Ribbon Sumyoo Corp.

National Labor Relations Board - Board Decisions

Sep 24, 1992

308 N.L.R.B. 956 (N.L.R.B. 1992)

956
308 NLRB No. 133
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge also noted the parties’ stipulation that in the
preelection period the Respondent campaigned against the Union.
2 See, e.g., Vapor Corp., 242 NLRB 776, 784 (1979).
Ribbon Sumyoo Corp. and J.S. Fiber, Inc., single
employer and Local 300, United Industrial
Workers Midwest, Seafarers International
Union of North America, AFL–CIO. Cases 13–
CA–29487 and 13–RC–18012
September 24, 1992
DECISION AND ORDER REMANDING AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 19, 1991, Administrative Law Judge Robert
W. Leiner issued the attached decision. The Respond-
ent filed exceptions and a supporting brief. The Gen-
eral Counsel, joined by the Charging Party, filed an
answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
In Case 13–CA–29487, the General Counsel alleges
that the Respondent violated Section 8(a)(1) of the Act
based on various statements by its supervisors to
Genoveva Tello, the second-shift supervisor, between
April 2 and 9, 1990. The General Counsel also alleges
that the Respondent violated Section 8(a)(3) and (1) of
the Act by discharging Tello on April 12, 1990, for her
activity on behalf of Local 300, United Industrial
Workers Midwest, Seafarers International Union of
North America, AFL–CIO. These allegations are de-
pendent on a finding that Tello is an employee and not
a supervisor within the meaning of Section 2(11) of
the Act.
In Case 13–RC–18012, an election among the Re-
spondent’s production and maintenance employees was
held on May 25 and was conducted pursuant to a Stip-
ulated Election Agreement. The tally of ballots shows
30 for and 23 against the Union, with 3 nondetermina-
tive challenged ballots. The Respondent filed timely
election objections, which were dismissed except for
Objection 2. This objection was consolidated for hear-
ing with the pending allegations in Case 13–CA–
29487. Objection 2 alleged that Tello’s involvement in
the Union’s organizing campaign tainted the election
as well as the Union’s showing of interest supporting
the representation petition.
The judge found, inter alia, that the Respondent, a
single employer, failed to prove, by a preponderance of
the credible evidence, that Tello is a supervisor. Based
on this finding, the judge then concluded that the Re-
spondent unlawfully interrogated, threatened, and dis-
charged Tello and also unlawfully requested that she
engage in surveillance of other employees’ union ac-
tivities. The judge further found that, whether or not
Tello was a supervisor, her prounion activities prior to
the election did not constitute objectionable conduct. In
this connection, he observed that Tello was discharged
6 weeks before the election, she had not threatened
employees or promised them any rewards based on
their attitude toward the Union, and the record did not
reveal any prounion activity by Tello after the filing of
the representation petition on April 2, 1990. The judge
also noted that the record failed to show that, prior to
the election, any employee either knew about the
Union’s pending unfair labor practice charge seeking
reinstatement of Tello or had any expectation that
Tello would be reinstated.1 The judge therefore rec-
ommended that Objection 2 be overruled and that the
Union be certified as the exclusive collective-bargain-
ing representative of the unit employees.
The Respondent excepts, inter alia, to the judge’s
finding that the Respondent failed to prove that Tello
is a supervisor. The Respondent claims that it was not
afforded a full opportunity to call and examine wit-
nesses at the hearing, including Patricia Lalinde,
Tello’s counterpart and the first- shift supervisor, on
the issues of Tello’s supervisory status and credibility.
The Respondent essentially argues that Lalinde’s su-
pervisory status, including when and how she acquired
that status, bears directly on Tello’s similar status and
her credibility and establish that Tello was a super-
visor. The Respondent contends that the judge erred in
restricting the evidence to Tello’s status by cir-
cumscribing Lalinde’s testimony regarding her own
status as a supervisor. During the hearing, the Re-
spondent made an offer of proof regarding Lalinde’s
testimony in support of its position that Tello and
Lalinde occupied identical shift supervisor positions
and had the same authority.
We agree with the Respondent that the judge erro-
neously restricted its presentation of evidence at the
hearing.2 We, therefore, have decided to sever the two
cases consolidated here and to remand Case 13–CA–
29487, the portion of this proceeding dependent on
Tello’s status, to the judge for the taking of additional
evidence regarding Lalinde’s position and how it com-
pared to Tello’s position at the time in question. The
judge shall also make further findings of fact and
credibility resolutions and reconsider his prior credibil-
ity resolutions and his conclusions regarding the
8(a)(3) and (1) allegations in light of the additional
evidence. In view of our determination to remand, we
find it unnecessary at this time to pass on the Re-
957RIBBON SUMYOO CORP.
3 Member Oviatt notes that the judge’s analysis is consistent with
his position in Kleen Test Products, 302 NLRB 464 (1991), in which
Member Oviatt concurred in overruling a similar employer election
objection alleging impermissible supervisory solicitation of cards and
other prounion conduct.
1 On August 13, 1990, Respondent filed exceptions to the Acting
Regional Director’s dismissal of the other objections. I have been
administratively advised that the Board, on December 6, 1990, inter
alia, sustained the dismissal of all other objections.
spondent’s other exceptions to the judge’s decision re-
lating to Case 13–CA–29487.
With respect to Case 13–RC–18012, we have re-
viewed the record in light of the exceptions and briefs
and have adopted the judge’s findings and rec-
ommendations overruling the Respondent’s Objection
2 and find that a certification of representative should
be issued.3
ORDER
It is ordered that Cases 13–CA–29487 and 13–RC–
18012 are severed and Case 13–CA–29487 is re-
manded to Administrative Law Judge Robert W.
Leiner for the limited purpose of taking the additional
evidence described above and of making credibility
resolutions, factual findings, and conclusions of law in
light of the additional evidence.
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a supplemental decision set-
ting forth the resolution of such issues, findings of
fact, and if appropriate, revised conclusions of law, in-
cluding a recommended Order where appropriate, re-
garding the issues on remand. Copies of the supple-
mental decision shall be served on all parties after
which the provisions of Section 102.46 of the Board’s
Rules and Regulations shall be applicable.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Local 300, United Industrial Work-
ers Midwest, Seafarers International Union of North
America, AFL–CIO, and that it is the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part-time production and
maintenance employees of the Employers, Ribbon
Sumyoo Corp. or J.S. Fiber, Inc., both located at
the facility which is now at 2701 W. Armitage,
Chicago, Illinois; excluding office clerical em-
ployees, sales personnel, professional and mana-
gerial employees, guards and supervisors as de-
fined in the Act.
Deborah Cook-Schrock, Esq., for the General Counsel.
John S. Schauer, Esq. (Seyfarth, Shaw, Fairweather &
Geraldson), of Chicago, Illinois, for the Respondent.
Denise Polovac, Esq. (Katz, Friedman, Shur & Eagle), of
Chicago, Illinois, for the Union.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This con-
solidated matter was heard on 10 occasions on and between
October 22 and December 4, 1990, in Chicago, Illinois, upon
the General Counsel’s July 26, 1990 complaint, amended at
the hearing, and an objection to the election filed by Re-
spondent, Ribbon Sumyoo Corp. and J.S. Fiber, Inc., single
employer. The petition for certification in the above-cap-
tioned representation case, dated April 2, 1990, filed by
Local 300, Industrial Workers Midwest, the Union herein,
was served on April 3, 1990. On May 23, 1990, the Union
filed an unfair labor practice charge alleging violation of
Section 8(a)(1) and (3) of the National Labor Relations Act
(the Act), because of Respondent’s unlawful discharge of its
employee, Genoveva Tello, on April 12, 1990, and because
of unlawful threats and coercive interrogation occurring on
or about March 29 and April 12, 1990.
On Friday, May 25, 1990, an election was held in a unit
of Respondent’s full-time and regular part-time production
and maintenance employees employed at its Chicago, Illinois
facility (excluding office clericals, sales personnel, profes-
sional and managerial employees, guards and supervisors as
defined in the Act). Of the 59 eligible voters, 30 cast ballots
for the Union, and 23 cast ballots against the Union. Three
challenged ballots were not sufficient in number to effect the
results of the election.
On June 1, 1990, the Respondent filed timely objections
to conduct of the election and to conduct effecting the results
of the election. Respondent objected, inter alia, on the
ground of ‘‘a supervisor’s [Genoveva Tello’s] involvement in
the [Union’s] organizing effort [which] was coercive of em-
ployees’ Section 7 rights and ‘taints’ both the petitioning
labor organization’s showing of interest and the election
itself.’’
On July 26, 1990, the General Counsel, through the Re-
gional Director for Region 13, issued a complaint and notice
of hearing alleging the April 12, 1990 discharge of employee
Genoveva Tello to constitute a violation of Section 8(a)(1)
and (3) of the Act; and that Respondent, in violation of Sec-
tion 8(a)(1), had inter alia, coercively interrogated an em-
ployee, engaged in unlawful surveillance and unlawfully
threatened to close its plant.
On July 30, 1990, the Acting Regional Director for Region
13, recommended dismissal of all objections to the election
except Respondent’s Objection 2.1 This objection related to
the supervisor’s involvement in the Union’s organizing effort
which, as above noted, allegedly was coercive of employee
Section 7 rights and tainted both the Union’s showing of in-
terest and the election itself. Upon considering the matter, the
Acting Regional Director found substantial and material
issues raised by that objection and directed that it be resolved
in a hearing consolidated with parallel allegations in the un-
fair labor practice complaint.
On August 10, 1990, Respondent filed its answer to the
complaint in which it denied, inter alia, that Respondent un-
958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Although the complaint alleges various acts of unlawful conduct
by Respondent’s agents, it was conceded by the General Counsel
and the Union at the hearing, and the complaint amended accord-
ingly, that all such Respondent activities occurred only with regard
to Genoveva Tello. Therefore if Genoveva Tello is a statutory super-
visor, none of the alleged acts of interference, restraint or coercion,
otherwise unlawful within the meaning of Section 8(a)(1), could be
found to constitute violations of that Section of the Act. McDonnell
Douglas Corp. v. NLRB, supra; Parker-Robb Chevrolet, supra.
lawfully interrogated or engaged in surveillance of its em-
ployees or threatened them with closure of the plant if the
employees brought in the Union. It further denied that it cre-
ated an impression of surveillance among its employees of
their union activities and denied soliciting their complaints
and grievances and promising them increased benefits in
order to discourage employees from supporting the Union.
Although Respondent admits discharging Genoveva Tello on
April 12, 1990, and refusing to reinstate her thereafter, it de-
nies it discharged her because of her union activities and,
moreover, alleges that it did not violate the Act because, in
any event, Tello, at all material times, was not an employee
but was its supervisor as defined in Section 2(11) of the Act.
At the hearing, all parties were represented by counsel,
were given full opportunity to call and examine witnesses, to
submit relevant oral and written evidence, and to argue orally
on the record. At the close of the hearing, the parties waived
final argument and elected to file posthearing briefs. The
briefs, timely submitted by all parties, have been carefully
considered.
Upon the entire record, including the briefs, and upon my
most particular observation of the demeanor of the witnesses
as they testified, together with an evaluation of their testi-
mony and other evidence of record, I make the following
FINDINGS OF FACT
I. RESPONDENT AS STATUTORY SINGLE EMPLOYER
The complaint alleges that Respondent, Ribbon Sumyoo
Corp. and J.S. Fiber, Inc., constitutes a single ‘‘employer’’
within the meaning of the Act. The complaint alleges, and
Respondent admits, that at all material times both Sumyoo
Corp. and J.S. Fiber, Corp. were Illinois corporations having
the same office and place of business located at 2701 W.
Armitage Avenue in Chicago, Illinois. While Respondent’s
answer denies common supervision or interchange of person-
nel of the two corporations, denies that they held themselves
out to the public as a single integrated business enterprise,
and denies single employer status, Respondent’s answer ad-
mits that the two corporations, at all material times, have
been affiliated business enterprises with common officers,
ownership, directors, and management. It further admits that
the two corporations have a common labor policy affecting
employees of the two operations and have shared common
premises and facilities, providing services and sales to each
other. Furthermore, the record shows, and the parties con-
cede, that the election in the above representation case was
held without objection in a single unit of the employees of
both corporations (Tr. 17). Finally, Respondent asserted at
the hearing that the single employer issued was a ‘‘non
issue’’ in the case and need not be litigated (Tr. 17–18). Its
posthearing brief does not suggest to the contrary. On the
basis of the record, I conclude that, as alleged, Ribbon
Sumyoo Corp. and J.S. Fiber Corp., constitute a single inte-
grated ‘‘employer’’ within the meaning of the Act.
Respondent, having further admitted that the two corpora-
tions, in calendar year 1989, a representative period, through
their business operations, shipped from the Chicago, Illinois
facility products and goods valued in excess of $50,000 di-
rectly to points outside the State of Illinois, and having also
conceded that Respondent is an employer engaged in com-
merce within the meaning of the Act, I further conclude that
Respondent, as above defined, is a single employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE UNION AS STATUTORY LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find, that
at all material times, Local 300, United Industrial Workers
Midwest, Seafarers International Union of North America,
AFL–CIO (the Union), has been and is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The issues presented in this litigation are:
(1) The lawfulness of the discharge of Genoveva Tello on
April 12, 1990. This issue consists of three subsidiary issues:
(a) whether there is a prima facie case within Section 8(a)(3)
that she was unlawfully discharged; (b) whether the prima
facie case was either rebutted or overcome by sufficient evi-
dence that she was discharged for otherwise lawful reasons;
and (c) whether, in any event, the discharge is privileged be-
cause, as a matter of law, she was not an employee protected
within Section 2(3) but Respondent’s supervisor, and unpro-
tected, within them meaning of Section 2(11) of the Act. See
Parker-Robb Chevrolet, 262 NLRB 402, 403 (1982).
(2) Whether Respondent’s conversations with Genoveva
Tello, whether they be unlawful coercive interrogation,
threats of plant closing, etc., constituted violations of Section
8(a)(1) of the Act. The determination of these issues again
rest on the status of Genoveva Tello as a protected employee
or a statutory supervisor, and unprotected. If she was indeed
a supervisor, then Respondent’s conversations with her
would not constitute coercive action against an ‘‘employee’’
within the meaning of Section 7 and Section 8(a)(1) of the
Act since supervisors, certainly for this purpose, have been
excluded from protection as ‘‘employees.’’ McDonnell Doug-
las Corp. v. NLRB, 655 F.2d 932 (9th Cir. 1981). If, on the
other hand, she is a mere employee, then such conversations
must be judged on the merits to determine whether they con-
stitute coercive interrogation, unlawful threats, etc.2
(3) The alleged impropriety of Tello’s prounion activities
among unit employees tainting the election process and the
outcome of the election. Respondent’s Objection 2 asserts
that Tello’s prounion activities among unit employees prior
to the election, tainted the election process and the outcome
of the election. As will be seen hereafter, disposition of this
separate issue does not depend upon a resolution of the su-
pervisory status of Genoveva Tello. For I have concluded
that, whether or not she was a statutory supervisor and en-
gaged in the prounion activities among unit employees, Re-
spondent’s Objection 2 should be overruled and the Board
should issue the appropriate certification of representative.
959RIBBON SUMYOO CORP.
A. Background
The complaint alleges and Respondent admits that, at all
material times, its supervisors and agents within the meaning
of Section 2(11) and (13) of the Act of Respondent were: Jae
Chul (Peter) Chang, owner-president; Rosa Chang,
owner/secretary treasurer; Eric Kim, general manager; and
Young Park, assistant plant manager. All of Respondent’s
above supervisors, and its two mechanics, both nonsuper-
visors, are Korean-speaking and salaried. Its employees, as
far as this record shows, are all Spanish-speaking and do not
speak English or Korean. Tello, Spanish-speaking, speaks
considerable English. Respondent’s supervisors and mechan-
ics do not speak Spanish and speak English in varying de-
grees: Eric Kim, its general manager and its Spanish-speak-
ing, nonsupervisory office clerical Wolford, speak English
well. Respondent’s owners, mechanics, as well as its assist-
ant plant manger, speak little English although their com-
prehension is perhaps greater. They, nevertheless, commu-
nicated with Genoveva Tello in English or in a combination
of signs and English. Tello and Wolford communicated with
Respondent’s employees in Spanish.
As above noted, Ribbon Sumyoo Corp. and J.S. Fiber, Inc.
are both located at the present time at 2701 W. Armitage
Avenue, Chicago, Illinois. Ribbon Sumyoo, on the first floor
of the factory, is engaged in the manufacture of narrow
width fabric webbing (Ribbons) ranging from 1/2 to 4 inches
in a variety of colors. J.S. Fiber, located in the basement of
the factory, manufacturers the plastic ‘‘threads’’ used by Rib-
bon Sumyoo to weave the ribbons. The fabric webbing is
used as an industrial fastening device for packaging of var-
ious types.
Respondent’s president Peter Chang came to the United
States in January 1980, from Korea and started Ribbon
Sumyoo Co. in Chicago in December 1980. He and his wife,
Rosa Chang, each own 50 percent of the shares. By 1982,
Respondent’s employee complement rose from one employee
working five looms making ribbon to eight employees work-
ing a greater number of looms. By 1986, Ribbon Sumyoo
had grown to 20 employees and moved to the present loca-
tion on Armitage Avenue. Before moving to Armitage Ave-
nue, however, the Employer had initiated a two-shift oper-
ation which it continued at Armitage Avenue.
By the beginning of 1990, Respondent used approximately
55 weaving (loom) machines to manufacture the webbing. In
early 1990, there were between 17 and 20 employees in the
first shift; between 15 and 17 employees on the second shift.
Each shift had a mechanic. Mechanic Sukhyon Chang, hired
March 1989, not related to the Respondent’s president, was
originally employed to fix machines on the second shift. In
March 1990, he was transferred to the first shift and the first-
shift mechanic became the mechanic on the second shift.
The first-shift employees are composed of about 11 loom
operators, 2 cutters, 4 ribbon winders, and 1 yardage counter.
The second shift also employs about 11 operators but has
only 1 cutter, 4 winders, and no yardage counter.
J.S. Fiber, Inc., in the basement of the Armitage facility,
operates on a 24-hour basis, 7 days a week, producing thread
for Ribbon Sumyoo Corp. It requires a continuous operation,
requires four shifts of six employees each, and employs a
mechanical engineer and an electrician for mechanical and
electrical problems.
The first shift at Ribbon Sumyoo, in early 1990, was 5
days per week, from 7 a.m. to 3:30 p.m. Monday through
Friday; the second shift, from 3:30 p.m. to 11:30 p.m. Prior
to 1989, the second shift worked weekdays 3:30 p.m. to only
10:30 p.m. and 5 hours at regular rate on Saturdays. These
are all 40-hour workweeks.
President Chang and General Manager Kim ordinarily
leave the plant between 5 and 6 p.m. each workday (Tr. 199,
948). At about that time, the office and exit doors to the
plant are locked and only the mechanic on the second shift
has the key, to open office doors and the exit doors to permit
employees to leave the factory whether specially during the
shift or at the end of the shift. In addition, by 1990, on the
second shift only the second-shift mechanic had the resi-
dence telephone number of the owners, the Changs.
Production scheduling at Ribbon Sumyoo was established
by President Chang and Plant Manager Young Park. The
general manager, Eric Kim, in 1990, was present in some of
the production scheduling meetings. Production scheduling,
of course, was based on the flow of incoming orders as to
color, size, and quantity and existing inventory. When the
schedule was arrived at, Respondent would call in, for the
first shift, Patricia Lalinde, and on the second shift,
Genoveva Tello. The owners and Young Park, first inquiring
which lines were running a particular item and whether items
were already in inventory, would decide the necessity of run-
ning the item. Neither Tello nor Lalinde were given the right
to stop one order and put on another, but merely to report
on production status and run production items. Lalinde and
Tello were called in two or three times a week with regard
to production scheduling orders.
