Sorenson Lighted Controls, Inc.

National Labor Relations Board - Board Decisions

Nov 19, 1987

286 N.L.R.B. 969 (N.L.R.B. 1987)

SORENSON LIGHTED CONTROLS
Sorenson Lighted Controls , Inc. and Local 317,
United Food and Commercial Workers Union,
AFL-CIO. Cases 39-CA-2518 and 39-RC-581
19 November 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 27 February 1986 Administrative Law Judge
Norman Zankel issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and the Charging Party
Petitioner filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.
The Respondent's Objection 1 concerns the
ballot of John Patterson. The undisputed facts are
that Patterson emerged from the voting booth with
his unfolded ballot in his hand and, as he walked
toward the door leading out of the voting area,
handed his unfolded ballot to another voter, T.
Stergakis. Stergakis glanced at Patterson's ballot,
folded it, and dropped it in the ballot box. Patter-
son's ballot was counted with all other unques-
tioned ballots.2
The judge did not pass on whether Patterson's
ballot should be voided. Instead, he treated the Re-
spondent's objection to Patterson's ballot as a re-
quest to void the entire election, which result the
judge found was not warranted.3
In its exceptions, the Respondent reemphasized
the purpose of its objection concerning Patterson's
ballot was not to void the election, as the judge
had treated it, but to void Patterson's ballot.4 Con-
' The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The judge found that the events show that Patterson's ballot was
commingled with all other ballots the instant it was deposited in the
ballot box No evidence was produced to show Patterson 's ballot had any
distinguishing or other identifying symbols on it There is no indication
on this record that the parties ' designated election observers or the Board
agent challenged or objected to the ballot before it was placed in the
ballot box
a See the judge 's decision at sec III,B,1
4 The Respondent 's brief to the judge makes no mention of voiding the
entire election based on the objection to Patterson's ballot but reveals,
clearly, that it was only seeking to have Patterson 's ballot voided
969
sistent with that purpose, the Respondent relied on
cases that invalidate a ballot when the voter's iden-
tity is revealed.5 The Respondent also challenged
the judge's finding that the secrecy of Patterson's
ballot was breached only after the ballots were
counted by pointing to the undisputed evidence
that Patterson handed his unfolded ballot to an-
other voter who looked at the ballot before she
folded it and dropped it in the ballot box. In any
event, the Respondent contends that the policy
considerations behind the requirement of secrecy
dictate that Patterson's ballot be voided.
To protect the right of an employee to a free
and uncoerced choice in representation elections,
the Board and courts have long and consistently
applied the rule that a ballot that reveals the identi-
ty of the voter is void.6 Generally these cases arise
in situations when the ballot itself contains an iden-
tifying mark. However, the Board also has applied
the same rule when a voter's conduct apart from
any marking on the ballot reveals the vote.?
We find that these well-established principles
govern the Respondent's objection to Patterson's
ballot. Thus, the secrecy of Patterson's vote was
destroyed when he handed his unfolded ballot to
another voter, who looked at it before dropping it
in the ballot box. Accordingly, Patterson's ballot
should not be counted.8
A practical problem arises from the fact that Pat-
terson's ballot was commingled with all other bal-
lots when it was dropped in the ballot box. Be-
cause we are unable to ascertain whether Patter-
son's ballot is reflected on the tally as a valid vote
for or against the Petitioner, 9 we shall issue a certi-
b The Respondent cited A. G Parrott Co, 255 NLRB 259 (1981), and
General Photo Products, 242 NLRB 1371 (1979)
See A G Parrott Co, supra, and the cases cited therein at fn 3.
See General Photo Products, supra, in which the Board indicated, inter
alia, that the secrecy of the ballots outweighs the voter 's intent and that
voter's motivation is not considered
Cf Sewell Plastics, 241 NLRB 887 (1979), in which two observers testi-
fied that during the election they could see how a substantial number of
ballots were marked There the Board analyzed the case in terms of the
overall effect on the election and not in terms of the secrecy of the ballot
and did not set aside the election In so holding , the Board noted that the
voters apparently were unaware that the observers could see how the
ballots were marked We also note that Sewell does not indicate that the
voter's conduct contributed to the impairment of secrecy
8 No party has sought to void the election on the basis of Patterson's
disclosed ballot at any stage of the proceedings . We also note that the
extent of disclosure was not so great as to justify that result Thus, the
interceptor of the Patterson ballot voted before seeing the ballot, and
there is no evidence other employees witnessed the incident Both ob-
servers signed the tally of ballots certifying, among other things, that the
secrecy of the ballots was maintained Finally, there is no evidence that
Patterson 's ballot disclosure was prearranged . In such circumstances, we
see no reason for setting the election aside on the basis of Patterson's
ballot alone
e The judge struck from the record the question and answer concern-
ing how Patterson voted We note that the Union objected to such dis-
closure at the hearing and that the Respondent has objected, generally, to
counting Patterson 's ballot
286 NLRB No. 108
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fication of representative only if a majority plus
one, or more , vote in favor of union representa-
tion.' ° Under such circumstances, the "Patterson
ballot" could not have been determinative and be-
cause no other valid objection directed against the
Petitioner has been established, no valid reason
exists for denying such certification of representa-
tive. If the revised tally of ballots results in a ma-
jority against the Petitioner or in a tie vote," we
adopt the judge's recommendation that the election
results should be set aside based on meritorious ob-
jections by the Petitioner.12
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Sorenson Lighted Controls, Inc., Hart-
ford, Connecticut, its officers, agents, successors,
and assigns , shall take the action set forth in the
Order as modified.
Substitute the following for the last paragraph of
the judge's recommended Order.
"IT IS FURTHER ORDERED that Case 39-RC-581
is severed from Case 39-CA-2518 and that Case
39-RC-581 is remanded to the Regional Director
for Region 1 of the Board for action consistent
with the following.
"(a) The overruled challenged ballots of Paula
Colon, Lydia Diaz, Wanda Bermudez, Ypapanti
Stergakis, and Edward Kelly be opened and count-
ed, and a revised tally of ballots be issued.
"(b) If the revised tally of ballots shows a major-
ity plus one, or more, in favor of union representa-
10 Contrary to our concurring colleague, there is nothing "artificial" in
this procedure , which is analogous to one used in other situations in
which a ballot subject to a valid challenge has been commingled See,
e g, Happ Mfg. Co, 124 NLRB 202 (1959); Escapade Fashions, 238
NLRB 387 (1978) Regarding the suggestion that the disclosed ballot may
not be treated as any other challenge that is sustained, i e., voided, we
note that it is not necessary for a voter to reveal his vote in a "purposeful
and flagrant manner" to compromise the secrecy of his vote Nor is it
properly the Board 's task routinely to inquire into such subjective areas
as whether a voter is genuinely in a state of "confusion" when he makes
such a disclosure It may well be, as our concurring colleague points out,
that but for the rapid pace of events , Patterson 's vote would have been
intercepted by the Board agent, and he would have been permitted to
cast a new vote, as the voters in Deeco, Inc, 116 NLRB 990 (1956)
Deeco, however , is more readily distinguishable by the fact that , unlike
the voters whose ballots were ultimately counted in that case, Patterson
dropped an exposed ballot into the ballot box, not a confidential one It is
against the danger of the former that the policy of nondisclosure safe-
guards
ii We recognize that if Patterson voted against representation by the
Petitioner, a tie vote would indicate that the Petitioner failed to achieve a
majority only because of Patterson 's voided ballot That contingency is
outweighed by the policy applied here
12 The General Counsel has requested a visitatonal clause authorizing
the Board to engage in discovery under the Federal Rules of Civil Proce-
dure to monitor compliance with the Order as enforced by the court of
appeals Under the circumstances of this case , we find it unnecessary to
include such a clause Accordingly, we deny the General Counsel's re-
quest
tion, a certification of representative shall be
issued.
"(c) If the revised tally of ballots results in a ma-
jority vote against the Petitioner or in a tie vote,
then the election results shall be set aside and a
rerun election shall be conducted at a time deemed
appropriate by the Regional Director for Region
1."
MEMBER STEPHENS , concurring in part, and dis-
senting in part.
I concur with the majority's resolution of all the
issues except for the disposition of Patterson's
ballot. Under the circumstances here, I would not
declare it void and thus would not require the Peti-
tioner to win the election by a majority plus one in
order to be certified.
I accept as settled that we will not count ballots
whose secrecy is compromised by identifying
marks placed on them by the voters. A. G. Parrott
Co., 255 NLRB 259 fn. 3 (1981). I also accept the
proposition that a voter who has, by other means,
revealed his vote in a "purposeful and flagrant
manner" to other voters may forfeit his right to
have his vote counted. General Photo Products, 242
NLRB 1371 (1979). However, the principle of
ballot secrecy is not absolute. Thus, for example,
we will count a single determinative challenged
ballot even though that will reveal the vote of that
employee. See, e.g., Lemon Drop Inn, 269 NLRB
1007, 1009, 1025 (1984), enfd. on other grounds 752
F.2d 323 (8th Cir. 1985). When, as here, a "con-
fused" voter has revealed his vote to another em-
ployee who has already voted, the ballot is not
shown to have been revealed to anyone waiting to
vote, and the ballot is subsequently commingled
with others in the ballot box, I would not find that
the desirability of maintaining ballot secrecy re-
quires us to devise an artificial scheme to attempt
to void the unidentifiable ballot.' I would therefore
count Patterson's ballot.
1 Had the employee to whom Patterson handed his ballot been inter-
cepted by the Board agent before he deposited Patterson 's ballot into the
box, the agent could reasonably have destroyed that ballot and directed
Patterson to vote again and cast his ballot in the proper manner Deeco,
Inc, 116 NLRB 990 (1956) Apparently, events moved too rapidly here
for that option
Astrid J. Garcia, Esq. and David M. Somers, Esq., for the
General Counsel.
David C. Anderson , Esq. (Murtha, Cullina, Richter &
Pinney), of Hartford , Connecticut, for the Respondent
Employer.
John M. Creane, Esq. (Creane & Donahue), of Milford,
Connecticut , for the Charging Party Petitioner.
SORENSON LIGHTED CONTROLS 971
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge. The
above-consolidated cases were tried before me on vari-
ous dates between 26 June and 1 August 1985.1
The allegations in Case 39-CA-2518 that Sorenson
Lighted Controls, Inc. (Respondent) committed unfair
labor practices evolved from a charge filed by the
Charging Party, Local 317, United Food and Commer-
cial Workers Union, AFL-CIO (the Union), on 19 Feb-
ruary. The charge was amended on 12 March. On 2
April a complaint and notice of hearing issued.
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) of the National Labor Relations Act by en-
gaging in a variety of conduct between about 14-20 Feb-
ruary that interfered with, restrained, and coerced em-
ployees in the exercise of the rights guaranteed them by
Section 7 of the Act.
Also, the complaint alleged Respondent discriminatori-
ly (1) laid off certain employees about 14 February;' (2)
terminated one employee, Wanda Bermudez about 4
March; and (3) issued a written warning to Julia Nieves
about 4 March; all in violation of Section 8(a)(3) and (1)
of the Act.
Also, during the hearing, I granted the General Coun-
sel's motion to include the following additional allega-
tions in the complaint: (1) that the four employees, alleg-
edly wrongfully laid off about 14 February, were further
discriminated against by Respondent's subsequent failure
to recall them to work (new complaint par. 9(b)); and (2)
that Respondent discriminatorily issued written warnings
to those same four employees at various times between
about 7 January and 11 February.
The representation proceeding (Case 39-RC-581)
arose from the filing of a petition for certification on 6
February. A secret-ballot election was conducted under
Board supervision on 19 March, pursuant to a stipulation
upon consent election signed by the Employer and Peti-
tioner on 19 February and approved on 21 February.
The election results were inconclusive. Petitioner re-
ceived 27 votes; 27 votes were cast against Petitioner;
and 5 ballots were challenged.3
On 25 March Petitioner filed timely objections to the
conduct of the election; and on 26 March, the Employer
filed objections. On 30 April, the Board's Regional Di-
rector issued a report on objections and challenged bal-
lots. In that report, the Regional Director decided to
consolidate all the challenges, together with all the ob-
jections (except those that had been previously with-
drawn) for hearing with Case 39-CA-2518. The consoli-
dation order issued on 2 May.
