Precision Founders, Inc.

National Labor Relations Board - Board Decisions

Feb 12, 1986

278 N.L.R.B. 544 (N.L.R.B. 1986)

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Precision Founders , Inc. and International Molders
and Allied Workers Union , Local 164. Case 32-
CA-7212
12 February 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 12 November 1985 Administrative Law
Judge Clifford H, Anderson issued the attached de-
cision. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed 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 brief and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order
as modified.2
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
3(a).
"(a) By telling its employees that if the Union
came in the pension plan would no longer be in
effect."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Precision Founders, Inc., San Leandro,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(a).
"(a) Informing its employees that if the Union
comes in their existing pension plan will no longer
be in effect."
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance 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 affirming the judge's finding that Supervisor Naslund's statement
that "if the union came in, the pension plan would no longer be in effect"
constituted a threat of loss of benefits in violation of Sec 8 (a)(1) of the
Act, we find it unnecessary to rely on his discussion of Niagara Wire,
Inc., 240 NLRB 1326 (1979). Although the Respondent contends the
statement was a factual recitation of the pension plan's provisions, it
failed to introduce into evidence either the plan itself or the descriptive
leaflet distributed to employees.
2 We shall amend Conclusion of Law 3(a) and the recommended
Order to reflect more accurately the violation alleged and found. We
shall also issue a new notice to employees.
2. Substitute the attached notice for that of the
administrative 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 violated 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT tell employees that if the Union
comes in the existing pension plan will no longer
be in effect.
WE WILL NOT disparage employees' involvement
in union activities and impliedly threaten them with
retaliation through lack of promotions because of
their union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
PRECISION FOUNDERS, INC.
Raoul Thorbourne, Esq., for the General Counsel.
Randolph Roeder, Esq. (Littler, Mendelson, Fastiff &
Tichy), of San Francisco, California , for the Respond-
ent.
William A. Sokol, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of San ' Francisco, California, for the Charg-
ing Party.
DECISION
Statement of the Case
CLIFFORD H. ANDERSON, Administrative Law Judge.
This case was tried before me on 9 and 17 July 1985 in
Oakland, California. The case arose as follows. Interna-
tional Molders and Allied Workers Union, Local 164
(the Charging Party)' filed a representation petition on 3
i Certain of the joining papers in this case , including the complaint and
the subsequent order consolidating cases, give the local number of the
Charging Party as 124. It is apparent from the bulk of the documents in
the record that this is simply an inadvertent error.
278 NLRB No. 84
PRECISION FOUNDERS
January 1985 docketed as Case 32-RC-2094. Following
an election in which challenges were determinative and
the filing of objections to the election by the Charging
Party, the Regional Director for Region 32 of the Na-
tional Labor Relations Board on 9 May 1985 issued a
report and recommendation on challenged ballots and
objections and notice of hearing. On 24 April 1985 the
Charging Party filed a charge against Precision Found-
ers, Inc. (Respondent). Following an investigation of that
charge the Regional Director on 23 May 1985 issued a
complaint and notice of hearing. On 20 June 1985 the
Regional Director issued an order consolidating cases
and notice of hearing consolidating the representation
and unfair labor practice cases. On 9 July 1985 the hear-
ing on the consolidated cases opened. On 10 July 1985 I
approved an all-party stipulation resolving certain mat-
ters concerning the representation case, severing the rep-
resentation case from the unfair labor practice case, and
remanding the representation case to the Regional Direc-
tor for further proceedings as appropriate. Thereafter,
the hearing proceeded solely on the unfair labor practice
allegations in Case 32-CA-7212.
The complaint, as amended at the hearing,2 alleges
Respondent violated Section 8(a)(1) of the National
Labor Relations Act by separate incidents of interroga-
tion and of indirect and implied threats to employees.
