez' crew to other tasks, without consulting with him.
When changes were required in the size of meter boxes
11 The exception involved an incident when Tompkins and Padilla called Whether Respondent accepted this explanation, it is clear that it did not
his attention to some meter box lids which did not fit properly because the reprimand or discipline him on this account. In any event , there is no
box was warped One of the meter boxes on which Ramirez had worked had contention that Respondent relied on this incident as a ground for his
been made without reinforcing steel rods . Ramirez maintained, however , discharge.
that some of the boxes had been manufactured before Ramirez was hired.
PRE-CAST MFG. CO.
being produced, Padilla issued the necessary orders to
Ramirez.
Ramirez instructed employees in the operation of the
"red" machine and operated it until an employee could be
trained to take over. Ramirez worked frequently with the
crew, sometimes operating the machine, and at other times
assisting in the removal and storing of the meter boxes.
Whenever he lacked a full crew, Ramirez filled in,
performing manual labor and relieving members of the
crew when necessary. He also performed manual labor
even when the crew was fully manned. Ramirez operated
the "red" machine for a full day on an average of 3 or 4
days a month.
Ramirez was paid at an hourly rate, punched a
timeclock, was paid time-and-a-half for overtime, and
received no pay when absent from work. As has been
noted, his rate of pay at the time of his discharge was $4.15
an hour, second highest to Padilla's. While the wage scale
for the classification of laborer ranged between $1.60 and
$2.75 an hour, Tompkins conceded that he had hired
laborers for as much as $4 an hour. Under these
circumstances, the differential in Ramirez' hourly rate,
standing alone, is not sufficient to establish his status as a
supervisor. Ramirez had been employed for about 2 years,
and his rate of pay was commensurate with that of other
employees considering his additional duties.
Effective October 1, 1970, Respondent instituted a health
and life insurance program for all its employees. Under
this program, rank-and-file employees became entitled to a
$2,000 life insurance policy after 30 days of employment.
Padilla and Ramirez, however, were each insured in the
amount of $5,000, supposedly because they were foremen.
This is not necessarily determinative of Ramirez' status.
The larger policy could have been in recognition of the
additional duties performed by him. Teresa C. Tompkins,
Respondent's secretary-treasurer and bookkeeper, testified
on cross-examination that, at the time of the hearing, only
Padilla was covered by a $5,000 policy. This does not
necessarily establish, however, as the General Counsel
appears to contend, that because Padilla was the only
supervisor with a $5,000 policy after Ramirez' discharge,
Respondent did not replace him with a foreman or
leadman, leading to the inference that Respondent had not
regarded him as a supervisor.
An evaluation of all the relevant factors indicates that,
although Ramirez instructed employees and directed them
in their work tasks, transmitted orders, instructed or
corrected other employees or set up jobs, and even
assigned employees to various tasks, these factors alone do
not establish his supervisory status as defined in the Act.
Once employees were trained, no special skill was required,
and whatever instructions or directions Ramirez gave them
were of a merely routine nature, not requiring the use of
independent judgment, which was vested in Foreman
Padilla under supervision of the plant superintendent.
Ramirez' employee status was more nearly akin to that of a
leadman or "straw boss" rather than a supervisor.
It is, therefore, found, on the basis of the foregoing and
upon the entire record, that Ramirez was not at the time of
141
his discharge a supervisor within the meaning of Section
2(11) of the Act, so as to deprive him of its protection.
As has already been seen from Anderson's testimony,
corroborated by Ramirez, the two men discussed the
Union on the morning of the day of their discharges, in a
conversation obviously overheard by Carter and undoubt-
edly reported by him to Tompkins. Foreman Padilla
himself acknowledged that Carter told him of Anderson's
union activities at about 10 o'clock that morning, some 2 to
3 hours before Ramirez' discharge, which, in turn, occurred
2 to 3 hours before Anderson's discharge.
During their conversation, Anderson asked Ramirez to
discuss the Union with the Spanish-American employees
who did not speak English and to solicit their affiliation.
Ramirez also discussed the Union with Frank Pena,
another of the alleged discriminatees, during working time
earlier that day. According to Ramirez, Pena expressed the
hope that the employees could "get the union in" because
he was getting tired of the way things were going and "the
way they were pushing him." Ramirez counseled Pena to
"take it easy" and perhaps "things [would] shape up."
Ramirez testified that, although he did not frequent the
bar, which the others did, he was there the Wednesday
preceding the week of his discharge. He talked to Pena at
the bar that morning, and again during the lunch period.