Respondent filed timely answers to the complaint, as
amended at the hearing. The answers admitted some of
1 All dates are 1985 unless otherwise stated
2 As initially issued, the complaint named L Diaz, P Colon, A Mal-
donado, L Cruz , and U Podgormak as the employees who suffered the
alleged unlawful layoffs During the hearing, I granted the General
Counsel's motion to delete Podgormak from the complaint
3 Identification , and disposition , of the challenged ballots appears in
sec III ,A, below
the allegations, but denied that Respondent committed
any of the alleged unfair labor practices.
All parties were provided an opportunity to present
documentary evidence, examine and cross-examine wit-
nesses , and to present oral argument . Posthearing briefs
have been received from the General Counsel, the Re-
spondent, and the Charging Party.
On the entire record,4 including my observation of the
demeanor of the witnesses and after due consideration of
the briefs, I make the following
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent, a Connecticut corporation with a princi-
pal place of business in Hartford, Connecticut, at all ma-
terial times has been engaged in the manufacture of indi-
cator lights. During the calendar year immediately pre-
ceding complaint issuance, Respondent purchased and re-
ceived goods and materials in excess of $50,000 at its
Hartford facility directly from points outside of Con-
necticut.
Respondent admits, the record reflects, and I find, that
it is , and at all material times has been , an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
The parties agree, the record reflects, and I find, that
the Charging Party is, and at all material times has been,
a labor organization within the meaning of Section 2(5)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
These cases emanate from the Union's effort to orga-
nize Respondent's production and maintenance employ-
ees.5 The specific incidents that gave rise to the com-
plaint allegations, challenged ballots, and election objec-
tions relate only to employees who worked in Respond-
ent's two assembly departments. Those departments are
designated 100 and 105.
Department 100 is called "General Assembly." In Jan-
uary and early February, approximately 53 individuals
were employed there. This department is labor intensive.
A large number of assembly operations are required to
complete a finished product. Department 100 was super-
vised by D. D'Alessandro (Dina).
Department 105 is more automated . It contains a semi-
automatic "Galloni," commonly referred to as the "Ital-
ian" machine. This department is not labor intensive.
The employees who work there are required to possess
greater manual dexterity and work faster than employees
in department 100. P. Giannetta (Pablo) was the supervi-
4 The unnumbered transcript page between pp. 596 and 597 is hereby,
sua sponte , identified and numbered as page 596-A
S The agreed-on appropriate unit consists of:
All full-time and regular part-time production and maintenance em-
ployees, including tool and die makers , assemblers, inspectors, ship-
ping and receiving employees and maintenance employees of Re-
spondent employed at its 75 Locust St, Hartford , Connecticut loca-
tion , but excluding all office clerical employees , and all guards, pro-
fessional employees, and supervisors as defined in the Act
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sor of department 105. At all relevant times, only 10-11
individuals were employed in this department.
The two assembly departments are comprised of sever-
al national and ethnic groups. These include employees
of Greek, Italian, Polish, Portuguese, and Puerto Rican
heritage. Puerto Rican employees constitute approxi-
mately 25 percent of the complement of assembly em-
ployees. In practice, these groups separated themselves
from one another during lunch periods and other author-
ized breaktimes from work.
At all material times Respondent's relevant (and admit-
ted) managerial and supervisory hierarchy consisted of
Departmental Supervisors Dina and Pablo; Assembly Su-
pervisor F. Torres; Assistant Plant Manager R. Sypher;
Plant Manager F. Bury, and Vice President and Chief
Operating Officer for Production F. Kundahl.
The Union's organizing campaign was initiated on 16
January. On that date, union organizers conducted a
meeting at the home of C. Miranda, an assembly employ-
ee. Other assembly employees, all of Hispanic origin, at-
tended. Alleged discriminatee, P. Colon, was among
them. During this meeting, Colon and the other employ-
ees in attendance, signed union authorization cards. Each
took blank authorization cards and union literature away
from the meeting.
Solicitation of employees' signatures and distribution
of campaign literature followed immediately in the park-
ing lot at Respondent's plant and in the plant itself. The
Puerto Rican employees frequently engaged in union dis-
cussion during their coffeebreaks throughout the ensuing
weeks.
On 6 February the Union filed the instant representa-
tion petition. By that time all 17 Puerto Rican employees
had signed authorization cards. On this date, a Board
agent telephoned Respondent's office and informed its
comptroller the petition had been filed. This information
was relayed to Kundahl who consulted Respondent's at-
torney. Kundahl was advised to take no action until Re-
spondent actually received the petition.
The petition reached Respondent on 12 February.
Both Kundahl and Bury were out of town on that date.
Kundahl returned on 13 February; and Bury returned on
14 February.
On 13 and 14 February Kundahl spoke to members of
the supervisory staff. Specifically, Kundahl testified he
spoke about the union activity with Sypher and Pablo on
13 or 14 February; and with Bury on 14 February.6
During these discussions, Kundahl questioned the super-
visory personnel about their knowledge of union activity
and (in Kundahl's own words) "asked them to keep their
ears open and anything they found out to please report
to me."
Also, on 14 February, Bury laid off employees P.
Colon, L. Cruz, L. Diaz, A. Maldonado, and U. Podgor-
niak.
On 19 February a conference on the representation pe-
tition was held at the Board's Hartford Subregional
Office.7 Kundahl participated. Alleged discriminatees
8 Bury denied knowing about the Union before 19 February This testi-
monial variation will be considered in the credibility section below.
' This conference will sometimes be referred to as representation
"hearing" or the "19 February hearing "
Bermudez and Julia Nieves (Julia to distinguish her from
a different employee, Jorge Nieves) were present.8 S.
Delgado, another assembly employee, also attended. The
three employees who appeared at the 19 February con-
ference had been subpoenaed by the Union. The confer-
ence resulted in the signing of the stipulation that set 19
March as the date for voting among the unit employees.
On his return to Respondent's plant, Kundahl, who
could not precisely identify the employees who attended
the representation conference, described them to Bury.
From those descriptions, Bury identified them, by name,
to Kundahl.
Between 19 February and 19 March, the Union and
Respondent conducted relatively uneventful preelection
campaigns. The Union's campaign included three meet-
ings , for Puerto Rican employees, conducted on 21 Feb-
ruary and 10 and 17 March at Bermudez' and Julia's
home. Respondent's campaign included literature posted
and distributed to, and informal discussions with, eligible
employees by supervisory personnel.
On 4 March Bermudez was terminated and Julia re-
ceived a written warning. Since 14 February (for those
laid off), and since 4 March (Bermudez), none of the al-
leged discriminatees had been recalled to work by the
date the instant hearing closed.
B. Credibility
Resolution of virtually each substantive allegation
about which testimony was presented turns on the wit-
nesses ' relative credibility.
In general , my credibility resolutions are based on my
observation of witness demeanor, the weight of the re-
spective evidence, established or admitted facts, and in-
herent probabilities and reasonable inferences that may
be made from the record as a whole. Gold Standard En-
terprises, 234 NLRB 618 (1978); Z & W Castings, 231
NLRB 912 (1977); Northridge Knitting Mills, 223 NLRB
230 (1976).
Also, I have carefully weighed all the testimony bear-
ing in mind the personal interests of each witness in the
outcome of this litigation and the general tendency of
witnesses to testify in terms of their impressions or inter-
pretations of what was said during conversations rather
than attempting to give verbatim accounts of conversa-
tions.
In some instances, an interpreter was needed during
the course of witnesses' testimony. Necessary allowances
for unimportant testimonial variations, attributable to lan-
guage difficulties, have been made . In assessing credibil-
ity, I have also considered the principle that testimony of
current employees, in this case Z. Ayala, P. Gonzalez, C.
Miranda, and Julia, who testify against their employer's
interests, is not likely to be false. Shop-Rite Supermarket,
231 NLRB 500 (1977); Georgia Rug Mill, 131 NLRB
1304 fn. 2 (1965), modified on other grounds 308 F.2d 89
(5th Cir. 1962).
Supervisor F. Torres is alleged to have unlawfully in-
terrogated and threatened an employee; and Supervisors
Pablo and Dina are potential corroborating witnesses for
8 Bermudez and Julia shared living quarters
SORENSON LIGHTED CONTROLS 973
some of the testimony presented by Kundahl , Bury, and
Sypher.
Torres was not presented as a witness at the hearing.
Also, neither Pablo nor Dina testified . There is no evi-
dence that any of these individuals was unavailable to
testify . Respondent made no effort to explain their ab-
sence . Thus , in evaluating credibiliity , I have inferred that
their testimony would not support Respondent 's cause.
Interstate Circuit v. U.S., 306 U.S. 208, 226 (1939); NLRB
v. Wallick & Schwalm Co., 198 F.2d 477, 483 (3d Cir.
1952); also see Martin Luther King, Sr. Nursing Center,
231 NLRB 15 fn. 1 (1977).
I have also utilized the principle that a trier of fact
need not discredit a witness simply because all of that
witness ' testimony is not believed . "Nothing is more
common than to believe some and not all of what a wit-
ness says." Edwards Transportation Co., 187 NLRB 3-4
(1970), enfd. per curiam 437 F.2d 502 (5th Cir. 1971);
Wilco Energy Corp., 246 NLRB 851 fn . 1 (1979).
Finally I have particularly reviewed and studied the
situations that Respondent , in its brief, cites as adverse
reflections on credibility of the General Counsel's wit-
nesses.
In general , I find the relevant testimony of the General
Counsel 's witnesses to be more reliable and trustworthy
than that presented by Respondent 's witnesses who testi-
fied on the same subject matter . My observation of the
demeanor of the General Counsel 's witnesses persuades
me each was striving to tell the truth as best he/she
could. None of those witnesses was especially articulate.
I attribute this to the various degrees of fluency with
English . Nonetheless , each of the Genera], Counsel's wit-
nesses appeared forthright , candid, and straightforward.
Bermudez , Delgado , and Julia presented comprehen-
sive , lengthy , and inherently consistent descriptions of
conversations and events . Each was unshaken by cross-
examination.
P. Gonzalez , previously noted as a current employee,
testified with particularly impressive demeanor and
candor.
In contrast, Kundahl, Bury , and Sypher did not im-
press me as witnesses in whose testimony I could have
complete confidence regarding accuracy or reliability.
Bury 's testimony on the subjects discussed below, per-
suades me that none of his material testimony should be
credited . He was patently an evasive witness, was self-
contradictory , presented implausible descriptions of cer-
tain events , and was argumentative. Bury displayed a
tendency to generalize his responses until pressed for
specific answers during cross-examination, and to exag-
gerate so as to cast his testimony in a light most favor-
able to Respondent.
The instant unfair labor practice case is largely predi-
cated on acts of alleged discrimination. One of the essen-
tial ingredients of such violations is unlawful motivation.
The General Counsel principally relies on the independ-
ent 8(a)(1) violations allegedly committed by Bury and
Torres to prove this element of a prima facie case.
Respondent does not concede that such activity com-
prises a proscribed unfair labor practice , even if Bury
and Torres said or did what the complaint ascribes to
them . However, in the first instance , Respondent claims
that it is impossible to find Bury engaged in any of the
conduct attributed to him on 14 February because he
had no knowledge of any union activity on that date.
This argument of Respondent focuses both on witness
credibility and the general respectability of Respondent's
overall economic defense to the alleged discriminatory
layoffs on 14 February.
The evidence regarding knowledge of union activity
by Kundahl , Sypher , Bury , and, through them , Respond-
ent shows:
(a) On 6 February Kundahl received word that the in-
stant petition had been filed at the Board by telephone
call from a Board agent . (It is not clear whether Kun-
dahl took any immediate action based on this telephone
call.)
(b) On 12 February Respondent actually received the
representation petition.
(c) When Respondent received the petition on 12 Feb-
ruary , it also received a notice from the Board that a
hearing on the petition would be conducted at the
Board's Hartford office on 19 February.
