Sioux Products, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1981

257 N.L.R.B. 353 (N.L.R.B. 1981)

SIOUX PRODUCTS. INC.
Sioux Products, Inc. and Production Workers Union
of Chicago and Vicinity, Local 707, an affiliate
of the National Production Workers Union.
Cases 13-CA-19587, 13-CA-19616, and 13-
CA-19636
July 29, 1981
DECISION AND ORDER
On January 22, 1981, Administrative Law Judge
J. Pargen Robertson issued the attached Decision
in this proceeding. Thereafter, the Respondent and
the General Counsel filed exceptions and support-
ing briefs.
The National Labor Relations Board has consid-
ered the record and the attached Decision in light
of the exceptions and briefs and has decided to
affirm the rulings, findings, and conclusions of the
Administrative Law Judge and to adopt his recom-
mended Order,I as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Sioux Products, Inc., Addison, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Insert the following paragraph 2(c) and relet-
ter the subsequent paragraphs accordingly:
"(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order."
2. Substitute the attached notice for that of the
Administrative Law Judge.
'The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings.
257 NLRB No. 56
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees
concerning their activities on behalf of Pro-
duction Workers Union of Chicago and Vicini-
ty, Local 707, an affiliate of the National Pro-
duction Workers Union, or any other labor or-
ganization.
WE WILL NOT threaten our employees with
loss of profit sharing if they select the Union
as their bargaining representative.
WE WILL NOT promise our employees reten-
tion of their profit-sharing plan and pay in-
creases if the Union is voted out as their bar-
gaining representative.
WE WILL NOT threaten our employees with
loss of jobs and with difficulties with immigra-
tion authorities if they select the Union as their
bargaining representative.
WE WILL NOT reprimand, discharge, or fail
and refuse to reinstate our employees, because
of their concerted activities or union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of rights guaranteed them in
Section 7 of the National Labor Relations Act,
as amended.
WE WILL offer Julia Arroyo immediate and
full reinstatement to her former job or, if that
job no longer exists, to a substantially equiva-
lent position, without prejudice to her senior-
ity or other rights and privileges.
WE WILL make Julia Arroyo whole for any
loss of earnings she may have suffered as a
result of our discrimination against her, with
interest.
WE WILL remove from our records refer-
ences to disciplinary action against Julia
Arroyo on February 5 and 12, 1980.
SIOUX PRODUCTS, INC.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge:
This case was heard before me in Chicago. Illinois. on
October 6-9, 1980. The charge in Case 13-CA-19587
was filed on February 15, 1980; the charge in Case 13-
CA-19616 was filed on February 25, 1980; and the
charge in Case 13-CA-19636 was filed on February 29
and amended on March 6, 1980. The consolidated corn-
353
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint, which issued on April 21, 1980, alleges that Re-
spondent engaged in numerous violations of Section
8(a)(1), and in conduct violative of Section 8(a)(3), by is-
suing reprimands and discharging employees Silvina An-
drade and Julia Arroyo.
I. BACKGROUND 1
General Counsel's allegations are centered around a
union organizing campaign. Various 8(a)(l) allegations
allegedly occurred during the campaign. A representa-
tion election was conducted by the Regional Office on
February 1, 1980. The election resulted in a union victo-
ry. Subsequently, during February 1980, Respondent rep-
rimanded and discharged employees Silvina Andrade and
Julia Arroyo. General Counsel alleges that those actions
violate Section 8(a)(3) of the Act.2
Spanish-speaking employees constitute the bulk of Re-
spondent's work force. Most of the employees, including
alleged discriminatees Andrade and Arroyo, do not
speak English. However, many of Respondent's supervi-
sors do not speak Spanish. Respondent employed several
translators during its antiunion campaign. Additionally,
Respondent regularly uses several employees for transla-
tion between supervisors and employees.
11. THE 8(A)(3) ALLEGATIONS (BACKGROUND)
A. Julie Arroyo
Julia Arroyo was employed from May 1975 until May
28, 1980, as an inspector. Her personnel file ("Master
Record Chart") indicates that before February 1980 Ar-
royo's only disciplinary action included notations for
wearing open toe shoes and being absent without calling
in. Those two notations were made in July 1978.
Arroyo engaged in prounion activities during the
union campaign. She served as the union observer during
the election. Respondent's supervisors admitted knowing
of Arroyo's prounion activities.
On February 5, Arroyo and three other employees3
were called into the office of General Manager Maher
where they were cautioned about personality problems.
On February 12, Arroyo received a warning because
she went to the bathroom without first seeking permis-
sion from a supervisor. Respondent's employee handbook
indicates that employees are required to acquire supervi-
sory permission before leaving their work stations. How-
ever, Arroyo testified that it was the policy for employ-
ees to go to the bathroom without bothering to seek per-
mission from a supervisor. Arroyo's testimony in that
regard was supported by other witnesses. Respondent's
Respondent, Sioux Products, Inc., which is engaged in the business of
manufacturing plastic products at its Addison, Illinois, facility, admitted
the commerce allegations in the complaint. On the basis of that admis-
sion, I find that Respondent is and has been at all times material herein an
employer engaged in commerce within the meaning of Sec. 2(6) and (7)
of the Act. Respondent also admitted the status of the Charging Party. I
therefore find that the Charging Party is and was at all times material
herein a labor organization within the meaning of Sec. 2(5) of the Act.