Production of priority items after 1988–1989 was some-
times done on an overtime basis on Saturdays. Once the pro-
duction scheduling required Saturday overtime work, Rosa
Chang chose the employees to work overtime on Saturdays
(Tr. 525–526) and would sometimes instruct Genoveva Tello
to tell the employees which of them had been chosen to
work overtime. While Peter Chang himself decided on the
necessity for overtime work on Saturdays (Tr. 1034), I do
not credit his testimony that it was Tello or Lalinde who de-
cided which employees would work the overtime (Tr. 1035).
In view of my crediting the testimony of a witness (Maria
Estella Lopez), a longtime employee presently employed as
an apparent supervisor, that it was Rosa Chang, herself, who
chose the employees to work Saturday overtime (Tr. 525–
526), I necessarily discredit both President Chang’s testi-
mony that Secretary-Treasurer Rosa Chang did not herself
select employees for overtime work (Tr. 1035) and Rosa
Chang’s similar testimony (Tr. 1143).
For the first 2 years of a new employee’s employment, the
employee wages were automatically raised 25 cents per hour
each 3 months. In 1990, the lowest paid loom operations
were wages were paid $4.50 per hour; highest at $6.75 per
hours. Lalinde was paid $7.50 per hour; Tello the highest
paid—aside from the mechanics who were salaried (averag-
ing about $9.37/hour) unit employees—at $9 per hour. All
except the mechanics, punch the timeclock, are paid premium
rates for overtime work hours, and are docked pay for ab-
sences or lateness.
Commencing in or about 1988, when Ribbon Sumyoo
Corp. began utilizing threads produced by J.S. Fiber, Inc., it
experienced production and quality problems in its webbing.
960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The memorandum or letter is as follows:
August 24, 1989
Dear Employees:
Followings [sic] are the company rules concerning dismissal
of workers.
(1) Absence from work without prior notification and subse-
quent permission to and from the office [sic].
(2) Coming to work late and/or leaving work early without
prior notification and subsequent permission to and from the
office.
(3) Refusing to follow supervisor’s instruction.
(4) Stealing and/or intentional damaging of the company
property.
(5) Employees breaking the rule 1, 2, and 3 more than three
times within a year will be subject to termination from work.
Employees breaking rule 4 will be terminated immediately.
Also as of August 15, 1989, the following persons took a new
position [sic].
Mr. Young Park is promoted as a new assistant plant manager.
His new responsibilities are to assist Mr. Chang in production,
supervising shipping a receiving, and other operational matters.
Miss Patricia Lalinde is selected as the first shift supervisor.
Her responsibilities are to assist both Mr. Chang and Mr. Park
in production and the operation of the morning shift.
Miss Genoveva Tello is selected as the second shift super-
visor. Her responsibilities also are to assist Mr. Chang and Mr.
Park in production and the operation of the afternoon shift.
Jason Park/General Manager
This caused frequent meetings between Ribbon Sumyoo
management and Tello (representing the second shift) and
Patricia Lalinde (representing the first shift). The meetings
with Lalinde and Tello did not occur jointly but occurred
separately. Loom operators were sometimes called in con-
cerning specific problems. In the meetings in which Tello
was present, she consistently stated that the reason for the
lack of production and poor quality was the poor quality of
these Fiber threads being used in the Ribbon Sumyoo weav-
ing machines. Peter Chang repeatedly answered that although
the yarn was a big problem it was not the only problem; that
the attitude of the workers was a significant problem as well;
and that the problem of attitude of the workers was her re-
sponsibility (Tr. 686).
Respondent employs separate mechanics on each of the
shifts. In April 1990, mechanic Chang was the first-shift me-
chanic and Son was the second-shift mechanic. In March
1990, management allegedly experienced special production
and undescribed employee problems on the second shift. At
a meeting in March 1990, management (Young Park, Presi-
dent Chang, and General Manager Eric Kim) decided that its
problems, especially poor output and poor quality, were basi-
cally Tello’s fault. As a consequence, management shifted
the second-shift mechanic (Chang) to the first shift and put
the allegedly more experienced Son to the second shift. The
mechanic’s job was to repair the looms, open the doors, and
obtain yarn by the box full on forklifts from J.S. Fiber in the
basement where the yarn was too heavy for female employ-
ees. They also helped in shipping. Mechanic Son was paid
a salary $300 for a 48-hour week; mechanic Chang was paid
a salary of $375 for a 48-hour week. They, unlike other unit
employees were not paid for overtime. Unlike Tello and
other unit employees who are hourly paid, the mechanics,
unit employees, do not punch the timeclock. Immediately
after the discharge of Tello on April 12, mechanic Son was
placed in temporary charge of the second shift where he had
been the mechanic 6 weeks prior to Tello being discharged.
Maria Estella Lopez was thereafter named the next second-
shift supervisor 4 months later, in August 1990.
B. Tello Named a ‘‘Supervisor’’; Union Activities and
Discharge of Genoveva Tello; and Alleged
Interrogation and Threats, the Prima Facie Case
Genoveva Tello was hired as a loom operator in about
1984. In 1987, President Chang came to the work area and
told Tello that thereafter she would cease operating the
looms and would be in charge of fixing the looms, helping
employees in using the machines, changing the threads on
looms, and training new employees. At that time, he did not
describe Tello as his supervisor. Tello accepted the change
in responsibilities. By April 1988, however, Respondent de-
scribed Tello as a supervisor (R. Exh. 9).
While there is no evidence of Tello’s wage rate at that
time, there is no dispute that by June 1989, her pay rose to
$9 per hour. This came about because Tello told Peter Chang
that she needed a raise because her ‘‘job was too much’’ and
that the wages she was receiving were inappropriate for the
work she was doing (Tr. 1241). Peter Chang recalled that
Tello not only asked for a wage rate of $9 per hour imme-
diately, but a wage rate of $10.50 per hour ‘‘in about a
year’’ (Tr. 1047–1048). She said that she was the only per-
son ‘‘in charge of’’ the night shift and had taken on more
responsibilities. About a month after her request, she re-
ceived the wage increase to $9 per hour. Patricia Lalinde, in
charge of the day shift, was paid only $7.50 per hour be-
cause Tello, on the night shift, was all alone. Lalinde oper-
ated in the presence of Respondent’s supervisors during reg-
ular business hours. At that time, and thereafter, Tello be-
came Respondent’s highest paid employee other than the sal-
aried mechanics. Nevertheless, she and all other hourly rated
employees continued to punch the timeclock, were paid for
overtime, and had their wages docked for lateness and ab-
sences. This was unlike the treatment of all salaried employ-
ees, even nonsupervisory mechanics, who neither punched
the timeclock nor were docked for lateness or absence nor
were paid for overtime (Tr. 539–540).
Sometime in or about July 1989, Peter Chang and Rosa
Chang called Tello into the office and told her that they were
giving her the title of supervisor. In August 1989, Respond-
ent distributed, along with all employees’ paychecks, a
memorandum or letter (R. Exh. 1)3 in which they described
Genoveva Tello as having been ‘‘selected as the second shift
supervisor’’ (and Patricia Lalinde as being selected as the
first-shift supervisor).
Upon issuance of this announcement (wherein Genoveva
Tello and Patricia Lalinde were named to ‘‘new’’ positions),
Tello asked the Changs whether there would be any changes
in her benefits including insurance, the requirement to punch
the timeclock, and other benefits (Tr. 62). The Changs told
Tello that she would eventually have those benefits. After a
few months, having seen no change in her benefits, salary,
or other conditions of employment, Tello spoke to the
Changs about the promised benefits (Tr. 69). When they told
her that the only thing she would receive was the very large
wage she was receiving, Tello told them that she did not
want the title of supervisor because there was no real change
961RIBBON SUMYOO CORP.
4 The record as a whole and the context of this conversation re-
quire that sua sponte, I correct the transcript (Tr. 61, L. 16) to read:
‘‘I told them I was not accepting the offer.’’ See Tr. 64, L. 1
through 7.
There is a dispute whether Tello also demanded a salary of
$25,000 per year. President Chang testified that he called clerical
Wolford into the office as a witness. Wolford (Tr. 663) corroborated
Chang in part. Significantly however, Chang testified specifically
that he told Wolford the size of Tello’s yearly salary demand:
$25,000 (Tr. 1051). Wolford’s testimony on the event fails to men-
tion the amount, or even any salary reference, a fact she surely
would have remembered especially when testifying, in rebuttal, after
President Chang’s testimony on the point. Furthermore, Chang testi-
fied that the $25,000/year salary demand was the only matter that
he called Wolford into the office for and that there was no other
conversation other than to confirm the salary demand (Tr. 1051).
Wolford, contradicting Chang, testified that Chang called her to the
office to transmit to Tello (in Spanish) his desire to have Tello come
to work earlier (without pay) (Tr. 561 et. seq.). Were the matter sub-
stantial, I would credit Tello’s denial that she ever demanded a sal-
ary. Chang’s and Wolford’s credibility is another matter.
5 Although Tello persisted in denying that she was the leader of
the February 16 meeting after 11:30 p.m., it is clear that Tello was
the leader, arranged for the meeting and addressed it. The fact that
other employees may have spoken does not detract from this conclu-
sion (Tr. 256).
6 Direct examination:
Q. Mr. Kim, in this conversation, this first one with Ms.Tello,
did you advise Ms. Tello that there would be new company ben-
efits or wages?
A. New company benefits or wages?
Q. Yes, sir.
Continued
of benefits or in her working conditions.4 The Changs in-
sisted that she take the title; that eventually, all the benefits
that they had spoken of would come to her; and that Re-
spondent was just starting out and still growing.
In fact, both prior to August 1989 and after receiving the
title and the pay raise, the terms and conditions of Tello’s
employment did not change: she continued to have her
wages docked if she came late; she continued to punch the
timeclock, continued to train new personnel, to fix machines,
to help employees run machines, to change the colors of the
webbing, and to run looms for absent or vacationing employ-
ees.
Nevertheless, Tello continued to attend meetings of super-
visors (in the owner’s office) addressing general production
problems. While employees were seldom called into these
meetings except when their particular production was in-
volved, the shift mechanics were often in attendance at pro-
duction meetings. Though Eric Kim, the general manager,
had only a modest responsibility in production (that function
being assigned to the plant manager, Young Park), he some-
times attended the meetings. Whereas Tello attended such
meetings perhaps once a month in 1988, by 1989, they were
up to twice a month (Tr. 1245–1246).
At no time through the summer of 1989, did any Respond-
ent supervisor ever tell Tello that she had the authority to
discipline employees.
Perhaps as a result of the somewhat less then sanguine
feelings Tello felt for Respondent’s owners flowing from the
failure of Tello’s expectations at the end of 1989, and appar-
ently after the turn of 1990, Tello contacted the union. By
sometime in February 1990, a representative of the union
contacted her. She told him that she was interested in having
the union in Respondent and he told her to speak to the em-
ployees to see whether they were interested. On or about
February 16, 1990, between 8 and 9 p.m., she spoke individ-
ually with 17 or 18 second-shift employees about the ways
in which the Union could help them and wanted to know
their desires. At about 11:30 that night, after the end of the
shift, she called a meeting of all 17 or 18 second-shift em-
ployees. They told her that they were interested in the Union.
By the end of February, Tello told the union that the night-
shift employees, and some of the day-shift employees, were
interested and wanted to discover the ways in which the
Union could help them. Tello had already asked a night-shift
employee to spread the word to the morning-shift employees
of the possibility of getting the Union.
By early March, a meeting with the Union took place at
the union office. The entire night shift was there along with
8 or 9 morning-shift employees, a total of 26 to 28 employ-
ees. The Union told them of the Union’s ability to improve
their working conditions and distributed membership applica-
tion cards. Tello signed a card.5 At about this time, the me-
chanics were shifted because of poor second-shift production.
A few days after the March union meeting, at the end of
the second shift, Tello went to the basement and spoke to 10
to 12 employees of J.S. Fiber about the Union helping them.
Tello thereafter gave a J.S. Fiber employee 14 to 15 union
membership application cards which were thereafter returned
to her already signed. Tello sent these to the Union as well.
The record regarding sequence of meetings between Tello
and representatives of management (President Chang and
General Manger Eric Kim) concerning her union activities,
the union sentiments of employees and various threats and
promises, is contradictory and confusing. As is not unusual,
the contradictions and confusions relate, in large part, to
dates and who was present at particular meetings. Neverthe-
less, the record shows that in at least three meetings on or
about April 2, 6, and 9, 1990, in President Chang’s office,
President Chang and/or General Manager Kim spoke with
Genoveva Tello about the Union.
There is no dispute that on April 2, in President Chang’s
office, General Manager Kim showed her a letter from the
Union (R. Exh. 5) asserting that the Union had been des-
ignated bargaining representative by a majority of Respond-
ent’s employees and demanding recognition and the com-
mencement of collective bargaining. Chang and Kim asked
her if she knew anything about the letter and Tello denied
knowing anything about the matter. They then asked her why
the employees wanted the Union and what the problems were
that were causing them to desire a union. Tello told them
that she had no idea. Kim testified that he believed that
President Chang did not believe her denial. In any event,
they told Tello to keep her ears open and let them know
what the problems were that the employees were concerned
about. They told her that if they could discover what the em-
ployees’ problems were, they could see if they could solve
the problems (Tr. 781). Kim asked Tello to investigate who
was behind the union movement, observed that she was close
to the employees and the Employer wanted to find out why
the employees wanted a union. He told her to inform him
as soon as possible and that she should tell the employees
that benefits were coming6 including an increase in wages.
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. I don’t think so, no.
Q. Well, that is not good enough, Mr. Kim.
A. No, there isn’t. We didn’t talk about that.
I do not credit this denial.
7 Kim admitted (Tr. 803 et. seq.) that President Chang had men-
tioned to him that he might relocate the business to mainland China
in the event that the union came in and that he (Kim) ‘‘may have’’
told the same thing to Genoveva Tello (Tr. 804) sometime after the
April 6, 1990 meeting with Tello (Tr. 805).
8 At this juncture, an ultimate conclusion must await resolution of
the defense of Tello’s status as a statutory supervisor.
To the extent that Tello also testified that Kim told her that
she would no longer have to punch a timecard and would
start receiving a salary. In view of Kim’s denial, I do not
credit this portion of Tello’s testimony.
In a meeting several days later, on April 6, they asked
Tello if she had found out anything else about the employ-
ees’ union activity (Tr. 782, et. seq.). She told them that she
had learned nothing. Kim then asked her what the employ-
ees’ problems were and she told them that the employees felt
that the factory was too cold in the winter, too hot in the
summer. Kim told her that Respondent could not solve those
problems right away. President Chang told her that he did
not believe her denial of not knowing who the leaders of the
union movement were. He told her that she knew everybody;
that all of the employees were her friends and that she had
recruited practically all the employees. Tello made no re-
sponse.
Kim stated that she was the supervisor and had to stay
with Respondent’s interest and not with the employees. Kim
then told her that Respondent was not too interested in who
started the Union but why the employees wanted to bring the
Union in.
President Chang then asked her why she had been in the
basement meeting with employees of J.S. Fiber and told her
that she did not belong there. When Tello told him that she
was in the basement getting threads for the loom machines,
President Chang told her she was lying (Tr. 1064) and said
that mechanic Chang gets the threads. He added that even if
she had been there getting threads, she had no business hold-
ing a meeting there.
In an April 9 meeting, Tello was alone with President
Chang in his office. Chang raised the union subject and told
her that he knew who was responsible for bringing the Union
in: it was Tello. She asked him if he had any proof and
Chang told her that proof was not necessary. When he asked
again why she had been talking to the J.S. Fiber employees
in the basement at night and when Tello told him that the
Fiber employees were confused about a certain production
cone, Chang told her that he did not believe her. Chang told
her that he did not like unions; that unions only used em-
ployee salaries for their own ends; and that he did not under-
stand why the employees wanted the Union since Respond-
ent had given them good benefits and salaries. He said if the
Union came in, he would either move the factory or shut it
down (Tr. 54).7
Tello recalls telling Chang in this meeting, when he asked
her what employees’ problems drove them to the Union, that
employees were not properly paid for vacation time or holi-
days; they had no insurance and had bad working conditions
(including rats) and no access to a public telephone.
On April 12, 1990, Respondent discharged Tello. She was
called into President Chang’s office and found Chang, Eric
Kim, the mechanic, and Plant Manager Young Park there.
Kim told her that Respondent had spoken to its lawyer and
was letting her go. When Tello asked for the reason, Kim
told her that she had disobeyed Respondent’s rules (exactly
what rules were not mentioned) and that the rate of produc-
tion had gone down. Tello told Kim that she did not believe
him and wanted the real reason they were firing her. He told
her that she knew why: that it was on account of what she
had done with the Union (Tr. 56). He told her that she could
leave in a week or on that day. Tello told Kim that she
would leave that day. She asked Kim for a letter stating the
reasons they were firing her but Kim told her that he would
not give her the letter. After President Chang and the others
spoke in Korean, Kim told her that they had decided to give
her a letter. Tello then waited in the office for the letter to
be typed. When she received it, the reasons given were that
she had disobeyed the rules of the Company (exactly which
rules were not stated) and because her performance in the
work place had been diminishing (Tr. 58). She then asked
Eric Kim to put the real reason in the letter but he refused,
told her that it was her choice to take the letter or leave it,
and told her that if she wanted to see her lawyer she should
do so.
Although President Chang testified that production on the
second shift was poorer than on the first shift, the record,
taken as a whole, fails to show that Respondent, at the hear-
ing, entered a credible defense to the firing of Tello on the
ground of poor production. Neither further credible testimony
concerning poor second-shift production nor Tello’s role
therein was produced. No records to support either assertion
were offered; nor were records offered to compare first- and
second-shift production or efficiency; nor was the absence of
any such records explained.
C. Discussion and Conclusions
1. Violations of Section 8(a)(1)
Respondent’s owner (Chang) and general manager (Kim)
asked Tello to discover who the sponsors and instigators of
the union movement were, to keep her eyes and ears open
to discover them and, in addition, to report back the prob-
lems among the employees which caused them to seek union
representation. Respondent told her that on learning such
problems, Respondent could attempt to resolve the problems
and thus avoid unionization. Kim told Tello to tell employees
that benefits and wage increases were on the way. Refusing
thereafter to accept Tello’s denial of knowledge, Respondent
angrily accused her of being the ringleader of the union
movement. Further, Respondent threatened to close down the
plant or relocate it to the China mainland in the event the
employees brought the Union in. I conclude from the testi-
mony of Tello, Kim, and President Chang, that in or about
April 2, 6, and 9, 1990, Respondent, in violation of Section
8(a)(1) of the Act, engaged, as a prima facie matter,8 in un-
lawful and coercive interrogation of Tello; made unlawful
threats to close down the plant or to relocate it in the event
the employees brought the Union in; unlawfully promised to
seek out and adjust employees grievances and to increase
wages and benefits in order to avoid unionization.
963RIBBON SUMYOO CORP.
9 The uncontradicted evidence shows that there were production
and quality problems on the first shift as well.
10 The credited testimony (Tr. 414–417) of Maria Estella Lopez
(Respondent’s apparent present second-shift supervisor) is that as
early as March 1990, Rosa Chang (secretary-treasurer) asked her
what Tello said to employees at a meeting on the previous night.
Lopez told her that Tello told the employees that Respondent wanted
to know what their problems were because the Union wanted to
come in. President Chang’s denial of knowledge, at the time of
Tello’s April 12 discharge, of Tello’s union sympathies and activi-
ties, is not credible. Tello was merely following Kim’s and Chang’s
direction at this time, perhaps with some warmth.