Among those Ramirez identified at his table in the bar, in
addition to Pena, were Reyes, Oscar Garcia, and Salvadore
Hernandez. Seated at a nearby table were Owen Tucker,
Lucero, and another employee whom he could identify
only as Greg.
On October 11, as Ramirez was returning from lunch
and about to start work, Tompkins approached him and
asked whether he had any of his own tools. Ramirez said
he did not. Thereupon, Tompkins told him that he wanted
to talk to him, and instructed him to report to his office.
When Ramirez arrived there, Tompkins took a checkbook
out of his drawer, tore out two checks, and told him,
"Here's your check for last week and the one for today,
Monday." Ramirez responded, "Now that you have given
me the checks, explain to me why you are firing me."
Tompkins told him that he had seen him "talking to the
truck drivers, standing around, and had seen him talking to
Anderson and Pena on other occasions." Ramirez shot
back that he could tell Tompkins why he was firing him,
and that the reason was that he did not fawn on him,12
"like a lot of clowns around there did," and "didn't go
around squealing on the rest of the guys again, like some
clowns did around there," venturing that Tompkins "didn't
have enough money to pay me to be a squealer." Ramirez
also commented that Tompkins' "new rules are going to
put you down." Tompkins retorted, "Well, a lot of the guys
don't think I know what I am doing around here, but I feel
I am doing the right thing in running this yard." Handing
him his paychecks, Tompkins told him that he had about
"two minutes to get out of this yard," and that he did not
"ever want to see [him] here again." Pointing to Tompkins,
Ramirez told him not to "push" him. Tompkins denied
that he was "pushing" him, and rose from his chair.
Ramirez continued, "Don't even let it cross your mind."
Tompkins resumed his chair, and gave Ramirez his checks.
12 Actually Ramirez used a vulgar epithet instead of this euphemism.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As he took the checks, and turned to leave, Ramirez
mumbled something to the effect that Tompkins had not
heard the last of it. Ramirez rejoined one of the employees,
picked up his safety glasses and went back to the welding
department. There he spoke to Foreman Padilla and
Carter, who was also present, and told Padilla that he had
just been discharged. Admittedly surprised, Padilla repeat-
ed, "They fired you[?]" Ramirez confirmed it, adding that
he had already told Tompkins the real reason for his
discharge, and repeated what he had said to Tompkins,
using the same vulgarism. With that, Ramirez drove off in
his car.
According to Tompkins, he had discussed Ramirez' work
with Foreman Padilla about 2 weeks before the discharge.
Tompkins maintained that his dissatisfaction with Ramirez
had stemmed from the fact that boxes were not being
produced in accordance with Tompkins' high standards.
Tompkins asked Padilla if he thought Ramirez was
"getting the job done." When Padilla expressed a negative
reaction, Tompkins asked him whether he thought they
ought to get rid of Ramirez. It was agreed that Respondent
would replace Ramirez as soon as it was most convenient.
Tompkins further testified that he had talked to both
Ramirez and Padilla about Ramirez' tendency to wander
away from his work area. According to Tompkins, he had
discussed this with Padilla some 2 weeks before the
discharge, and with Ramirez, about a week before his
discharge.13
Tompkins conceded that he discharged Ramirez on
October 11, after he observed him talking to a ready-mix
operator earlier that day. For his part, Ramirez admitted
talking to the ready-mix truckdriver while the cement was
being poured from the truck. Ramirez had been working at
the machine about 25 or 30 feet away from the truck when
the truckdriver went over to Ramirez, and engaged him in
conversation. According to Ramirez, he had never been
reproached or reprimanded by any supervisor for talking
to the ready-mix truckdrivers. Nor, for that matter, did
Tompkins or Padilla reprimand him for talking to the
truckdriver on this occasion.
Despite his initial testimony regarding his discussion
with Ramirez a week before his discharge, about his
wandering away from his work area, Tompkins later
conceded that he may have talked about this only to
Padilla. Padilla, however, testified that he spoke to
Ramirez only about the failure of certain meter boxes to
meet Tompkins' specifications. Furthermore, Tompkins
conceded that Ramirez was the only employee ever fired
for "talking" on the job or for "wandering away" from his
work station.