2 The complaint also alleges that five other employees were illegally
reprimanded. However, no evidence was offered in support of the allega-
tions regarding those five.
' Originally five employees were called in, but one, Eloisa Saucedo,
left. See discussion under conclusions, below.
witness, Roci Andrade, admitted that she knew before
the election Arroyo went to the bathroom without first
getting permission. Jackie Haltmeyer, the supervisor who
issued the warning to Arroyo on February 12, admitted
on cross-examination that some of the women in her de-
partment did go to the "lunch truck" without getting
permission.
On February 28, employee Roci Andrade complained
to supervision that Arroyo had pushed her and called
her a son of a bitch.4 Respondent investigated the inci-
dent by questioning two employees. However, both of
those employees told Respondent that they had seen
nothing. Nevertheless, Arroyo was called in and dis-
charged.
General Counsel alleges that Arroyo's warnings and
discharge violated Section 8(a)(3).
B. Silvina Andrade
Silvina Andrade was employed by Respondent from
January 1976 until February 27, 1980. Respondent stipu-
lated that Andrade was prounion, and it was aware of
that fact. Andrade engaged in prounion activities during
the organizing campaign.
On February 18, Andrade received a warning and a 3-
day suspension.
On February 27, Andrade was discharged allegedly
for using profanity and throwing empty cardboard boxes
in her work area.
General Counsel alleges that the February 18 warning
and Andrade's February 27 discharge violate Section
8(a)(3).
Respondent contends that when Andrade reported to
work on the evening of February 25-26 she became
angry because her work area had not been cleaned by
the prior shift. Andrade called the foreman over and
used profanity in complaining that the area had not been
cleaned. Subsequently, according to Respondent's ver-
sion of events, Andrade, in a fit of anger, began tossing
about empty 2-by-1-1/2-foot cardboard cartons. Those
events launched a process which resulted in Andrade's
discharge 2 days later.
III. THE 8(A)(3) ALLEGATIONS (CONCLUSIONS)
A. Arroyo's Discharge
Respondent's defense to its discharge of Julia Arroyo
is rooted basically in two incidents. In the first incident,
Arroyo was reprimanded on February 5. The second re-
sulted in her discharge.
Personnel Manager Carol Gibson was asked about the
February 5 incident. Gibson began her explanation by
stating that Julia Arroyo "had been harassing and bump-
ing and pushing employees. She was given a verbal
warning, a rather strong verbal warning, that it was not
to happen again or she would be fired."
Gibson testified that Maricella Ramos told her that
Jeanete Borjorquez was crying because of an incident
with Julia Arroyo. Maricella Ramos is an employee who
speaks both English and Spanish. Frequently, Ramos
' The expression allegedly used by Arroyo was "haja de la Chingada."
354
SIOUX PRODUCTS, INC.
handled translations between Gibson as well as other su-
pervisors and Spanish-speaking employees. Ramos, who
admittedly opposed the Union, is the sister of employee
Roci Andrade, the employee who had the run-in with
Julia Arroyo on February 28, which resulted in Arroyo's
discharge. Jeanete Bojorquez did not testify.
According to the testimony of Gibson, she called in
Jeanete Bojorquez and asked Bojorquez if she was
having problems. Gibson testified that Bojorquez said
yes, she was having problems with Julia, and that "other
girls were having problems with Julia." Bojorquez indi-
cated that Anna Garcia and Eloisa Saucedo were having
problems with Julia and that Maria Anaya was also
giving Anna Garcia problems. After being asked why,
Gibson testified that Bojorquez told her that they were
being troubled because they did not vote for the Union.
Gibson was asked if Bojorquez described her run-in
with Julia Arroyo. Her response was:
Yes. She had asked Julia, "Is it true that you can
get me fired, or you can get any of us fired, now
that the Union is in?" And they had a screaming
match, and there were other friends of Julia in the
washroom or lunchroom, whichever it was, I don't
remember. But her problems with Julia-that is
what got her to crying, the run-in in the washroom
or lunchroom, but she had had problems with her
on the floor, I learned later.
As a consequence of her meeting with Bojorquez,
Gibson went into General Manager Jay Maher's office
and told him that Bojorquez had been complaining about
Julia. Gibson related to Maher what Bojorquez had said
and commented, "We better nip this in the bud, or we
are going to have a brawl out there and caps are going
to fly all over the place. I was fed up."