2. The April 12, 1990 discharge of Tello
There is little question that there were production and
quality problems on both shifts. It was a chronic condition
since the 1988 introduction and use of poor quality J.S. Fiber
yarn. Although there was some suggestion that Tello was
discharged, inter alia, because of poor second-shift produc-
tion performance, I have credited, in substance, Tello’s testi-
mony and find that that matter, appearing in the termination
letter, was a mere afterthought and the product of Respond-
ent attempting to fabricate a plausible-defense. I make a find-
ing of pretext in spite of my crediting President Chang’s tes-
timony (Tr. 1066) that before firing her, he asked her why
it was that only her night shift which produced bad prod-
ucts.9 The existence of chronic quality and production prob-
lems on both shifts—even if greater on the second shift—did
not suddenly become the cause for discharging Tello. The
pretextual nature of the alleged poor second-shift production
is apparent when President Chang testified that immediately
after admonishing Tello on poor second-shift production, he
told her (Tr. 1067) that he did not believe her claim of her
not knowing anything about the Union. To the extent that
Chang testified that the reasons for her discharge were her
denial of bad product on her shift and her continued denial
of being a supervisor, leading him to the conclusion that he
could not trust her anymore in that position, I reject such tes-
timony as a pretext. I credit his testimony that he fired her
because he found her lying ‘‘about everything’’ (Tr. 1068).
It is clear that, by April 12, 1990, as General Manager Kim
testified, Respondent had already been in touch with its law-
yers concerning the discharge of Tello. I further credit
Chang’s testimony that what particularly infuriated him was
Tello’s denial of being a supervisor (Tr. 1067). Obviously,
if she were a supervisor and engaging in prounion activities,
Respondent could discharge her, under ordinary cir-
cumstances, with impunity. Parker-Robb Chevrolet Co., 262
NLRB 402 (1982).
In view of President Chang’s participation in the unlawful
interrogation and threats directed against Tello in President
Chang’s own office, Chang’s accusation of her being the
union leader; in view of his repeated testimony that he be-
lieved her to be a liar in denying that she knew nothing of
the employees’ engaging in union activities; and further, in
view of his admission that he suspected that Tello was lying
in denying knowledge of employees’ and her own union ac-
tivities (Tr. 1068–1069), I am obliged to discredit his testi-
mony (Tr. 1068–1069) that, with regard to what ‘‘Tello had
done regarding the union,’’ he ‘‘didn’t know anything about
it’’ (Tr. 1069).10
As a matter of timing, President Chang’s accusation that
Tello was the union leader, Respondent’s contemporaneous
unfair labor practices (coercive interrogation, threats, prom-
ises) demonstrating union animus, his belief that Tello was
lying in denying knowledge of the union activities of Re-
spondent’s employees and of her own union activities, and
because of the pretextual additions of Respondent’s further
reasons for discharging her (chronic poor production on the
second shift), I conclude that, as alleged, Respondent, on
April 12, 1990, in violation of Section 8(a)(3) of the Act, un-
lawfully discharged Genoveva Tello as a prima facie matter.
Further, I regard President Chang’s insistent testimony, that
he discharged Tello because of her infuriating persistence in
denying her supervisory status, was actually based on his ac-
quired knowledge that if she were a supervisor, he could dis-
charge her with impunity for engaging in union activities.
Her denial of such status was understandably frustrating.
I further conclude, in the presence of the General Coun-
sel’s strong prima facie case of an unlawful discharge, that
Respondent has failed to prove, under its Wright Line burden
(251 NLRB 1093 (1980); enfd. 662 F.2d 899 (1st Cir. 1981);
cert. denied 455 U.S. 989 (1982)), that it has either rebutted
the prima facie case, NKC of America, 291 NLRB 683
(1988), or that, regardless of the prima facie case, it would
have discharged Tello, in any event, because she denied
being a supervisor, because of her poor performance on the
second shift, because of poor production and quality on the
second shift or because of any other reason. NLRB v. Trans-
portation Management Corp., 462 U.S. 393, 400–401 (1983).
Whether Respondent was nevertheless absolved from statu-
tory liability by virtue of Tello’s status as a ‘‘supervisor,’’
within Section 2(11) of the Act, is another matter, a matter
of affirmative defense on which Respondent has the burden
of proof.
3. Definitions of supervisory status
Respondent’s principal defense (as well as the basis for its
objection to the election) is that Tello, certainly by the time
of discharge, was a statutory supervisor within Section 2(11)
of the Act. In that status, she was not an employee within
the meaning of Section 2(3) of the Act and could be dis-
charged with impunity for engaging in union activities.
Parker-Robb Chevrolet, 262 NLRB 402. Similarly, Respond-
ent argues that since Tello was the principal source of em-
ployees engaging in union activities and, indeed was the
moving force behind the employees’ execution of most, if
not all, of the membership cards on which the Union’s show-
ing of interest to secure the election was based, then not only
were the cards tainted by supervisor influence, but the elec-
tion itself was tainted by Tello’s substantial participation in
creating the original and continuing employee interest in the
Union.
A ‘‘supervisor’’ is defined in Section 2(11) of the Act as:
[A]ny individual having authority, in the interest of the
employer, to hire, transfer, suspend, layoff, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively recommend such action, if in
connection with the foregoing the exercise of such au-
thority is not of a merely routine or clerical nature, but
requires the use of independent judgment.
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 I am, of course, bound by the Board’s position. I mention the
court position only because of its limited application. In any event,
Chicago Metallic has no relevance herein because, as will be seen,
the election should not be set aside even if Tello was proven to be
a statutory supervisor.
The possession or exercise of any one of the enumerated
powers or its exercise with ‘‘independent judgment,’’ suf-
fices to confer supervisory status. NLRB v. Island Film Proc-
essing Co., 784 F.2d 1446, 1451 (9th Cir. 1986). In deter-
mining the status of ‘‘supervisor,’’ the obligation is to in-
quire into actual duties, not merely job titles or classification.
Longshoremen v. Davis, 106 S.Ct. 1904, 1915 fn. 13 (1986).
The enumeration of supervisory powers in Section 2(11) may
be deceptively broad. It is specifically limited by the require-
ment that in the exercise of any of the enumerated elements,
there must be the use of independent judgment rather than
merely routine or clerical decisions, Highland Superstores v.
NLRB, 927 F.2d 918 (6th Cir. 1991); enfg. 297 NLRB 155
(1989). Specifically, the requirements of the use of ‘‘inde-
pendent judgment’’ and the insistence that its exercise relate
to matters which are not merely ‘‘routine or clerical’’ flow
from the congressional intent to withhold from statutory su-
pervisory status mere ‘‘straw bosses, leadmen, and other
low-level employees having modest supervisory authority.’’
NLRB v. Res-Care, 705 F.2d 1461, 1466 (7th Cir. 1983);
NLRB v. Southern Bleachery & Printworks, 257 F.2d 235,
239 (4th Cir. 1958), cert. denied 359 U.S. 911 (1959).
In the underlying case in Southern Bleachery &
Printworks, 115 NLRB 787, 791 (1956), the Board stated:
Throughout the industry of this nation, there are
highly skilled employees whose primary function is
physical participation in the production or operating
processes of their employer’s plants and who inciden-
tally direct the movements and operations of less
skilled subordinate employees. These artians have a
close community of interest with their less experienced
co-workers and the amended Act has preserved for
them the right to be represented by a collective-bargain-
ing agent in dealings with their employers [citation
omitted].
The Board has therefore, consistently included in
bargaining units such employees, often craftsmen or
persons in comparable positions, whose authority is
based upon their working skill and experience [citation
omitted].
We have no doubt that almost any employer, when
told by a skilled craftsman that his helper is incom-
petent and that he needs a new helper if he is properly
to perform his functions, would accept the judgment of
the craftsman. While this may be called effective rec-
ommendation, it is inherent in the craftsman-helper re-
lationship, as Congress obviously knew.
It is also to be borne in mind that the exercise of inde-
pendent judgment, alone, does not suffice; for the decisive
question is whether the individual possesses the authority to
use his or her independent judgment with respect to the exer-
cise of one or more of the specific authorities listed in Sec-
tion 2(11) of the Act. NLRB v. Brown & Sharpe Mfg. Co.,
169 F.2d 331, 334 (1st Cir. 1948). Indeed, a showing of the
exercise of an instance or two of discipline is not sufficient
to confer supervisory status as a matter of law. Highland
Superstores v. NLRB, supra, citing NLRB v. Berger Transfer
& Storage Co., 678 F.2d 679 (7th Cir. 1982); and NLRB v.
Orr Iron Co., 508 F.2d 1305 (7th Cir. 1975) (night-shift
foreman not a supervisor).
Finally, because of its possible application to the instant
case, a word might be said concerning the Ninth Circuit’s
position with regard to the use of ‘‘secondary criteria’’: the
perception in the eyes of employees of a coemployee’s su-
pervisory status notwithstanding a failure to prove the exist-
ence of any of the enumerated powers (combined with
‘‘independent judgment’’) in that coemployee. The percep-
tion of employees concerning the supervisory capacity of a
coemployee was a sufficient ground for the court of appeals,
reversing the Board,11 to set aside an election. NLRB v. Chi-
cago Metallic Corp., 794 F.2d 527 (9th Cir. 1986). The court
specifically distinguished its action setting aside the election
(based on employee perception of this putative supervisor)
from the case of the employer directing unfair labor practices
(threats of discharge) against the same person. While the
court of appeals set aside the election because of employees’
perception of this employee (Picazzo) as a supervisor, in the
case of unfair labor practices against the same employee, it
found the perceptions of employees to be irrelevant. It there-
fore held, that threats against this employee, whose employ-
ment functions did not actually meet the statutory criteria of
Section 2(11) of the Act, were unlawful. Cf. NLRB v. Yuba
Natural Resources, 824 F.2d 706 (9th Cir. 1987), enfg. 279
NLRB 1 (1986).
4. Tello’s supervisory status; Respondent’s objection to
the election based thereon
Because (1) a considerable body of evidence was adduced
by Respondent, to demonstrate not only Tello’s supervisory
status but, in any event, the perception of employees of her
supervisory capacity (she, except for mechanics, was not
only the highest paid of all Respondent’s 65 employees, but,
alone, was held responsible for production and quality on the
night shift; was openly called, and held out to be, a ‘‘super-
visor’’; verified employee timecard claims when requested
by Respondent; had the capacity to stop other employees’
looms in case of malfunction; attended supervisor meetings
concerned with production); and because (2) a Board-con-
ducted election may be set aside because of a supervisor’s
participation in a union campaign which reasonably tends to
coerce employees or is likely to impair employee choice,
NLRB v. Hawaiian Flour Mill, 792 F.2d 1459, 1462 (9th Cir.
1986), I deem it prudent to decide the questions of Respond-
ent’s objection and the setting aside of the Board election
prior to determining the unfair labor practice allegations con-
cerning the lawfulness of the discharge of, and statements to,
Genoveva Tello based on her legal supervisory status (rather
than coemployee perception).
In fact, however, for purposes of disposing of Respond-
ent’s Objection 2 (G.C. Exh. 1(s)): that Tello’s involvement
as a supervisor was coercive of employees’ Section 7 rights
and ‘‘taints’’ both the Union’s showing of interest and the
election itself, it is unnecessary to resolve the question of
whether Tello, on the basis of various activities, her title and
her position, might be reasonably perceived by employees to
be a supervisor, cf. NLRB v. Chicago Metallic Corp., 794
965RIBBON SUMYOO CORP.
12 The General Counsel and the Union assert that the salaried and
higher paid shift mechanics are of even greater authority than Tello.
I need not resolve that issue.
13 Sil-Base Co., 290 NLRB 1179 (1988); Cal-Western Transport,
283 NLRB 453 (1987). In Meridian Industries, supra, the Board ac-
cepted the hearing officer’s recitation of the Sil-Base and Cal-West-
ern rules: that the prounion conduct of a statutory superivsor may
constitute objectionable conduct warranting setting aside an election
in two situations: (1) when the Employer takes no stand contrary to
the supervisor’s prounion conduct, thug leading employees to believe
that the employer favors the Union; or (2) when the supervisor’s
prounion conduct would coerce employees into supporting the Union
out of fear of future retaliation by, or rewards from, the supervisor.
F.2d 527 (9th Cir. 1986); or whether, indeed, she was actu-
ally a statutory supervisor within the meaning of Section
2(11) of the Act.
It is undoubtedly true that Tello was the moving force
among Respondent’s employees in gaining the execution of
the membership application cards which demonstrated a
showing of interest which, in turn, led to the Board-con-
ducted election in which the Union received a preponderance
of the valid votes counted: 30–23 in favor of the Union.
Thus, granting Tello’s effective spearheading of the Union’s
showing of interest and the employees interest in the Union,
the dispositive facts nevertheless are: (1) Respondent dis-
charged Tello on April 12, 1990; (2) the secret-ballot elec-
tion was held 6 weeks later (on May 25, 1990); and (3) the
unfair labor practice charge (on Tello’s behalf) was filed by
the union at the Board’s Regional Office at 4:19 p.m. on
May 23, 1990, but not served upon Respondent Sumyoo/J.S.
Fiber until May 29, 1990 (G.C. Exh. 1(j)); and apparently,
not actually received by Respondent until June 1, 1990 (post
office green card signed by Carol Wolford, stamped June 1,
1990) (G.C. Exh. 1(j)).
In the recent Meridian Industries, 302 NLRB 464 (1991),
an employer objected to the election because its supervisor
‘‘directed and/or ratified impermissible supervisory solicita-
tion of authorization cards, campaigning, electioneering, and
other improper conduct.’’ It was undisputed that this person
was a low-level statutory supervisor within the meaning of
Section 2(11) of the Act and, like Tello, was the employer’s
‘‘highest authority figure’’ during most of the second shift in
which he worked.12 He regularly initialed and verified em-
ployee timecards, see John N. Hansen Co., 293 NLRB 63
(1989), approved employee requests to leave work early, and
excused their absences. He was introduced to second-shift
employees as their superivsor and these employees, in fact,
considered him to be their supervisor. However, he was ter-
minated 3 weeks before the election. During the organiza-
tional campaign, the supervisor signed a union authorization
card, attended union meetings where he spoke favorably
about having the union and talked individually to employees
about the need for employees’ sticking together. During the
critical period (i.e., after the filing of the petition), he cam-
paigned for the Union, distributed authorization cards, pro-
vided transportation for employees to attend union meetings,
and he attended the meetings.
The Board’s hearing officer, overruling the Employer’s ob-
jection to the election concluded that the supervisor’s con-
duct could not reasonably have coerced or lured employees
into supporting the union. He relied on (1) the Union’s cam-
paign ground-work laid by nonsupervisors; (2) there was no
evidence that the supervisor threatened anyone with retalia-
tion for opposing, or promising benefits for supporting, the
union; (3) he was a low-level supervisor whom the employ-
ees, on his shift, could not reasonably perceive as having the
authority to effectuate significant rewards or punishment; and
(4) ‘‘Finally, and perhaps most importantly, [the supervisor]
was, in fact, terminated . . . well before [3 weeks] the elec-
tion.’’ The majority of the Board, overruling the objection,
adopted the hearing officer’s analysis of the objection as
being in conformance with Board precedent.13
Member Oviatt, concurring, based his concurrence on a
‘‘far narrower’’ ground than that of the hearing officer. Rath-
er than accepting the hearing officer’s analysis, Member
Oviatt focused on the question of whether employees subject
to the supervisor’s supervision could be coerced into support-
ing the Union because they feared future retaliation by him
or because they anticipated his rewarding them in the future.
See Sil-Base, Co., supra. Holding the fact that the ground-
work for the union’s campaign being laid by nonsupervisors
to be material, he found significant the fact that the super-
visor actively joined the campaign and promoted it, convey-
ing to employees the idea that it would be ‘‘wise for them
to support the union if they wanted to be in favor with him.’’
He concluded that the failure to prove that the supervisor
made an actual threat or promise did not necessarily elimi-
nate employee concerns about avoiding retaliation by, or re-
ceiving future rewards from, the supervisor.
Member Oviatt concurred, however, in overruling the ob-
jection because (a) the supervisor was terminated 3 weeks
before the election; and (2) the employer notified the em-
ployees more than a week before the election that it was dis-
avowing and repudiating the supervisor’s unauthorized
prounion activities and assured the employees against any
fear of retaliation from the supervisor in the event the union
lost the election. In particular, Member Oviatt found disposi-
tive that 3 weeks before the election, the supervisor’s rela-
tionship with the employees whom he supervised was ‘‘sev-
ered.’’ In a footnote, Member Oviatt observed that while the
union, well before the election had filed a charge alleging
that the supervisor was discriminatorily laid off because of
his union activities, and though the charge was not dismissed
until after the election, the employer’s exceptions failed to
allege that any employee knew about the charge or otherwise
understood that the supervisor might be reinstated. The entire
Board, therefore, refused to set aside the election.
Similarly dispositive on the effect of the preelection dis-
charge of a prounion supervisor on the validity of the elec-
tion, there is NLRB v. Hydrotherm, Inc., 824 F.2d 332 (4th
Cir. 1987), enfg. 280 NLRB 1425 (1986). In that stronger
case, unlike the instant case, the employer argued that the
election was invalid because the supervisor threatened to dis-
charge an employee before the election if he did not support
the union. The election was held on May 12, 1983. Six
weeks before the election, the supervisor was discharged be-
cause of poor work performance. On April 11, 1983, the
union filed an unfair labor practice charge seeking reinstate-
ment of the supervisor. That charge was pending throughout
the preelection period and was dismissed 8 days after the
election. The court agreed with the Board that the employer
had not met its burden of showing that the supervisor’s
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 To the extent Respondent argues that Tello’s prounion activity
in the Union’s gaining of a showing of interest (by employee execu-
tion of union membership application cards) ‘‘tainted’’ the Union’s
showing of interest upon which the election order was based, such
argument has already been rejected by the Board. The cards are not
here the basis of showing the Union’s majority status. A board elec-
tion is the preferred method of ascertaining employee choice, NLRB
v. Gissel Packing Co., 395 U.S. 575, 602 (1969). The ‘‘showing of
interest’’ is only a Board administrative matter and the results of an
election, found untainted herein, are a safer and more reliable indica-
tion of employee sentiment than membership application cards. See
Quick Find Co., supra (‘‘Once an election has been held, as here,
that inquiry [into the prior allegedly tainted showing of interest] be-
comes pointless’’).
prounion activity interferred with the election. The court
held, that the supervisor’s threats could not have interferred
with the election because it was not possible, in view of his
preelection discharge, for the threats to have been carried
out.
The employer’s alternate contention in NLRB v.
Hydrotherm, supra, was that the election should nevertheless
be set aside because, unlike the instant case, the unfair labor
practice charge filed on the supervisor’s behalf, was pending
during the preelection period and therefore the rehiring of the
supervisor was anticipated by employees, thus justifying the
employees’ belief in the possible effectuation of the super-
visor’s threat of discharge. In the instant case, the Union’s
May 23, 1990 unfair labor practice charge seeking reinstate-
ment of Genoveva Tello was filed 2 days before the May 25
election, but did not even leave the Board’s Regional Office
until May 29, 1990 (G.C. Exh. 1(j)), therefore 4 days after
the election, and was not received by Respondent until June
1, 1990 (G.C. Exh. 1(j), green card of U.S. Postal Service)
thus 7 days after the Board-conducted election. It is fair to
say, therefore, that on the present record, absent evidence to
the contrary concerning employee actual knowledge of the
charge, there could be no reasonable employee expectation of
the reinstatement of Tello at the time the election took place.
Moreover, there is here no evidence of a Tello threat or
promise made to any employees for support or nonsupport of
the Union, nor of any Tello prounion act in the critical pe-
riod after filing of the petition. Cal-Western Transport, 283
NLRB 453 (1987). Even assuming, therefore, Member
Oviatt’s further position that there need not be an explicit
threat in order for employees’ votes to be tainted by a super-
visor’s prounion preelection activities, Respondent’s dis-
charge of Tello, 6 weeks before the election, the same period
as in NLRB v. Hydrotherm, supra, vitiates the threat in the
absence of evidence, not present here, of employee reason-
able fear of Tello being reinstated. On that latter reinstate-
ment issue, a stronger application of the Hydrotherm rule ex-
ists in the instant case because in Hydrotherm, the charge
was pending throughout the critical preelection period and
was dismissed 8 days after the election. In the instant case,
although the charge was filed 2 days before the election, it
did not leave the NLRB Regional Office until 4 days after
the election, and, on this record, was not received by Re-
spondent until June 1, 1990, 7 days after the election. There-
fore, on this record, employees could not reasonably fear that
Tello might be reinstated since they knew nothing of the
charge before the election.