(d) Delgado testified that Bury interrogated her on 14
February and Bermudez testified she was interrogated by
Bury on 18 February.
(e) Kundahl first saw the petition on 13 February. He
spoke to Bury about the petition on 14 February and
asked Bury what he knew about the union activity; to
check into it; and to report what he might uncover to
Kundahl . This aspect of Kundahl 's testimony , in particu-
lar, was firm during his direct examination as a Respond-
ent witness . Kundahl steadfastly and credibly maintained
this factual posture during cross-examination.
(f) Bury presented a variety of versions of when he
first learned of the union activity . At several points
during his testimony Bury claimed he did not know
about the Union until 19 February , the representation
case hearing date (Tr. 337-338, 340 , 368, 370-372, 386,
392, 401).
Nonetheless , Bury admitted he heard "rumors" about
the union activity on 14 February . When pressed by
union counsel, during cross -examination, Bury reluctant-
ly testified he learned of the union campaign on the
Friday before the representation case hearing . The calen-
dar reflects that Friday was 15 February.
(g) Bury convincingly testified that it was part of his
management style to check into employee and produc-
tion problems as soon as he became aware of their exist-
ence.
The foregoing scenario shows that Bury's initial deni-
als of knowledge of union activity before 19 February
are contradicted by Kundahl . I credit Kundahl 's testimo-
ny regarding knowledge of union activity because of his
demeanor, inherent and chronological probabilities, and
consistency with other undeniable events such as the
dates shown by the record on which he was present in
Respondent 's facility.
I conclude Bury 's self-serving denials that he had
knowledge of union activity on 14 February are a trans-
parent effort by him to exonerate himself and Respond-
ent from both the independent 8(a)(1) conduct that Del-
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gado credibly described occurred on that date , and at-
tributed to him on 18 February by Bermudez.
Bury 's explanation that he only heard "rumors" about
union activity on 14 February makes it likely that he em-
barked in an investigation concerning those rumors be-
cause, as earlier stated , Bury conscientiously checked
into work-related issues . This investigatory likelihood
belies his denials of the 14 and 18 February conversa-
tions described by Delgado and Bermudez.
I also find Bury 's testimonial machinations seriously
impede the veracity of his claim that the 14 February
layoffs were motivated solely by economic consider-
ations. This is especially true when viewed in the light of
other considerations to be discussed below.
Bury 's general lack of candor is punctuated by eva-
siveness and imprecision . After repeatedly denying any
knowledge of union activity before 19 February , he later
conceded , hesitantly , that he learned about it during a
"management" meeting that Bury placed on 15 Febru-
ary. Despite this , Kundahl positively recalled that he
spoke to Bury about the representation case petition on
14 February , the day Bury returned to the facility after
having been away from the plant on 11-13 February. In
view of Kundahl 's credited and generally straightfor-
ward account of these particular events , I conclude
either that Bury was in error when he selected the date
of 15 February to admit knowledge, or that he intention-
ally chose that date to relieve himself from responsibility
for any of the unlawful conduct that took place , alleged-
ly, on 14 February . Either situation seriously impedes
Bury 's testimonial reliability.
There are other factors that tend to diminish Bury's
credibility . Two of these factors relate to the critical area
of Respondent 's claim that the 14 February layoffs were
economically motivated . Respondent contends the lay-
offs were due to lack of work in Assembly department
100.
First , in oral testimony, Bury claimed that he "cut
back" on overtime to 8 hours a day in department 100 "
a week or two before the layoff . . . ." Respondent's
brief also expounds this position . It claims "a week or so
prior to February 14, daily working hours were cut back
to 8 hours in . . . [department 100]." (R. Br. 3 and 4.)
These assertions , if accurate, tend to support Respond-
ent's claims that the 14 February layoffs were the next
step , after overtime elimination , taken in response to re-
duced production requirements in department 100.
However , I find Bury 's oral assertions (and this part of
R. Br.) are not supported by the documentary evidence.
Respondent 's overtime records (summarized in G.C.
Exh. 13) show overtime was worked in department 100
during the material period , as follows:
Week Ending OT Hrs. Worked
8 February 172.70
15 February 177.35
22 February 123.95
1 March 126.25
8 March 121.40
15 March 58.30
22 March 61.60
Thus , the records show that in each of the 2 work-
weeks immediately preceding the 14 February layoffs,
over 170 overtime hours were worked in department
100; over 120 overtime hours were worked in that de-
partment in each of the 3 workweeks immediately fol-
lowing the layoffs ; and it was not until 1 month after the
layoffs that there was a substantial decrease in overtime
hours worked in that department . (Compare weeks
ending 15 and 22 March to payroll weeks 8 February to
8 March .) Clearly , Bury 's oral testimony and Respond-
ent's written averments that overtime was eliminated
before the layoffs cannot be credited.
Next , I find Bury 's testimony regarding his method of
selecting the employees for the 14 February layoff is im-
plausible. Bury claimed he established his layoff "list" by
examining the roster of all the approximately 45-50 (ac-
cording to Bury) employees in department 100, and from
his memory , made conclusions as to which five employ-
ees were the least valuable . At the hearing, however,
Bury could not recall the names of the employees whom
he selected for layoff. In this context , I cannot rely on,
and do not credit , Bury 's explanations of the selection
process used for the layoffs.
Bury was not the immediate supervisor of the laid-off
employees . His testimonial effort to lay claim to the
work performance, and other qualifications of those em-
ployees is considered part of a contrived effort to ascribe
legitimate reasons for selection of the particular employ-
ees for layoff.
Bury testified that he asked Sypher, Dina, and Pablo
to compile their own lists of five employees for layoff.
Bury said this request was made after he completed his
own layoff list. He further testified that Sypher, Dina,
and Pablo independently decided to lay off the same em-
ployees . This testimony is incredulous.
It is simply unreasonable to believe in the occurrence
of such a coincidence of the magnitude suggested by
Bury 's testimony . This is especially true because (a)
Sypher testified he had only provided three employees'
names to Bury though Bury claimed their lists were
identical ; and (b) as earlier noted , neither Dina nor Pablo
was produced as a witness . Bury 's claims stand uncorro-
borated . The totality of circumstances render it difficult,
if not impossible , for me to credit Bury in general and, in
particular , with respect to his testimony by which he
sought to show there was a reasonable , lawful rationale
attached to the selection of employees for layoff.
Bury 's further efforts to show the layoff selection
process was based on sound business and personnel judg-
ments , and not discriminatorily motivated , are similarly
unpersuasive . Specifically , I find Bury 's testimony con-
cerning the various reasons each of the alleged discrimin-
atees was selected for layoff a patent effort to mask Re-
spondent's undisclosed, true unlawful reason.
Bury first testified he told each of the employees, at
their layoff, that the layoff was due to lack of work.
When they testified , each of the laid-off employees
agreed that is what Bury told them.
During cross-examination by union counsel, Bury
claimed other reasons existed , but that he did not give
those reasons to the employees when he laid them off be-
SORENSON LIGHTED CONTROLS
cause he did not want to hurt their feelings. In other cir-
cumstances , I might accept Bury's explanation as a com-
mendable exercise in compassion. This is not possible in
this case because the record shows Bury apparently had
no difficulty "hurting" employees' feelings through im-
position of other discipline.
For example, Diaz who Bury laid off on 14 February,
received three written warnings within the 10 days im-
mediately preceding the layoff. I find it unreasonable to
believe Bury would have omitted referring to these
warnings at the time of layoff if, in fact, they were a
factor considered in the layoff decision. Indeed, later in
his cross-examination , Bury claimed these warnings to be
part of the reason Diaz was laid off.
Similarly, Bury ascribed a variety of reasons, other
than lack of work, for the selection of each of the other
alleged discriminatees for layoff. Ostensibly, the exist-
ence of a variety of Bury's claimed justifications for
layoff is supported by Respondent's personnel records
(see G.C. Exhs. 11(a)-(e)). However, Bury's own testi-
mony impels a contrary conclusion.
Bury's material testimony regarding the reasons for
layoff clearly shows the identity, by name, of employees
for layoff was made before an examination and study was
made of their personnel records (Tr. 355- 360). There is
no evidence that Respondent's use of reasons such as
poor production, prior warnings, poor quality work, and
"babysitter" problems as justification for layoffs were ex-
pounded at any time earlier than the instant hearing.
Bury's testimony in this regard appears to me to com-
prise a not-so-subtle effort by Respondent lo shift reasons
for layoff selection and intended to disguise its unlawful
motivation.
In the present circumstances, I also conclude that
Bury's expansion of reasons demonstrates a personal at-
tempt to cast his testimony in a light most favorable to
Respondent. This tactic adversely impacts on Bury's
credibility. Also, it injects Respondent's defense to the
layoff allegations with shifting reasons that warrant the
inference that the reason proffered by Respondent for
the layoff is pretextual. Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466, 470 (9th Cir. 1966); F. W.I.L.
Lundy Bro. Restaurant, 248 NLRB 415, 428 (1980).
Sypher generally was direct and comprehensive. How-
ever, at times , he appeared uncomfortable and evasive.
His testimony in some critical areas defies reality. For
example , I find it improbable Sypher would have been
consulted by Bury regarding who should be laid off on
14 February. Both of these witnesses attested to such a
consultation.
However, Sypher was molding-room supervisor at the
time Bury purportedly asked for the layoff lists from
him, Pablo, and Dina. It was not until near the end of
February that Sypher became assistant plant manager
with direct authority over production employees. Sypher
claimed he had sufficient knowledge of production em-
ployees' qualifications to warrant making layoff recom-
mendations.
I have earlier noted that Sypher's account of the
number of names he gave to Bury differs from Bury's
testimony This inconsistency, together with Sypher's po-
sition as supervisor of employees in a department other
975
than the one in which the layoffs were to take place,9
tends to show Sypher's effort to exaggerate and cast Re-
spondent's position in its most favorable light.
Sypher appeared uncomfortable when testifying on the
subject of when he first learned of the union activity.
Moreover, his testimony in that regard is inconsistent
with Kundahl's. Sypher claimed he first learned of the
union activity on 19 February when he overheard Kun-
dahl and Bury discussing what occurred that day during
the representation hearing. Kundahl testified he directly
spoke to Sypher about union activity. Kundahl was un-
certain of the date of that conversation, but positively re-
called he asked Sypher what he knew of the union activ-
ity.
Sypher's account of the events involving Bermudez'
termination and Julia's warning are consistent with the
versions of those employees. I conclude these consisten-
cies tend to reinforce my overall impression that the
General Counsel 's witnesses are credible and reliable.
On the foregoing, I credit Sypher only to the extent
his testimony is consistent with that provided by the
General Counsel's witnesses and uncontroverted evi-
dence.
Kundahl was the most impressive of Respondent's wit-
nesses . In general , he was direct and comprehensive. He
was candid with respect to the issue of Respondent's
knowledge of union activity. He also admitted he knew
Bermudez' residence was the site of at least one union
meeting before he decided to terminate,her services as an
employee.
Even Kundahl's testimony, however, is unreliable in
certain critical areas . I find his testimony that the 14
February layoff was economically motivated to be exag-
gerated, internally inconsistent as not supported by the
relevant documentary evidence, and implausible.
For example, when Kundahl was initially interrogated
as an adverse witness, he claimed he first discussed a
slow down of work with Bury in mid-January. Later,
Kundahl testified that he and Bury discussed Respond-
ent's work schedule and work load "almost on a daily
basis" (Tr. 549).
Kundahl asserted he instructed Bury to reduce the
complement of production employees by "four or five or
six or whatever it might be" about 1 week before the
layoff actually occurred. Finally, Kundahl testified that
he based his decision that a layoff was necessary on an
"open order" report" ° dated 4 February. Kundahl con-
cluded his direct examination regarding the layoff deci-
sion by acknowledging the decision to layoff was not im-
plemented until 14 February.