It is significant that, despite Tompkins' testimony that he
and Padilla had determined on Ramirez' discharge 2 weeks
before the action was actually taken, Ramirez was not
warned in regard to his alleged derelictions or told of his
impending discharge. The reason for the delay, according
to Tompkins, was that he did not have a replacement for
13 During the week of August 2, Tompkins had offered to take Ramirez
off the timeclock and place him on salary, in an apparent effort to upgrade
him Ramirez declined. It does not seem reasonable that Tompkins would
have made this offer if he were dissatisfied with Ramirez' work. It is
significant that the sole reason for discharge noted on the back of his
employment application is "fired for talking to ready mix operator."
Ramirez, and it would have been necessary for Padilla to
take over Ramirez' duties in the pull-box meter depart-
ment. The fact is, however, that Respondent did not have a
replacement for, and did not actually replace, Ramirez
after his discharge, and that Padilla assumed Ramirez'
duties in addition to his own after the discharge.
While denying that he had ever been reprimanded for
talking to the truckdriver, Ramirez conceded that Tomp-
kins had told him that he ought not to be talking to Pena,
unless it was necessary in connection with his work. In
view of Padilla's failure to mention in his testimony that he
had ever spoken to Ramirez about "wandering away," and
Tompkins' equivocal testimony as to whether he had
actually warned Ramirez about it, it is found that Ramirez
was at no time warned about being away from his work
station or talking to truckdrivers at the job. Moreover,
there was no showing that Ramirez' casual conversation
with the truckdriver in any way interfered with or impeded
Ramirez' work or that of the other employees.
Considering Ramirez' overall satisfactory work perform-
ance during the entire period of his employment, and the
admitted shortage of experienced help,14 it seems incon-
ceivable that Respondent would have discharged so
valuable an employee for such a relatively trivial reason. In
fact, there was not even a showing that the conversation
with the truckdriver was not related to the operation at the
yard. The reason advanced for Ramirez' discharge is so
palpably specious as to appear frivolous, and justifies the
conclusion that the discharge could only have been
motivated by Respondent's opposition to the Union and
Respondent's chagrin that Ramirez, whose loyalty it
probably felt should have been to his employer, turned out
to be with the rank-and-file employees. The fact that
Ramirez was observed discussing the Union earlier that
morning, a fact which Carter undoubtedly reported to
Tompkins, furnishes substantiation of Respondent's un-
lawful motivation.
What has been said concerning motivation in Anderson's
case need not be repeated here, except to reiterate that the
issue still remains whether the reason advanced by
Respondent was the actual reason or whether it was
utilized as a pretext for venting its opposition to the
unionization of its employees and eliminating an active
union advocate.
The preponderance of the reliable and probative evi-
dence makes it abundantly clear that Respondent was
motivated by a purpose to discriminate against Ramirez
because of his espousal of the Union rather than by the
reason it advanced. It is therefore found that, by
discharging Ramirez, and thereafter failing and refusing to
reinstate him because of his union or concerted activities,
to discourage membership in a labor organization, Respon-
dent has engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
14 Padilla conceded that, in a pretrial affidavit given to a Board agent
and adopted by Padilla at the hearing, he quoted Tompkins , in relation to
Eddie Lucero's discharge , as saying that the Company was "hurting bad for
men," and that Tompkins finally told hun that it was up to him whether to
discharge Lucero.
PRE-CAST MFG. CO._
2. The constructive discharges
(a) Vivian Reyes
Vivian (Ruben) Reyes was hired as a laborer, on October
5, 1970, at a starting rate of $2.75 an hour. At the time of
his termination, he was receiving $3.50 an hour, after three
25-cent raises, the latest effective June 7, 1971.
Reyes was one of the group of employees who discussed
union affiliation in the neighborhood coffeeshop before
work, at the plant, during working and nonworking time,
and in the bar, after work. On at least one occasion, he
observed Foreman Padilla seated at the next table 3 or 4
feet away. It is evident that Padilla not only overheard the
discussion and was aware of the subject being discussed,
but, as has been stated elsewhere, actually participated in a
discussion and voiced the Company's unalterable opposi-
tion to the Union.
At or about 8 o'clock on the morning of October 13,
according to Reyes' testimony, he overheard Tompkins
instruct Padilla to "keep Ruben [Reyes] busy all day, and
[see to it that he did not] go to the bathroom ... or to the
drinking fountain" too often, and "[g]ive him all the dirty
jobs you can find for him." Although Padilla denied
receiving these instructions, the fact that he issued such
orders to Reyes soon afterward can hardly be deemed mere
coincidence. Reyes was thereupon assigned the chore of
breaking a concrete curb about 10 feet long, 14 inches
wide, and 12 inches thick. This was done by the use of a
sledge hammer, though the evidence does not disclose
whether Reyes used a 5- or 16-pound sledge hammer, both
of which were in use at the plant.