General Manager Maher also testified about this inci-
dent. According to him, Gibson came to him and told
him that "she had employees complaining because other
employees were harassing them and it was becoming a
very difficult and dangerous situation. And she said,
'We're going to have a riot here if we don't do some-
thing about it."' Maher testified that Gibson told him
that "Jeanete Bojorquez [was] complaining about Julia
Arroyo bumping her and harassing her verbally. She said
that Anna Garcia had complained that she was being
harassed by Julia and by Maria Anaya at her work sta-
tion. And [Gibson] said that Eloisa, I can't remember her
last name, was afraid to go to the washroom alone be-
cause of the harassment that was going on in the wash-
room."
Subsequently, a meeting was held in Maher's office.
Maher testified that he had the supervisor, Jackie Halt-
meyer, bring in "Eloisa, Maria Anaya and Jeanete Bojor-
quez, Julia Arroyo and [Anna Garcia]." Maricella Ramos
was also in the meeting as the translator. Maher testified,
"1 told Julia that Jeanete Bojorquez had accused her of
bumping her and accused her of harassing her, (a)nd I
also told her that Anna Garcia had complained that Julia
had been harassing her. And I told Maria Anaya that
Anna had been harassed by her. And that Eloisa, we had
found, or heard, that Eloisa was afraid to go to the
washroom because of harassment to her by other em-
ployees."
Maher testified that at that point during the meeting,
"Eloisa said that she didn't know anything about any
kind of harassing and that she didn't want to have any
part of the meeting. And that she had no complaint. And
she acted very scared and nervous, and I just excused
her because she had no complaint against the two girls."
Maher then told the remaining women, "We have a
production facility here and that we need to get on with
the production, that the union election was past history,
that the outcome of the election was to be determined by
the National Labor Relations Board and that anything
that they say to one another, or any kind of harassment,
any kind of intimidation isn't going to make any differ-
ence and that we have to all go back to work and do our
jobs and stop harassing one another." Maher was asked if
Jeanete Bojorquez had anything to say during the meet-
ing. He responded that Bojorquez had said at the meet-
ing that Julia was acting with authority and saying that
she had authority now that the vote was on. Maher testi-
fied that Julia Arroyo said "that she wasn't really saying
that, that she was just trying to explain to her that she
had no authority, that she had no power."
Maher testified that Carol Gibson then told the
women "that any future harassment, or any future prob-
lems relating to harassment, or any kind of violence, or
any of these related problems, would go without a warn-
ing and anybody involved in it would be discharged."
Written notations were made in the personnel files of
the four women who remained in the February 5 meet-
ing in Maher's office. However, those notations differ.
The file of Julia Arroyo for example, reflects the follow-
ing notation: "Verbal warning-antagonizing & intimi-
dating employees-next offense-discharge."
The personnel file of Jeanete Bojorquez indicates: "In-
volved in dispute with Julia Arroyo, Maria Anaya and
Anna Garcia over Union. Although on the receiving end
and not one of the aggressors-all girls to air their differ-
ences on the outside."
Subsequently, on February 28, Supervisor Jackie Halt-
meyer, Maricella Ramos, and Roci Andrade came to
Carol Gibson's office. Gibson testified that Roci An-
drade appeared upset and, through Maricella Ramos who
translated, Andrade told Gibson that she was going to
get her badge, and Julia pushed her and called her a son
of a bitch. Gibson testified that Andrade told her that
when she came back, Julia called her a son of a bitch
again. Gibson testified that she asked Andrade to show
her how hard she had been pushed, after which Gibson
commented, "All right. I will take care of it."
Gibson testified that she then went to find General
Manager Maher. Gibson told Maher she was going to
find Hidding and talk to him, "that (Julia) should be
fired. We're going to have a riot out there." Gibson testi-
fied that she then contacted Hidding, who approved the
discharge of Arroyo.
Gibson testified that at the end of the shift Julia
Arroyo was called in along with her husband, Eulogio.
Present in the personnel office were Gibson, General
355
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manager Maher, and employee Brent Borgerson. Borger-
son was present to translate the conversation.
Gibson testified that she told Julia that Roci had re-
ported her pushing her and calling her a son of a bitch.
Gibson testified that Arroyo replied, "Well, she threw a
stick of grip-its at me." Gibson testified that Arroyo
asked, "Why did you talk to Roci and not to me?" Gen-
eral Manager Maher said, "We are talking to you."
Gibson testified that Julia's husband, Eulogio, was inter-
rupting throughout the conversation because he was
upset that Julia had received a warning notice for going
to the bathroom. Gibson testified that Eulogio said,
"You allow me to go to the bathroom anytime I want.
Why can't [Julia]?" Gibson testified that she responded,
"That is it. I don't want to discuss it any further. Julia,
you are fired."
Later in the hearing, Gibson testified that Roci An-
drade had told her that employees Hilda Reyes and Julia
Reyes were in the area and had possibly witnessed the
incident between her and Julia Arroyo. Gibson testified
that she called in first Hilda Reyes and later Julia Reyes.