The complaint further alleges Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by implementing changes
in Respondent's sick leave/attendance policy which re-
sulted in the denial of sick leave to an employee and
which changes were undertaken because of her union ac-
tivity. Respondent denied that the conduct attributed to
its agents occurred and further contended that, to the
extent certain conduct is found to have occurred, it did
not violate the Act.
All parties were given full opportunity to participate
at'the hearing, to introduce relevant evidence, to call,.ex-
anaine , and cross-examine witnesses, to argue orally, and
to', file posthearing briefs. On the entire record, including
posthearing briefs from the General Counsel and Re-
sppndent, and from my observation of the witnesses and
their demeanor, I make the following3
FINDINGS OF FACT
1. JURISDICTION
Respondent, a California corporation with an office
and place of business in San Leandro, California, has
been engaged in the manufacture of metal products. Re-
spondent, in the course and conduct of its business oper-
ations, annually sells and ships goods or provides serv-
ices in excess of, $50,000 directly to customers located
outside the State of California.
2 At the hearing, the General Counsel moved, inter alia, to amend the
complaint to add a new paragraph, 6(e), which motion Respondent op-
posed, but the General Counsel thereafteff withdrew its motion
a Through the pleadings, stipulations, and statements of position made
by counsel at the hearing, the parties substantially reduced the matters in
dispute. Where not specifically noted, these findings are based on the
pleadings, admissions, and stipulations of the parties, and on uncontested
documentary and testimonial -evidence
545
IL LABOR ORGANIZATION
The Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
III. UNFAIR LABOR PRACTICE ALLEGATIONS
A. Background
Respondent makes metal castings for other companies.
Although not set forth in the record with specificity, Re-
spondent's tool-and-die employees have apparently been
represented by a labor organization other than the
Charging Party for some time and those employees are
covered by a pension plan different from that covering
other employees. The Charging Party filed a representa-
tion petition on 3 January 1985 seeking to represent the
production, maintenance, janitorial, and shipping and re-
ceiving employees of Respondent. An election was con-
ducted pursuant to that petition on 29 March 1985 in a
unit of all full-time and regular part-time employees em-
ployed by Respondent at its San Leandro facility, includ-
ing all production, maintenance, janitorial, plant clerical,
and shipping and receiving employees; excluding all tool-
and-die makers, office clerical employees, guards, and su-
pervisors as defined in the Act.
Gunther Wagner is plant manager at' Respondent's San
Leandro facility. Tom Naslund is production supervisor
and Lana Gossett is personnel manager. Each is a statu-
tory supervisor and an admitted agent of the Respond-
ent. As part of its production staff, Respondent maintains
a production control department which includes some
four or five employees supervised by Tom Naslund. One
of those employees is Debra Jean Esver, who had been
employed in that department at the time of the hearing
for about 3-1/2 years and who had been with Respond-
ent for some 7 years. Esver signed a union-authorization
card evincing support for the Charging Party in October
1984. The parties stipulated that management had knowl-
edge of Esver's union activities commencing at least as
early as February 1985.
B. Evidence of Unfair Labor Practices
The General Counsel has alleged as violations of Sec-
tion 8(a)(1) of the Act four incidents involving employee
Debra Jean Esver . One-such event is an essential part of
the 8(a)(3) allegation and will be discussed with that con-
tention infra . The remaining three incidents may be de-
scribed separately.
1. Complaint paragraph 6(a)-Esver's Mid-January
1985 conversation with Naslund
Debra Esver testified that in the middle part of Janu-
ary 1985, she and fellow production control office em-
ployees Jeanne Oickles, Kathy Hapwarth, Randine
Greene, and Lee ' Valencia were in the production con-
trol office when Tom Naslund came into the office and
asked one of two questions, "Is there a union campaign
going on" or "What's this about a union campaign."