Union counsel then questioned Kundahl. During this
examination, Kundahl interjected an even earlier date on
9 I have considered the fact that Sypher was acting plant manager be-
tween 11-13 February On those 3 days, then, Sypher had nominal au-
thonty over production employees Bury was absent from the plant I
find no persuasive evidence to conclude this brief assignment provided
Sypher with adequate opportunity to evaluate all the production employ-
ees
10 These reports regularly maintained by the Respondent contain infor-
mation regarding status of customer orders Such items such as descnp-
t,on, quantity , and price of item to be produced, the dates they are due
and expected to be shipped , appear on these forms
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
which he decided a layoff would be possible. Thus, Kun-
dahl volunteered it was "at least" a month before the
layoff. (This preceded Kundahl's mid-January claim
made during the General Counsel's interrogation.) Final-
ly, Kundahl testified that layoff possibility occurred to
him as early as "late December" (Tr. 776).
Kundahl impressed me as an intelligent individual.
Clearly, he was aware that the chronology of events is
one of the critical issues in this matter. Kundahl's testi-
monial vacillations regarding the times when he first
thought a layoff might be required comprises a material
exaggeration . I conclude these variations are a studied
effort by Kundahl to attribute his layoff decision to a
narrow period of time when the documentary evidence
might support his oral claims . This effort detracts from
Kundahl's overall testimonial reliability because when
the "open order" records are viewed in their full breadth
they do not support Kundahl.
Kundahl testified the workload was declining and the
production outlook for the next few months following
January was not promising. Specifically, he said there
was "very little production scheduled for February,
March and into April" (Tr. 552).
Respondent's records support only part of Kundahl's
assertions . The records reflect, as Kundahl claimed, that
there was a reduction in orders due during January and
February. The open order report dated 3 December 1984
shows 171,000 units due in January and 59,000 units due
in February; the report dated 3 January shows 125,000
units due in February, and 59,000 units due in March.
These statistics, in isolation, support Kundahl's testimoni-
al assertions.
However, the open order report dated 5 February (11
days before the layoff) shows 201,000 units due in March
and 109,000 units due in April. These latter figures actu-
ally represent increases over the number of units due in
December 1984 and January 1985. The open order
report dated 6 November 1984 shows 198,000 units due
in December 1984 and 107,000 units due in January 1985.
The open order reports were generated on a weekly
basis . Kundahl reviewed them at least that frequently.
Thus, a week before the layoff, Kundahl was able to ob-
serve that Respondent's production requirements for
March and April had returned to, and exceeded, the No-
vember 1984 levels . In these circumstances , I conclude
that Kundahl's shifting of dates when he determined to
lay off employees, constitutes a factual distortion that im-
pacts adversely on his overall reliability as a witness.
The statistics cited above, undermine Kundahl's
claimed reliance on the open order reports as the reason
for the layoff. As earlier reported, Kundahl said his deci-
sion to layoff was based on his review of an open order
report of 4 February (Tr. 549). In fact, the 5 February
open order report showed a return to the numbers of
units due in December 1984 and January 1985. These
facts, I conclude, directly contradict Kundahl's claim the
layoff decision was based on an anticipated reduced
workload.
Further, Kundahl's testimony that the 14 February
layoffs were economically motivated is implausible. Kun-
dahl conceded in his testimony that Respondent histori-
cally had a high turnover rate. The records reflect attri-
tion among assembly employees averaged approximately
six employees per month between January-July. Assum-
ing arguendo that economic conditions dictated a reduc-
tion in workforce, it is apparent that the reduction could
have been achieved through attrition.
Further testimony shows Kundahl's assertions are im-
plausible and unreliable. Kundahl admitted that 16 new
assembly employees were hired in January. He claimed
they were replacements for other employees who left by
the attrition rate. If, in fact, Kundahl had a layoff in con-
templation in January (consistent with one of his vari-
ations on dates), then it is implausible and illogical the
hiring would have taken place. Indeed, Kundahl himself
testified that Respondent customarily effected reductions-
in-force through attrition. The failure of Kundahl to dis-
continue or eliminate hiring in January is inconsistent
with Respondent's claimed perceived need to lay off em-
ployees. This failure also injects a material degree of in-
consistency into Kundahl's testimony.
Based on the foregoing discussion, I credit Kundahl
only to the extent his testimony is consistent with that
presented by the General Counsel's witnesses and uncon-
troverted evidence.
C. Specific Allegations' 1
1. Interference , restraint, and coercion
The complaint alleges Respondent committed several
independent violations of Section 8(a)(1) of the Act.12
These are:
a. Plant Manager Bury's activity on 14 February
In complaint paragraph 7(a), Bury is alleged to have
engaged in unlawful interrogation and solicitation of em-
ployees to engage in surveillance of other employees'
protected activities.
Delgado credibly testified that Bury spoke with her in
his office on 14 February. The conversation occurred
shortly after the layoffs had been announced. Bury asked
Delgado "[W]ho has started the Union?" Delgado re-
sponded she did not know. Bury retorted, "[Y]ou're sup-
posed to know. You've been hanging around with all
those Spanish Puerto Rican people." Delgado repeated
she knew nothing about union activity. Bury then in-
" i All factual findings that appear in this section are a composite of
unrefuted evidence, parties' stipulations, and credited testimony Not
every bit of evidence or argument of counsel is reported Each has been
considered Omitted matter is deemed irrelevant, superfluous, or of little
probative value on the critical issues.
12 In his brief (fn 2), counsel for the General Counsel , for the first
time contended that "additional Section 8(a)(1) violations were revealed
during the hearing", and moved to amend the complaint to allege such
additional conduct as further independent violations of Sec 8(axl).
The General Counsel's motion to so amend the complaint is denied
The facts relevant to the motion were fully litigated I also find them so
closely related to the issues framed in the complaint that, in other cir-
cumstances , the motion would be granted However, I find each new al-
legation is merely cumulative of those on which I shall hereafter recom-
mend remedial action Thus, the new matter involves creation of impres-
sions of surveillance and threats of job loss and plant closure In this con-
text , I conclude no useful purpose would be served by a grant of the
General Counsel's motion at this stage of the proceedings See Corl Corp.,
222 NLRB 243 fn 1 (1976)
SORENSON LIGHTED CONTROLS 977
structed "try to find out by Satui day and let me know
who has started this union." Bury denied questioning
Delgado. For reasons earlier stated, I do not credit
Bury's bare denial.
Recently, in Rossmore House, 269 NLRB 1176 (1984),
affd. 760 F.2d 1006 (9th Cir. 1985), the Board ruled that
interrogation of known union adherents is not per se un-
lawful. The Board declared that the totality of the cir-
cumstances must be examined, and the inquiry is whether
the interrogation "reasonably tends to restrain, coerce, or
interfere with rights guaranteed by the Act" (269 NLRB
at 1177). The Board majority, in Rossmore , agreed with
the U S. Court of Appeals for the Seventh Circuit,
which stated: "To fall within the ambit of Section
8(a)(1), either the words themselves or the context in
which they are used must suggest an element of coercion
or interference." Midwest Stock Exchange v. NLRB, 635
F.2d 1255, 1267 (7th Cir. 1980).
Delgado was not a known union supporter on 14 Feb-
ruary. Nevertheless, the lessons of Rossmore are appro-
priately applied to analyze interrogations of employees
who are not known active union supporters (Sunnyvale
Medical Clinic, 277 NLRB 1217 (1985)).
The circumstances relevant to Bury's 14 February dis-
cussion with Delgado persuade me that he violated the
Act in both respects alleged in paragraph 7(a) of the
complaint. No legitimate reason existed for Bury to ask
Delgado who "started" the Union. No lawful purpose is
apparent to justify Bury's request that Delgado report to
him on the following Saturday the identity of employees
who initiated the union activities.
Instead , the context in which Bury's statements were
made reflects that his words most assuredly bore a coer-
cive tendency. Each statement readily could have been
perceived by Delgado and other employees as being im-
pliedly connected to the layoffs. Moreover, Bury's state-
ments were made between the time Respondent received
the representation petition and the date of the hearing at
the Board's offices. This timing of Bury's utterances is
another factor that persuades me that his statements pos-
sessed the requisite coercive tendency.
Bury did not literally ask Delgado to engage in sur-
veillance of other employees' activities. However, I con-
clude that Bury's request that Delgado report on Satur-
day is tantamount to a request for her to engage in sur-
veillance. This is so because Delgado initially denied
knowledge of other employees' union activities. Obvious-
ly, Delgado would have had to engage in surveillance to
respond to Bury's question on Saturday.13
On the foregoing, I find that Bury unlawfully interro-
gated Delgado and unlawfully solicited her to engage in
surveillance of the union activities of other employees.
(For rationale applied by the Board in analogous situa-
tions, see Bil-Mar Foods, 255 NLRB 1254 (1981), citing
G. H. Block & Co., 247 NLRB 262 (1980), and cases
is I find Sidex Furniture Corp, 270 NLRB 497 (1984), cited by Re-
spondent , materially distinguishable In Sidex, there was no clear showing
that the supervisor charged with soliciting surveillance effectively made
an effort to have an employee actually engage in surveillance In my
view , Bury's request for a report on a certain date ( Saturday) provides
the basis for the finding , which I make, that his words to Delgado clearly
comprise an effort to have her engaged in the proscribed surveillance
cited at fn . 3; also United Oil Mfg. Co., 254 NLRB 1320,
1324 (1981).)
b. Bury's conduct on 18 February
Bury is alleged to have unlawfully interrogated em-
ployees; threatened them with economic reprisal; solicit-
ed them to engage in surveillance of other employees'
protected activities; and disparaged the Union (see par.
7(b) of the complaint).
The credited evidence shows Bury spoke with Bermu-
dez on 18 February in Respondent's shipping and receiv-
ing area . Bury asked whether Bermudez knew anything
about the Union. Bermudez said , "no." 14 Bury continued
this discussion. He told Bermudez that she did know
about the Union. Bermudez repeated she knew nothing
about the Union. She invited Bury to tell her "about it."
Bury then said if the Union "should come in," Re-
spondent would ship parts back to Mexico and the facto-
ry "will be closed down."15 Bury continued. He told
Bermudez he was concerned about the employees work-
ing at Respondent's Hartford facility who were trying to
support families would lose their jobs. Bury said that is
what happened at Carling Switch where only a few em-
ployees now worked.16
Bermudez convincingly testified that Bury then asked
her ". . . please try to find out who started the Union."
Bury assured Bermudez those employees' jobs were not
in jeopardy. He said he merely wanted to talk with the
union instigators.
Bury then again asked Bermudez to ascertain who
started the union activity, and "to tell him who started it,
to find out for him and let him know." Bermudez ulti-
mately agreed to do what Bury asked. Bury ended the
conversation by saying this discussion was just between
the two of them. Also, Bury admonished Bermudez to be
discrete in her quest for information.
Bury's testimony concerning this conversation with
Bermudez was extremely brief and limited. He was asked
only about the threat to move work to Mexico. Bury un-
equivocally denied he made that threat. Bury was not
asked to address any other part of Bermudez' version of
the 18 February discussion.l7
The Bermudez-Bury 18 February conversation raises
three types of independent 8(a)(1) activity. They are: (1)
interrogation; (2) threat of plant closure; and (3) solicita-
tion of employees to engage in surveillance .18 I conclude
that Bury engaged in the unlawful conduct , as alleged.
14 This, and other words and phrases that appear in this section within
quotation marks, are derived from Bermudez ' testimony
is Respondent operates a production facility in Mexico.
16 A brother of Respondent 's owner, Robert Sorenson , owns Carling
Switch
11 This omission has been another factor considered in assessing credi-
bility Bermudez appeared extremely forthright and was comprehensive
in her description of this incident For reasons discussed in the credibility
section above, I do not credit Bury's denial of the threat to move work
to Mexico
iS As earlier noted, complaint par 7(b) also asserts disparagement of
the Union I find no evidence adduced, or argument propounded, which
shows or claims disparagement was intended to be alleged as a separate
violation It is unnecessary to deal further with this matter
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Arguably, Bury's initial inquiry whether Bermudez
knew anything about the Union does not, alone, bear the
requisite unlawful character. However, that question as-
sumes a different tone when viewed in the context of the
entire conversation.