In both instances, she asked the particular employee if
the employee had noticed any kind of pushing between
Roci and Julia. Both Hilda and Julia Reyes told Gibson
that they had not seen such an occurrence. As to each
employee, Gibson then asked, "Would you tell me if you
did?" Both Hilda and Julia Reyes responded that, yes,
they would have told her if they had witnessed the oc-
currence.
In assessing the allegations regarding Julia Arroyo, I
am mindful of the seriousness of Respondent's allega-
tions. However, on close examination the evidence is
convincing that neither Carol Gibson nor Jay Maher had
a sound basis to treat Arroyo with disparity.
As to the February 5 warning, the evidence demon-
strates that Gibson called in Arroyo (along with the
other employees mentioned above) and, subsequently,
placed a warning in Arroyo's file, on firsthand evidence
gained solely through her conversation with employee
Jeanete Bojorquez. Gibson testified that Bojorquez relat-
ed her conversation with Arroyo as follows:
[Bojorquez] had had [sic] asked Julia, "Is it true
that you can get me fired, or you can get any of us
fired, now that the Union is in?" And they had a
screaming match, and there were other friends of
Julia in the washroom or lunchroom, whichever it
was, I don't remember. But her problems with
Julia-that is what got her to crying, the run-in in
the washroom or lunchroom, but she had had prob-
lems with her on the floor, I learned later.
Although antiunion employees Anna Garcia and
Eloisa Saucedo were also called into Maher's office, the
evidence failed to demonstrate that Gibson had talked to
either beforehand. Moreover, Eloisa Saucedo indicated
during the meeting that she had no complaints.
Although Anna Garcia testified during the hearing
that she had experienced problems with Julia Arroyo,
the record failed to show that either Gibson or Maher,
or any other supervisor, had checked with Garcia before
reprimanding Arroyo. Additionally, Garcia testified that
her problems with Arroyo had existed since July 1979.
However, according to Garcia, she never complained to
supervision.
Therefore, I find General Counsel's arguments persua-
sive. Gibson's reaction to Bojorquez' February 5 com-
ments was not based on the facts available. Gibson testi-
fied that Arroyo had been "harassing and bumping and
pushing employees." According to Maher, Gibson told
him the same thing. He then used similar expressions in
the February 5 meeting with the four women. However,
according to Gibson's testimony, Bojorquez had said
nothing about bumping and pushing. She said only that
she and Arroyo had "a screaming match" as a result of
Bojorquez' questions to Arroyo.
The above evidence, and the obvious disparity in the
wording of the warnings issued Arroyo on the one hand,
and Bojorquez on the other, convinces me that Gibson's
actions were precipitated by factors other than those pre-
sented by Bojorquez. In view of her admitted hostility to
the Union, her knowledge of Arroyo's union activity and
her knowledge that the run-in between Arroyo and Bo-
jorquez involved the Union, I am convinced that the
warning issued Arroyo on February 5 would not have
been issued but for her union activities. 5
I am also convinced that Respondent would not have
discharged Julia Arroyo but for her union activities. In
that regard I find most disturbing the manner in which
Personnel Manager Gibson investigated the February 28
incident between Roci Andrade and Julia Arroyo.
When Roci Andrade told Gibson of her run-in with
Julia Arroyo, Gibson went to General Manager Maher.
Maher told Gibson to investigate the allegations. Subse-
quently, Gibson talked to the two employees Roci An-
drade had mentioned as being in the area-Hilda and
Julia Reyes. Both employees denied seeing anything be-
tween Julia Arroyo and Roci Andrade. Nevertheless,
Carol Gibson took no further action toward the investi-
gation. She did not even bother to confront Julia
Arroyo. Instead, she, along with Maher and Hidding,
made the decision to discharge Arroyo.
Brent Borgerson, who translated Julia Arroyo's termi-
nation interview, testified that immediately upon Arroyo
entering the meeting, he was handed a "ticket" and told
to read it to Arroyo. Borgerson testified, "The ticket
said 'dismissal' on it. It was a dismissal notice." Borger-
son recalled, contrary to the testimony of General Man-
ager Maher, that Arroyo denied she had pushed Roci
Andrade. In fact, according to Borgerson, Arroyo
claimed that it was Andrade who pushed her.6
The evidence leaves little doubt that during February
1980, and for sometime earlier, some employees in Re-
spondent's facility were experiencing conflicts. Undoubt-
5 See Wright Line. a Division of Wright Line. Inc., 251 NLRB 1083
(1980).
c Borgerson, who was a supervisor at times both before and after the
February 28 incident, even though he was a nonsupervisory employee
then, impressed me as being more candid than Gibson or Maher. He was
called by Respondent. Moreover, during most of the hearing he sat at
Respondent's table and assisted them as a translator. In view of his role, I
do not view it likely that he swould knowingly testify falsely to Respond-
ent's detriment Therefore, as to the termination interview,. I credit his
testimony over that of either Maher or Gibson.