Esver testified that Naslund's question prompted a dis-
cussion among the group with each of the participants
bringing up antidotes either favorable or unfavorable to
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union representation generally. Naslund, in Esver's recol-
lection, said he did not have very much experience with
unions and that he felt that a union was not going to be
good for employees. Esver testified that she said that she
came from a family with favorable views toward unions
and that she felt the Company very much needed a
union to protect employees. She further recalled that to-
wards the end of the conversation, which had become
heated, Naslund added: "Well, Debbie, if I really wanted
to, I could turn you in for talking union for the past 2-
1/2 hours and then I - and he said, just kidding." Esver
recalled that she responded that, even if kidding, Nas-
lund's statement was an example of why employees
needed union representation.
Naslund recalled the conversation differently. He testi-
fied:
It was pretty much in concluding a regular meeting
that we were having. I made a comment, something
like so we are having an election. We have a lot of
problems here. And it turned into a very much
open discussion among everyone in there as to what
was going on with the election campaign.
There was comments [sic] for and against the union
by all members present not necessary everybody
making comments for or everybody making com-
ments against.
2. Complaint paragraph 6(d)-Esver's 25 March
1985 conversation with Naslund
Esver testified on Monday, 25 March 1985, immediate-
ly preceding the Friday election, Naslund held a meeting
of the production control group and passed out a written
description of Respondent's pension plan for salaried em-
ployees. Naslund spoke to each employee individually.
As Naslund gave Esver her leaflet, he asked her in
Esver's recollection, "If I realized that if the union came
in, that the pension plan would no longer be in effect."
Esver responded: "Something to the effect that yes, I
know or-left it at that." The conversation then ended.
Naslund testified as follows:
I was handing [Elver] a leaflet that was prepared
by the company which described the current pen-
sion plan benefits that we have and I made the note
that the way the plan is currently written members
of organized bargaining units are excluded from the
plan and the plan would be something that would
be subject to negotiation. . . . That the plan as it
was stated currently excluded members of orga-
nized bargaining units and that the plan would be
subject to negotiations if the Union won the right to
bargain on behalf of the employees.
3. Complaint paragraph 6(c)-Esver's 16 April 1985
conversation with Gunther Wagner
On 11 or 12 April 1985 Plant Manager Gunther
Wagner addressed employees regarding the financial po-
sition of Respondent at a group meeting. Esver was
unable to attend that meeting. On 16 April 1985 Wagner
had a conversation in his office with Debra Esver alone
in order to review the substance of his earlier address.
This meeting lasted for 1-1/2 to 3 hours. Esver testified
that for approximately the first 1 or 1-1/2 hours of the
meeting the Company's adverse financial situation was
discussed. She testified that at this point in the discus-
sion, Wagner asked her to consider her future with the
company. She recalled:
He asked me where I felt I was going to be or
something to that effect and I said , well, I wasn't
too sure. . . . And [h]e said, well, it doesn't seem
like you've ever been happy with us because five
years ago you were in the same situation with the
union and he asked me if I was ever happy with the
company, and I said , well, yes, I was.
He also said that I should spend more of my time
trying to build up the company and-instead of
trying to tear down the things-if there _ were bad
things going on to help build them up instead of
always tearing things down in the company. He
was saying that if I wanted to go anywhere, I
would have to show that I could be trusted, I
would have to show Terry and Buck that I could
be trusted and-... [w]ell move in the company
and be successful in doing anything in the company.
That I would need to show my trust, show that I
could be trusted and quit tearing down the compa-
ny, help us build the company up.
And he says, right now, Debbie, you have a label
on you. You are labelled as a company shithead and
you are not-you have to prove loyalty to the com-
pany. You tear things down too much. You don't
build anything up.
Esver recalled further that Wagner suggested that she
was a leader of intelligence and that she should use her
favorable attributes in a "more beneficial way toward the
company."