After lunch the same day, Reyes asked Padilla for
permission to go to the restroom.15 He was granted
permission provided he stayed no more than 3 minutes, a
condition never imposed before.
Later, Reyes was assigned to scraping cement or
concrete, which had spilled and hardened on the floors in
the work area. This, according to Reyes, was the first time
he had ever been directed to perform this task. It took him
about an hour and a half to complete the chore with the
use of a sledge hammer. It is undisputed that Padilla
assigned this work to Reyes, although, contrary to Reyes,
Padilla denied that the work was dirty or strenuous.
Reyes also testified that Tompkins had appeared visibly
angry toward him that morning. Tompkins approached
him and asked, "Are you just breaking those damned
curbs." 16
Next day, October 14, between 2:30 and 3 in the
afternoon, Reyes was casting "donuts," 17 when he discov-
ered that he needed a steel reinforcing bar. Reyes went to
Frank Pena's work area and asked him where he could find
a rebar. 'Presently, Tompkins accosted Reyes and asked
him whether he "had any damned business over there." As
Reyes 'started toward the pile of steel rebars, Tompkins
followed him and asked, "What were you guys talking
about, the union." At first, Reyes denied it, and started to
select a rebar. When Tompkins persisted, and repeated his
15 It is not clear whether Respondent had required its employees to ask
for permission in the past, although it is not unlikely that this may have
been among the rules instituted by Tompkins.
16 Whether Tompkins was complaining that Reyes had only just got
143
question, Reyes finally admitted it, took the steel rebar and
returned to his work station.
Tompkins followed Reyes, and stood looking over
Reyes' shoulder, and watched him work, something which,
according to Reyes, neither Tompkins nor Padilla had ever
done before. After several minutes, Tompkins told Reyes
that he wanted him to load 200 meter boxes on the truck
by himself. Reyes protested that he could not load that
many boxes alone. Tompkins jeered, "Would you like me
to bring Pena to help you and that way there will be more
love between you guys." Reyes retorted, "No, I don't think
we can do it, I am not going to do it."
These cement boxes were usually loaded by a forklift,
although on occasion employees, including Reyes, had
lifted boxes 6 inches off the ground in moving them on to
the forklift. The boxes in question weighed about 250
pounds each. Reyes knew that Ramirez, Anderson, and
Lucero had already been discharged, having talked to
Anderson at his home the night of the discharges, and told
Tompkins that he was "going to quit." He did not report
for work on October 15, the following day, but sent his
wife to pick up his paycheck.
Respondent denied that the tasks of breaking up the
concrete and scraping the spillage, to which Reyes was
assigned, were unpleasant or arduous. Reyes testified,
without contradiction, that these tasks were usually
performed by the men who worked on the boxes and had
caused the spillage. Be that as it may, Reyes' testimony
regarding the instructions Tompkins had given Padilla, to
keep Reyes busy and give him all the dirty jobs he could
find, supports the conclusion that the assignment was
discriminatorily motivated. Furthermore, Reyes' equally
uncontradicted and credited testimony regarding Tomp-
kins' interrogation about his conversation with Pena, and
his sarcastic remark as to whether Reyes would like to have
Pena help him, justifies a finding of discriminatory motive.
Tompkins' attempt to dismiss his order to Reyes to load
the 200 boxes as an "idle jest" is wholly unpersuasive. The
pretrial affidavit furnished a Board agent contains no such
suggestion. According to Reyes, Tompkins "sounded ...
and looked serious," when he made the statement.
Tompkins' appearance and demeanor on the witness stand
gave no hint of a proclivity for bantering with his
employees. On the contrary, his attitude might best be
described as "strictly business." Moreover, badinage with
the employees, especially after he instituted the stringent
work rules on assuming the position of plant superintend-
ent, appears wholly out of character. Finally, Tompkins'
testimony that he merely told Reyes that "if the fork truck
[lift] should break down, we'd have to load boxes by
hand," hardly suggests that the statement attributed to him
by Reyes was made in jest. In this regard, it should be
noted that Tompkins eventually conceded at the hearing
that the forklift had been repaired before he told Reyes
that he would be required to load boxes by hand.