The conversation clearly contained a threat to move
unit work to Mexico and close down if the Union came
in. Sangamo Weston, 273 NLRB 256 (1984). Such threats
have been identified by the Board (Sangamo Weston,
supra) and the Second Circuit Court of Appeals as a
"Hallmark" violation of the Act. These violations have a
long-lasting coercive effect on employees (NLRB v. Ja-
maica Towing, 632 F.2d 208, 212-213 (2d Cir. 1980).
The 18 February conversation with Bermudez was
part of a pattern of Bury's misconduct that began with
his unlawful activity directed toward Delgado on 14
February. These circumstances persuade me that Bury's
opening question to Bermudez on 18 February reason-
ably had the tendency to interfere with, restrain, and
coerce employees in the exercise of their Section 7
rights. Finally, I conclude Bury's repeated requests of
Bermudez that she seek out union instigators and report
her findings to him violated the Act. (Eagle Headers, 273
NLRB 1486 (1985); Swan Coal Co., 271 NLRB 862, 864
(1984).)19
On the foregoing, I find that Bury, on 18 February,
violated Section 8(a)(1) of the Act by unlawfully interro-
gating Bermudez, threatening removal of work and plant
closure, and soliciting Bermudez to engage in surveil-
lance of the union activities of other employees.
c. Bury's 20 February activity
Complaint paragraph 7(c) alleges Bury unlawfully
questioned employees about their attendance and testi-
mony at a Board representation hearing.
This allegation arises from a 20 February conversation
between Bury and Bermudez concerning the 19 Febru-
ary Board hearing on the instant representation petition.
As earlier reported Delgado, Julia, and Bermudez were
present in the Board's offices on 19 February. They had
been subpoenaed by the Union.
Bury spoke to Bermudez on 20 February. The conver-
sation was in Bury's office. It occurred at the beginning
of the workday. Bermudez' straightforward and compre-
hensive testimony reflects the following relevant dia-
logue.20
Bury asked Bermudez why she was absent from work
the previous day. Bermudez answered she attended the
Board hearing.21 Bermudez showed Bury her subpoena.
Bermudez reminded Bury that Julia gave him advance
notice of their absence and he had excused them.
19 I conclude Bury's request for a report from Bermudez provides the
necessary nexus between his words and solicitation of actual performance
of the surveillance
20 Bury did not testify regarding this 20 February conversation
21 Bury had been apprised of Bermudez' presence in the Board's office
before he confronted her on 20 February Kundahl had identified Bermu-
dez to Bury on the hearing date Moreover, Julia credibly testified that
before the hearing she telephonically advised Bury that both she and Ber-
mudez had been subpoenaed and Bury told her they could report to
work on the following day, 20 February
Bury then asked Bermudez why she attended the
Board hearing. Bermudez repeated it was because she re-
ceived a subpoena. Bury continued to question Bermu-
dez. Bury asked Bermudez to tell him why she was sub-
poenaed. Bermudez speculated it might have been be-
cause she was a long-time employee who received a low
salary. Finally, Bury asked Bermudez what she had been
asked at the hearing. Bermudez denied she was asked
anything. In any event, Bermudez told Bury to ask Kun-
dahl who, as previously reported, also attended the hear-
ing.
The conversation continued, but need not be further
reported. What appears in the above text is what I con-
sider relevant to the allegation of complaint paragraph
7(c). The remainder of the 20 February conversation has
been omitted because I conclude it is irrelevant to the
General Counsel's effort to allege previously unpleaded
conduct as violations of the Act.
I conclude the reported part of the 20 February Bury-
Bermudez conversation shows Bury unlawfully interro-
gated Bermudez , as alleged . The relevant dialogue is per-
vaded with the taint of illegality. Two factors show
Bury had no legitimate purpose in questioning Bermudez
about her attendance and what occurred at the 19 Febru-
ary hearing.
First, all information, if any was needed, on those sub-
jects was easily obtainable from Kundahl. Kundahl spoke
with Bury immediately on the former's return from the
hearing. Indeed, it was Bury who identified Bermudez,
by name, to Kundahl. Second, I credit Julia's testimony,
corroborated by Bermudez, that Bury had advance
notice that they would attend the hearing. Bermudez
knew this. In these circumstances, it is virtually inescap-
able that any interrogation by Bury over why Bermudez
attended the hearing, or what she did there, would tend
to inhibit both attendance and testimony by employees at
Board hearings.
Bury's persistence in his interrogation punctuates the
coercive effect. In this connection, I note this interroga-
tion was not isolated. The 20 February incident occurred
only 2 days after Bury, as I have found, first unlawfully
interrogated Bermudez, threatened her with economic
reprisals, and solicited her surveillance of employees'
protected activities. Bury's continued questioning Bermu-
dez about her union activities and those of other employ-
ees, I conclude, is bound to inhibit employees from fully
exercising their statutory rights.
The inhibiting character of Bury's interrogation of
Bermudez is further demonstrated by recourse to the
specific question regarding the reason for her having
been subpoenaed. This question tends to elicit a response
by which the answering employee divulges his/her per-
sonal union sentiments. No extensive discussion or analy-
sis is necessary to discern the vice inherent in such inter-
rogation.
Moreover, I am impressed by all relevant surrounding
circumstances, that Bury's declared interest in being in-
formed of why employees attended a Board hearing and
what was said and done by them during its course, can
be reasonably expected to instill fear in employees of the
consequences of participating in Board proceedings.
SORENSON LIGHTED CONTROLS 979
Clearly then the employees would be deterred and re-
strained from the free exercise of their statutory rights.
On all the foregoing, I find that on 20 February Bury
interrogated Bermudez about her attendance and testimo-
ny22 at a Board representation hearing.
d. Foreman Torres' 14 February conduct
In complaint paragraph 8, Torres is alleged to have
unlawfully questioned employees and threatened them
with unspecified reprisals for engaging in union activi-
ties.
Delgado and Ayala testified Torres spoke with the
two of them together after work on 14 February.23
Torres was their immediate supervisor.
Torres asked each whether she had signed a union
card or knew who signed a card. Torres said he would
not tell the bosses. Delgado and Ayala answered.24
Torres then said that whoever signed a union card was
in trouble. Finally, Torres asked whether they heard the
rumors that he had heard to the effect that if the Union
won an election Respondent would close the plant.
I conclude Torres' interrogation of Delgado and Ayala
regarding whether they signed , or knew who else among
the employees signed, union cards exceeded permissible
bounds of inquiry.
First, Torres' questions elicited responses by which
Delgado and Ayala would have disclosed their union ac-
tivities, sympathies, or affiliations and/or those of other
employees. Second, the circumstances attending Torres'
interrogation created an atmosphere that reasonably may
be understood as coercive. Specifically, I find Torres'
statement concerning "rumors" of plant closure lends
meaning and effect to his questions regarding which em-
ployees were cardsigners. Arguably, the reference to
such rumors is ambiguous . It is innocuous ,, if viewed in
isolation . However, Torres spoke of these rumors shortly
after the 14 February layoffs were announced. Credited
evidence, not previously reported, reveals Torres admit-
ted to Diaz25 that Bury asked Torres to investigate who
brought the Union in.26
The Torres-Diaz conversation occurred virtually in
chronological tandem with the discussion Torres had
with Delgado and Ayala. Specifically, Torres spoke with
Diaz after the shift's end and shortly after the latter's
22 As noted, Bermudez told Bury she was not asked anything at the
hearing . Because a "stipulated" election was conducted in the representa-
tion proceeding , I presume no one testified on 19 February Nonetheless,
my finding is based on the credited evidence that shows Bury asked Ber-
mudez to tell him what she was asked during the 19 February hearing
as As previously noted , Torres did not testify In some respects these
General Counsel witnesses gave different accounts of what occurred I
find those differences - ( 1) do not pertain to evidence directly relevant to
the specific complaint allegation under consideration , and (2) are not suf-
ficient to overcome my overall observation through their demeanor, that
each of these witnesses was as direct , forthiight , and candid as their flu-
ency with English permitted My factual description of this incident is a
composite of Delgado 's and Ayala 's testimony as best can be reconstruct-
ed from sometimes confusing evidence.
24 Delgado and Ayala presented somewhat different versions of their
responses to Torres' question Those responses are irrelevant
25 I credit Diaz' direct articulate, comprehensive , and uncontroverted
testimony on this issue
26 This admission tends to serve to discredit Bury's denials that he en-
gaged in the alleged 8(a)(l) conduct attributed to him
layoff on 14 February. Torres' admission to Diaz per-
suades me that his inquiry concerning who signed union
cards was made in an already pervasively coercive at-
mosphere.
Moreover, I conclude Torres ' statement he would not
report whatever Delgado and Ayala told him to his
bosses reflects the existence of a coercive atmosphere.
That comment reasonably is understood as a signal that
those employees identified as specifically engaged in
union activities might suffer managerial reprisals. Torres'
promise of secrecy suggests the employees would be
shielded from retaliation. Employees easily can perceive
that a protective mantle of any sort is necessary only in
the backdrop of fear and coercion.
On the foregoing, I conclude that the totality of all the
relevant circumstances provides a basis for me to find, as
I do, that Torres' interrogation of Delgado and Ayala on
14 February had the tendency to interfere with, restrain,
and coerce employees. As such, I find that interrogation
violated Section 8(a)(1) of the Act.
As noted, paragraph 8 of the complaint alleges Torres
threatened "unspecified" reprisals on 14 February. Fac-
tually, I have found Torres made only a single remark
that may be considered supportive of this particular com-
plaint allegation . I refer to Torres' question regarding
Delgado's and Ayala's knowledge of plant closing
rumors. 27
Standing alone , that question may be viewed as innoc-
uous . What Torres said literally does not convey a direct
threat of economic reprisal. However, I conclude the
reference to plant closings assumes a coercive tenor. Its
unlawful character flows from the context in which it
was uttered. Thus, the plant closing rumor was made im-
mediately on the heels of Torres' unlawful interrogation
regarding who signed union cards. That interrogation
was, at once , followed by the general statement that em-
ployees who signed cards were in trouble. Finally, I note
that the plant closing "rumors" were directly tied, by
Torres, to the Union's election success.
The totality of the above-described circumstances pro-
vides a reasonable basis for the conclusion, which I
make, that Torres' reference to plant closing rumors rea-
sonably conveyed the implication that the nature of the
"trouble" that would befall union cardsigners was clos-
ing of the plant in which they worked. Accordingly, I
find Torres impliedly threatened Delgado and Ayala
with plant closing if the Union would win an election.
Such a threat clearly violates Section 8(a)(1) of the Act.
Marmon Group, 277 NLRB 1157 (1985); Central Motors
Corp., 269 NLRB 209 (1984); Sertafilm, Inc., 267 NLRB
682 (1983).
27 I find the complaints ' reference to "unspecified" reprisals is suffi-
ciently related , and broad to encompass consideration of Torres' com-
ment on rumors of plant closing as an unfair labor practice I conclude
this issue has been fully litigated In this posture, my analysis and findings
concerning this issue represent " nothing more than a conformation
of the pleadings to the facts found " Vulcan-Hart Corp, 248 NLRB 1197
(1980)
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Discrimination
a. The 14 February layoffs
It is undisputed that, on 14 February, Bury personally
informed employees Colon, Cruz, Diaz, and Maldonado
they were laid off effective that date. Bury told each of
them the layoff was due to lack of work. Each of these
employees had signed union authorization cards, attend-
ed at least one union meeting, and congregated regularly
with the other Hispanic employees.
The General Counsel and Union argue that the layoffs
were unlawful because they were based on a desire by
Respondent to dissipate the strength of prounion senti-
ment among the Hispanic employees. See Magnolia
Manor Nursing Home, 260 NLRB 377 fn. 2 (1982). Re-
spondent claims the record contains no evidence of an-
tiunion motivation. In any event, Respondent contends
the evidence reflects the existence of economic reasons
for the layoffs. I agree with the General Counsel and the
Union.
Under Wright Line, 251 NLRB 1083 (1980), affd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
approved NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983), the General Counsel has the initial
burden to prove that union or other activity protected
by the Act was a motivating factor in an employer's de-
cision to take adverse action against an employee. If the
General Counsel meets this burden, the employer then
has the burden to show it would have taken the same
action even in the absence of the protected activity.