356
SIOUX PRODUCTS, INC.
edly, some of those conflicts resulted from different
views regarding unionization. The Act does not insulate
any employee, whether pro- or antiunion, from disciplin-
ary action because of misconduct. However, the Act
does serve to see that no employee is treated in a dispa-
rate manner because of her views about unionization.
I find the evidence herein does demonstrate that Julia
Arroyo was treated in a discriminatory manner. Carol
Gibson was asked why she had not confronted Arroyo
before deciding to discharge her. Gibson first responded,
"Well, for the same reason I did not spend much time
with Roci. When they are in my office, we are not pro-
ducing parts." Then she testified, "Oh, I had no reason
not to believe that this did not happen. I planned on
hearing her side of the story after the shift, but I did not
question it at all." Gibson was then asked why she did
not question the matter. She responded, "Because of the
incident with Anna Garcia and Jeanete and Maria
Anaya,7 several things that had been said to me by Mari-
cella. One in particular that sticks out in my mind . . .
that Julia was telling the people that now the Union was
in, she was the big boss."
The evidence convinces me that Respondent, through
Gibson, was predisposed to condemn Julia Arroyo on
both February 5 and 28. That predisposition occurred in
such proximity to the union campaign and election that it
is difficult to ignore that a connection existed between
the events. When that timing is considered alongside evi-
dence of Respondent's union animus, s the admitted
animus of various supervisors, including Gibson, and Re-
spondent's awareness of Arroyo's union activities, the
evidence becomes most convincing that Respondent took
the opportunities presented to rid itself of an undesirable
union advocate. Moreover, the evidence did not establish
that Arroyo was more responsible for the alleged con-
flicts than several antiunion employees. Therefore, I find
in support of General Counsel that the true reason for
Arroyo's warnings and discharge was not her miscon-
duct, but was in fact her union activities.9
In view of the testimony from Supervisor Haltmeyer L
that other employees were allowed to leave the work
area without first obtaining permission in accord with
the published rules, I find that Respondent also violated
Section 8(a)(3) by warning Julia Arroyo because she
went to the bathroom on February 12.
B. Andrade's Discharge
As in the case of Julia Arroyo, the timing of Respond-
ent's actions against Silvina Andrade creates concern as
Evidently, Gibson was referring to the February 5 incident.
As to animus, see my findings below regarding the 8(a)( ) allegations.
' See Joseph Pollak Corp., 232 NLRB 825 (1977); Taina Meat Packing
Corp.., 230 NLRB 116, 127 (1977); Florida Medical Center. Inc. d/b/a
Lauderdale Lakes General Hospital, 227 NLRB 1412, 1413 (1977).
tO Additionally, I note that another of Respondent's witnesses, Guil-
lermo Carrillo, testified in corroboration of Arroyo's testimony about the
"bathroom policy." in his pretrial affidavit, which was received in evi-
dence. Carrillo also worked under the supervision of Jackie Haltmeyer.
Carrillo was a leadman on the second shift. His affidavit states in part)
It is not necessary for an employee to ask permission to use the
washroom either from the leadman or the supervisor. This is the
policy of the secondary department on the second shift. I don't
know about the other departments or the other shifts.
to Respondent's motives. However, unlike the situation
regarding Arroyo, the merits of the allegations regarding
Andrade depend almost entirely on Andrade's testimony.
While I find that a great deal of the testimony from Re-
spondent's witnesses is difficult to credit, I also find that
Andrade's testimony strained the limits of believability.
It appears from Andrade's testimony that she did abso-
lutely nothing which would give Respondent the slight-
est grounds for disciplinary action during the last 2
weeks of her employment. Nevertheless, Respondent
first suspended her for 3 days, then discharged her.
There are numerous occasions when the testimony of
Andrade simply does not withstand close scrutiny. For
example, in her testimony about her 3-day suspension,
she testified at one point that no one translated her warn-
ing ticket. Later, she testified that she was told that she
was being given the ticket because she was sweeping up.
According to other testimony, Andrade's suspension
was explained to her during a meeting which included
several people, including Brent Borgerson who translat-
ed.
Borgerson testified that he actually translated in two
meetings regarding Andrade's suspension. The first, in
Jackie Haltmeyer's office, involved an explanation of the
suspension. Later, he was called to Carol Gibson's office
because Andrade was trying to have the "ticket" taken
away.
I also find incredible Andrade's testimony that she was
not told she was being warned for missing work on
Friday, February 22.
Despite Andrade's testimony to the effect that she did
nothing which justified Respondent's actions in disciplin-
ing her, testimony from Supervisor Albert (Alberto)
Saenz that Andrade's actions became so obnoxious that
he spoke to Andrade's husband about her problem, went
unrebutted. In response to the question, "Did you speak
to [Silvina Andrade] at all about taking extended
breaks?" Saenz replied:
Yes, I did. I spoke to her a couple of times. In fact,
I even went so far as to speak to her husband, Ful-
gencio, and made him aware of the fact that she
was taking long breaks. I asked him to talk to her.
In fact, I all but pleaded with the guy because I
knew he wanted to be aware of what was going on.