Considering Respondent's union animus, its action in
discriminatorily discharging Anderson and Ramirez on
around to doing the chore or whether he was critical because that was the
only work Reyes was doing, is not clear.
17 So designated because of the shape of the product.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 11, Tompkins' instructions to Foreman Padilla
regarding the treatment to be accorded Reyes, Tompkins'
interrogation of Reyes regarding his conversations with
Pena about the Union, and the actual assignment to Reyes
of more unpleasant and onerous chores than he had ever
been required to perform, it becomes apparent that
Respondent resorted to this conduct as a means of
coercing Reyes into voluntarily terminating his employ-
ment to obviate the necessity of finding a pretext for
discharging him. Reyes' realization that Anderson and
Ramirez, both active union adherents, had been discharged
only a few days earlier, under one pretext or another,
obviously impressed him with Respondent's determination
to rid itself of employees favoring unionization and
impelled him to quit rather than yield to Respondent's
oppressive tactics.
It is therefore found that, by assigning less agreeable and
more onerous tasks to Reyes on or about October 13 and
14, 1971, because of his union or concerted activities,
thereby discriminating in regard to his hire or tenure of
employment to discourage membership in a labor organi-
zation, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
It is further found that by Tompkins' interrogation of
and statements to Reyes regarding his union activities and
those of fellow employees, Respondent has interfered with,
restrained, and coerced employees in the exercise of rights
guaranteed under the Act, thereby violating Section
8(a)(1).
(b) Frank Pena
Frank Pena was hired on June 3, 1970, under the
classification of laborer at $2.50 an hour, and worked until
February 24, 1971. He was rehired on June 1, 1971, at $3
an hour and, at the time of his termination on October 14,
his hourly rate was $3.50, having also received increases in
25-cent increments. Although hired initially as a laborer, at
least during his second period of employment, he worked
mostly as a welder. He was the only full-time welder
although other employees, specifically Ramirez and Carter,
performed some welding.
Like the other discriminatees, he was actively in favor of
the Union, participated in discussions with Anderson and
the others in the coffee shop and bar in August and
September, and, in Carter's presence, openly expressed his
views. There is no doubt that Respondent was aware of
Pena's union sentiments, and this need not be based on the
very real probability that Carter conveyed this information
to Tompkins. For, according to Pena's undisputed and
credited testimony, when he went to Tompkins' office on
October 11, at or about 7 in the morning, to ask for the day
off to attend to some personal business,'8 Tompkins asked
him, "What's the matter, Pena? Do you think I am dumb
or stupid?" Pena asked Tompkins what he was talking
about. The latter responded, "About the Union, god-
dammit." When Pena still professed ignorance, Tompkins
irately invited him to join him in the "little back room," an
allusion which Pena interpreted as an offer to fight. Harry
Tompkins, Sr., broke in, however, to say that there was a
phone call for Tompkins.
Pena testified that when he asked Tompkins for the day
off, he also asked him for an advance of $100 against his
wages to take care of the traffic citation and attorney's fee.
Tompkins told him that he would take it up with his father.
Later, Tompkins told Pena that his father had refused his
request. According to Pena's undisputed and credited
testimony, he had previously been granted a loan after
requesting it through Padilla.19
It is evident that Pena had become generally dissatisfied
with working conditions in the plant. As Pena acknowl-
edged in his pretrail affidavit to the Board agent, pressures
had been building up after Tompkins, Jr., became
superintendent, and employees began to express anxiety
about job security. During discussions among employees in
the coffeeshop, Anderson had suggested the possibility that
Respondent might discharge an employee to make a job
available for a relative of Padilla. It hardly seems a
coincidence that Padilla's brother was hired as a laborer on
October 26, 1971, as a replacement for Pena. Admittedly,
Pena had considered quitting his job and looking for other
employment, and had discussed this with Carter.
Part of Pena's dissatisfaction stemmed from his claim
that his wage scale was not commensurate with the work
he was performing. As a welder, Pena felt that he was
entitled to a higher rate of pay than Carter and at least one
other employee. In addition, he was required to perform
additional tasks for the same wages. Occasionally, he was
"shorted" in his paychecks but he conceded that the
Company made up the shortages. All in all, Pena was less
than satisfied with his lot.
Pena was absent from work on October 11, the day he
asked to be off. Next day, while he was working, Padilla
instructed him to make enough steel rebars for 2 days.
Pena told him that he would do his "damnedest." For the
next 2 days, Padilla assigned Pena to finishing concrete.