I conclude the General Counsel's burden was satisfied
by the following factors:
(1) The union activity began on 16 January; the first
meeting was conducted at the home of Miranda, an His-
panic. Colon, among other Hispanics, attended.
(2) Frequent discussion about the Union was held
among the Puerto Rican employees during coffeebreaks
and lunch hours.
(3) All 17 Puerto Rican employees had signed authori-
zation cards by 6 February, the date the Union filed the
representation petition.
(4) Respondent received the petition on 12 February,
but Bury was absent that day.
(5) On 14 February the very day of Bury's return to
the plant, he unlawfully questioned Delgado and solicit-
ed her to engage in surveillance of other employees'
union activities.
The interrogation of Delgado particularly serves to
support the General Counsel's theory of violation. Bury
pointedly advised Delgado that he considered Delgado a
prime source of information about union activity because
she was "hanging around with all those Spanish Puerto
Rican people." This comment reveals Bury's belief that
the Hispanic employees were the focal point of the union
activities. Of course, Bury's beliefs and knowledge are
attributable to Respondent. Bury's remark provides an
impressive base for the conclusion, which I make, that
Respondent was aware that its Hispanic employees com-
prised the "hot bed" of union activity.
(6) Bury and Torres engaged in extensive conduct vio-
lative of Section 8(a)(1). Such unlawful activity is evi-
dence of Respondent's antiunion motivation. This is espe-
cially true because of the "hallmark" character of the
threat to close the plant.
(7) The layoffs were precipitous. I have earlier dis-
credited Respondent's claim that the layoffs were seri-
ously contemplated before the day that they actually
took place. What remains is the undeniable evidence that
the layoffs occurred on the very same day Bury formally
learned the representation petition had been filed.
The seven factors immediately above, in their totality,
comprise the elements of the General Counsel's prima
facie case. They show that some of Respondent's em-
ployees had been engaged in union activity; Respondent
had knowledge of that activity; the knowledge included
a recognition that the Hispanic employees were key ac-
tivists in the union activity; Respondent exhibited its an-
tiunion animus through the 8(a)(1) violations; and acted
swiftly against the Hispanic employees under circum-
stances that it could not credibly justify. z 8 I find that
these layoffs could not help but have an effect of dis-
couraging employees from exercising their Section 7
rights.
Respondent has not borne its burden to refute the
prima facie case. This conclusion is based partially on
my earlier findings concerning the viability of the de-
fense. I found:
(1) The documentary evidence does not support Bury's
claim he reduced overtime, as he claimed, before he re-
sorted to the layoff procedure.
(2) Bury's description of the process by which employ-
ees were selected for layoff is implausible; is not cor-
roborated by other supervisors presumably in a position
to do so; and was pervaded by shifting explanations. The
overall character of Bury's testimony concerning the se-
lection process gives rise to the inference that the rea-
sons asserted by Respondent for its conduct are false.
F. W.I.L. Lundy Bro. Restaurant, supra.
(3) Kundahl's testimony confounds and obscures the
date on which layoffs might have been first considered.
His testimony also distorts Respondent's production re-
quirements.
Additional elements that belie Respondent's defense
are:
(a) Respondent's attrition rate makes layoffs unlikely.
As earlier reported, it is unrefuted that Respondent his-
torically had a high turnover rate. Kundahl admitted Re-
spondent customarily used the attrition rate to control
the size of its work force. The documentary evidence
supports this assertion.
Between 26 December 1984 and 25 July 1985, Re-
spondent lost 43 general assembly employees through
voluntary and involuntary terminations. Thus, Respond-
ent lost an average of approximately six assembly em-
ployees per month. I have considered the evidence that
the total employee complement in the general assembly
28 Diaz' situation buttresses this point She received three warnings the
week before her layoff If Respondent actually had contemplated the lay-
offs as early as it claims, it is likely Diaz might have been laid off concur-
rent with the last warning No evidence was offered by Respondent to
show Diaz was derelict in her work after the third warning The single
intervening factor was Respondent's receipt of the representation peti-
tion In the backdrop of the independent 8(a)(1) activity, the timing of
the layoffs is much more than suspicious
SORENSON LIGHTED CONTROLS 981
area was reduced from 35-40 in February to approxi-
mately 16 in July. Arguably , so substantial a reduction in
employee numbers supports Respondent 's claim of eco-
nomic necessity for the layoffs . However , this reduction
is equally susceptible to the conclusion that attrition,
alone, would have accomplished the result Respondent
asserts it intended.
There is no evidence that Respondent laid off any em-
ployees between February and July . The foregoing leads
me to conclude that the 14 February layoff was both (1)
contrary to Respondent 's customary practice and (2)
swift response to the employees ' union activities . The re-
duced employee complement tends to show that Re-
spondent did not engage in the deliberate analysis of
workload as it claims. This scenario supports the General
Counsel 's contention that the economic defense is pretex-
tual.
(b) Respondent ignored the seniority of each of the al-
leged discriminatorily laid-off employees . Although not
dispositive , seniority is a factor appropriately considered
in evaluating the instant issue . NLRB v. Ra-Rich Mfg.
Corp., 276 F . 2d 451 , 454 (2d Cir . 1960). Here , seniority is
relevant to the conclusion , already made , that Bury's ex-
planation of his selection method is not credible . None of
these four Hispanic employees was less senior than a ma-
jority of the employees who were retained at work. Cer-
tainly , each of the employees laid off had considerably
greater seniority than any of the 16 employees newly
hired in January.
At layoff, Colon had 8 months ' service ; Cruz, 20
months' service ; Diaz, 5 months ; and Maldonado 4
months (see G . C. Exh . 11). Apparently , Respondent
relies on Bury's descriptions of the process by which
these four employees were chosen for layoff as its justifi-
cation for retention of less senior employees . That effort
must fail . It is based on shifts and exaggerations. I have
found them incredible . Hence , I conclude Respondent
has provided no effective explanation for its selection of
more experienced and senior employees for layoff over
employees who were literally brand new hires.
(c) The documentary evidence shows that 10,000
orders were late on the open order report dated 4
March . This represented an increase of 9000 late orders
from 19 February . Between 5-19 February , the number
of late orders decreased from 21 ,000 to 1000. On their
face , Respondent 's records suggest that the layoffs seem
to have caused an increase in late orders . Respondent
proffered no evidence to explain how it could implement
the layoff at a time when the layoff appears to have re-
sulted in production lagging behind schedule. This omis-
sion casts serious doubt on Respondent 's contentions that
it was suffering a reduced workload.
(d) Respondent's defense distorts what its records
show. Respondent 's claims do not portray the full pic-
ture of its production requirements . For example, Re-
spondent argues that by mid -February ". . . the project-
ed production for March was down substantially ." Liter-
ally, this is true . The 19 February open order report,
compared to 5 February , shows a reduction from 201,000
units to 156 ,000 units to be produced in March.
However , the open order reports for those same dates
show an increase from 109 ,000 units to 209,000 units to
be produced in April. Clearly, for Respondent to base its
defense on only part of the production statistics available
to it at the time of layoff tends to skew the statistics to
fit Respondent's contentions. I find such distortion makes
suspect the claim of economic need for the layoff. This is
particularly true if the normal attrition rate is factored
into consideration.
Another example of distortion is Respondent's argu-
ment based on hours worked. Respondent claims that its
records of hours worked show an "even more clear"
need for the February layoff. Specifically, Respondent
asserts that "prior to the layoff, the two assembly depart-
ments were working approximately 2500 hours per
week." That statement is correct, based on hours worked
as shown on open order reports for 3 December 1984, 3
January, and 5 February.
Respondent goes on to claim, "for the next several
months after the layoff, the average . . . was 1800-1900
hours per week, a decline of approximately 25 percent."
This statement is not correct. I have independently aver-
aged the hours worked from the open order reports
dated 4 March-1 July, inclusive. My calculations reflect
an average of approximately 2111 hours worked during
that period of time.29
I conclude that Respondent exaggerates in its claim
that hours were reduced by 25 percent. I cannot sub-
scribe to Respondent's pleas that the number of hours
worked supports the need for a layoff. Even if the reduc-
tion in hours necessitated a reduction in work force, the
arguments based on reduced hours lose their effect when
viewed in the light of the attrition factor.
Finally, Respondent argues that "the third objective
measure of the need for the February layoff is the staff-
ing of the general assembly area before and after the
layoff. The work force declined from 35 to 40 in Febru-
ary to about 16 in July. If the workload declined and the
number of employees declined, then the workload for
the remaining employees would appear to be the same,
as it appeared to several of the employees who testified
at the hearing.
I find the above-quoted argument another distortion.
This time, however, Respondent distorts the evidence
presented by the General Counsel witnesses; whereas
earlier distortions discussed were of the contents of Re-
spondent's own records. Clearly, Respondent's argument
regarding observations of workload is intended to
convey the message that employees' perceptions that
workload remained constant were proportional to the
ratio of employees at work to the amount of work being
done . I find, however, the employees who testified on
the subject were asked, and answered, questions concern-
ing workload without regard to such ratios. The ques-
tions asked on this subject uniformly were straightfor-
ward. They elicited only information about how much
work the witnesses saw was available. I found each Gen-
eral Counsel witness who testified on this subject merely
claimed the amount of work available had remained
more or less the same after the layoff as it had been
29 The average would be higher, had the week of 2 April not been a
holiday
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
before the layoff. Respondent's quoted argument runs
along a different vein. It presumes the questions asked of
the General Counsel's witnesses elicited responses about
relationship between available work and the amount ex-
pected to be performed by each available employee.
All the discussion regarding Respondent's defense and
arguments virtually impel the conclusion, which I make,
that its evidence is insufficient to show that Respondent
would have laid off Colon, Cruz, Diaz, and Maldonado
on 14 February in the absence of their union activities.
Respondent's arguments do not withstand scrutiny.
Accordingly, I find that Respondent's economic de-
fense to the 14 February layoffs is pretextual. Hence, I
find Colon, Cruz, Diaz, and Maldonado were laid off on
14 February in violation of Section 8(a)(3) and (1) of the
Act.It follows, and I find, that their failure to be recalled
is also violative of Section 8(a)(3) and (1).30
b. Bermudez' 4 March termination
(1) The facts
Bermudez had two tours of duty as Respondent's em-
ployee. She was employed in October 1983; worked until
she voluntarily terminated in August 1984; resumed her
employment in November 1984; and continued as an em-
ployee until her 4 March discharge.
Bermudez was an active union supporter. She signed
an authorization card, solicited signatures and general
support among other Hispanic employees, and attended
the 19 February representation hearing.
As previously reported, Bermudez was the object of
Bury's 18 and 20 February unlawful interrogations,
threat of plant closure, and solicitation of surveillance of
other employees' union activities. Union meetings were
conducted at her home. One of these meetings took
place on 21 February. Kundahl admitted he knew, before
Bermudez' discharge, that her home had been the site of
a union meeting.
On 20 February the day Bury questioned Bermudez
concerning her attendance, and what occurred, at the 19
February representation hearing, Bury placed a written
warning in her personnel file. That document reflected
Bermudez had been counseled to call into the plant when
she was going to be absent from work. Bermudez
claimed she had not seen this written warning and was
not aware it had been placed in her file. I credit that tes-
timony. It is consistent with other documentary evidence
that shows that efforts generally were made by Respond-
ent to obtain employees' signed acknowledgement on
documents comprising adverse actions. The 20 February
warning to Bermudez does not reflect any such effort
was made regarding it.
Bermudez ' workweek , beginning 25 February, was
punctuated with a series of absences. On 25 February
Bermudez left work early with supervisory permission.
This permission was granted because Bermudez received
a telephone call at work from a friend. Bermudez made
advance arrangements for that friend to call to say a
water pipe burst in Bermudez' apartment.31 In fact, Ber-
mudez used her time off on 25 February to investigate
educational opportunities for Julia at a local high school.
On 26 February Bermudez left work early due to ill-
ness . Pablo excused Bermudez . The illness was legiti-
mate.
Bermudez was also on sick leave on 27 February. Julia
reported to Pablo on that day that Bermudez was ill.