He said he would talk to her.
Therefore, I am unable to credit Andrade's testimony
to the effect that she did nothing to warrant her warn-
ings or her discharge.
I am aware that three employees testified they did not
see Andrade throw boxes on September 25. However, all
three admitted leaving the area within a few minutes.
Therefore, their testimony is not probative of the conten-
tion that she did not subsequently throw boxes. I am also
aware of discrepancies in the testimony of Respondent's
witnesses, Albert Saenz and Guillermo Carrillo, regard-
ing the box-throwing incident. That, along with the
timing of the action against Andrade. Respondent's union
animus and its knowledge of her union activities, makes
this decision a difficult one. However, it is General
Counsel's, not Respondent's, burden to sustain the allega-
357
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions. In view of my inability to credit Andrade, I find
that General Counsel has not carried that burden.
It appears that when Andrade arrived at work on Feb-
ruary 25, from her suspension, she permitted her anger
over the suspension to spill out. She engaged in actions
which approached tantrum proportions, which included
her tossing boxes around in her work area. Activity of
that type is not something an employer is required to tol-
erate. Unlike the situation surrounding Arroyo's dis-
charge, the box-throwing incident was fully investigated
to the point of confronting Andrade with the allegations
at a point well in advance of the final decision to dis-
charge her. Therefore, I find Respondent has demon-
strated that Andrade's suspension and discharge "would
have occurred absent protected activities."" I find that
Respondent did not violate the Act by reprimanding and
discharging her.
IV. THE 8(A)(I) ALLEGATIONS (CONLUSIONS)
A. Loss of Benefits
Julia Arroyo testified that she was present during a
meeting of all the first shift employees on the day before
the February I election. At the meeting, the employees
were addressed by Respondent's translators, Pan
Blancot 2 and John Garza.13 Arroyo testified that both
White and Garza spoke to the employees. During the
course of the address, employees were told that if the
Union won, the employees would lose benefits and
would completely lose the profit-sharing plan. Employ-
ees were also told that if the Union did not win, they
would have their profit-sharing plan. Arroyo testified
they were also told that they would receive two in-
creases a year, and better treatment; and that Respondent
would become more aware of the treatment employees
were receiving because up until then they were not too
aware of the kind of treatment the employees had re-
ceived.
Arroyo testified that on the same day John Garza
came to her work station with the owner of the Compa-
ny (Walter Hidding). Garza translated for Hidding.
Arroyo testified that she was asked to help Hidding with
her vote, that she was told he would give her a pay in-
crease, and that he was going to try to resolve her prob-
lems. Arroyo quoted Hidding through John Garza as
saying, "Julia, help me with your vote. You know if the
Union wins, you're going to lose your profit-sharing, and
for you, you've been here a long time, that's a consider-
able amount of money. So help me with your vote and
" Wright Line. a Division of Wright Line. Inc., supra.
12 Brad White testified that he was referred to as "Pan Blanco" by the
Spanish-speaking employees.
1' The evidence establishes that Brad White (Pan Blanco) and John
Garza were employed as Respondent's agents to assist it in its campaign
against the Union. In that regard, the evidence reflected that both White
and Garza engaged in antiunion campaigning among the employees, both
individually and in groups, on behalf of Respondent. On occasion, White
and Garza translated for Respondent's supervisory or management per-
sonnel to Spanish-speaking employees in the presence of the particular
management official or supervisor. On other occasions, White and Garza
individually communicated with employees. I find, as to all the incidents
covered in the record, Garza and White were acting as agents of Re-
spondent within the meaning of Sec. 2(2).
the money is yours, and you will have two salary in-
creases per year."
Employee Angelina Lopez testified that approximately
a week before the election Hidding came to her machine
with Pan Blanco. Blanco translated for Hidding. Lopez
testified that she was shown a slip of paper with an
amount of money written on the slip, and they told her it
represented the amount of money she had saved there.
Hidding said that if an employee worked there for 5
years, they would get the money; that if the Union
comes in, then the money would be frozen.
Employee Hilda Reyes testified that she attended a
meeting at the Company on the day before the election.
Reyes testified that about 10 employees were present,
and that they were addressed by John Garza. Reyes tes-
tified that Garza was showing them ballots on how to
vote and that she remembered him saying something
about "we could lose profit-sharing or something like
that."
Walter Hidding admitted that he instituted a campaign
to inform the employees about their profit-sharing plan.
According to Hidding, he instituted that campaign be-
cause the Union had passed the word around that em-
ployees had no profit-sharing plan. Hidding admitted
that various employees were informed as to how much
they had accumulated in their particular profit-sharing
situation. However, he denied any employee was threat-
ened with loss of the profit-sharing plan if the Union was
selected. Brad White's testimony supported that of Hid-
ding. John Garza did not testify.
I find the testimony of the employees convincing. Julia
Arroyo impressed me as a candid witness. t4 Moreover,
both Angelina Lopez and Hilda Reyes were still em-
ployed by Respondent at the time of the hearing herein.