The record discloses that Respondent, bearing the burden
of proof, has presented no evidence to demonstrate that its
employees knew of the pending unfair labor practice charge
or had any expectation that Genoveva Tello would be rein-
stated. Based on this conclusion, the court in NLRB v.
Hydrothern held, that the threats by the long-discharged su-
pervisor and the conduct of the parties created no reasonable
expectation that the supervisor would be reinstated. It there-
fore concluded that the supervisor’s threat in the event the
employee did not support the union did not interfere with the
employees’ free choice in the election, 824 F.2d 332 (4th
Cir.). See Quick Find Co., 259 NLRB 1051, 1061–1062
(1982).
I am constrained, therefore, to conclude that, whether or
not Genoveva Tello was a statutory supervisor at the time of
her discharge on April 12, 1990; and whether or not the em-
ployees reasonably perceived her to be a statutory supervisor
within Section 2(11) (assuming, arguendo, that she was not
a statutory supervisor), her prounion activities of soliciting
employee membership in the Union, distribution of union
cards, and making statements supportive of the Union to the
employees before the election, does not constitute inter-
ference with the employees’ free choice in the election. This
conclusion is based on the discharge of Tello 6 weeks before
the election; the absence of any Tello threat or promise of
reward based on employee attitude toward the Union; the
failure of the evidence to show that the employees knew of
the pending unfair labor practice charge before the election;
the failure of the evidence to show that any employee, before
the May 25, 1990 election, had any expectation, reasonable
or otherwise, that Genoveva Tello would be reinstated; and
the of evidence of any Tello prounion act after filing of the
April 2 petition.
While in Meridian Industries, 302 NLRB 464, the em-
ployer disavowed the supervisor’s prounion remarks, in the
instant case, the parties stipulated that, in the preelection pe-
riod, Respondent campaigned against the Union and asked
employees to vote against the Union (Tr. 1218–1219). Thus,
there can be no suggestion that, in view of Respondent’s op-
position to the Union in the preelection period, it was in any
way adopting its alleged supervisor’s prounion stance, thus
impairing employee free choice. See footnote 13, supra.
Thus, I conclude that Genoveva Tello’s prounion activities
prior to the election, whether or not she is, or may be per-
ceived to be, a statutory supervisor, did not interfere with the
employees’ free choice in the May 25, 1990 election. I there-
fore overrule Respondent’s timely Objection 2, filed June 1,
l990.14
5. Discussion and conclusion
Genoveva Tello’s status as a statutory supervisor
If Genoveva Tello is a supervisor within the meaning of
Section 2(11) of the Act, as Respondent contends in its af-
firmative defense, then certain alleged coercive interrogation
and other remarks addressed to her do not constitute viola-
tion of Section 8(a)(1) of the Act and her discharge, even
due to her union activities, does not violate Section 8(a)(3)
ofthe Act because, in both cases, Respondent would be deal-
ing with a person who is not an ‘‘employee’’ within the
meaning of Section 2(3) of the Act and not protected in that
status by Section 8 of the Act. Parker-Robb Chevrolet, 262
NLRB 402; Highland Super Stores v. NLRB, 927 F.2d 918
967RIBBON SUMYOO CORP.
(6th Cir. 1991). The discharge of a supervisor for union-re-
lated reasons does not constitute an unfair labor practice,
Longshoremen v. Davis, 106 S.Ct. 1904, 1908 fn. 4, for the
Act protects employees but not supervisors from being dis-
charged for their union activity or status, George C. Foss Co.
v. NLRB, 752 F.2d 1407, 1410 (9th Cir. 1985). On the other
hand, if Genoveva Tello is not a statutory supervisor, then,
regardless of any ‘‘secondary indicia,’’ including the percep-
tions of other employees as to her supervisory status (which
perceptions are irrelevant), the alleged coercive interrogation,
other threats addressed to her, and, indeed, Respondent’s
April 12 discharge of Genoveva Tello, violates Section
8(a)(1) and (the discharge) Section 8(a)(3) of the Act. See
NLRB v. Chicago Metallic Corp., 794 F.2d 527 (9th Cir.);
(‘‘unlike the electioneering analysis, we look to Picazzo’s
actual duties. When considering Chicago Metallic’s treat-
ment of Picazzo, the perceptions of other employees are irrel-
evant’’) (emphasis added).
I conclude, as a matter of law, that a finding of statutory
supervisor, within the meaning of Section 2(11) of the Act,
must be based on ‘‘primary indicia,’’ i.e., those functions ac-
tually listed in Section 2(11) of the Act, PHT, Inc., 297
NLRB 228 (1989), accompanied by the use of independent
judgment in the execution or recommendation of any of the
Section 2(11) functions, John N. Hansen Co., 293 NLRB 63;
Bowne of Houston, Inc., 280 NLRB 1222 (1986); Highland
Superstores, Inc. v. NLRB, supra; and that ‘‘secondary indi-
cia’’ may only be used in cases where (a) an election has
been held and the perception of coemployees is relevant to
the issue whether the election should be overturned because
of the conduct of the apparent supervisor, regardless of
whether the person is a statutory supervisor, NLRB v. Chi-
cago Metallic Corp., 794 F.2d 527 (9th Cir.); or (b) in aid
of establishing whether the alleged supervisor actually pos-
sesses any one of the Section 2(11) enumerated statutory
functions. It is my understanding of the law that ‘‘secondary
indicia,’’ standing alone, may not establish the legal the con-
clusion thatthe possessor of these secondary indicia is a stat-
utory supervisor within the meaning of Section 2(11) of the
Act.
Among the ‘‘secondary indicia’’ believed relevant in de-
termining whether an individual is a supervisor, Monotech of
Mississippi v. NLRB, 876 F.2d 514, 517 (5th Cir. 1989), are
whether an employee attends management meetings; spends
more time ordering others around than actually doing pro-
duction work; receives a higher wage than other unit employ-
ees; wears different colored uniform or other distinguishing
clothing; or where an individual, if not a supervisor, creates
an unreasonable ratio of employees to supervisors (citations
omitted). Yet, the title of supervisor and being the senior em-
ployee on the night shift does not create a supervisor, Cen-
tral National Gottesman, 303 NLRB 143 (1991); Highland
Superstores v. NLRB, 927 F.2d 918 (6th Cir. 1991).
Wages Supervisor Meetings; Absent Employees;
Production Responsibilities
In that instant case, Genoveva Tello receives a wage rate
of $9 per hour compared to the $4.50 to $6.75 per hour
which is the ordinary rate of pay for loom operators (Patricia
Lalinde receives $7.50 per hour as the alleged supervisor on
the first shift, a status which I precluded Respondent from
proving); since 1987, Tello does not ordinarily work on the
loom, weaving webbing; rather, her job duties since 1987, at
the direction of President Peter Chang, have been fixing ma-
chines, helping employees in production, changing the thread
color on machines, training new employees. On the other
hand, she was introduced to new employees as the second-
shift supervisor and some employees, at least, call her super-
visor or ‘‘boss.’’ There were approximately 17 employees on
the second shift and, without Tello being a supervisor, there
would be no supervisor over the 17 employees working from
3:30 to 11:30 p.m. (except for the period 3:30 to approxi-
mately 5 to 6 p.m. before the office supervisors went home).
In addition, Tello (with the intermitant additional presence of
the second-shift mechanic) would regularly (once a week in
1988; twice a week in 1989) have meetings with Respond-
ent’s chief supervisors, President Chang, Plant Manager
Young Park, and sometimes General Manager Kim with re-
gard to production difficulties on her shift. When there were
absent or vacationing loom operators, Tello would either sub-
stitute herself on their machines or assign nearby employees
to operate the vacant machinery.
I credit Lalinde’s testimony that in 1989 she attended at
least two management meetings with Tello in President
Chang’s office along with Plant Manager Young Park and
(the then) General Manager Jason Park. The subject dis-
cussed at the meeting was production and quality. The record
also supports the conclusion that while President Chang
scheduled production and advised supervisors of that sched-
ule (Tr. 635), Tello alone among second-shift employees,
was repeatedly admonished for second-shift quality and noti-
fied of customer complaints and returns of merchandise
based on size variation in the webbing width (Tr. 611–612).
She was given a ruler to check the width of the product (Tr.
612). At production meetings with President Chang, Tello
would notify Chang of second-shift production, at least inso-
far as progess toward fulfilling of incoming orders (Tr. 733).
Tello would be consulted concerning the improvement of
production. The recurring problem was to gain greater pro-
duction in the face of poor quality yarn produced by J.S.
Fiber. When Chang complained of low production, Tello
would blame the yarn; that employees could not do anything
on production when the quality of the yarn was so poor (Tr.
735). While Chang and General Manager Kim admitted the
low quality of the yarn, they nevertheless said that increased
production could be expected if the employees were better
controlled: that the employees were not using their full ener-
gies in production and that Tello was not ‘‘supervising’’ cor-
rectly (Tr. 735). The problem was on both day shift and
night shift but, according to General Manager Kim, was
greater on the night shift (Tr. 736). Tello told them that she
had no problems with the employees (Tr. 736). She blamed
only the yarn.
In addition to these meetings on production and quality al-
most on a daily basis, Tello, on behalf of the second shift,
would meet President Chang and discuss that day’s produc-
tion. Tello, alone among employees, would also come to the
office to obtain supplies, machine hardware and similar ma-
terials for production.
Tello was advised of employee lateness or absence by the
front office or, if the employee reached Tello to advise of
absence, Tello would advise the front office in turn. Tello
would then assign the idle looms to the adjacent employee
so that production would be uninterrupted. No other em-
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 The Board has held that a direction to employees to follow the
directions of their ‘‘supervisor’’ is not dispositive, PHT, Inc., 297
NLRB 228; nor is the monitoring of attendance and the confirming
of hours by signing timecards, John N. Hansen Co., 293 NLRB 63
(1989), especially where his regular duties are in production, op. cit;
nor is a much greater wage or salary; ibid, Bowne of Houston, 280
NLRB 1222 (1987), or interviewing prospective employees, ibid. In-
deed, in Cal-Western Transport, 283 NLRB 453 (1987), and Bowne
of Houston, supra, the overall power and authority of the alleged su-
pervisor was more formidable than in the instant case. The Board,
nevertheless refused to find supervisory status either because the
power did not exist or because its exercise was routine, or sporadic
or without independent judgment.
ployee on the second shift had such power except the me-
chanic. The mechanic, also, in case of absence of an em-
ployee, could shift employees from machine to machine. As
noted, the shift mechanic, a salaried nonsupervisor, regularly
attended supervisor meetings devoted to quality and produc-
tion along with Tello.
Although other employees trained incoming new employ-
ees in production on the webbing machines, and although
Rosa Chang, as well as Tello and the mechanic, selected sub-
stitutes for absent employees on the machines, it apparently
was Tello who ordinarily insured continued production on
the second shift (Tr. 708 et. seq.). Tello went to each opera-
tor on her shift to check how they were doing as part of her
regular responsibility (Tr. 254–255) and had the power to
stop production if there were machine problems (Tr. 758).
Further, Tello regularly spoke to the employees about pro-
duction and quality (Tr. 273). She apparently also regularly
spoke with Patricia Lalinde concerning problems on the first
shift which might reoccur on the second shift (Tr. 1255–
1257).
Although employees becoming ill on the second shift often
told Tello of their illness and told her that they were going
home, there is no credible evidence showing that Tello had
the independent power to grant the employee time off for
that purpose (Tr. 220). Requests for time off were to be
made to the office, whether the employee requested directly
or through Tello (Tr. 969–970). Employees becoming ill on
the second shift also reported to the mechanic and told him
that they were leaving (Tr. 221). The evidence, however,
shows that employees injured on the job were taken to the
hospital only by Tello.
To the extent Respondent would bottom Tello’s super-
visory status on the authority to grant time off, I find that
the preponderance of credible evidence does not support that
conclusion. To the extent that General Manger Kim testified
that he orally granted such power to Tello, I do not credit
his testimony. I regard General Manager Kim’s testimony, in
general, to be facile and incredible. His testimony was that
it was an uncommon practice to grant employees a full day
of time off for immigration work permits (Tr. 847) and that
he told Tello and Lalinde that they had the power to grant
time off when the employees presented him their immigra-
tion papers. The evidence shows, however, that while Kim
would consult with Tello concerning the wisdom of granting
the time off, it was Kim, himself, who entertained and grant-
ed the time off (Tr. 847–849). Indeed, if any grants of time
off were in writing and contained a description of Tello’s
participation in the grant of time off, then the written nota-
tion thereof should have been produced with regard to proof
of the exercise of that power (Tr. 746). Bowne of Houston,
280 NLRB 1222, 1223 (1986).
With the above observations of Respondent’s operation,
Tello’s functions, and certain powers, privileges and at-
tributes of her employment,15 I turn to Respondent’s other
specific positions with regard to the other, distinct 2(11) su-
pervisory powers which Respondent asserts that Tello pos-
sessed or exercised.
(a) The possession of the power or exercise of the
power to discipline, suspend, or discharge
1. The August 24, 1989 memorandum to all employees
As noted in the above statement of facts, a document or
memorandum bearing date August 24, 1989, over the signa-
ture of the then general manager, Jason Park, was distributed
to all employees with their pay checks on or about that date.
The subject of the memorandum was the rules concerning
dismissal of workers and states four categories of conduct re-
lating to dismissal: (1) Absence from work without prior no-
tification and subsequent permission to and from the office.
(2) Coming to work late and/or leaving work early without
prior notification and subsequent permission to and from the
office. (3) Refusal to follow supervisor’s instruction. (4)
Stealing and or damaging of company property.
The memorandum notes that an employee breaking rule
(4) concerning stealing or damage to company property
‘‘will be terminated immediately.’’ With regard to the other
rules, if they are broken more than three times within a year
(the employee) will be subject to termination from work.
The memorandum also states, inter alia, that Tello was se-
lected as the second-shift supervisor. Her responsibilities are
to assist (President) Chang and (General Manager) Park in
production and the operation of the afternoon shift. The
memorandum notes that this position for Tello is a ‘‘new po-
sition.’’ Nothing in the memorandum suggests that the super-
visor may discipline anyone.
Respondent argues that the memorandum identifies Tello
as a supervisor and, in combination with the rules set forth,
the employees had to follow the supervisor’s instructions or
be subject to termination. The language of the memorandum
‘‘speaks for itself.’’ I do not accept Respondent’s argument
in so far as it suggests that the document gives ‘‘supervisor’’
Tello a power of discipline or even implies such.
In the first place, the first two elements of misconduct (ab-
sence from work without prior notification and coming to
work late or leaving work early without prior notification) do
not state, as one might expect, that the notification of such
conduct would be to the shift ‘‘supervisor.’’ Rather, it is
quite clear that the employee’s notification must be to the of-
fice in order to excuse absence, or coming to work late or
leaving work early. The degree of supervisor participation in
dealing with these circumstances (arriving late, leaving early
or being absent) is quite clear. There is no participation. In
view of General Manager Kim’s discredited testimony, that
he reminded Tello of her existing power to grant time off,
it seems remarkable that this memorandum of August 24,
1989 (6 months before Kim was hired) did not suggest that
the supervisor had any role whatsoever in (even participating
insofar as being notified of) an employee application for time
off. The memorandum, as noted, directs the employees to
969RIBBON SUMYOO CORP.
16 Thus, I agree with Respondent’s statement (R. Br. 26, fn. 9) that
this company notice, ‘‘stands on its own.’’ But counsel nowhere
suggests that the memorandum, in any place, states or even implies
that it is the ‘‘supervisor’’ who has the power to discipline rather
than the ‘‘office.’’ Certainly, making the employee ‘‘subject to ter-
mination’’ is hardly enough. Thus, Respondent’s witness, Maria
Alonis testified that General Manager Kim, in his January–February
1990 speech to employees, infra, said that they should directly tell
the office (or have the supervisor tell the office) if they wanted time
off (Tr. 969–970). Independent judgment in the execution of one of
the 2(11) functions (one of the ‘‘primary indicia’’) is necessary to
support a finding of statutory supervisor status. PHT, Inc., 297
NLRB 228 (1989). Here, Tello was not even a participant in the dis-
ciplinary process described in the memorandum, much less was she
called upon to exercise independent judgment. The disciplinary
power was always in the office according to what can be gleaned
from the memorandum.
17 Respondent argues (Br. 28) that because, starting as early as
1988, General Manager Jason Park told the loom operators to tell
their ‘‘supervisors,’’ including Tello, of problems they could not
handle on their own looms, this creates supervisory status. The fact
that Tello, the most experienced and perhaps the most intelligent em-
ployee on the second shift, having particular experience in the oper-
ation of the looms, could solve other employees’ problems does not
suggest the existence of a 2(11) function exercised with independent
judgment. To the contrary, Tello’s expertise fits the nonsupervisory
function fully described in Southern Bleachers & Printworks, 115
NLRB at 791. Similarly, Kim’s instructions to employees that they
notify the supervisors (Lalinde, Tello) whenever they were going to
be absent or late or leave the production floor does not suggest su-
pervisory status. This is a matter of mere notification rather than em-
ployees’ seeking Tello’s permission to leave or to be absent. As
above noted, the employees knew that their obligation was to notify
the office, directly or through the supervisor (Tr. 969–970).
18 I note that Wolford contradicted Kim with regard to whether,
at the end of his speech, there were any employee questions.
Wolford testified that Kim specifically asked the employees if they
had any questions and that the employees presented no questions to
him (Tr. 546). On the other hand, Kim twice testified that the em-
ployees asked questions about yarn (Tr. 695 and 696).
geek permission only from the office in order to avoid run-
ning afoul of the rules concerning absence, lateness, and
leaving early. The omission of any reference to supervisory
participation in these functions is noteworthy, not only in
terms of evaluations the supervisor’s function but, equally
important, dealing with the credibility of Kim’s testimony in
this and other respects.
Furthermore, the memorandum states that multiple viola-
tions of any of these three rules (absence, coming to work
late or leaving work early without permission; refusal to fol-
low supervisors’ instruction) within a year will make an em-
ployee ‘‘subject to termination from work.’’ This statement
hardly suggests that it is the supervisor who will cause the
termination of the employee for a three-time failure to follow
the supervisor’s instructions. The memorandum states only
that the employee will be ‘‘subject to termination from
work.’’ I conclude that on the basis of this entirely ambigu-
ous language, it is the ‘‘office’’ which retains all the deci-
sion-making power to do the terminating rather than the su-
pervisor. The memorandum fails to state that the supervisor
has even the power to recommend.16
I conclude, therefore, that the August 24, 1989 memoran-
dum (R. Exh. 1), naming Tello to the ‘‘new’’ position of
second-shift supervisor, itself, constitutes no evidence of
Tello’s statutory supervisory status and tends to show quite
the opposite: that the power to discipline, up to discharge, re-
sides ‘‘in the office’’ and not in Tello. Where the memoran-
dum as late as August 1989, had the opportunity to state, or
even imply, that Tello herself had the power, or in conjunc-
tion with any other party, had the power to discipline, it
failed to do so. I conclude, therefore, that the memorandum
does not support Respondent’s argument that Tello had the
power to discipline.17
2. Testimony concerning Kim’s 1990 speech regarding
Tello’s authority to discipline
Sometime in late January 1990, perhaps following Tello’s
unsuccessful bargaining on her pay, and benefits with the
Changs, she asked the newly appointed general manager,
Eric Kim, to hold a meeting with employees wherein, inter
alia, Kim would define Tello’s employment status with Re-
spondent vis-a-vis the employees. She wanted the employees
to know who she was and where she stood in the Company
(Tr. 544). Within a week, such a meeting was held, with
Kim speaking in English and the office clerical, Carol (Alge-
ria) Wolford translating into Spanish for the employees.
Thus, in late January or early February 1990, all the Rib-
bon Sumyoo employees were gathered in the lunchroom.