Bermudez suffered from asthma. At 2:30 a.m., 28 Feb-
ruary, Bermudez, accompanied by Julia, attempted to
visit a hospital. They, however, returned to their apart-
ment without having reached the hospital because Ber-
mudez was too ill to drive and Julia did not know how
to drive. Later, before 6:30 a.m., Bermudez and Julia ac-
tually visited St. Francis Hospital in Hartford. They left
the hospital without receiving medical attention.
Julia asked Gonzalez to advise Respondent that she
and Bermudez would not report to work on 28 February
because of Bermudez' illness and they had little or no
sleep that night.
Gonzalez credibly testified she told Pablo, on arriving
at work on 28 February, that Bermudez and Julia would
be absent because Bermudez was ill and they had gone
to a hospital. Gonzalez repeated this message to Pablo at
9:30 a.m. Pablo said it was "okay." Pablo told Gonzalez
he knew Bermudez was ill when she left work earlier
that week.
The next day, 1 March, Bermudez reported to work.
Sypher immediately asked Bermudez for a written
excuse to explain her absences on 25, 27, and 28 Febru-
ary. Sypher wanted documentation of her medical ab-
sence. Bermudez told Sypher that the fire department
and insurance company were at her house on 25 Febru-
ary. (This was not true.) Sypher asked Bermudez to
produce a note from them to excuse her 25 February ab-
sence. Bermudez, of course, could not comply. She did
not do so.
However, Bermudez left the plant on 1 March (appar-
ently without Sypher's objection), visited St. Francis
Hospital, and there tried to obtain an excuse. Her efforts
were rejected because she had received no treatment
there.
Bermudez then went to Hartford Hospital for a check-
up. As a result, she obtained a doctor's certification that
she received treatment on 1 March. Bermudez returned
to the plant. She delivered the doctor's note to Sypher.
Sypher excused Bermudez for the remainder of 1 March
because of the medical note. That note reflected that her
illness warranted an excused absence from work both on
1 March and on 4 March.
On 4 March Bermudez nonetheless returned to work.
Bermudez was summoned to Bury's office. Sypher and
Kundahl also were present. This meeting took place ap-
proximately 8:30 a.m. Sypher again asked Bermudez to
obtain a medical certificate for her absences the previous
week. (Apparently, Sypher had not noticed that the note
Bermudez gave him on 1 March did not relate to the
90 The evidence that Respondent historically does not recall laid-off
employees is irrelevant to the alleged discriminatory failure to recall, in
the context of the discriminatory layoffs
91 Respondent did not know of this prearrangement until the instant
hearing.
SORENSON LIGHTED CONTROLS 983
earlier dates for which he had desired a medical certifi-
cate.)
Bermudez left the plant, ostensibly to comply with
Sypher's request. She returned at approximately 11 a.m.
Bermudez did not have the documentation Sypher re-
quested.
Sypher told Bermudez that he would excuse her ab-
sences on 1 and 4 March. However, he continued to re-
quest documentation for her absences on 25, 27, and 28
February. Bermudez said she could not obtain an excuse
for 25 February and was at home ill on 27 and 28 Febru-
ary.
Kundahl argued with Bermudez. He told Bermudez
that Pablo reported she called on 27 February to report
she was at a hospital. Bermudez countered. She told
Sypher she spoke to Pablo on 26 February, not 27 Feb-
ruary. At that time, Bermudez told Sypher she simply
told Pablo she would be absent from work because of
her illness. Kundahl then said he understood Bermudez
told Pablo she was at a hospital for 2 days. Bermudez
told Kundahl his information was incorrect.
Pablo was called into the discussion. Pablo said Ber-
mudez spoke with him on 27 February. He claimed Ber-
mudez told him she had been at the hospital for 2 days.
Bermudez again said those were riot the true facts. Ber-
mudez again repeated her story. She said she was home
ill on 27 February. She said that on 28 February she re-
mained at home except when she attempted to go to the
hospital. Kundahl insisted that he believed Bermudez
was at a hospital on 27 February. Kundahl told Bermu-
dez, "We're going to have to discharge you because you
lied to the Company." Bermudez denied she lied. She
once again presented her version of the facts. Kundahl
repeated, "We're going to have to let you go because
you lied to the Company."
Kundahl and Sypher testified Bermudez admitted to
them, on 1 March, that she had not actually visited a
hospital. They claimed that Bermudez admitted she lied.
They claimed the discharge decision was not made until
that occurred.
Bermudez testified, without contradiction, that she had
never been required to present a written excuse for ex-
tended absences or illness before this incident. Pablo, in
the past, orally excused Bermudez from work without
written documentation. Delgado also credibly testified
she had not been required to present documentation for
absences due to illness.
(2) Analysis
The General Counsel contends that Bermudez was ter-
minated for union activities and that the asserted rea-
sons-"unexcused absences" and lying about the reasons
for the absences-are pretextual.
Respondent contends the evidence does not support
the existence of a puma facie case because it is undenied
that Bermudez actually was absent a great deal of time
during the week of 25 February. Alternatively, Respond-
ent contends it has rebutted any prima facie case that
may appear in this record.
I conclude the evidence satisfies the General Counsel's
burden of establishing a puma facie case.
1. Respondent had knowledge of Bermudez' union ac-
tivities. Direct evidence of such knowledge is in the
record. Bermudez was identified at her attendance at the
19 February representation hearing. Kundahl admitted
that he knew the 21 February union meeting was con-
ducted at her apartment.
2. The record contains ample evidence of animus. Two
types of such animus exist : (a) general antiunion hostility;
and (b) hostility toward Bermudez in particular.
The general hostility is reflected by the independent
8(a)(1) conduct directed toward Delgado on 14 February
and Bermudez on 18 and 20 February. Also, the 14 Feb-
ruary layoffs that I have found were not justified by the
economic necessity claimed by Respondent offer evi-
dence of Respondent's general union hostility.
The evidence of Respondent' s animus toward Bermu-
dez, in particular, is considerable. The 20 February
warning given to Bermudez is in this category. Julia pre-
sented credible and comprehensive testimony that shows
that she called into the plant to report that both she and
Bermudez would be absent because of the subpoena to
attend the representation hearing.32
A previously unreported fact relates to Respondent's
feelings toward Bermudez. She recalled that, during the
20 February interrogation about her attendance at the 19
February representation hearing, Bury asked what he
should think "now that she had attended" the hearing.
Bury also referred to the 18 February conversation
during which, in salient part, he sought to enlist her aid
in surveillance of other employees' union activities.
As earlier stated, the 20 February warning was placed
into Bermudez ' records without her knowledge. I am
persuaded this action assumes a surreptitious character.
This secret warning came 2 days after Bury directed se-
rious 8(a)(1) violations toward Bermudez ; 1 day after she
attended the representation hearing; and on the same day
Bury interrogated Bermudez unlawfully a second time.
This backdrop , alone , forms a convincing basis to con-
clude Respondent was hostile toward Bermudez' protect-
ed activities.
Additional factors buttress such a conclusion. They
are: (1) the record reflects no legitimate ground existed
for the 20 February warning; and (2) Bury's explicit ex-
pression of disappointment that Bermudez attended the
representation hearing.
Julia's and Bermudez' credited testimonies show that
Julia called in Bermudez' absence. It also shows Bury re-
ceived the call. Obviously, there was no need for Bermu-
dez to be counseled to call in when absent. Hence, there
was no need to memorialize that such counseling oc-
curred-especially by use of an official personnel warn-
ing. I conclude the 20 February warning was part of the
fabric of Respondent's antipathy to Bermudez' union ac-
tivities.
Bury's 20 February rhetorical question about what he
should think "now, etc." readily connotes his own happi-
ness that Bermudez attended the representation hearing.
It was Bury's reaction that Bermudez apparently ignored
32 Bury testified he did not recall from whom he learned Julia and
Bermudez would be absent Bermudez , in forthright terms, corroborated
Julia's account I credit Bermudez and Julia
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
his interrogation, threats, and solicitation of her to
engage in surveillance. In the context of this earlier un-
lawful conduct directed at Bermudez, I am persuaded
that the 20 February warning is a manifestation of Re-
spondent's unlawful motivation.
3. Bermudez' discharge was a deviation from Respond-
ent's past practice. Bermudez and other employees credi-
bly testified that no written excuses for absences or leav-
ing early were required before 1 March. Respondent's
personnel files, in evidence, contain no references to em-
ployees being questioned or warned about unexcused ab-
sences. Delgado testified, without contradiction, that on
5 March, the day following Bermudez' discharge, Sypher
told her that "the rules had changed" and thereafter doc-
umentation for absences were required.
From the above, I conclude that no policy existed,
prior to Bermudez' 4 March discharge, which would
have required her to produce documentation for the ab-
sences from work the preceding week. Patently, this part
of Respondent's reason for Bermudez' discharge is false.
The credited evidence persuades me that, before the
Union's advent, Respondent's practice was to tolerate ab-
sences by its employees. The sudden imposition of the
requirement that Bermudez document her absences
during the week of 25 February is cogent evidence of
unlawful hostility both as to her and the Union. (See
Ann's Laundry, 268 NLRB 1013, 1015-1016 (1984);
Bronx Metal Polishing Co., 268 NLRB 887, 890, 891
(1984).)33
I conclude that Respondent's assertion that Bermudez
lied is a gross exaggeration. In my view, when Pablo
told Kundahl that Bermudez telephoned him on 27 Feb-
ruary, he effectively corroborated Bermudez' story to
Respondent.
The conflict between Bermudez' and Pablo's assertions
concerning whether Bermudez claimed to be "at the hos-
pital for two days" is of little consequence. Assuming
Pablo, who did not testify, presented facts about Bermu-
dez' hospital visit that are contrary to the latter's inter-
ests, Pablo's statements (1) appear in this record as hear-
say from Kundahl, and (2) are inconsistent with those of
Gonzalez, the most credible witness in this proceeding.
Gonzalez' testimony shows that Bermudez and Julia
tried their best to advise their supervisors of their ab-
sences, and the need for them, as they were occurring
between 26 February and 1 March. Gonzalez' direct,
comprehensive, forthright, and soft-spoken testimony
was to the effect that, on 28 February, she told Pablo
that Julia and Bermudez had to go to a hospital because
Bermudez was feverish and had a sore throat and head-
ache. Gonzalez testified Pablo said "okay," and that he
knew Bermudez was ill the previous day.34
Gonzalez' testimony shows that Bermudez' absence lit-
erally was excused for at least 2 days the week before
the discharge. There is no evidence that Respondent dis-
33 These conclusions are not intended to reflect my general condona-
tion of unjustifiable absences from work Employers are entitled to con-
scientious adherence to attendance rules by their employees
34 Gonzalez was not asked to give her explanation of events until
about three quarters hour after Bermudez' discharge This does not affect
my conclusions as to what reasonably might have been expected as Re-
spondent's reactions to the absences
ciplined Gonzalez in any way after 4 March. Indeed,
Gonzalez was a current employee of Respondent at the
time she testified in these proceedings. I presume, then,
that Kundahl accepted what Gonzalez said on 4 March.
Otherwise, it is reasonable to presume Gonzalez, also,
would have been terminated, either for lying or conspir-
ing with Bermudez and Julia to extricate themselves.
This situation makes Respondent's claim that Bermudez
was discharged for lying a sham.
During Bermudez' 4 March termination conversation,
Bermudez denied she lied about her absences. I credit
her denials. I find it illogical to believe that Bermudez
would have admitted lying. All her other actions on 4
March are contrary to such an admission. Bermudez,
more than once, protested what Pablo said that day. She
made several attempts to clarify his statements . Bermu-
dez asked for Gonzalez to be heard.35 Gonzalez cor-
roborated Bermudez' denials. Lying, in my view, legiti-
mately cannot be asserted as a reason for Bermudez' dis-
charge . She did not lie.
I recognize that employees might be sufficiently intimi-
dated by imminent job loss to admit virtually anything
requested by an employer. However, the totality of in-
stant circumstances do not impel a conclusion that such
conditions existed in this case.
On all the foregoing I conclude the assertions of fail-
ure to produce documentation for absences and lying to
Respondent's officials are pretexts offered to disguise Re-
spondent's true reasons for Bermudez' discharge. I fur-
ther find the record as a whole contains prima facie evi-
dence that Bermudez was discharged in violation of Sec-
tion 8(a)(3) and (1) of the Act.