. Gunther Wagner testified that the meeting with
Esver lasted between 1-1/2 to 2 hours. He specifically
denied calling Esver a "company shithead" or in anyway
disparaging her because of her involvement in union ac-
tivities or threatening her with retaliation because of
those activities. Wagner suggested that his purpose for
conducting the meeting was to talk to Esver "as one of
the employees" and to "get to know her." He testified
that he directed the discussion so as to elicit the reasons
that Esver was unhappy with her work. He added that
meeting ended on a positive note. Wagner also testified
that he asked Esver how she felt about her job and "her
life" with Respondent and that he was aware of her
complaints with respect to Respondent. He further re-
called that they discussed her career potential and his
belief that she should be more supportive of the Compa-
ny and take a different and more positive attitude. While
Wagner admitted that he knew of Esver's involvement
with the Union prior to the meeting, he recalled that
Esver mentioned her leadership role with the Union as
part of the Union's campaign on her own initiative.
PRECISION FOUNDERS 547
4. Paragraphs 6(b), 7, and 8 of the complaint-the
sick leave dispute
Lana Catherine Gossett has been Respondent's person-
nel manager since April 1984 and was personnel assistant
from September 1982 to April 1984. She testified that
Respondent's sick leave pay policy for salaried personnel
at the end of 1984 was as follows: (1) For sickness up to
6 days annually, automatic payment; and (2) for sickness
more than 6 but not exceeding 10 days,' discretionary
payment depending on circumstances. Gossett further
testified that employee attendance had not been recorded
in the personnel department until approximately August
1983' after which time it was regularly recorded. Gossett,
settling into her new position, did not review salaried
employee attendance records until late in 1984. At that
time she noticed that two employees, Debbie Esver and
another, had been paid for more than 10 sick leave days
in calendar year 1984. As the result of this discovery,
Gossett determined to have the personnel department
monitor salaried employee attendance during 1985. As,
part of this process she discussed her intention to moni-
tor employees with the various managers . She also spoke
to the supervisors of the two employees who had re-
ceived excessive pay leave in 1984. Specifically, Gossett
testified she told Tom Naslund sometime in January 1985
that Esver's paid sick leave in 1984 had exceeded regula-
tion and that it would be monitored in 1985.
Anticipating an April 1985 surgery, Esver met with
Naslund in mid-March. She informed him that she would
be going in for surgery in the middle of the first week of
April and inquired of Naslund what should be done to
comply with company procedures. Naslund informed her
that he was not sure but would check with Gossett. Sub-
sequently, Naslund produced disability forms for Esver
to fill out. When Esver questioned the need for the
forms, Naslund said he would again check with Gossett.
Subsequently, Naslund informed Esver that the disability
forms were unnecessary because her surgery would not
involve an overnight stay in the hospital and because she
did not anticipate an absence in excess of a week as a
result of the surgery. In late March, Esver learned the
exact day of her surgery, 3 April, and so informed Nas-
lund. She also told him that she would off for the re-
mainder of the week of her surgery, but would return
the following Monday conditioned on her physical con-
dition.4
On 5 April, Gossett, in reviewing timesheets, noted
Esver was over the 10-day sick leave limit. Gossett con-
sulted with Naslund and a meeting was scheduled with
Esver, which meeting, subsequently delayed as a result
of Esver's continued rehabilitation,'was held on 10 April.
On that date, Naslund and Gossett met with Esver in the
personnel office. Gossett informed Esver that she had al-
ready received 11 days paid sick leave in 1985 which
was in excess of the 10-day policy. Gossett told Esver
• In the event, Esver reported to work on Monday , 1 April, but went
home sick during the day. She was again ill on 2 April and did not work.
Following surgery on 3 April, she was not at work on 4 and 5 April.
Esver returned to work on Monday, 8 April, but again left work during
the day. She again called in sick on 9 April returning to work the next
day, 10 April.
that she would be paid for the 11th day of sick leave be-
cause of Naslund's approval. From that point forward,
however, she would not be receiving additional sick
leave payments in 1985.