On Thursday, October 14, Pena was preparing steel for
double forms used in making platforms. Pena asked
Padilla for additional laborers because he was falling
behind in his welding. Although Padilla had supplied Pena
with help when needed in the past, he refused. When Pena
pushed up his welding hood because he had been
perspiring heavily, Padilla asked him if he was "taking a
break."
That afternoon, Tompkins approached Pena at his work
station and told him, "Pena, I want you to pick up all this
steel by quitting time," indicating a pile of scrap steel,
which, according to Pena, had been lying there since Pena
had first gone to work there. Pena said that he could not
possibly do it. With that, Tompkins summoned Carter,
who had been standing at the timeclock, and said, "Carter,
I want you to hear this. I am telling Pena to pick up all the
steel here by quitting time tomorrow." Pena then told
Tompkins that if he would provide him with help, he would
have it done. Padilla was in the area, and Tompkins called
him over, and said, "Felix, I want to tell you in front of
Pena and Carter that I want him [Pena] to pick up all this
18 Pena told Tompkins that his errands involved a traffic citation and a 19 Although the refusal to grant the loan has not been alleged as an
conference with an attorney (Respondent's counsel, incidentally), regarding 8(a)(1) violation, it is a measure of Respondent's animus.
a divorce.
PRE-CAST MFG. CO.
steel and have it picked up by quitting time." At this
juncture, Pena, visibly agitated, told Tompkins, "No, you
get somebody else to do it because I'm quitting." 20 In an
apparent effort to mollify Pena, Tompkins told him, "You
don't have to quit . . . I can, you know, make the weld for
the pours and the steel for the pours, and you can still
clean this up." Pena remained adamant, and said, "No,
you get some clown to do it . . . you get somebody else to
do it, I'm quitting." Tompkins repeated, "You don't have
to quit." Pena rejoined, "Yes, and I don't have to take this
shit either." Pena was as good as his word, and quit his
employment the same day.
It is evident from the record as a whole that the pile of
steel scrap had accumulated over a long period of time, at
least, probably, since Pena's employment. Assuming, as
Respondent maintains, that it constituted a hazard, and
that Respondent was prompted, in eliminating this hazard,
by a purpose to comply with the safety requirements of the
Occupational Safety and Health Administration, Depart-
ment of Labor, one is left to wonder why Respondent had
delayed until mid-October 1971, which coincided with the
organizational activities of the employees. The Occupa-
tional Safety and Health Act of 1970 was enacted into law
on December 29, 1970, and became effective April 28,
1971. The safety regulations were published in the Federal
Register on May 29, 1971. Public Law 91-596, 91st Cong.,
S. 2193 (12/29/70), 84 Stat. 1590, 29 CFR, Section 1910, et
seq.
Moreover, although contrary to Pena's testimony, that it
would have taken 2 or 3 days to clean up the steel scrap,
Respondent maintained that, following Pena's termination,
the scrap was cleaned up in a mere 2 hours, the condition
was not corrected, according to Tompkins himself, until
about a month after Pena's termination, and the job was
performed by Al Padilla, Foreman Padilla's brother, who
replaced Pena.
Furthermore, it is unreasonable to believe that Respon-
dent would normally have assigned this task to a welder
and skilled, or, at the very least semiskilled, worker to
perform rather than to an unskilled laborer. Pena had
never been asked to do cleanup work before, and,
according to him, the unskilled laborers of Spanish-
American origin were normally used to do this cleanup
work. What is even more astonishing is the length to which
Tompkins went in asking Carter and Padilla to serve as
witnesses to Tompkins' orders to Pena. This has all the
earmarks of an attempt to lay a predicate for Pena's
discharge. The fact that Tompkins was spared the trouble
by Pena's quitting does not negate the discriminatory
motive.
The record fairly establishes, by the facts detailed above,
that Respondent imposed or threatened to impose more
disagreeable and onerous tasks on Pena in the expectation
that he would quit rather than work under those condi-
tions. Respondent thereby constructively discharged Pena
because of his protected concerted activities, thereby
disc I riminating in regard to his hire and tenure of
20 According to Padilla, Pena registered his protest with the use of an
obscene four-letter word
21 Santa Fe Drilling Company, 171 NLRB No 27, enfd. in part and
remanded 416 F.2d 725 (C A. 9), supplemental decision 180 NLRB 1049,
reaffd. on reconsideration 183 NLRB No 44. Although this case involved
145
employment , to discourage membership in a labor organi-
zation, in violation of Section 8(a)(3) and (1) of the Act.