Both testified pursuant to subpenas from General Coun-
sel. I was impressed that neither Lopez nor Reyes ap-
peared anxious to testify on behalf of General Counsel
against Respondent. I found both to be straightforward
and candid. Their testimony, which I credit, reveals
threats to deprive the employees of benefits if the Union
succeeded in the election.
B. Interrogation
Former employee Eulogio Arroyo testified that he had
a conversation at the plant with John Garza on the day
of the election. Arroyo testified that Garza asked him
"where had I worked with a union." Later, during the
'4 On the other hand, I was not impressed with the demeanor of Brad
White. White generally denied all the allegations of 8(a)(1) activity.
Moreover, he testified that no one in his presence made the allegedly vio-
lative comments. In that regard he testified, among other things, that
Walter Hidding followed the text of his speech to employees. However,
on at least one occasion, according to General Manager Maher's testimo-
ny, Hidding was making the speech to an English-speaking employee si-
multaneously with the address being translated by White to the other em-
ployees. Under these circumstances, it would be impossible for White to
knoxw whether Hidding followed the text. I am convinced that White was
principally occupied with testifying in a manner to please Respondent.
Therefore, I do not credit his testimony to the extent it conflicts with
credited evidence. Since all of General Counsel's witnesses were Spanish-
speaking, none were addressed directly by Hidding. Therefore, the testi-
mony of Hidding, who does not speak Spanish, is not at issue.
358
SIOUX PRODUCTS, INC.
same conversation, Garza asked him which he had voted
for, the Company or the Union.
Marta Arroyo testified that she had a conversation
with John Garza on the day before the election. Arroyo
testified that Garza showed her a paper and asked her
how she was going to vote. Arroyo testified that she
told him she did not know.
Julia Arroyo testified that she had a conversation with
Hidding and John Garza on the 27th. 5
Arroyo testified that during that conversation "Mr.
Garza asked me who I was going to vote for and I said
that was my problem. He said, 'You already know, you
know that you are going to vote for the Union since you
are going to be seated at the table for the Union. You
know very well that you are going to represent the
people in the Company for the Union.' I said, 'No, sir,
you're mistaken."'
As indicated above, John Garza did not testify in these
proceedings. I find the testimony of the employees above
to be credible. Respondent's action in that regard consti-
tutes interrogation in violation of Section 8(a)(1) of the
Act. 6
C. Threats
Employee Marta Arroyo testified that she attended a
meeting along with other employees in Carol Gibson's
office about 15 days before the election. Arroyo testified
that Brent Borgerson translated for Carol Gibson to the
employees. She testified that they were told that they
should not get involved with the Union because they
were people who needed to work and could not afford
to be laid off. Arroyo testified that Gibson, through Bor-
gerson, told them she was trying to help them, "the
Mexicans," to understand. She testified that the employ-
ees were told that if they continued with the union sup-
port, there would probably be strikes and the Company
would be closed; that, if they struck and the Company
closed, they would not be working.
Silvina Andrade testified that she had attended a com-
pany meeting among the employees approximately 2
weeks before the election and that the employees were
addressed by John Garza. Andrade testified that Garza
told them that, if the Union gets in, "they are going to
get us in a strike and that in the event of a strike, the
factory was not going to close down, but that the fac-
tory would get new employees and 'we would be fired."'
Andrade also testified that she was called into a meet-
ing on the day before the election. Appearing for the
Company were Pan Blanco, John Garza, and Hidding.
Andrade testified that Hidding was reading to them and
Blanco was translating. She testified that she recalled the
employees being asked, "Why do we want a union to
come in if they are going to take everything they got for
" Apparently. Arroyo was referring to January 27, 1980.
16 PPG Industries,. Inc.. Lexington Plant, Fiber Glass Division, 251 NLRB
146 (1980)
1' I find Brent Borgerson's testimony to be more reliable than that of
Carol Gibson. However, Borgerson's testimony at the hearing conflicted
with his pretrial affidavit to the Region Moreover, Borgerson admitted
that on occasions when he was translating. he "wasn't really absorbing
everything." Therefore, I do not credit his testimony, or that of Carol
Gibson, to the extent it conflicts with the testimony of Marta Arroyo,
whom I credit.
us in benefits? That is, the Union doesn't get in, that he
would be able to get us more benefits and better raises."
She testified that they also said "there would be a strike
if the Union gets in, and all of those who go on strike
would not be able to work in any other factories and
they won't permit us to get compensation and we will
see if the Union will give us enough to eat on." She testi-
fied that they also said "all of the workers who are not
working under their own name and do not have their
social security card, or do not have their papers, haven't
got the proper documentation, that they will get rid of
them and the younger employees."
Angelina Lopez testified that she attended a meeting
with some eight or nine other employees 2 days before
the election. She testified that the employees were ad-
dressed by John Garza. According to Lopez, Garza told
them that, if the Union got in, "those of us who do not
have the proper documentation will be out. In other
words, those of us who do not have our own social secu-
rity card would be out if the Union comes in."