Esver answered that she thought Respondent's sick
leave policy was not as described, that it was -a new
policy, or that it was being differently monitored. She
further complained that she had never been warned or
told that she was facing restriction. Esver informed Nas-
lund and Gossett that she had a medical condition that
would require ongoing absence. Esver then described
her medical condition. Gossett responded suggesting that
a long-term disability status might be appropriate for
Esver.
Gossett informed Esver that her excessive sick leave
absences were affecting her department and that her at-
tendance problems could result in job loss. She said that,
if necessary, Respondent would make arrangements and
allowances for Esver to take time off without pay as
long as her work was satisfactory given the recurring
nature of her illness. Following this, Naslund left the
room and Esver and Gossett continued the conversation
which included additional discussion of Esver's medical
condition.
C. Analysis and Conclusions
1. Complaint paragraph 6(a)-Esver's mid January
1985 conversation with Naslund
Although four other employees were party to the dis-
puted January conversation, only Naslund and Esver tes-
tified concerning it. Esver's recollection of the opening
remarks of Naslund was unsure: "he made a statement
saying `is there union campaign going or what's this
about a union campaign."' Naslund recalled, "I make a
comment , something like `so we are having an election.
We have a lot of problems here."' There is no dispute
that the conversation then evolved into an exchange of
anecdotes by the participants' conversations in some
cases bring out the desirability of union representation,
and in some cases diminishing it.
Respondent on brief asserts that since the election peti-
tion had been filed in very early January, it was highly
unlikely that Naslund would ask if there was a union
campaign and argues : "it is more likely he made a gener-
al comment to the effect that there is going to ,_be an
election." The General Counsel argues that N and did
not specifically deny asking employees ' ut the exist-
ence of the organizing campaign. There is no substantial
difference between the Naslund's version that he initiated
the subject by making a general comment that there was
to be an election and Esver's alternate recollection that
Naslund asked generally about a union campaign. I find
that this is what in fact occurred. Either version is a con-
versational gambit initiated by Naslund and designed to
elicit a response on the topic of the union campaign.
While in this sense the remark solicits an answer or at
least an answering comment and is therefore an interro-
gation, I do not 'find it was the type of direct question
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Esver recalled in her first version of Naslund's statement,
"Is there [a] union campaign going [on]."5
The current standard to be applied to interrogations to
determine their legality under the Act is set forth in
Rossmore House, 269 NLRB 1176, 1178 (1984):6
Interrogations must be evaluated on the basis of the
record as a whole to determine if, under all the cir-
cumstances, the interrogations reasonably tend to
restrain, coerce or interfere with rights guaranteed
by the Act. The Board and Courts have pointed out
that factors to be considered in such an analysis
conclude (1) that background; (2) the nature of the
information sought; (3) the identity of the question-
er; and (4) the place and method of interrogation.
The General Counsel argues that Naslund's comments
were "phrased in a form of a question , calculated to dis-
cern Esver's and the other employees' Union sympathies
and would therefore tend to be coercive." See Hanover
Machine, 270 NLRB 841 (1984); County Market, 270
NLRB 1283 (1984); Telegram-Tribune Co., 268 NLRB
1114 (1983); Universidad Interamericana, 268 NLRB 1171
(1984). In Hanover the Board, with Chairman Dotson dis
senting, sustained an administrative law judge who found
a violation of Section 8(a)(1) of the Act by an agent of
the employer who asked an employee if he knew the
union was trying to get in the company again. The judge
found an illegitimate purpose for the inquiry and found
that it was "calculated to discern [the employee's]
knowledge of union activity and hence intended to result
in the disclosure of his sentiments ." Hanover Machine,
supra at 842, citing Gauley Industries, 260 NLRB 1273,
1276 (1976). In County Market, supra at 1283 fn. 1, the
Board found Respondent's question of an employee, if
she heard anything to do with organizing to be a viola-
tion of Section 8(a)(1) of the Act. In the remaining two
cases cited by the General Counsel in the quoted pas-
sage, Telegram-Tribune and Universidad Interamericana,
the Board found a pattern of interrogation in each case
to constitute a violation of Section 8(a)(1) of the Act.