It remains to be decided whether the fact that Pena had
indicated that he intended to quit his job and seek other
employment, or that he may have obtained other employ-
ment, relieves Respondent of the obligation to offer him
reinstatement , or whether by quitting his job, despite
Tompkins' statement that he need not do so, Pena has
forfeited the right to reinstatement. As to the first
proposition, Pena's decision to quit and seek other
employment, and any action he may have taken, was
inextricably bound up with Respondent's unfair labor
practices, which have been found violative of Section
8(a)(1) of the Act . Such unlawful conduct "would reason-
ably cause an employee to be insecure and to think in
terms of other employment." 21 Pena's decision to termi-
nate his employment "was not an unequivocal resolve not
to accept reinstatement, but was made in the heat of
dissatisfaction with his treatment by Respondent and
could hardly be characterized as a rational, uncoerced
decision." 22
As to Pena's determination to quit, notwithstanding
Tompkins' assertion that he need not do so, in the absence
of any assurance that Respondent would not require Pena
to perform unreasonable and onerous tasks and would
refrain from engaging in unfair labor practices , which had
prompted Pena to quit, under the circumstances disclosed,
Pena's refusal to remain in Respondent's employ should
not deprive him of the right of an offer of reinstatement.
It is therefore found that by constructively discharging
Frank Pena on October 14, 1971, because of his union or
protected concerted activities, thereby discriminating in
regard to his hire and tenure of employment, to discourage
membership in a labor organization , Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
It is further found that by Tompkins' interrogation of,
and statements to, Pena, previously detailed, Respondent
has interfered with, restrained, and coerced employees in
the exercise of rights guaranteed under the Act, thereby
violating Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the operations
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
It has been found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
reinstatement of a discriminatorily discharged employee, there would
appear no difference in principle from reinstatement in the case of an
employee who had been constructively discharged
22 Santa Fe Drilling Company, supra
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) of the Act by the conduct previously detailed. It will be
recommended that Respondent be ordered to cease and
desist therefrom, and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent has discriminated in
regard to the hire and tenure of employment of employees
by discharging, and thereafter failing and refusing to
reinstate, John Anderson and Richard Ramirez on October
11, 1971, and by constructively discharging Vivian Reyes
and Frank Pena on about October 14, 1971, and by
thereafter failing and refusing to reinstate said employees.
It will, therefore, be recommended that Respondent offer
each of said employees immediate and full reinstatement,
without loss of seniority or other rights and privileges, to
his former position or, if that position is not available, to a
substantially equivalent position, and make each of them
whole for any loss of pay he may have sustained by
payment to him of a sum of money equal to that which he
would have earned from the date of the discrimination
against him to the date of offer of reinstatement, less his
net earnings during such period. Backpay shall be
computed in accordance with the formula prescribed in F.
W. Woolworth Company, 90 NLRB 289. Interest on said
backpay shall be computed at the rate of 6 percent per
annum, as provided in Isis Plumbing & Heating Co., 138
NLRB 716.23
CONCLUSIONS OF LAW
1. Pre-Cast Mfg. Co., Respondent herein, an Arizona
corporation with its office and place of business in
Phoenix, Arizona, is, and at all times material herein has
been, an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Construction, Production and Maintenance Labor-
ers Union, Local No. 383, the Union herein, is and at all
times material herein has been a labor organization within
the meaning of Section 2(5) of the Act.
3. By the coercive interrogation and statements of
Plant Superintendent John W. Tompkins and Foreman
Felix V. Padilla, detailed above, Respondent has interfered
with, restrained, and coerced employees in the exercise of
rights guaranteed in Section 7, thereby engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
4. By discharging John E. Anderson and Richard M.
Ramirez on October 11, 1971, and by constructively
discharging Frank Pena and Vivian G. Reyes on October
14, 1971, and failing and refusing to reinstate said
employees because of their union or protected concerted
activities to discourage membership in a labor organiza-
tion, Respondent has engaged in unfair labor practices, in
violation of Section 8(a)(3), thereby interfering with,
restraining, and coercing employees in the exercise of
23 In view of the nature and extent of Respondent's unfair labor
practices , including violation of Section 8(a)(3), it is further found that there
is likelihood that Respondent may engage in similar unfair labor practices
in the future . It will therefore be recommended that Respondent be ordered
to refrain from interfering with, restraining, and coercing its employees in
any other manner. N.L.R.B. v. Entwistle Manufacturing Co., 120 F.2d 532
(C.A. 4); May Department Stores v. N.LR B, 326 U.S. 376; Bethlehem Steel
Co v 1V. L.R.B., 120 F.2d 641 (C.A.D.C.).
rights guaranteed in Section 7, and violating Section 8(a)(1)
of the Act.