Young Park introduced Eric Kim as the new general man-
ager. Kim told the employees that he understood there were
low production and quality problems which led to customer
complaints; that at least part of the problem was the quality
of the yarn they were receiving from J.S. Fiber but he urged
them to work harder to overcome that problem and assured
them that the quality of the yarn would improve. He then
identified the supervisors in Ribbon Sumyoo (Tr. 694). He
told them that Patricia Lalinde was the morning-shift super-
visor and Genoveva Tello the second-shift supervisor. He
also identified the two ‘‘line leaders’’ from each shift (Tr.
695). Kim testified that he ‘‘also talked about the authority
or the power of the supervisor because that was one of the
reasons we did hold the meeting’’ (Tr. 695). Specifically,
Kim said he told the employees that the supervisor’s instruc-
tions were to be followed and that employee disobedience to
those instructions would be dealt with by termination and
that the authority for termination was given to the super-
visors (Tr. 695). He went further; he said he told the employ-
ees that refusal to follow the supervisors’ instructions could
lead to termination by the supervisor ‘‘on the spot’’ (Tr.
696). Employee Maria Alanis, called by Respondent, cor-
roborated that she heard Wolford say at the meeting, that the
supervisors (Lalinde and Tello) ‘‘could discharge us when-
ever they saw we were doing something wrong’’ (Tr. 968).
Carol Wolford also corroborates Kim’s testimony. She testi-
fied that he said (and she told the employees in Spanish) that
if the employees ‘‘give [the supervisors] any problems, they
have the authority to dismiss you.18
Maria Estella Lopez, a credible witness, testified that other
members of her family work for Respondent, that she had
known Rosa Chang (wife of President Chang) a long time,
and herself succeeded Genoveva Tello as supervisor on the
second shift on August 2, 1990. Testifying as a Respondent
witness (Lopez was earlier called as a General Counsel wit-
ness), Lopez, asked about Kim’s speech to the employees,
affirms, and Tello agrees, that Tello was mentioned by Kim
as a supervisor (Tr. 485). Respondent, however, did not seek
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 At the time of her testimony, called by Respondent, Lalinde had
become a salaried employee and was still in charge of the first shift.
She was, as I observed her, understandably anxious to give testi-
mony in support of Respondent’s position.
to establish, through the testimony of its own, present super-
visor, Lopez, that Kim described Tello as having the power
to terminate or discipline employees. Genoveva Tello, her-
self, called in rebuttal, denied that Kim said that either she
or Lalinde had the authority to dismiss employees (Tr. 1250–
1251).
Evaluating the credibility of Kim’s, Alanis’, Wolford’s,
Tello’s and other witnesses’ testimony concerning Kim’s
January–February 1990 speech to all employees regarding
whether he mentioned any Tello power to discharge or dis-
cipline employees, and in the face of Tello’s denial and
Lopez’ failure to testify on the point, I regard the testimony
of Patricia Lalinde19 to be determinative of what Kim said
of her and Tello’s power to discipline.
First, she testified expansively that, at this January–Feb-
ruary 1990 meeting of employees, Kim stated that she and
Tello had ‘‘the authority and power to make any decision
with regard to any problem, whether related to an employee
or to our work’’ (Tr.886–887); and that Kim told the em-
ployees that ‘‘they had to follow whatever orders we would
give them’’ (Tr. 887). In her later response to an openly
leading question, whether Kim said anything about the au-
thority to ‘‘let somebody go,’’ Lalinde testified that she had
no recollection of anything else being said (Tr. 887). There-
after, Lalinde testified only that Kim told the employees in
that meeting that ‘‘they should follow my orders or else they
would face the consequences which could be a suspension or
being fired’’ (Tr. 888) (emphasis added).
I do not credit Kim’s testimony generally, and I specifi-
cally do not credit his testimony concerning this meeting in
which he allegedly said, and Wolford translated, that the su-
pervisors, and in particular Tello, had the power to discipline
or discharge employees ‘‘on the spot’’ if they failed to fol-
low Tello’s instructions. Similarly, with regard to the testi-
mony of Wolford and Maria Alanis, as corroborative of what
Kim said concerning Tello’s (or Lalinde’s) power to dis-
cipline for failure to follow supervisor’s instructions, I do not
credit their testimony. Rather, noting the failure to inquire of
corroboration from the testimony of a witness like Maria Es-
tella Lopez, and noting Tello’s denial, I credit the testimony
of Patricia Lalinde.
As I have previously observed, I was impressed that
Lalinde was devoted to Respondent and appeared anxious to
support Respondent’s cause. Had Kim’s speech included a
statement, or Wolford translated, that Lalinde (or Tello) had
the actual power to discipline or discharge employees for
failure to follow instructions, whether exercised ‘‘on the
spot’’ or otherwise, I am confident that Lalinde, in particular,
would have recalled such a grant of authority from the new
general manager. Instead of corroborating Kim, Wolford, et.
al., that Kim said that Lalinde and Tello had the power to
discharge employees ‘‘on the spot,’’ Lalinde testified only
that Kim said that if an employee failed to follow Lalinde’s
orders ‘‘they should face the consequences which would be
a suspension or being fired.’’ Nothing here of Lalinde (or
Tello) having the power to discharge or suspend or otherwise
discipline any employee for any reason or even to rec-
ommend same.
Lalinde’s testimony (Tr. 888) that a failure to follow her
orders could lead to the vague ‘‘consequences’’ of the of-
fending employee being suspended or fired is thus wholly
consistent with Respondent’s May 24, 1989 memorandum to
all employees concerning employee obligation to follow su-
pervisors’ orders and the circumstances under which employ-
ees could be discharged. Lalinde’s testimony, like the August
24 memorandum, discloses no power or even participation in
the supervisors to discharge or discipline employees. Those
powers, like the power to grant time off, supra, are reserved
‘‘to the office.’’
Discrediting the testimony of Kim and Respondent’s cor-
roborating witnesses, and crediting the testimony of Tello
and Patricia Lalinde, I conclude that Kim, at his January–
February 1990 speech, did not tell Respondent’s employees
that, inter alia, Tello had the power of discharge or of any
other discipline for failure of the employees to follow Tello’s
orders.
3. Kim’s testimony regarding Tello’s power to
discipline employees other than at the January–February
1990 meeting
Kim also testified that in late January 1990, on two or
three occasions in a period of a week or 10 days (Tr. 699)
before he spoke at the late January, early February employee
meeting, be told Genoveva Tello that she not only had the
power ‘‘to carry on business, production, . . . or quality’’
(Tr. 697–698), but that she had the authority ‘‘to terminate
employees for not following instructions and also to control
her subordinates, her workers on her shift. Control her work-
ers. We talked about those things’’ (Tr. 698). Tello denied
that Kim had such conversations with her (Tr. 1325–1326).
In particular, she denied that Kim told her she had the au-
thority to carry on business production and quality; or had
the authority to discipline workers. I have already noted my
general reluctance to credit Kim’s facile testimony. It is not
credible that Kim said that Tello, herself, had the power to
terminate employees. On the basis of the above analysis con-
cerning Kim’s credibility and in view of Tello’s denial of
such conversations with Kim, I credit Tello’s denial and dis-
credit Kim’s testimony.
4. The testimony of Young Park concerning Tello’s
authority to discipline employees
Park testified that at a meeting sometime in late 1989 re-
lating to product quality, he told a meeting of all employees
(at which Lalinde and Tello were present) that if they did not
listen to the supervisors, ‘‘they got to listen. They follow the
supervisor, right? and that is about it’’ (Tr. 1475). He told
the employees that they had to continually remain aware of
quality and consistently check the size of the product. In par-
ticular, they should not discard as garbage otherwise useful
material (Tr. 1475). Finally, Park recalled that he told the
employees not only that they had to follow the supervisors’
instructions, but that if they did not, the supervisor could
‘‘dismiss the person or whatever’’ (Tr. 1476).
Quite rightly, Respondent observes (R. Br. 29) that Park’s
testimony on this point is unrefuted on the record. Neverthe-
less, I do not credit Park’s testimony. While it was not re-
971RIBBON SUMYOO CORP.
20 Wolford said she was seldom present, Tello testified Wolford
was never present.
21 Corporate Secretary-Treasurer Rosa Chang and her husband,
Peter Chang, are 50-percent owners of Respondent. She maintains an
office in Respondent’s plant and testified that prior to the April 12,
1990 discharge of Tello, she was mostly involved in purchasing (Tr.
1123–1124); prior to and in 1987, that she spent most of the day
fixing machines, speaking to employees about social matters, and
threading the weaving machines (Tr. 1125). She was, however, also
particularly interested in the attempted unionization of the employees
(Tr. 416–417) and, contrary to her testimony (Tr. 1138; 1143–1144),
she (rather than Tello) entertains from and grants to second-shift em-
ployees their requests for time off and leaves of absences, although
petitioning employees are sometimes accompanied by Tello (Tr. 503,
Continued
futed, it was also not corroborated by, though aimed at,
Lalinde who was present at the meeting. My observation of
Patricia Lalinde, a devoted employee was that she was desir-
ous of testifying in support of Respondent’s case. Had any
Respondent’s supervisory hierarchy told her, at any time, that
she possessed the power to discipline, much less to dis-
charge, any of the employees on her shift, she would remem-
ber it with alacrity and show no reluctance in revealing the
circumstances surrounding its grant. I do not to credit Park’s
testimony that, in the presence of Patricia Lalinde and Tello,
he told employees that Tello and Lalinde had the power to
discipline or dismiss employees if they refused to follow
their instructions.
5. General Manager Kim’s testimony concerning
Respondent’s management meetings and
Tello’s presence
Eric Kim testified at length concerning management meet-
ings in President Chang’s office. Regularly present were
President Chang, Plant Manager Young Park, the accountant,
Office Manager Wolford,20 and himself from time-to-time.
Also present was Tello when the meeting concerned the
afternoon shift; Lalinde when the meeting related to matters
concerning the morning shift.
Production, quality, customer complaints, the return of de-
fective webbing and the schedule of shipping of specific or-
ders were always discussed. The supervisors reported on the
progress of production and quality. In these 15- to 20-minute
meetings, occurring up to Tello’s April 12 discharge, one
subject that was always discussed was the chronically poor
quality of the yarn which led to chronically poor production.
According to Eric Kim, he and President Chang would con-
sistently take the position that the poor production was due
to the supervisors’ failing to cause employees to put all their
energy into their work rather than exclusively to the poor
quality of the J.S. Fiber yarn. Tello would always take the
position that it was not an employee problem but solely a
yarn problem (Tr. 736). In addition, to these meetings, the
supervisors on a daily basis, would discuss production oper-
ations with President Chang (Tr. 373).
It must be observed that in none of these twice-monthly
meetings which occurred as late as in January–April 1990,
with Tello blaming the quality of the yarn and President
Chang and General Manager Kim blaming the quality of
Tello’s supervisory functioning, is there a suggestion from
any of Respondent’s witnesses that either Kim or President
Chang ever told Tello that she could use her power of dis-
cipline, including discharge (which she allegedly already pos-
sessed) as a tool or a goad to cause the employees to put
their energy into the work. Kim’s only testimony was that
he and President Chang were in continual dispute with Tello
concerning poor production. There is no statement to Tello
that she had the power to discharge employees who did not
put their ‘‘energy’’ into their work (Tr. 735). If, as Kim tes-
tified, the reason for poor production was predominantly be-
cause ‘‘supervision is not done correctly’’ (Tr. 735), it ap-
peared to me significant that in none of these conversations
did either President Chang or General Manager Kim, or any-
one else, explicitly remind or confront Tello: that Tello was
not a good supervisor because she was not weeding out,
threatening, or disciplining employees who were not per-
forming well and putting ‘‘their energy’’ into production.
Had Tello possessed such a power, certainly after Kim’s Jan-
uary–February speech to employees (Tello’s power to dis-
charge ‘‘on the spot’’) such a statement would undoubtedly
have been mentioned in the six or more production meetings
where President Chang and General Manager Kim con-
fronted Tello with the poor production on the second shift
caused, in large part, they said, by Tello’s failure to fully
function as a supervisor.
6. Tello’s exercise of the power to discipline or to
terminate employees
(1) The March 17, 1990 discharge of Narcissa
Pedraza Ramierez
Tello testified that although she was never instructed to do
so, she observed the production at the looms because Presi-
dent Chang would tell Tello, from time-to-time, that he knew
how much was being produced by each machine per hour
during an 8-hour period. Although, according to Tello, Presi-
dent Chang’s estimates of production were not entirely accu-
rate, she watched production because she sought to discover
how he might have calculated the amount of product being
produced during the 8 hours (Tr. 1283–1284). She testified,
however, that she never reported to President Chang or Rosa
Chang that an employee’s production was low (Tr. 1285).
This Tello sweeping denial was incorrect. Although she did
not recommend, in 1988 or 1989, that low-producing Emilia
Cardenas be terminated, she did report the low-production
situation and suggest or recommend to Peter Chang that
Cardenas be transferred from loom operator to the cutting
machine (Tr. 232) and the transfer was made. Chang, how-
ever, made the decision on Tello’s report and recommenda-
tion. This matter is treated in greater detail hereafter.
Narcissa Pedraza had been employed, by March 17, 1990,
for about a year as a loom operator on the second shift.
About 1 month before her March 17 termination, while Tello
was in President Chang’s office apparently discussing pro-
duction, Chang spoke of Pedraza’s low production and told
Tello to speak to Pedraza to determine what her problems
were. Tello agreed to speak to Pedraza (Tr. 1304). About 2
weeks after President Chang spoke to Tello, Rosa Chang en-
tered the work area and asked Tello what was going on with
Narcissa Pedraza; that her production continued to be very
bad. Tello told Rosa Chang that they should go immediately
to Pedraza and ask her about her problem. They both then
visited Pedraza (Tr. 1304–1305).21 Neither President Chang
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
525). Rosa Chang’s evasive testimony, that the employees tele-
phoned her rather than coming directly to her requesting time off
(even after Tello was allegedly made a supervisor in July 1987) is
therefore not credited. Similarly, Rosa Chang’s categorical denial of
her (rather than Tello) choosing employees for working overtime
was clearly contradicted by one of Respondent’s own witnesses,
Rosa Chang’s long-time acquaintance and, at the time of her testi-
mony, an apparent supervisor (Tr. 525). General Manager Rim testi-
fied (Tr. 664)—and I have already generally discredited him—that
Rosa Chang was not involved in the hiring or scheduling of employ-
ees. Yet the credited, uncontradicted evidence also shows (Tr. 1156–
1158) that Rosa Chang, as late as March 1989 (almost 2 years after
allegedly relinquishing all her supervisory duties), interviewed a pro-
spective employee, supervised the execution of the application, and
told her she would be informed of actual hiring. When the prospec-
tive employee (Luz Maria Garcia) first arrived at Respondent’s of-
fice to apply for the job, she was met by office clerical Wolford
who, having notified Rosa Chang of the applicant, played no further
role in the hiring process; only Rosa Chang did (Tr. 1156–1159).
Nor did Tello play any role in the hiring this second-shift employee
(Tr. 1160).
In addition, Rosa Chang testified that after mid-1987 (when Tello
allegedly first became a supervisor) she never gave Tello instructions
on how to conduct operations on the second shift (Tr. 1134). On
cross-examination, however, she admitted giving employees instruc-
tions through Tello even after July 1987. In redirect examination,
she returned to her original denial, but testified that she merely infre-
quently ‘‘relayed’’ messages from President Chang to Supervisor
Tello (Tr. 1151). This later testimony was the result of a leading
question. Lalinde’s testimony (Tr. 897–898) that ‘‘once in a while,
‘‘Rosa Chang’’ . . . took a look at the workers’’ is indicative of her
continued interest.
With regard to overall credibility, I found that Rosa Chang’s testi-
mony concerning her ownership of the Company, for instance, to be
evasive and unbelievable. She denied being ‘‘an owner’’ of Re-
spondent (Tr. 1146) although General Manager Kim had already
identified her as being a 50-percent owner of Respondent. I noticed
her pause before she answered the question concerning her owner-
ship. When pressed on the point, she said she paused because she
did not know the details of her position as a part owner. When
pressed further with the question whether she did not know that 50-
percent ownership of the business made her ‘‘an owner,’’ she testi-
fied she did not know (Tr. 1147). Such testimony cannot be accepted
from a person of Rosa Chang’s intelligence, experience and business
acumen. She then retreated to the position that she had ‘‘signed the
paper, but I didn’t read the whole thing so I just don’t know’’ (Tr.
1147).
I find that it was Rosa Chang rather than Tello who hired employ-
ees and chose employees for overtime work and, contrary to her and
other testimony, she had, and continues to have, a direct interest and
responsibility (as a corporate officer and owner) in employee wages,
hours, and conditions of employment.
nor Rosa Chang denied this Tello testimony and I credit such
testimony on this progression of events leading to the termi-
nation of Pedraza. Pedraza then told Tello and Rosa Chang
that she was trying her best but that the quality of the yarn
was the problem (Tr. 1305). Rosa Chang told her that Re-
spondent was upset with her production but that she should
keep working. Tello translated Rosa Chang’s English into
Spanish for Pedraza.
Sometime after this conversation, in late February or early
March 1990, and before her March 17 termination, Pedraza
asked her ‘‘line leader,’’ Maria Estella Lopez (the ‘‘line
leader’’ on the second shift who, like Tello, trains new em-
ployees on the looks (Tr. 498)) to accompany her on a visit
to the front office to speak with Rosa Chang. On that visit
to the front office, Pedraza asked the line leader to tell Rosa
Chang that she (Pedraza) was trying to do her work; and that
any claims to the contrary were false (Tr. 1410–1411). On
March 17, 1990, office clerical Wolford, over the factory
intercom, summoned both Tello and Pedraza into the office
at about 4:30 or 5 in the afternoon (Tr. 1308). This occurred
about a week after Rosa Chang and Tello had spoken to
Narcissa (Tr. 1307).
With office clerical Wolford seated in the office about 6
or 8 feet away, General Manager Kim asked Tello to tell
Pedraza that he was told that she had low production.
Pedraza said that she had already been twice told of her low
production (Tr. 1309). Kim told Pedraza (through Tello,
speaking in Spanish) that he was going to give Pedraza one
more week as an opportunity to improve her production; that
she should work hard and that if her production improved
during that week, Respondent would not fire her. If her pro-
duction remained low, they would fire her (Tr. 1309).
Both General Manager Kim and office clerical Wolford
testified quite differently regarding this event: that Tello vol-
untarily arrived in the office, told him that she did not think
Pedraza was ‘‘going to make it’’ (Tr. 720). The first thing
that Wolford recalled, admitting that she did not pay atten-
tion to the conversation at the beginning (Tr. 593), was that
Kim asked Tello: ‘‘Are you sure about this’’ and Tello said
that she was (Tr. 593). Kim then says that he asked Tello
whether there was anything that they could do to help
Pedraza and that Tello recommended that they speak to
Pedraza. Wolford says that at this point Kim asked her to
call Narcissa into the office and said she did so over the
intercom. I do not credit that Tello gratuitously came to the
office to report against Pedraza; that Kim asked Tello for ad-
vice as to what to do about Pedraza and I do not credit his
testimony that Tello recommended that they speak to
Pedraza. Certainly Wolford’s testimony (Tr. 593) does not
include corroboration that Kim asked Tello whether they
could do anything to help her nor Tello’s suggestion that
they call Pedraza in.
Whereas Tello testified that Kim directed her to tell
Pedraza that ‘‘he had been told’’ that Pedraza’s production
was low (Tr. 1308–1309), Kim and Wolford testified (Tr.
721; 593) that Kim said: ‘‘Genoveva [Tello] tells me that
your production is low.’’ According to Wolford, Tello trans-
lated this as: ‘‘Mr. Chang says your production is low’’ (Tr.
593). Wolford testified that this Tello mistranslation caused
her to pay attention to what was going on (Tr. 593).
In resolving this particular contradiction in the testimony,
because of Kim’s overall lack of credibility, indeed, lack of
veracity, and Wolford’s self-interest in testifying on behalf of
Respondent, and notwithstanding Tello’s self-interest in her
own testimony, I would ordinarily credit Tello. I find, how-
ever, that a resolution of this contradiction is not material.