Respondent has cited various Board cases on brief
which hold, in various contexts, that not every question
by an agent of an employer of an employee's feelings
about union activities rise to the level of a violation of
Section 8(a)(1) of the Act. In Sheraton Plaza La Reina
Hotel, 269 NLRB 71 (1984), the Board sustained an ad-
ministrative law judge's dismissal of an allegation': of vio-
lation of Section 8(a)(1) of the Act where an agent of the
employer on two occasions in group discussions asked an
employee how the union organizing campaign was
going.
The Board's general admonition to avoid per se rulings
and to consider all record evidence concerning 8(a)(1)
5 Both the General Counsel and Respondent argued that, irrespective
of the version of Naslund 's statement ultimately credited, the legal result
remains the same.
8 The General Counsel argues and I agree that the employees who
were present when Naslund made the remarks discussed here were not
all open union supporters Thus, the teaching of Rossmore House as it ap-
plies to open union supporters is not applicable to the instant case. This
being so, it is unnecessary to determine if Esver was an open union sup-
porter at the time of this conversation,
interrogations, and the teaching of the specific cases
cited above, convinces me that remarks similar to those
made by Naslund herein, constitute a violation of Section
8(a)(1) of the Act only where the context of the remarks
and the overall conduct of the employer strengthen the
likelihood of coercive effect and thus favor the General
Counsel. Such is not the case here. Based on the record
as a whole, including the violation found infra, I find
that the allegation does not rise to the level of a violation
of the Act. The record is not clear regarding the exact
nature of the meeting held in the production control de-
partment. It is at least clear, however, that the meeting
was not, at the time of the contested remarks, structured'
or formal and the gathering continued on with the anec-
dote recitations described supra. Such a setting is far dif-
ferent from the formal interview in the superior's office
or in the one-on-one interview setting. Further, Nas-
lund's remark, as noted supra, was more in a nature of
conversational gambit than a specific inquiry directed at
a particular employee.7 Given all of the above, I do not
find that the General Counsel has met its burden of
proving that the remark reasonably coerce employees in
the exercise of their Section 7 rights. Thus, I shall dis-
miss this allegation of the complaint.
2. Complaint paragraph 6(d)-Esver's 25 March
1985 conversation with Naslund
I credit Esver's version of the 25 March 1985 pension
plan conversation with Naslund, described supra, over
the longer and somewhat contrived version given by
Naslund. Esver's memory of this conversation was sure
and her demeanor persuasive. Naslund in my judgment
gave a version of the conversation which comported
with a later developed opinion about what may properly
be said and may not be said by agents of employers
under the Act. His version of the exchange was artificial-
ly long and unnaturally hedged with conditions given
the record evidence of his conversational style on other
occasions. Further, Naslund's demeanor during his testi-
mony concerning this matter was significantly inferior to
that of Esver. Accordingly, I credit Esver and find that
when Naslund handed her a description of the pension
plan, he told her that if the Union came in the pension
plan would no longer be in effect. I specifically reject
the longer explanation proffered by Naslund.6
The General Counsel argues that Naslund's statement,
if the Union came in , the pension plan would be lost,
constitutes an unlawful threat of loss of benefits in viola-
tion of Section 8(a)(1) of the Act. The General Counsel
argues further that, even if Naslund's version of the con-
versation be credited, the legal result would be the same.
Respondent makes the following argument on brief-
7 While the record is not clear, it appears that there had been a previ-
ous union campaign at the employer and that both Naslund and the em-
ployee were aware of this fact at the time.
8 Neither the pension plan itself nor the descriptive leaflet was offered
into the record nor did the General Counsel either in the complaint, at
the hearing, or on brief make any contention of illegality concerning
either the leaflet or the pension plan itself.