5. The aforesaid unfair labor practices found above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
6. Except as found above, Respondent has not engaged
in any unfair labor practices alleged in the complaint.
Upon the basis of the foregoing findings of fact,
conclusions of law, and upon the entire record, and
pursuant to Section 10(c) of the Act, I make the following
recommended: 24
ORDER
Pre-Cast Mfg. Co., an Arizona corporation, with its
office and place of business in Phoenix, Arizona, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, laying off, or otherwise discriminating
in regard to the hire and tenure of employment or any term
or condition of employment, of its employees because they
have engaged in union or other concerted protected
activities for the purpose of collective bargaining or other
mutual aid or protection, to discourage membership in a
labor organization.
(b) Coercively interrogating employees or making state-
ments to them concerning their union membership and
activities.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act 25
2. Take the following affirmative action, designed to
effectuate the policies of the Act:
(a) Offer John E. Anderson, Richard M. Ramirez, Frank
Pena, and Vivian G. Reyes immediate and full reinstate-
ment to their former jobs, or, if those jobs are unavailable,
to substantially equivalent positions, without prejudice to
their seniority and other rights and privileges, and make
each of them whole in the manner set forth in the section
entitled "The Remedy."
(b) Notify immediately the above-named employees, if
presently serving in the Armed Forces of the United States,
of their right to full reinstatement, upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Preserve until compliance with any order of reinstate-
ment or backpay made by the Board, and, upon request,
make available to said Board or its agents, for examination
and copying, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records required or useful in analyzing the amounts
of backpay due.
(d) Post at its office and place of business in Phoenix,
Arizona, and at all other places where notices to employees
24 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
25 Since Arizona is a right-to-work State, the customary proviso to
Section 8(a)(3) has been omitted.
PRE-CAST MFG. CO.
are usually posted by Respondent, copies of the attached
notice marked "Appendix ." 26 Copies of said notice, on
forms provided by the Regional Director for Region 28,
shall, after being duly signed by Respondent's duly
authorized representative , be posted by it immediately
upon receipt thereof, and maintained by it for 60
consecutive days thereafter , in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that such notices are not altered , defaced, or
covered by any other material.
(e) Notify said Regional Director, in writing, within 20
days from the date of the receipt of this Decision, what
steps Respondent has taken to comply therewith.27
It is further recommended that the consolidated com-
plaint be dismissed insofar as it alleges violations which
have not been found.
It is further recommended that, unless on or before 20
days from the date of receipt of this Decision , Respondent
notifies said Regional Director that it will comply with the
foregoing recommendations , the Board issue an order
requiring Respondent to take the action aforesaid.
26 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
27 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 28, in writing , within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminate in regard to the hire and
tenure of employment of our employees because of
their union or protected concerted activities to discour-
age membership of our employees in Construction,
Production and Maintenance Laborers Union, Local
No. 383, or any other labor organization.
WE WILL NOT coercively interrogate or make
147
coercive statements to our employees concerning their
union or other protected concerted activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the right to self-
organization, to form, join, or assist the above-named
Union or any other labor organization , to bargain
collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of
mutual aid or protection, or to refrain from any and all
such activities.
WE WILL offer John E. Anderson, Richard M.
Ramirez, Frank Pena , and Vivian G. Reyes immediate
and full reinstatement to their former jobs or, if those
jobs are no longer available , to substantially equivalent
positions, without prejudice to their seniority and other
rights and privileges , and make them whole for any loss
of pay they may have suffered by reason of the
discrimination against them , in the manner prescribed
in the section of the Trial Examiner's Decision entitled
"The Remedy."
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above-named labor organization or any other labor
organization.
Dated By
PRE-CAST MFG. CO.
(Employer)
(Representative) (Title)
WE WILL notify immediately the above-named individuals,
if presently serving in the Armed Forces of the United
States, of the right to full reinstatement , upon application
after discharge from the Armed Forces, in accordance with
the Selective Service Act and the Universal Military
Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office, Camelback Building, Room
207, 110 West Camelback Road, Phoenix, Arizona , 85013.
Telephone 602-261-3717.