Employee Humberta Lopez testified about a meeting
among employees approximately 2 weeks before the
election. Employees were addressed by John Garza and
a person introduced by him as the son of the owner of
the Company. That meeting was held in an office in the
factory, and there were seven or eight employees pres-
ent. Lopez testified that John Garza talked to them about
what would happen if the Union came into the plant.
According to her testimony, Garza said "that things
could go badly for us because immigration could come
for us."
As indicated above, I am unable to credit the testimo-
ny of Silvina Andrade to the extent it conflicts with
other testimony. However, as to her testimony regarding
her conversation with John Garza, I credit that testimo-
ny since Garza did not testify. As to the other witnesses,
Marta Arroyo, Julia Arroyo, Angelina Lopez, and Hum-
berta Lopez, I credit their testimony in full. The above
testimony demonstrates that Respondent violated Section
8(a)(1) of the Act by threatening employees with loss of
jobs and with possible difficulties with immigration be-
cause of their union activities. S
CONCLUSIONS OF LAW
1. Respondent, Sioux Products, Inc., is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Production Workers Union of Chicago and Vicinity,
Local 707, an affiliate of the National Production Work-
ers Union, is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent, by interrogating its employees concern-
ing its employees' union activities; by threatening its em-
ployees with the loss of their profit-sharing plan if they
selected the Union as their bargaining representative; by
promising its employees retention of their profit-sharing
"' The evidence failed to prove the complaint allegations that Brent
Borgerson and Maricella Ramos were supervisors at material times Hlow-
ever, both translated supervisors' comments to employees on several oc-
casions Since those translations were made on behalf (of supersisors. I
find that Borgeron anld Ramos were, (n those occasions, agent,
359
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plan and pay increases if the Union was not selected as
their bargaining representative; and by threatening its
employees with loss of jobs and with possible difficulties
with immigration authorities if the Union were selected
as their bargaining representative, has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. Respondent, by reprimanding and discharging its
employee Julia Arroyo, and thereafter failing and refus-
ing and continuing to fail and refuse to reinstate Julia
Arroyo because of her union activities, has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act.
5. Respondent did not otherwise engage in unfair labor
practices in violation of Section 8(a)(l) and (3) of the
Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom, and to take certain affirma-
tive action designed to effectuate the policies of the Act.
As I have found that Respondent unlawfully dis-
charged Julia Arroyo, I shall recommend that Respond-
ent be ordered to offer her immediate and full reinstate-
ment to her former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
her seniority or other rights and privileges. I shall fur-
ther recommend that Respondent be ordered to make
Julia Arroyo whole for any loss of earnings she may
have suffered as a result of the discrimination against
her. Backpay shall be computed as prescribed in F W.
Woolworth Company, 90 NLRB 289 (1950), with interest
as prescribed in Florida Steel Corporation, 231 NLRB 651
(1977). '9
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 20
The Respondent, Sioux Products, Inc., Addison, Illi-
nois, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
'9 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
20 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules ad Regulations of the National Labor Relations Hoard, the
findings, conclusions, and recommended Order herein shall, as provided
by Sec. 102.48 of the Rules and Regulations. be adopted by the Board
and become its findings, conclusions, and Order, and all objections there-
to shall be deemed waived for all purposes.
(a) Interfering with, restraining, and coercing the em-
ployees in the exercise of rights guaranteed to them by
Section 7 of the Act, in violation of Section 8(a)(1) of
the Act, by interrogating its employees concerning its
employees' union activities; by threatening its employees
with loss of profit-sharing plan if they select the Union
as their bargaining representative; by promising its em-
ployees retention of their profit-sharing plan and pay in-
creases if the Union is voted out as their bargaining rep-
resentative; and by threatening its employees with loss of
jobs and with difficulties with immigration authorities if
they select the Union as their bargaining representative.
(b) Reprimanding, discharging, and thereafter failing
and refusing to reinstate its employees because of those
employees' concerted activities or union activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights to self-organization, to form, join, or assist a labor
organization, or to refrain from any and all such activi-
ties.
2. Take the following affirmative action designed and
found necessary in order to effectuate the policies of the
Act:
(a) Offer Julia Arroyo immediate and full reinstate-
ment to her former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
her seniority or other rights and privileges; and make
Arroyo whole for any loss of earnings she may have suf-
fered as a result of the discrimination against her in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Remove all references in their records to the Feb-
ruary 5 and 12, 1980, disciplinary actions against Julia
Arroyo.
(c) Post at its facility in Addison, Illinois, copies2 ' of
the attached notice marked "Appendix."2 2 Copies of said
notice, on forms provided by the Regional Director for
Region 13, after being duly signed by an authorized rep-
resentative of Respondent, shall be posted by it immedi-
ately upon receipt thereof, and be maintained for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonably steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
21 The posted copies should include copies translated into all languages
necessary to afford all employees an opportunity to read the notice.
22 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
360