PRECISION FOUNDERS 549
Mr. Naslund's comments that the Company's pen-
sion plan, as written, excluded members of a collec-
tive bargaining unit, and if the Union came in, the
pension plan would be subject to bargaining, were
actual factual statements. At [Respondent] the tool
and die makers are unionized and are not covered
by [Respondent's] pension plan, because the plan ex-
cludes employees covered by a collective bargain-
ing plan.
I believe the parties have missed the controlling deci-
sional law regarding this paragraph of the complaint. In
Niagara Wire, 240 NLRB 1326, 1327-1328: (1979), the
Board stated:
[W]e have consistently stated that the mere mainte-
nance and continuance of a provision in a pension
plan, making lack of union representation one of the
qualifications for eligibility to participate therein,
itself tends to interfere with, restrain, and coerce
employees who are otherwise eligible in the exer-
cise of their self-organizational rights. Here, Re-
spondent's plan, in limiting eligibility to employees
who are not covered by a collective-bargaining
agreement, in effect, conditions, eligibility on the un-
represented status of the employees. It is clear that
Respondent publicized this restriction by distribut-
ing summaries of the plan to, its employees a few
weeks before they were scheduled to vote in the
union election. While there is no ^ reason to assume
that the distribution of the plan was unlawfully mo-
tivated, the communication and the continued exist-
ence of such an exclusionary eligibility requirement
necessarily exert a coercive impact on the employ-
ees. It is for this reason that an employee benefit
plan which restricts coverage to unrepresented em-
ployees is per se violative of Section 8(a)(1) of the
Act, regardless of whether the employer adds to the
misconduct by implementing the restriction or ex-
ploiting it during an organizing campaign. [Foot-
notes omitted.]
As noted, the General Counsel did not allege that either
the pension plan or the language of the summary sheet
passed out on 25 March-a few days before the 29
March 1985 election violated the Act. Naslund's descrip-
tion - to Esver, however, matches exactly the situation
covered by the Board in Niagara. Thus, for the reasons
cited therein, and even if in fact the pension plan did not
by its terms, operate as described by Naslund, a violation
of Section 8(a)(1) of the Act occurred and I so find.
3. Complaint paragraph 6(c)-Esver's April 1985
conversation with Gunther Wagner
I credit Esver over Wagner as to the specifics of their
16 April conversation. I do so primarily because Wag-
ner's testimony concerning the conversation revealed an
inability to recall specific details of the conversation and,
rather, contained in large part an impressionistic or holis-
tic recollection of the conversation. Wagner tended to
characterize in larger terms the purposes of the conver-
sation rather than give the specifics of what was said.
Esver to the contrary testified in a more or less chrono-
logical fashion to specific statements made and showed a
sound memory of the conversation. I reach the same
conclusion on demeanor grounds. I find Esver had a su-
perior demeanor during her testimony in this area.
Wagner, while in my view not intending to misstate,
convinced me on the basis of his demeanor that he had
no specific recollection of the details of the conversation
and was rather seeking as best he could to deny allega-
tions which he believed placed him and his employer in
an unfavorable light.
In so crediting Esver, I specifically credit her testimo-
ny that Wagner suggested that she did not seem happy
with the Company because years before she was in the
same position with the Union. I further find that Wagner
told Esver that she bore a highly derogatory label in the
company, that she was needlessly destructive and that
she had to prove her loyalty with the company if she
was ever to get ahead or achieve promotion within Re-
spondent. The connection of an employee's attitude
problems, reputation within the company and opportuni-
ties for promotion with her union activities is inpermissi-
ble and illegal. The General Counsel alleges that Wag-
ner's conduct "disparaged an employee 's involvement in
union activity and impliedly threatened her with retalia-
tion because of her union activity." I find that the Gen-
eral Counsel has met its burden of proof with respect to
this allegation and that Wagner's actions as found above
violate Section 8(a)(1) of the Act.
4. Paragraphs 6(b), 7, and 8 of the complaint-the
sick leave dispute
The testimony concerning the various conversations
about the sick leave policy, set forth supra, do not
present significantly conflicting versions of events.