The fact, based on uncontradicted evidence, is that both Peter
Chang and Rosa Chang complained to Tello of Pedraza’s
low production. Indeed, Rosa Chang and Tello visited
Pedraza and mentioned Respondent’s unhappiness with
Pedraza’s low production. In addition, Pedraza, accompanied
by her line leader (Lopez) visited the office to speak with
Rosa Chang concerning the repeated assertions of her low
production and Pedraza’s attempt to remedy that. This visit
occurred within about a week of her March 17 termination.
Thus, whether or not Tello was seeking to establish the facts,
973RIBBON SUMYOO CORP.
22 The above-noted Cardenas matter was a report and rec-
ommendation of a transfer in order to keep the employee in employ-
ment.
23 Kim, admittedly not ordinarily involved in production matters,
had not been involved in the Pedraza matter and it is odd that Tello
would have reported to him. She did so only because Kim called
her into the office. Kim’s involvement, I find, was based on direc-
tions from the Changs. Thus, Kim called Tello into his office; Tello
did not voluntarily enter. 24 I find that that is what Kim actually said.
of Respondent’s displeasure with Pedraza, rather than support
Kim’s apparent attempt to put the onus on Tello for report-
ing Pedraza’s low production, is essentially irrelevant.
Wolford bristled at Tello shifting the onus, truthfully, on to
President Chang, whereas Tello never reported or complained
of Pedraza’s production to either of the Changs (Tr. 1317).
Nor does Respondent offer any testimony that she did. In ad-
dition, at the hearing, Kim and Wolford had a specific inter-
est in shifting the focus of who caused and who reported the
low production, onto Tello’s shoulders. Their interest was to
show Tello’s supervisory conduct in making the report.
Thus, even if Tello switched Kim’s statement from
‘‘Genoveva tells me that your production was low’’ to ‘‘Mr.
Chang says your production is low,’’ as Wolford testified,
Tello would be reflecting the actual fact. Again, there is no
suggestion, on this record, that Tello ever reported Pedraza’s
low production to either President Chang or Rosa Chang or
any other supervisor before she entered the office with Kim
on March 17 and thus then no reason or precedent22 prompt-
ing her to enter the office to so report on Pedraza to cause
her discharge. I specifically have discredited Kim’s testimony
that Tello told him, at the outset of their conversation, that
she did not believe that Pedraza was ‘‘going to make it.’’
In short, therefore, I conclude (1) that, crediting Tello,
Tello translated Kim’s direction accurately, that she told
Pedraza that Kim had been informed that Pedraza’s produc-
tion was low. This is consistent with both President Chang’s
and Rosa Chang’s complaints of this matter and there was
no suggestion on this record that Tello, at any time, told any
supervisor, including Kim, prior to this day, that Pedraza’s
production was low. That the Changs asked Tello to discover
the cause of Pedraza’s low production is no basis for a sud-
den gratuitous report by Tello to Kim. (2) Further, I conclude
that even if Tello switched the translation so as to state that
it was ‘‘Mr. Chang’’ who said that Pedraza’s production was
low, I find that such a switch is immaterial because the al-
leged misstatement is wholly consistent with the underlying
facts based on wholly uncontradicted evidence in this record.
(3) In any event, even if Tello told Kim, at the outset of the
conversation, that she did not believe that Pedraza was going
‘‘to make it,’’ such a statement was a reflection of the
Changs’ specifically directing Tello to keep an eye on
Pedraza’s production. having done so, any such report to
Kim, if made, would not support a conclusion that Tello reg-
ularly monitored and reported to Respondent on employee
production; rather, it would have been Tello broadly inter-
preting the Changs’ direction to make a report.23 Wolford
could not remember Tello reporting on any other employees
(Tr. 597–598). Consequently, under any view, Tello’s partici-
pation in their type of transaction was unique for her.
Whereas Tello testified that Kim told her that Respondent
was going to give Pedraza the opportunity of working a fur-
ther week in order to improve her production and then would
consider firing her if her production did not improve,
Wolford and Kim testified that Kim asked Tello what could
be done in the face of Pedraza’s continued insistence that the
fault was in the quality of the yarn. Kim (according to Kim
and Wolford) asked Tello for a recommendation of what to
do, suggesting giving her a week’s trial. Tello, according to
Wolford, said: ‘‘Yes, we can try.’’ I credit Tello. At this
point, I find that Kim, reflecting the Changs, was not asking
Tello’s opinion. He was telling her of options.
Tello then testified that Pedraza said that she had worked
as hard as she could and not work any harder. Tello further
testified that at this point, Kim gave her a letter, already pre-
pared and typed (R. Exh. 4) which Tello read in Spanish to
the illiterate Pedraza. Thereafter, Kim said, and Tello trans-
lated, that Respondent would give her a further week and
that she should try in the further week. Tello recalls that
Pedraza said she wanted to quit right then and wanted to sign
the termination letter because she was no longer interested in
remaining. Tello told her not to quit, not to sign the letter
but to continue to work because she was given one more op-
portunity. Pedraza corroborates Tello. Pedraza again refused
and Tello told her that that was her decision and that she
should sign the letter.
Wolford recalls that in this conversation, Kim said that
they would, in the trial of 1 week, retain Pedraza ‘‘depending
on what Tello evaluates her production to be’’ (Tr. 594). I
do not credit this Wolford testimony. Wolford further testi-
fied that Tello mistranslated this24 into: ‘‘he wants to know
if you want to stay until next Friday or leave now’’ I also
do not credit this Wolford testimony. I do go because where
Wolford specifically denied that Tello said anything about
Pedraza trying harder (as an alternative to being terminated)
(Tr. 595), Pedraza testified quite to the opposite (Tr. 1403):
that Tello told her to work faster and move faster. On the
basis of this contradiction by Pedraza, whom I observed to
be an ingenuous, unconcerned, and unsophisticated witness,
I discredit Wolford and credit Tello’s version.
In any event, there is no dispute that Pedraza then signed
the termination memorandum (R. Exh. 4) with Tello signing
in the space marked ‘‘supervisor.’’ Kim testified that her sig-
nature appeared there without comment. Tello testified that
she refused to sign the document asking why she had to sign
it. She said that Kim told her she was the supervisor and was
required to sign the letter (Tr. 1313). Tello says that she then
told him that she was not firing any of the employees but
Kim told her she had to sign. She then signed the letter, first
showing it to Pedraza and telling her that she had to sign the
letter.
I do not credit Wolford’s further testimony that Tello told
Pedraza, before she left, that the yarn would not improve so
that Pedraza might just as well leave that day and that she
then told Kim: ‘‘she wants to leave today.’’ Such testimony
is wholly inconsistent with Pedraza’s testimony that Tello
urged her to stay. I further do not credit Wolford’s testimony
that Tello said nothing about her supervisory capacity in
signing the memorandum of Pedraza’s termination.
There is no dispute, however, that after Pedraza and Tello
left the office, after Pedraza signed the termination letter, that
Wolford told Kim that Tello’s translation had not been cor-
rect and that Kim told Wolford to have Pedraza return to the
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
office which she did. Kim, using Wolford as the Spanish
translator, said nothing to Pedraza about any mistranslation
but merely asked whether Pedraza had understood what was
in the letter she signed. Wolford said that she urged Pedraza
to try harder but Pedraza refused, telling Wolford that there
was too much constant ‘‘checking’’ and that it was better for
her to sign the termination (Tr. 1453). Wolford’s testimony
omits any reference to Pedraza’s refusing to remain for the
trial week (compare: Tr. 597 with Tr. 1405). There is no
suggestion on the record that Tello had done any ‘‘checking’’
of her work and Pedraza’s reference clearly was to the
Changs’ dissatisfaction with Pedraza’s performance.
The gist of Respondent’s testimony, through Wolford and
Kim, is directed to the assertion that it was Tello who initi-
ated, recommended, and participated in the termination of
Pedraza. (1) I have already discredited Kim’s testimony, that
Tello came to him on March 17 and reported that Pedraza
was ‘‘not going to make it.’’ (2) Further, I do not find that
Tello caused this Pedraza interview rather I find that it was
Kim who initiated the Pedraza interview and the subsequent
sequence of events; that he was acting at the direction of the
Changs; that the Changs were dissatisfied with her low pro-
duction; that Tello was called to the office to translate for
Kim and to translate the offer of the option of improving
production in a trial week or being fired; (3) that it was Kim,
rather than Tello, who at this time originated the idea of a
further trial week because Tello had urged the same course
on President Chang a month before; that Tello merely agreed
with Kim that there might be a further trial period of a week
in which Pedraza’s production could improve; that this was
accurately translated to Pedraza who refused and elected to
accept termination; (4) that Wolford’s testimony that Tello
failed to urge Pedraza to try harder and accept the offer of
a further week as a trial period, contradicted by Pedraza’s
testimony, was not credible, further undermined Wolford’s
credibility. It established a motive in Wolford to support Re-
spondent’s theory that Tello was decisive in making the rec-
ommendation that Pedraza be terminated. The incident, taken
in whole, fails to demonstrate that it was either Tello’s effec-
tive recommendation or decision to terminate Pedraza; and
that her signature as supervisor on the termination document
(R. Exh. 4), whether made under protest or not, is not indic-
ative of her exercising supervisory disciplinary power under
Section 2(11) of the Act. Certainly there is no demonstration
of Tello exercising independent judgment in any rec-
ommendation or decision regarding the discharge of Pedraza,
PHT, Inc., 297 NLRB 228 (1989). The decision of granting
Pedraza a further trial week or discharging her was Kim’s
and was made before Tello and Pedraza entered Kim’s of-
fice. Indeed, I conclude that Kim, not ordinarily involved in
production problems, was not the responsible party. He was
following orders from the Changs.
To the extent Respondent states that Pedraza’s testimony
specifically denied (Respondent’s emphasis, Br. 22) that
Tello, accompanied by Rosa Chang, talked to her about her
level of production, counsel is quite mistaken. For Pedraza
did not specifically deny Tello’s testimony; her answer was
merely that she did not remember (Tr. 1407). Likewise,
whereas Respondent would wholly discredit Tello’s credibil-
ity because her prior affidavit, taken during investigation of
the unfair labor practice allegations, is silent on Rosa
Chang’s participation in the sequence leading to the termi-
nation of Pedraza, that credibility issue, in my judgment, was
settled by Pedraza’s own testimony (relating to her visit to
the office with line leader Lopez to confront and contradict
the Changs’ prior inquiries into her low production) rather
than by any omissions in Tello’s pretrial affidavit. I also do
not regard Pedraza’s testimony that Tello was already in the
office when she arrived as establishing the fact that Tello
long preceded her and engaged in the conversation Kim (and
Wolford) described. I have found Wolford summoned them
at the game time.
To the extent that Tello’s prior affidavit refers to ‘‘the
owner,’’ rather than to Kim, as the participant in the March
17 termination of Pedraza, an inaccurate description on
which Respondent prominently relies (R. Br. 22–23), I do
not regard that description as a significant contradiction. To
the extent that Respondent, on cross-examination (Tr. 1376),
brought out further details of Tello’s February office con-
versation about Pedraza with President Chang that supports,
rather than refutes, a finding that Tello, in the Pedraza termi-
nation, did not effectively recommend or make the decision
to discharge Pedraza. For, as Respondent’s cross-examination
showed, President Chang not only told Tello (as she testi-
fied) to keep an eye on Pedraza’s low production because
Respondent was dissatisfied with that low production, but,
indeed, he threatened to fire her (Tr. 1376–1378). Tello, in
that conversation, asked President Chang to give Pedraza an-
other chance, and President Chang acquiesced therein, espe-
cially because Pedraza was friendly with Tello. It is highly
unlikely, therefore, it seems to me, that Pedraza would then
become the moving force in gratuitously coming into Kim’s
office, telling him, in substance, that Pedraza was ‘‘not going
to make it.’’ This background further supports the propo-
sition that Tello was not a supervisor; that President Chang,
already having made the threat to fire Pedraza, and there
being no improvement in about 2 weeks, Tello was called
into the office merely to affirm Kim’s (the Changs’) decision
to fire her (the papers were already typed up) or to seek a
method by which the firing could be avoided. In February,
Tello had mentioned a 1-week improvement period to Chang.
On March 17, Kim repeated it. I conclude that Tello did not
recommend or effectively recommend or make the decision
in the termination of Pedraza.
Although, for instance, the omissions and inaccuracies in
Tello’s prior affidavit cited by Respondent, contrary to Re-
spondent’s argument, do not impress me as significantly un-
dermining Tello’s testimony, I have independently noted
other examples of Tello’s testimony which were hardly im-
pressive for credibility purposes. In support of her desire to
show relative insignificant status, I have noted her incorrect
testimony concerning Eric Kim’s presence at production
meetings (Tr. 1345–1346); her evasive testimony concerning
the nature of the Changs’ orders to her for delivery to the
employees (Tr. 226–227); her evasiveness as to her between-
shift meetings with Lalinde on production problems; who
called employee meetings and whether she led the meetings
(Tr. 273–274); her evasiveness in who told her of first-shift
production problems (Tr. 275–276); whether she ever re-
ported an employee’s low production, supra, and how often
the Changs asked her opinion on employee applicants for
employment on the second shift (Tr. 1303–1304). It is clear
that, in dealing with and communicating with second-shift
personnel and Respondent’s desire to increase production, the
975RIBBON SUMYOO CORP.
25 Rosa Chang terminated ‘‘Herminina’’ in 1988 because she was
a slow producer. See, above. Tello did the translating.
Changs relied on and used Tello as their conduit. She was
the one reliable and vital instrument in dealing with the
Spanish-speaking employees notwithstanding the responsibil-
ities of the shift mechanic. Viewing the record in its entirety,
however, and giving due regard to my direct observation of
the demeanor of the witnesses as they testified, along with
the inherent interests of witnesses and their susceptibilities to
these interests in the testimony, I have generally credited
Tello and have discredited Respondent’s witnesses. With re-
gard to Wolford, the Changs and Kim, that decision was
often not difficult. On the other hand, I have generally cred-
ited the testimony of both Rosa Chang’s long-time acquaint-
ance, currently an apparent supervisor and former line leader,
Maria Estella Lopez, and its alleged supervisor, Patricia
Lalinde. I realize that Maria Alanis, a Respondent witness,
supported Kim’s and Wolford’s testimony that in Kim’s Jan-
uary–February 1990 speech, he described Tello as having the
authority to ‘‘fire us’’ if the employees were not doing their
jobs or if they saw something going wrong with the jobs (Tr.
967). On the other hand, her testimony, consistent with Re-
spondent’s August 24, 1989 memorandum (R. Exh. 1) re-
garding Tello’s ‘‘supervisory’’ position, demonstrates that re-
quests for time off, among other things, were reserved to the
office in terms of who had the authority to grant the time
off. Similarly, I am fully aware that Salvadore Arreguin, a
witness friendly to Tello, did not testify, in rebuttal, concern-
ing Kim’s January–February speech. Nevertheless, taking
these matters into account and viewing the record as a
whole, and discrediting certain of Respondent’s witnesses’
testimony (including that concerning other alleged Tello su-
pervisory powers) have continued to credit Tello, Lopez, and
Lalinde (Respondent’s witnesses) and certain other of the
General Counsel’s witnesses.
(2) A further instance of Tello’s exercise of alleged
power to terminate employees
Lastly, President Chang testified (Tr. 1023 et seq.) of the
discharge of a new employee in the or fall of 1988. He testi-
fied that Tello suggested that the person should be terminated
and that is what occurred (Tr. 1023). For purposes of this
case, I shall ignore the remoteness of this event. Tello denied
any such action.
Tello testified that in late 1988 or early 1989, Rosa Chang
told her that an employee ‘‘Herminina’’ was a slow pro-
ducer. A few days later, in Rosa Chang’s office, both Presi-
dent Chang and Rosa Chang called Tello into the office to
translate the firing of this machine operator who had been
working for Respondent only about 1 month (Tr. 1318–
1319). Rosa Chang told Tello to tell Herminina that she was
a very slow producer and that it was not advantageous for
Respondent to keep her. Rosa Chang said that both she and
President Chang had decided to fire her. When Herminina
asked for another chance, the Changs refused and told her
to go home. Rosa Chang then directed Tello to take the em-
ployee to Wolford to give her a paycheck. Tello denied ever
telling anyone that Herminina’s work was slow.
I conclude on the basis of all of the above testimony that
Respondent has failed to support its burden to prove that
Tello had the power to effectively recommend discipline, in-
cluding discharge, or had the power herself, or exercised any
such power. Furthermore, I separately find that, in any event,
Respondent has failed to prove that Tello utilized independ-
ent judgment in exercising any such power. In any event, a
solitary or two instances of discipline are not sufficient to
confer supervisory status as a matter of law. Highland Super-
stores v. NLRB, 927 F.2d 918 (6th Cir.); NLRB v. Bearer
Transfer & Storage Co., 678 F.2d 679 (7th Cir. 1982).
(b) Tello’s alleged authority to transfer employees
Among the primary indicia of supervisory status is the au-
thority, in the interest of the employer, to transfer employees
where the exercise of such authority is not routine but re-
quires the use of independent judgment.
Respondent concedes that there is no direct evidence that
employees were told that Tello had the authority to ‘‘trans-
fer’’ or ‘‘reward’’ them (Br. 30). The parties appear to be
in agreement that the only instance of Tello exercising the
power to transfer occurred sometime in 1988 or 1989 affect-
ing the employment of Emelia Cardenas (Tr. 232; 1025).
Cardenas worked on the night shift apparently on the looms.
Tello testified that Cardenas was having trouble with produc-
tion; that she (Tello) discussed this low production with
Peter Chang that she recommended moving Cardenas to a
job as a cutter; and that that occurred (Tr. 232). I conclude,
however, that the evidence is unclear on whether she rec-
ommended the transfer or acquiesced in President Chang’s
decision to transfer. President Chang testified that Tello ap-
proached him, told him that Cardenas should be terminated,
but Chang refused saying that it was against Respondent’s
policy to terminate an employee (Tr. 1025–1026).25 He said
he told Tello that even though Cardenas was a slow em-
ployee, she could still work in the cutting department be-
cause the work there was much slower (Tr. 1026).
Respondent argues that these facts demonstrate an instance
of Tello effectively causing the transfer of the employee into
a job in which she remained employed (Tr. 233). The Gen-
eral Counsel argues (Br. 21) that Chang himself made the
decision to transfer the employee (Tr. 1025–1026).
I find that Tello reported to President Chang that an em-
ployee’s production was slow. Further, I shall assume,
arguendo, that Tello said, as Chang testified, that the em-
ployee should be terminated. President Chang refused to ter-
minate the employee. As above noted, Tello was thus report-
ing to Chang on low-producing employees, contrary to her
denial (Tr. 1285). This shows that Tello possessed no power
to effectively recommend the discharge of an employee in
her own second shift even for slow production.
The evidence then becomes ambiguous: on the one hand,
Tello said that she recommended moving Cardenas to the
cutter job and that this was done (Tr. 232). On the other
hand, Peter Chang testified that he not only refused to termi-
nate the employee, as Tello recommended, but that he told
Tello that, despite Cardenas’ slow production, she could
work in the cutting department because the work is slower
in that department (Tr. 1025–1026). Tello, according to
Chang, was not the source of the idea to transfer Cardenas.
Peter Chang’s refusal to follow Tello’s alleged original rec-
ommendation to terminate Cardenas because of slow produc-
tion, resulted in the intermediate action of Peter Chang first
directing Tello to discover and report to Chang why
Cardenas was having low production (Tr. 1107).
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In short, Tello admits making a recommendation to trans-
fer Cardenas to the cutting department job. At the same time
Peter Chang, rejecting Tello’s alleged original recommenda-
tion to terminate Cardenas, directs her first to discover the
cause for Cardenas’ low production and then apparently told
Tello that Cardenas could work in the cutting department
where the work was slower. If Tello’s testimony is taken at
face value, it was she who made a recommendation to trans-
fer Cardenas to the cutting department. If President Chang’s
testimony is taken at face value, it was he who, as a result
of his direction to Tello to investigate Cardenas’ low produc-
tion, alone made the decision to transfer Cardenas to the cut-
ting department job.