Rather the General Counsel argues that the suspicious-
ness of the absence of a written policy regarding sick
leave for salaried employees and the argued incredible
testimony of Gossett and Naslund concerning the admit-
tedly unprecedented restriction of sick leave for Esver-
a known union adherent require that the General Coun-
sel's allegations be sustained. I have carefully examined
the record evidence regarding these allegations and I am
unable to find that the General Counsel has sustained its
burden of proof with respect to either the 8(a)(1) or the
8(a)(3) and (1) allegations. First, I simply do not fmd the
testimony of Naslund and Gossett on the series of events
in question to be inherently incredible or inconsistent
with probabilities. While the General Counsel's argu-
ments about probabilities and coincidences are not totally
without merit, the question is one of degree. I am per-
suaded, especially in light of the convincing demeanor of
Gossett and Naslund on the question, that the apparent
late curtailing of subsequent sick leave after the initial
granting of the sick leave for the 3 April operation and
the lack of any warning or prior notification given Esver
were simply the result of communication lags and
normal misunderstandings. I find the General Counsel's
evidence simply inadequate to challenge the direct, cred-
ible testimony of Gossett regarding Respondent's sick
leave policy and its benign application to Esver.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Given these findings, the General Counsel has failed to
meet its burden of proof to show that Respondent's ap-
plication of its sick leave policy to Esver was irregular
or directed to her union activities. Accordingly, I shall
dismiss the 8(a)(3) allegation in the complaint paragraphs
7 and 8. Consistent with that finding, I shall also dismiss
the allegation that Respondent violated Section 8(a)(1) of
the Act through Naslund and Esver in the 10 April 1985
meeting with Gossett. Given the existence of the sick
leave policy and its benign application to Esver, state-
ments made at that meeting by agents of Respondent
were not improper or violative of the Act. Accordingly,
I shall dismiss paragraph 6(b) of the complaint.
IV. THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative actions
to effectuate the purposes of the Act, including the post-
ing of remedial notices in English and, should the Re-
gional Director determine that the circumstances at the
time of the posting warrant, other languages.9 There
being no allegation in the complaint addressed to the
pension plan, I shall make no recommendations with re-
spect thereto.
On the foregoing findings of fact, and the entire
record, I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
interfering with, restraining, and coercing employees in
the exercise of the rights guaranteed them by Section 7
of the Act as follows:
(a) By telling its employees it maintains a pension plan
for its employees which excludes from participation oth-
erwise eligible employees who select a collective-bar-
gaining representative and/or who subsequently become
subject to the terms of the collective-bargaining agree-
ment.
(b) By disparaging employees' involvement in union
activities and impliedly threatening them with retaliation
through loss of promotions because of their union activi-
ties.
4. Respondent has not otherwise violated the Act.
9 Laborers Local 383, 266 NLRB 934, 939-940 fn. 9 (1983).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed16
ORDER
The Respondent, Precision Founders, Inc., San Lean-
dro, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Informing employees or otherwise publicizing a
pension plan for its employees which excludes from par-
ticipation otherwise eligible employees who select a col-
lective-bargaining representative and/or subsequently
become subject to the terms of collective-bargaining
agreement.
(b) Disparaging employees' involvement in union ac-
tivities and impliedly threatening them with retaliation
through lack of promotions because of their union activi-
ties.
(c) In any like or related manner, interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Post at-its. San Leandro, California facility, copies
of the attached notice marked "Appendix"" and copies
of the Appendix translated into such additional languages
as are deemed appropriate by the Regional Director for
Region 32. Copies of this notice, and translated notices
as appropriate, after being signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt and maintained for 60 consecu-
tive days, in conspicuous places, including all - places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure the
notices are not altered, defaced or covered by other ma-
terial.
(b) Notify the Regional- Director in writing within 20
days from the date of this Order, what steps Respondent
has taken to comply.
10 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.
11 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."