On the question of Tello’s power to ‘‘transfer,’’ therefore,
the evidence is ambiguous. Respondent bears the burden of
proof. In view of Peter Chang’s testimony, I am unable to
conclude that it was Tello who made a recommendation to
transfer Cardenas to the cutting department job. Clearly,
Tello had no power to effectively recommend termination.
The first mention of transfer came from Chang. That Tello
may have discussed or even suggested transfer, and then ac-
quiesced does not encompass a power to effectively rec-
ommend. On the basis of the record before me, therefore, I
am unwilling to conclude that a preponderance of credible
evidence supports Respondent’s burden to prove that Tello
either had such power to transfer or exercised that power or
could effectively recommended transfer of employees on the
second shift.
(c) Tello’s alleged authority to assign work
The determination whether Tello had the statutory power
or, in any event, exercised the statutory power, to ‘‘assign’’
employees is a closer question than the resolution of whether
she had the statutory powers discussed above. In fact, her al-
leged exercise of the power to assign must also be seen in
conjunction with her responsibility for the training of new
employees and, indeed, in relationship to the work atmos-
phere which existed on the second shift.
There is little question, as Respondent urges, that Tello
was ‘‘in charge’’ of production on the second shift certainly
in the sense that Respondent sought, solely from her (with
rare exceptions), explanation of production problems on the
second shift and informed her of its production expectations
on the second shift. Her principal function was, as she testi-
fied, and as other witnesses corroborated, the fixing of ma-
chines, changing threads, helping slower employees, as well
as training new employees, and from time-to-time, as a sub-
stitute loom operator. Unlike all other shift employees, ex-
cept the mechanic, she was ordinarily not directly engaged
in production. Whether and to what extent she was aided in
this production and repair function by the second-shift me-
chanic; what his specific powers were; and, more important,
whether Tello herself exercised the assignment of work
power with independent judgment as required in Section
2(11) of the Act are the questions to be resolved. In resolv-
ing those questions, I have taken into account the testimony
relating to Tello’s responsibility and participation in the pro-
duction process (apart from the hiring process which will be
treated below), particularly the power to assign.
Peter Chang testified, for instance, that the ‘‘supervisor’’
(Tello) determines on which machines employees will work
and on how many machines the employees will work (be-
tween three and five looms) based on the efficiency of the
worker. According to Peter Chang, the determination of the
assignment of the number of machines based on the effi-
ciency of the worker, a determination of the supervisor, is
necessarily based upon her independent judgment and eval-
uation of the speed and quality of performance of the em-
ployee.
Tello testified that she attended supervisor meetings in the
owners’ office both before and after first being called a su-
pervisor—which she erroneously put in August 1989. In any
event, both before and after Respondent’s memorandum to
employees of August 24, 1989, naming Tello as a supervisor,
Tello testified that her job remained the same: to train new
personnel; fix the machines; help run the machines; change
the colors on the thread; and engage in ordinary production
work on the machines for absent or vacationing employees.
She continued to punch the same timecard and be subject to
the same deductions from wages if she came late or was ab-
sent.
She conceded that there were 17 or 18 employees on the
second shift of which 12 or 13 operated the 50 to 55 weav-
ing machines; 3 employees were doing cutting and winding.
In addition, she admitted that she was the only employee on
the second shift that the employer called a supervisor; was
not ordinarily a machine operator; and that she reported to
President Chang problems with production machinery and
problems with employees who, for instance, did not want to
work an extra machine that Tello had directed them to work
on (Tr. 183). Such employees would tell of their refusal di-
rectly to the front office or to Tello. Since the front office
closed between 5:30 and 6 p.m., Tello would tell the front
office of these problems in the later case either before 6 p.m.
or on the next day. The evidence did not disclose that she
enjoyed any power to coerce any such employee into work-
ing the assigned machinery.
The owners decided which colors to run and how many
and of what width, and told Tello of their decisions. It was
in production meetings that the owners instructed Tello of
these production decisions, repeatedly complained of low
production and poor quality, and in which (certainly in and
after 1988) Tello told them that the fault lay exclusively in
the yarn and not with the employees. When, on at least one
occasion, the owners persisted and blamed Tello for not
gaining greater employee production, she challenged them to
fire her but the owner refused, describing Tello as ‘‘the
best’’ (Tr. 238).
Production notices came to her from the owner in English
and she would then notify the second-shift employees of the
production orders in Spanish. Tello always told the employ-
ees she was relaying work orders from the owners. When,
in these production meetings, President Chang told her to
have the employees work hard, she told this to the employ-
ees and admonished them to work hard and to pay attention
to their work. She testified that she was ‘‘very close to them,
watching, looking at the way they worked and helping
them’’ (Tr. 1350–1351).
Insofar as training new employees, Tello trained the new
employees, as did the line leaders and, in fact, as did ordi-
nary experienced employees. When Tello brought a new em-
ployee for training to a line leader, she told the line leader
that it was Rosa Chang who had instructed Tello to bring the
new employee to the line leader for training (Tr. 498). The
977RIBBON SUMYOO CORP.
26 On the other hand, I am not at all confident what hours were
kept by President Chang. For instance, he testified that when the su-
pervisors were on vacation, he sometimes stayed to 9 to 10 p.m. (Tr.
1026). His mechanic, Sukhyon Chang, working on the second shift,
emphatically testified (Tr. 948–949) that, when Tello was on her 3-
to 4-week vacation sometime after March 1989, Chang did not stay
late, but left by 7 p.m.—thus, for a matter of weeks leaving the sec-
ond-shift operating without benefit of Tello and, on this record,
without benefit of a ‘‘supervisor.’’ This necessarily raises the ques-
tion whether supervisory authority was required for the effective op-
eration of the shift or whether the activities of the shift were so rou-
tinized as to obviate the presence of a supervisor exercising inde-
pendent judgment. The General Counsel makes much of the fact that
in the period between the April 12, 1990 Tello discharge and the
appointment of Maria Estella Lopez as second-shift supervisor on
August 2, 1990 (Tr. 523), there was no supervisor on the second
shift for this 4-month period. Rather, after Tello’s departure, only the
second-shift mechanic directed employees which machines to work
on (Tr. 527). Respondent denies that the mechanics are supervisors
and observes that they voted in the election without challenge. I am
impressed, therefore, with the General Counsel’s argument: that the
second shift routine required no ‘‘supervisor,’’ at least no supervisor
exercising independent judgment.
line leader (Lopez) told trained employees who had problems
to just call the ‘‘boss’’ which is what they called Tello (Tr.
499). Line leader Lopez, having trained a new hire, would
consult with Tello concerning the proficiency of the em-
ployee. If the employee was ready, Tello would take him/her
from the line leader and assign him/her to machines. In addi-
tion, in the case of infrequent absence of employees, Tello
would work the looms herself or assign vacant machines to
another operator to take over. On such an assignment or
when Tello added one or more machines for operation by a
loom operator, in the event of an absent or sick employee
(where Tello herself did not operate the empty machine),
Tello would invariably direct the additional machine to the
operator immediately adjacent to the empty machine or to a
new employee (Tr. 957–958).
On the other hand, not only did the line leaders and Tello
train new employees and decide when the new trainees were
ready to operate their own machines, but the mechanic and
even experienced employees trained new hires and would tell
the owners directly that the newly trained employees were
ready for assignment to production machinery. When these
employees or the mechanic did so, they did not first tell
Tello that they were going to make that report but went
straight to the office. When the mechanic or the employees
who had trained the new personnel returned from the office,
they would tell Tello to assign machines to the newly trained
employee (Tr. 165–169). The Changs told Tello that she
could assign employees to empty machines. Rosa Chang, in
particular, told her to assign employees to empty machines
because the machines could not be left idle. Tello would then
either work the machine herself or choose the machine oper-
ator immediately adjacent to the machine to operate empty
machines. If the employee refused, Tello would tell them
that those were Rosa Chang’s orders, and if they had any
complaints, they should go to the office and state that they
did not want to work on the machine. I conclude that Tello’s
power to ‘‘assign’’ does not come within that power de-
scribed in Section 2(11) of the Act because there is the ab-
sence of proof of her use of independent judgment in exer-
cising the power to assign employees to machines. Highland
Superstores v. NLRB, 927 F.2d 918 (6th Cir. (1991)); NLRB
v. Brown & Sharpe Mfg. Co., 169 F.2d 331 (1st Cir. (1948)).
Where Tello was not a mere conduit, her assignments were
routine.
In the case of employees who knew they were gong to be
absent, the practice was for the employees to tell Tello and
she would advise the office of the anticipated absence.
Where the employee reported absent by phone, the employee
would notify the office and the office would advise Tello of
the anticipated absence so that Tello could assign or work on
the vacant machines.
Mechanic Chang, as noted, also directed employees to
work on machines of absent employees (Tr. 1165–1166),
and, on some occasions, President Chang would direct Tello
to have a particular employee work on vacant machines (Tr.
1164).
Both Tello and the second-shift mechanic would tell em-
ployees to help those other employees who were falling be-
hind in production (Tr. 527). When it was necessary for an
employee to have time off during the second shift, the em-
ployees would ordinarily ask Tello to accompany the em-
ployee to the office and together would ask permission for
the employee to leave (Tr. 504). However, Tello denied giv-
ing time off to employees; rather, Tello testified that, in a
particular case, she asked the employee why she had not
sought the owner’s permission but that the employee told her
they had already gone; she looked for them and could not
find them. Tello told the employee that if she left, it was her
own decision but that she should tell the owners on the fol-
lowing day why she had left. The employee then told her
that she would come in early the next day to explain the
matter to Rosa Chang. On the basis of this explanation,
which I credit, I cannot find that even in this one instance,
Tello, in the exercise of her own discretion, gave time off
to an employee. In making the finding, I am fully aware that
the application for time off was made between 8 and 9 p.m.
and that it would be highly unlikely for the owners to be
there at that time. In this regard, it would tend to detract
from Tello’s credibility that she actually had asked the em-
ployee why she had not asked the owner’s permission to
leave if the owners had been long gone from the plant.26
With regard to Tello’s participation in employee wage in-
creases, the evidence shows that she either accompanied em-
ployees to the office or served as a conduit for employees
desiring wage increases. Otherwise, wage rates were stand-
ardized and wage increases were solely within the power and
exercise of the Changs.
The Matters of the Plant Keys and Respondent’s
Owners’ Home Phone Number
The matters whether Tello possessed the plant keys and
home telephone number of Respondent’s owners requires a
separate discussion notwithstanding that these issues would
ordinarily constitute merely further questions of secondary
indicia of supervisory status.
I have indicated, above, that I regarded one of the crucial
credibility elements concerning Tello’s alleged right to dis-
cipline employees to be Patricia Lalinde’s testimony whether,
at General Manager Kim’s January–February 1990 speech to
all employees, he stated that she and Tello had the right to
terminate employees for failure of employees to follow in-
structions or any other reason. It was made the subject of
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 Why another set of similar keys were not given to Tello, cer-
tainly for emergency purposes, was not explained.
much testimony and argument. I have concluded that had
Kim made such a statement, Lalinde, in particular, beyond
any reasonable question, would have remembered such a
grant and specification of her authority. Her testimony on the
point and other evidence led me to the conclusion (in light
of Tello’s denial) that General Manager Kim had made no
such statement. It also caused me thereafter to regard Kim’s
and Wolford’s self-assured testimony with great caution.
The contradictory testimony concerning whether Tello pos-
sessed the plant keys and the owners’ telephone number like-
wise transcended the issue of these secondary indicia of su-
pervisory status. It adversely affected not only the credibility
of General Manager Kim, but of both Rosa Chang and Presi-
dent Chang. It also assumed an independent prominence and
a direct bearing on the question of how much confidence Re-
spondent placed in Tello: if Respondent did not give her the
plant keys and make sure she had the residential telephone
number, it would tend to show a lack of confidence and trust
and hence, perhaps, a lack of independent authority.
Early in the proceeding, in direct examination, Tello testi-
fied that the second-shift mechanic, rather than herself, had
the keys to the plant doors; and, in the case of regular exit
by employees, fire, or perhaps other emergency, the employ-
ees, including Tello, would have to search for the mechanic
so that the locked exit door could be opened. The rationale
for having the keys in the sole possession and control of the
mechanic was that the plant was situated in a bad area and
that a male figure seemed suitable to control the keys and
doors through which employees would exit both for emer-
gency purpose and at the end of the shift (Tr. 942).27
In the same testimony, answering the question who had
the owners’ home telephone number in case of emergency,
Tello testified that it was the same mechanic (Tr. 84–85).
Respondent, in cross-examination, raised the same subject
and got the same answer from Tello, with the further obser-
vation that the emergency procedure was for Tello to contact
the mechanic who in turn would telephone the owners be-
cause he had the telephone number. This was the procedure
established by the owner (Tr. 308–309). Tello testified that
at one time she did have the owner’s home telephone number
but did not have it after they moved some years previously
to a different address.
President Chang testified not only that he gave Tello his
telephone number, but that he gave it to her after he and
Rosa Chang had moved to the new address; that he gave it
to her because she was the supervisor on the night shift and
that she was given the telephone number in case of an emer-
gency in the plant (Tr. 1028). I do not credit this testimony.
Indeed, he recalled that she telephoned his residence at least
twice: once when an employee injured a finger and again
when Tello spoke only to his wife (Tr. 1028–1030).
Tello testified that while she had a telephone conversation
with Rosa Chang at her residence in 1986 while the Changs
were still living in Chicago, the telephone call was not
placed from the factory nor necessarily from Tello’s resi-
dence. Tello testified that the conversation was essentially
between Tello’s niece and Rosa Chang’s daughter (Tr. 1258)
and Tello did not know how the conversation started: wheth-
er Tello’s niece telephoned Rosa Chang’s daughter or vice-
versa. Tello, however, did not initiate the telephone call. At
the time, Tello was living in her cousin’s house with the
cousin’s daughter and the conversation was between that
daughter and Rosa Chang’s daughter. They were apparently
friends. This testimony fails to show that Tello knew the
telephone number.
Tello denied ever speaking to the Changs at their house
on any other occasion (Tr. 1259–1260). In particular, she de-
nied ever reporting any injury to the Chang’s at their resi-
dence by telephone (Tr. 1260), thus contradicting the testi-
mony of President Chang. She was, however, present on
three occasions when the mechanic telephoned the owner be-
cause of second shift emergencies at the factory: twice in the
case of injuries to employees in 1988 and 1989, and in 1989
when there was an electrical problem causing 10 to 12 ma-
chines to stop simultaneously. In all such cases, I find that
the mechanic (Chang) telephoned the owner and spoke to the
owner. On none of those occasions, according to Tello, did
she speak to the Changs (Tr. 1268). This testimony, that the
mechanic telephoned and reported to the Changs on these
emergency events, was not refuted.
General Manager Eric Kim was hired on or about January
15, 1990 (Tr. 652). He testified that Tello had been in-
structed to telephone the Changs in case of any major me-
chanical problem on the evening shift after the office closed
and the Changs went home (Tr. 760). He further testified that
it was not the mechanic who was supposed to call the
Changs, it was Tello; and he was sure of that (Tr. 760). In
fact, she was supposed to call them from Rosa Chang’s of-
fice at the plant and speak to the Changs at their residence.
Likewise, he knew that Tello had the Changs’ home tele-
phone number because, he said, he himself had asked her if
she had the telephone number and she told him that she did.
He testified further (Tr. 761–762) that, while Tello was with
him in the office area and they were reviewing routines, he
had asked:
the supervisor, both supervisors—Patricia Lalinde was
not necessary, but I asked both, I remember that when
I first started, if they had the phone number to Mr.
Chang’s house just in case any emergency had come
up.
Q. And they said they did?
A. They did.
Q. Now the Changs moved?
A. They moved 5 years ago to their address.
Q. And that was the only time they moved so far as
you know?
A. So far as I know, they moved to their new resi-
dence 5 years ago.
Q. And it was obviously after the move that you say
that Ms. Tello told you she had the Chang’ home phone
number?
A. Yes.
At this point in the record, I had not yet rejected Respond-
ent’s offer to prove that Patricia Lalinde was a supervisor.
Hence, it seemed to me that General Manager Kim was at-
tempting to create an infrastructure of testimony to support
what appeared to be an important element of Respondent’s
case, that both Tello and Lalinde were supervisors. But the
particular vice in General Manager Kim’s testimony, incred-
979RIBBON SUMYOO CORP.
28 Respondent’s mechanic on the second (night) shift (Sukhyon
Chang) testified that employees on the second shift regularly left
early because of sickness: once a week, certainly three to four times
per month (compare: Tr. 940–941 with Tr. 949). In such cases, as
above noted, Tello would either operate the vacant machines herself
or distribute the work to immediately adjacent operators. However,
early leaving employees, according to mechanic Chang, always
spoke to Tello before leaving, after which Tello would request me-
chanic Chang to open the doors of the factory because Chang had
the keys and the doors were locked. He testified that employees
Continued
ible when given and painful on review, was that, in attempt-
ing to show the routine, the regularity, of his asking both his
‘‘supervisors’ if they had the residential telephone number,
he testified that he asked both supervisors. As appears in the
above-indented testimony, he then instantaneously articulated
the fact, as it struck him on the witness stand, that Patricia
Lalinde was the day-time supervisor. Since all Respondent’s
supervisors and officers were present in the plant during the
day-time shift, and since Lalinde worked only the day shift,
it would be superfluous to ask the day-time supervisor
whether she had the telephone number. Lalinde, working the
day shift, would be working in the presence of all of Re-
spondent’s supervisors and officers already in the plant. Any
work-place emergency would be handled directly. There
would be no need to telephone the owners at their residence.
Thus, when General Manager Kim testified that he ‘‘asked
the supervisor, both supervisors—Patricia Lalinde was not
necessary, but I asked both . . . if they had the telephone
number’’ he immediately realized that those were embarrass-
ingly superfluous statements that emerged from his mouth,
that the inclusion of Patricia Lalinde was ‘‘not necessary’’
but nevertheless, he ‘‘asked both.’’
A quick and intelligent witness like General Manager Kim,
dissatisfied with testifying merely that he spoke to Tello
(‘‘asked the supervisor’’), thus, at first, was suggesting a rou-
tine review of procedures by testifying that he spoke with
‘‘both supervisors’’ about the matter. He was attempting to
bolster Respondent’s position that both Tello and Lalinde
were supervisors. He immediately realized however, that the
inclusion of Lalinde was unnecessary and senseless, for the
reasons above described, and so he added: ‘‘but I asked
both’’ in order to vindicate his otherwise needless reference
to and inclusion of Lalinde. Patricia Lalinde was the next
witness called by Respondent after Kim. Her testimony is
barren of any reference to any Kim conversation with her
concerning telephone numbers or her possession of the
Changs’ residential telephone number. Kim, I conclude,
asked neither Lalinde nor Tello. Thus, notwithstanding Presi-
dent Chang’s testimony, I credit Tello’s denial of having the
current telephone number; her denial that she ever contacted
the Changs concerning mechanical or personnel difficulties at
the plant; and her testimony that it was the mechanic, and
the mechanic only, who contacted the Changs because of
personnel problems or mechanical difficulties on the second
shift. One good reason for Respondent requiring the me-
chanic to have the telephone number and contacting him in
case of emergency was the Changs’ limited command of
English and the desire to get details from a Korean-speaking
person in case of emergencies. Yet, in case of an emergency,
it would seem that the ‘‘supervisor’’ should have the number
as well.
In view of the evidence of record herein and the quality
of testimony received from President Chang and particularly
General Manager Kim on this point, I draw an inference un-
favorable to their assertion that Respondent reposed con-
fidence in Tello by holding her responsible for communicat-
ing with the Changs in cases of emergencies of any type on
the second shift.
I conclude that Respondent’s failure to require that Tello
possess the keys and its failure to give (and maintain) its
telephone number to Tello and, in addition, in reposing con-
fidence only in the mechanic to control egress from the fac-
tory and to communicate with them in cases of emergency
on the second shift, leads to an inference that, at least insofar
as secondary indicia of supervisory capacity are concerned,
Respondent did not consider Tello to be worthy of con-
fidence and supervisory responsibility. This conclusion is
drawn notwithstanding her title, her high pay (not as high as
the mechanic), her accountability for second shift quality and
production, her attendance at supervisory meetings where
production and quality were discussed, and notwithstanding
the other assertions of secondary indicia that are present on
this record. If Respondent did not think enough of Tello to
give her the keys and the Changs’ home telephone number
in case of emergencies, the fact that she was highly paid,
trained employees and the sole person holding the title super-
visor on the night shift is not heavy evidence. Her hourly
pay, punching the time clock, premium pay for overtime and
loss of pay for lateness or absence—working conditions she
shared with unit employees are further elements against su-
pervisory status.
Responsible Direction
Section 2(11) of the Act specifies, as one of the primary
indicia, the function of ‘‘responsibly to direct’’ the employ-
ees. I have discussed this power under other substantive sec-
tions including the power to transfer employees, to assign
work, the power to discipline employees and in matters to
appear subsequently in this decision.
As in the case of Tello’s alleged power to assign work,
and unlike her alleged power to discipline employees, the
issue of her ‘‘responsible’’ direction of employees is a close
question. On the one hand, I have found that at all material
times in or about the time of her discharge, and for a period
of 2 years preceding, Respondent had held her out as and
called her a ‘‘supervisor as early as April, 1988 (R. Exh. 9);
that she was described to the employees as a supervisor at
least as early as August 24, 1989 (R. Exh. 1), in a document
distributed to all of Respondent’s employees in late August
1989. Moreover, as above noted, she was introduced to and
known to the 17–18 night-shift employees as the ‘‘super-
visor’’ or ‘‘boss.’’ She regularly helped employees in their
day-to-day problems with the production machinery.
On the other hand, she not only did not have the keys to
the factory doors, but she did not even have the keys to the
office to get first aid equipment for injured employees. Rath-
er she had to seek out the mechanic who possessed the keys
(Tr. 945–946) to get to first aid materials. I have already
found that Tello did not have the telephone number of Re-
spondent’s residence in case of emergencies notwithstanding
that it was only she who took injured employees to the hos-
pital when Respondent’s front office was closed during the
night shift (Tr. 945).28
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
never asked him for permission to leave early (Tr. 943) but that in
the 3-week period of Tello’s vacation, he could not remember any-
one being sick during that period (Tr. 950–951). In view of his prior
testimony that sickness ordinarily occurred once a week, I find it re-
markable that during the period of Tello’s vacation there was no one
sick, i.e., if there was a sick employee, to whom would the request
for leaving early be made? Thus, during Tello’s vacation, after the
supervisors in the office left by 6 p.m. there was apparently no one
in supervisory status present on the second shift to whom sick em-
ployees could report their illness or their decision to leave early be-
cause of it. This would be true, of course, whether or not any em-
ployee actually became ill in that 3-week period of Tello’s vacation.
There was therefore no one presentto ‘‘responsibly’’ exercise judg-
ment as to permitting an ill employee leave the premises. The sec-
ond shift, therefore, operated for a 3-week period without the pres-
ence of a ‘‘supervisor.’’ See fn. 26, supra.
29 President Chang testified (Tr. 1004–1009) that before Kim be-
came General Manager in January 1990, each shift supervisor (Tello
and Lalinde) not only did the recruiting but had the final decision
in hiring. In Tello’s case, he testified that not only were qualifica-
tions of the applicant not discussed, but the applicant was hired by
Tello without prior notice to management. Such testimony con-
tradicts the testimony of Rosa Chang in two respects: she testified
that management did discuss the candidates with Tello and Lalinde;
and it was Rosa Chang and Peter Chang who made the decision to
hire (Tr. 1128–1129). Regardless of the hiring practices and respon-
sibilities prior to Kim being named general manger in January 1990,
however, after that date and up to her April 12, 1990 discharge,
there is no evidence that Tello had either the power to hire or to
effectively recommend hiring. Her powers must be measured at the
time of discharge. She had no power to hire or effectively rec-
ommend at that time.
Furthermore, she could not put a band-aid on an injured
finger without getting mechanic Chang to unlock Rosa
Chang’s office where the first aid equipment was kept, nor
could she unlock the doors to permit a sick or injured em-
ployee to leave or to take them to the hospital. She had no
power to permit time off to a sick employee and she could
not discipline employees for refusing her work assignments.
Under these circumstances, I conclude that she could not
‘‘responsibly’’ direct the activities of employees on the night
shift within the meaning of Section 2(11) of the Act. Com-
pare: Superior Bakery v. NLRB, 893 F.2d 493 (2d Cir. 1990);
enfg. 294 NLRB 256 (1989), with NLRB v. Monroe Tube
Co., 545 F.2d 1320 (1976). See NLRB v. Yuba Natural Re-
sources, 824 F.2d 706 (9th Cir. 1987), and cases cited there-
in. The fact that employees considered an employee to be
their ‘‘boss’’ is a vague and undefined designation without
statutory basis, ibid. Finally, the fact that for much of the
night shift, Tello is alone among 17 or 18 other employees
and to whom the employees look as an authority figure does
not mean that she possesses any of the 2(11) primary indicia.
For instance, a night watchman is not a supervisor because
he is the only person on the premises at night, and if there
were several watchmen, it would not follow that at least one
of them was a supervisor. Highland Superstores v. NLRB,
927 F.2d 918 (6th Cir. 1991), enfg. 297 NLRB 155 (1989),
citing NLRB v. Res-Care, 705 F.2d 1461, 1467 (7th Cir.
1983); Central National Gottesman, 303 NLRB 143.
The Authority to Hire
Respondent apparently concedes (R. Br. 81–82) that since
Eric Kim became General Manger in mid-January 1990, he
is the person responsible for hiring new employees com-
mencing with that date. Kim interviews the applicants for
employment, reviews their applications, particularly for their
immigrant status, and work permits and he tests their ability
to distinguish colors. He also judges whether they are capa-
ble of standing all day throughout the shift (Tr. 701–702).
The evidence is clear that Tello never requested the hiring
of employees since Kim became general manager in January
1990 up through the time of her discharge on April 12, 1990.
Thus, for the 3-month period prior to, and at the time of, her
discharge, whatever the situation prior thereto, Tello had nei-
ther the power to hire in her own right nor the power to ef-
fectively recommend hiring.
Prior to the time January 1990 when Kim became the sole
person with the power to hire, Tello suggested more employ-
ees for employment than other of Respondent’s employees
and more of them were hired. Respondent, especially Rosa
Chang, perhaps placed greater confidence in a prospective
employee when that employee was recruited by Tello than
other employees. Nevertheless, it was President Chang and
Rosa Chang who made the decisions to hire employees and
the fact that they reposed greater confidence in the quality
of applicants naming Tello as their recruiter does not suggest
that Tello had the power to effectively recommend hiring.
Many of Respondent’s employees recruited prospective em-
ployees for Respondent. They were all ultimately judged
independent of who the recruiter was. Tello, for instance
would bring people into the office and they would then fill
out applications (Tr. 1127) just like other candidates. While
the Changs might discuss with Tello or Patricia Lalinde the
quality of possible candidates, it was only Rosa Chang and
President Chang who would review the applications and then
decide on hiring (Tr. 1129). This was before Kim was em-
ployed but after 1987 (Tr. 1129).29
The crucial fact, however, is that in the 3-month period
prior to her April 12, 1990 discharge, Tello had neither the
power to hire nor the power to effectively recommend hiring.
I therefore conclude that she did not have the power to
‘‘hire’’ within the meaning of Section 2(11) of the Act.
The Authority to Reward or Adjust Grievances
To support its contention that Tello had the authority to
reward or adjust grievances, Respondent cites an occurrence
in the fall of 1988, a single and remote event. Prior to that
time, second-shift employees worked from 3:30 to 10:30
p.m., Monday through Friday. In addition, there was a work-
day of 4 or 5 hours each Saturday to compose the 40-hour
week. In the fall of 1988, the schedule was changed so that
the second-shift worked 3:30 to 11:30 p.m. and no work on
Saturdays.
This matter was first raised in President Chang’s testimony
(Tr. 1031 et seq.) wherein he said that the suggestion for the
change came from Tello; that she said it was a ‘‘hasels’’ to
work on Saturdays; and that if the working hours during the
week were extended 1 hour each night, there would be no
necessity for Saturday work. As a result, President Chang
testified that: ‘‘we decided to change the schedule. No work
on Saturdays. And the supervisor told me that she would
even work overtime on Saturdays if there was any extra
work’’ (Tr. 1032).
981RIBBON SUMYOO CORP.
30 Again, to the extent that Respondent argues (R. Br. 91) that it
was the supervisor (i.e., Tello) rather than Rosa Chang who chose
the employees for Saturday overtime work, I reject that argument.
I discredit the testimony of Rosa Chang and President Chang and
credit the testimony of Maria Estella Lopez, an apparent present su-
pervisor of Respondent, promoted in August 1990 from line-leader
on second shift to fill Tello’s place and executing that office at the
time of her testimony. Respondent evidently misreads the transcript
testimony insofar as he suggests that Lopez testified that ‘‘she
thought’’ Rosa Chang chose employees to work Saturday overtime.
Lopez did not testify that ‘‘she thought’’ Rosa Chang chose employ-
ees. She testified (Tr. 525–526):
Q. And it was Rosa Chang during the period of time that
Genoveva [Tello] was still working there, it was Rosa Chang
who chose the employees to work overtime on Saturdays. Is that
correct?
A. Yes, that is true.
Contrary to Respondent, Tello corroborated Lopez. Contrary to Re-
spondent’s description of the record (R. Br. 92). Tello testified that
it was Chang or Rosa Chang who determined which employees were
going to work overtime and that pursuant to these selections, Tello
would inform the employees (Tr. 1279). When employees requested
of Tello that they be allowed to work overtime, and Tello made rec-
ommendations to the owners to that effect, her recommendations
were never followed (Tr. 1280).
In rebuttal, Tello credibly added to the circumstances sur-
rounding the change. She said that it was her idea; she then
asked the employees if they wanted to cease Saturday work;
when they told her that they agreed with her, there was sup-
posed to be a meeting with the owner. Tello went to Presi-
dent Chang and told him that the employees (‘‘all of us’’)
wanted to have a meeting to let him know that: ‘‘we did not
want to work on Saturdays any more’’ (Tr. 1261). Chang
told her that a meeting was unnecessary and that Tello could
tell him at once what the employees were ‘‘demanding’’ (Tr.
1262). Tello then told Chang that: ‘‘we only wanted to work
5 days per week. That we did not want to work on Saturdays
anymore’’ (Tr. 1262). Chang said that this was ‘‘impossible’’
because there was nobody to take care of the factory and that
the employees would have to work more hours if Saturday
work was eliminated. Tello told him that: ‘‘if he didn’t give
us 5 working days per week, we were not going to work on
Saturdays any longer.’’ (Tr. 1262). When Chang raised the
problem of who would care for the machinery on Saturday,
Tello told him that: ‘‘we are determined not to work on Sat-
urdays any more’’ (Tr. 1262).
Chang said he wanted time to think the matter over. A few
days later, he came to Tello’s work place and told her that
he agreed that the employees would work 5 days a week (Tr.
1263). As a result of the change, the employees worked
Monday through Friday, but now 3:30 through 11:30 p.m. in-
stead of 10:30 p.m. (Tr. 1263). This added an extra hour to
each workday totaling 40 hours per week. After this change,
there was periodic Saturday work only for overtime pur-
poses. Saturday overtime work was a matter which President
Chang decided and over which Rosa Chang exercised control
to the extent of deciding which employees would work over-
time and whether Lalinde or Tello would be present at such
time.30
Similarly, when Tello requested of President Chang an in-
crease in break time from 10 to 15 minutes, and when she
asked President Chang for employees’ not to work on Good
Friday, it is clear that Tello, in approaching President Chang,
was pKimarily acting as the mouthpiece of the employees,
rather than as supervisor of Respondent adjusting employee
grievances (Tr. 610). As office clerical Wolford testified, it
was the night-shift workers who did not want to work Good
Friday and used Genoveva Tello as their voice (Tr. 609–
610).
When President Chang then desired to tell the employees
that they could be absent on Good Friday but would not be
paid for that day, he directed Tello to tell them (Tr. 610).
No clearer use of Tello as a conduit could be constructed.
Again, with the change of breaktime, increasing from 10
to 15 minutes, and with employee wage increases, the evi-
dence shows that Tello was acting as the mouthpiece of em-
ployees in requesting wage increases and changing the
breaktime.
Contrary to Respondent’s suggestion (Br. 94), the evidence
shows that Tello was not responsible for the appointment of
either of the two line leaders. Rather, as Respondent stated,
she merely communicated the change in pay and status to
them following President Chang’s decision. President Chang
informed Tello of his decision and directed her to tell the
new line leaders of their promotion. That does not signify
that he was approving a decision made by Tello; rather, it
shows that President Chang, as in the case of his Good Fri-
day decision and the cessation of Saturday work, was using
Tello as his conduit rather than telling the employees him-
self.
I conclude that the facts presented under this 2(11) rubric
present perhaps the weakest of Respondent’s arguments relat-
ing to Tello’s supervisory capacity. For in this instance, not
only was Tello shown to be a conduit of information from
Respondent to the second-shift employees, but it showed that
she was, in large part, the mouthpiece of the employees rath-
er than their supervisor. She was not adjusting employee
grievances; Respondent was.
I was particularly impressed by Tello’s uncontradicted and
credited testimony that she spoke to President Chang con-
cerning the cessation of Saturday work on the basis of sec-
ond-shift employee demands in which she joined. Except
perhaps as a conduit, a supervisor does not ordinarily make
demands on her employer on behalf of employees. While she
might notify the employer of what was going on in the shop,
she does not place herself in the leadership of making de-
mands, changing working conditions against the interest of
the employer especially when, as here, he voices reservations
about the change. It is difficult to imagine any employee,
much less a supervisor, telling the owner of the business,
who was opposed to the change, that: ‘‘if he didn’t give us
the 5 working days per week, we were not going to work
on Saturdays any longer’’ (Tr. 1262). If anything approach-
ing this conversation from a ‘‘supervisor’’ actually occurred,
and I believe it did, a proper response might have been to
discharge Tello on the spot rather than to give in to her de-
mands. For an alleged supervisor to take this repeated, impe-
rious position, and in such a tone, to the employer dem-
onstrates that Tello was viewed by President Chang as serv-
ing purely employee interests. Her testimony was not rebut-
ted.
On the basis of the above facts, I am constrained to con-
clude that Respondent has failed to prove, by a preponder-
ance of the credible evidence, that Tello had authority to re-
ward or adjust grievances, or to effectively recommend same,
within the meaning of Section 2(11) of the Act. Rather, the
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
preponderant evidence shows that Respondent used Tello as
a conduit for its decisions and orders and, further, that Tello,
far from being a statutory supervisor, openly displayed her
interest as that of an employee by making demands on behalf
of herself and other unit employees concerning their mutual
working conditions and hours of work.
In sum, I conclude that the evidence shows, with regard
to the primary indicia in Section 2(11) of the Act, that at
best, that Genoveva Tello was used by Respondent as a con-
duit to its employees of its decisions; that although she en-
joyed the title of ‘‘supervisor’’ and a much higher hourly pay
rate than most other unit employees, and did not work as a
mere production employee but rather trained employees,
fixed machines, and helped other employees, she neverthe-
less identified herself as a unit employee by sharing the in-
terest common to unit employees concerning their hours of
work and working conditions. At the time of discharge, she
still punched the timeclock, was docked for lateness and ab-
sence, and was paid for overtime, the same as unit employ-
ees. Even in her assignment of machines to employees who
she trained, there was no proof of the use of independent
judgment with regard to the training and assignment of em-
ployees to the machines other than that of a skilled workman
making a technical judgment as to the proficiency of the em-
ployee. Southern Bleachery & Printworks, 115 NLRB 787,
791, enfd. 257 F.2d 235 (4th Cir. 1958); cert. denied 359
U.S. 911 (1959). Furthermore, other employees and leadmen
made the same judgment and reported the qualifications of
the new employee to the front office without the intervention
of Tello. She could neither coerce nor repKimand employees.
Moreover, the record shows that during the period of her 3-
to 4-week 1989 vacation, there was no supervisor present on
the second shift to fill in for Tello. Even after her discharge,
there was no supervisor responsible for the second shift be-
tween April 12 and the August 2 appointment of Maria Es-
tella Lopez as the second-shift supervisor. Only the mechanic
was ‘‘in charge’’ of the second shift as he had been during
the 3- to 4-week Tello vacation. At the time of her April 12
discharge all the 2(11) enumerated powers continued to re-
main in the office.
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 meaning
of Section 2(5) of the Act.
3. Respondent has failed to prove, by a preponderance of
the credible evidence, that Genoveva Tello is a supervisor
within the meaning of Section 2(11) of the Act.
4. By discharging its employee, Genoveva Tello, because
she engaged in activities on behalf of, supported and dem-
onstrated sympathy for, the Union, Respondent
discKiminated against an employee, thereby discouraging
union membership and activities, in violation of Section
8(a)(3) and (1) of the Act.
5. By requesting that Tello conduct surveillance among its
employees to discover the source of employee discontent
leading to their supporting the Union, and by coercively in-
terrogating her as to employees’ union activities Respondent
engaged in soliciting an employee to engage in unlawful sur-
veillance of its employees’ union activities and unlawful in-
terrogation thereby violating Section 8(a)(1) of the Act.
6. Respondent violated Section 8(a)(1) of the Act by
threatening to close the plant or to move the plant to main-
land China in the event that the Union came in, and by
promising improvement of employee benefits to forestall
such event.
7. By failing to prove that Genoveva Tello is a supervisor
within the meaning of the Act, and the preponderant evi-
dence demonstrating that Tello in any event was discharged
6 weeks before the election and would not be reinstated, Re-
spondent has failed to support its objection that Tello’s in-
volvement in the Union’s organizing effort taints the union
showing of interest or the results of the Board-conducted
election in Case 13–RC–18012, or coerced employees into
supporting the Union in the election.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act,
it is recommended that Respondent be ordered to cease and
desist therefrom and to take the following affirmative action
which is deigned to effectuate the policies of the Act.
It is recommended that Respondent be ordered to reinstate
Genoveva Tello to her former job, or if such job no longer
exists or is not available, to a substantially equivalent posi-
tion, without prejudice to her seniority or other rights and
privileges previously enjoyed, discharging, if necessary, any
replacement, and to make her whole for any benefits and loss
of pay, less interim earnings, that she may have suffered be-
cause of her being unlawfully discharged. Any such sum
shall be calculated in accordance with the method set forth
in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987). Respondent shall also remove from its files any
reference to the Tello discharge of April 12, 1990, and shall
notify her, in writing, that this has been done and that evi-
dence of this unlawful discharge will not be used as a basis
for future personnel action against her. For remedial pur-
poses, the fact that Tello’s former job may now actually be
a supervisory position, without Section 2(11) of the Act, con-
stitutes no bar to her being reinstated as a supervisor with
backpay. That matter has been disposed of in Golden State
Bottling Co. v. NLRB, 467 F.2d 164 (9th Cir. 1973); affd.
414 U.S. 168, 188 (1973). Compare: NLRB v. Ford Motor
Co., 683 F.2d 156 (6th Cir. 1982), and NLRB v. Bell Aircraft
Corp., 206 F.2d 235, 237 (2d Cir. 1953), with Chemical
Workers v. NLRB, 547 F.2d 575 (D.C. Cir. 1976), and NLRB
v. Advertisers Mfg. Co., 823 F.2d 1086 (7th Cir. 1987).
[Recommended Order omitted from publication.]