I now turn to consideration of Respondent's Wright
Line burden of proving it would have discharged Bermu-
dez, even in the absence of her union activities. I con-
clude Respondent has not sustained its burden.
First, Respondent argues that Bermudez' discipline
was meted out consistent with past practice. Respondent
claims the records of two former employees prove this
point. I disagree.
The records relied on (R. Exhs. 1 and 2) are those of
T. Ferrer and G. Andino. Each of these employees was
terminated for failure to comply with repeated superviso-
ry requests to submit medical documentation in support
of extended medical leaves of absence.
I find Bermudez' situation materially distinguishable
because Bermudez (1) was not seeking extended time off;
(2) advised Respondent of her absences in accordance
with previously acceptable procedures; and (3) complied,
to the extent possible, with Sypher's request for docu-
mentation by giving him the only kind of medical note,
on 1 March, possible under the circumstances.
Moreover, it appears that Respondent's requests for
documentation from Ferrer and Andino had a legitimate
basis. Each had requested a leave of absence. In Bermu-
dez' case, I find no similar legitimacy exists because
Pablo's remark to Gonzalez reflects the absences had
been excused.
as As earlier noted, Gonzalez did present her version of events, but not
until after Bermudez was discharged Gonzalez gave her account in con-
nection with Julia's 4 March warning, to be discussed below
SORENSON LIGHTED CONTROLS 985
Next, Respondent contends that its records show that
lying to management constituted a ground for discharge
before 4 March. Those records relate to E. Cruz (G.C.
Exh. 18)36 and S. Gaines (G.C. EKh. 19). Indeed, at the
hearing , the parties stipulated that E. Cruz and Gaines
were the only other employees ever disciplined for con-
duct "similar" to Bermudez.
The records of E. Cruz and Gaines do not actually
show their terminations were for "similar" offenses. E.
Cruz' record shows that her termination was due only to
low production. Specifically, E. Cruz was cited for pro-
ducing 4-1/2-5 hours' worth of work while working an
8-hour day. The documentary evidence does not contain
any indication that E. Cruz was discharged for lying.
I find Gaines' record also deficient. The parties stipu-
lated that Gaines' record was the only record produced
by Respondent pursuant to a subpoena requesting all of
Respondent's records showing "warnings and/or dis-
charge due to absenteeism, tardiness or lying." On its
face, Gaines' record shows only that he had been hired
on 1 August 1981, and terminated on 4 September 1981.
Respondent argues that Gaines had been hired as a
driver and was discharged because he lied about having
a driver's license. However, Gaines' record does not ex-
plicitly show to what job he had been hired. Also, there
is no written entry on Gaines' record to the effect his
termination was because he lied.
In the above context, I conclude the documentary evi-
dence diminishes the probative force of Respondent's ar-
gument concerning Gaines. Assuming arguendo that
Gaines' record specifically showed he was discharged
for lying, I consider that factor only some evidence that
Respondent historically considered lying a dischargeable
offense. Nonetheless, such evidence would not be dispos-
itive.
In the entire background of events in the instant case,
the substantial evidence of unlawful motivation is, to me,
an overriding consideration in assessing the adequacy of
Respondent's defense. In all the circumstances, I am con-
vinced Respondent grasped on Bermudez' lying (even if
it occurred) as a subterfuge.
In assessing Respondent's defense, I have considered
the fact that neither Miranda nor Delgado was disci-
plined. Each was a union activist; Miranda possibly to a
greater extent than Bermudez. In all the instant circum-
stances, Respondent's failure to discipline Miranda and
Delgado is of little significance. See Ballard Motors, 179
NLRB 300 fn. 26 (1969), in which the Board observed:
"It is not necessary, nor is it ordinarily feasible to termi-
nate every union member or adherent in order to dis-
courage union membership." In NLRB v. Challenge-Cook
Bro., 374 F.2d 147, 152 (6th Cir. '1967), the Sixth Circuit
remarked: ". .. the mere fact that all union members or
supporters are not discharged does not disprove the fact
that an employees' discharge is based upon an unlawful
discriminatory motive."
Finally, Respondent interjected irrelevant subject
matter into its defense. In my view, such "bootstrap" ac-
tivity tends to expose the tenuous character of the de-
fense . Respondent argues that Bermudez ' "absences
36 E Cruz is not the same individual as alleged discriminatee, L Cruz
during the week of February 25 were spurious." To
show this, Respondent relies on Bermudez ' admission
that she preplanned a false emergency to gain early re-
lease from work on 25 February . This admission became
known to Respondent for the first time at the instant
hearing . Clearly, Bermudez ' 25 February conduct could
have played no part in her discharge . Respondent 's reli-
ance on that conduct tends to weaken its defense.
On all the foregoing , I conclude that Respondent has
not provided sufficient evidence to rebut the prima facie
case established by the General Counsel . Accordingly, I
find that Bermudez ' 4 March discharge , and subsequent
failure to be recalled , were discriminatory and violative
of Section 8(a)(3) and (1) of the Act.
c. The warnings
Complaint paragraph 11(a) alleges that a discriminato-
ry warning was issued to Julia on 4 March.
The Facts
Shortly after Bermudez ' discharge on 4 March, Sypher
delivered a written warning to Julia. The warning (G.C.
Exh. 17) indicated it was discipline for an unexcused ab-
sence on 28 February.34
Julia was a union activist. She signed an authorization
card; solicited other employees' signatures on union au-
thorization cards; attended the 19 February representa-
tion hearing; openly wore a union button at work; and,
together with Bermudez , hosted a union meeting on 21
February at the apartment that they shared.
Julia worked as scheduled on 25, 26, and 27 February.
She did not report to work on 28 February because she
had been virtually without sleep the previous night. This
is because (as described above) Julia had assisted Bermu-
dez in her failed efforts to obtain medical treatment.
As earlier reported, Julia asked Gonzalez to tell Pablo
that Julia and Bermudez would not be at work on 28
February because Bermudez was ill and they had gone
to a hospital.
Sypher testified he decided to give Julia the 4 March
warning when he learned, during Bermudez ' discharge
conference earlier that day, that neither Julia nor Bermu-
dez was at the hospital on 28 February. That was the
reason Pablo earlier reported for Julia's absence.
Sypher asked Julia to sign the 4 March warning. She
refused . Instead , Julia asked that Gonzalez be permitted
to explain what Gonzalez told Pablo of Julia 's absence.
Sypher testified he could not recall that Gonzalez
gave her description of what she told Pablo. I credit
Julia's credible and positive recollection of this event.
Indeed, Gonzalez corroborated Julia in material aspects
of what occurred on 4 March.
Accordingly, I find Gonzalez was brought into the
conference between Sypher and Julia. Pablo also was
present. Gonzalez spoke in Spanish to Pablo. Gonzalez
repeated what she had told Pablo on 28 February about
Julia 's (and Bermudez ') absence from work that day.
Gonzalez, on 4 March, repeated the same story to
97 Julia's employment ended on 29 March That termination is not an
issue in this proceeding
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sypher in English. Pablo then told Sypher that Pablo
had misunderstood what Gonzalez told him on 28 Febru-
ary. What Pablo said effectively indicated that he actual-
ly had not been told that Julia and Bermudez had absent-
ed themselves to go to the hospital.
Sypher remained steadfast. He noted that Julia refused
to sign the warning form. The warning was then made
part of Julia's personnel record.
The written 4 March warning contains a note that
Bury previously imposed oral warnings on Julia on 18
and 20 February, but the offense is not reflected. Bury
did not testify concerning those earlier warnings. Julia
did not indicate she was aware of such warnings from
Bury. Instead , Julia testified she missed several succes-
sive days of work in 1984; and was not disciplined or re-
quired to provide a written excuse for those absences.
Julia further testified she also has been late to work and
left early without adverse action by Respondent.
I credit Julia's account of her disciplinary history. Her
overall credible demeanor is supported in this particular
area by documentary evidence. Respondent had a form
in use for oral warnings . The form is entitled "Super-
visor/Employee Discussion Report."38 No such discus-
sion report form was produced to support the asserted 18
and 20 February warnings to Julia.
Analysis
I conclude the General Counsel has established a
prima facie case that Julia's 4 March warning was dis-
criminatory within the meaning of Section 8(a)(3) and (1)
of the Act. The prima facie case consists of:
(1) Ample evidence that Julia engaged in union activi-
ty. That activity is described above.
(2) Respondent had knowledge of Julia's activity. She
openly wore a union button; attended the representation
hearing and was identified by Bury to Kundahl (see sec.
II,A, above); and Kundahl knew a union meeting had
been conducted on 21 February in Julia's apartment.
(3) Respondent harbored antiunion hostility. This
animus emanates from (a) its independent 8(a)(1) con-
duct, and (b) treatment of Julia in a disparate manner and
differently from the time she was not known to be a
union activist.
My finding that Julia had been absent in the past with-
out having been disciplined shows how Respondent
treated her differently on 4 March. Her union activity
was the single intervening factor between the earlier fail-
ures to discipline her and the warning on 4 March.
Moreover, I conclude that the insertion of notes that
Julia had been orally warned on 18 and 20 February is a
fabrication designed to enhance Respondent's defense.
Those notations are bare self-serving written assertions.
They are unsupported by Bury's testimony; refuted by
Julia; and unsupported by other evidence (the oral warn-
ing forms) that was available to Respondent.
I consider this fabrication, in all the surrounding cir-
cumstances, further evidence of Respondent's unlawful
animus.
Finally, I find Julia's warning is so inextricably con-
nected to Bermudez' discharge that all elements of Re-
spondent's motivation applicable to that discharge are
equally relevant to the warning. It is plausible that Re-
spondent would have treated Julia in a discriminatory
manner . Julia was Bermudez' roommate . The record
shows they were close companions, both in union activi-
ties and their personal and work relationships. Respond-
ent itself asserts the interdependency of Bermudez' dis-
charge and Julia's warning . Thus, Respondent contends
Julia's warning was predicated on Respondent's belief
that Bermudez fabricated her story about her hospital
visits.
Respondent's defense simply does not withstand scruti-
ny. When Gonzalez reminded Pablo what she had told
him about Julia's 28 February absence, Pablo confessed
(on 4 March) to Sypher that he had misinformed Re-
spondent of the circumstances of Julia's absence. In fact,
a reasonable assessment of the entirety of Gonzalez' testi-
mony, leads to my conclusion that Pablo had effectively
excused that particular absence. Thus, Gonzalez' credited
testimony, unrefuted by Pablo, eliminates the very foun-
dation of Respondent's claim the 4 March warning was
given for good cause I find Gonzalez' testimony exposes
the falsity of Respondent's asserted reason for the warn-
ing. In all the surrounding circumstances, I find the 4
March warning to Julia part of Respondent's scheme to
dissipate the strength of prounion sentiment.39
On all the foregoing, I conclude there is insufficient
evidence for me to find Julia would have been warned
on 4 March had she not engaged in union activity. Ac-
cordingly, I find that the prima facie case has not been
rebutted and that Julia's 4 March warning was discrimi-
natory and violated Section 8(a)(3) and (1) of the Act.
2. Complaint paragraph 11(b) alleges that discri minato-
ry warnings were issued to Colon, Cruz, Diaz, and Mal-
donado at various times between 7 January and 11 Feb-
ruary.
The evidence shows these four individuals received
warnings, as follows:
Colon, 21 January for quality and quantity of work; 6
February for low production. Cruz, 10 January for bad
temper and attitude; 7 February for low production.
Diaz, 4 February for low production and scratched
lenses; 7 February for low production; and 11 February
for poor quality. Maldonado, 7 January for low produc-
tion; and on 10 January was moved from department 105
to department 100 for being unsuited to the high-produc-
tion Italian machine.
Each of these warnings was dated before 12 February,
the date on which I have found that Respondent clearly
had knowledge of the union campaign. Each warning
(except one to Cruz), was related to poor production.
Each of these warnings apparently was written with a
black felt-tip marker. Bury issued these warnings.
Respondent's records show that other employees, none
of whom is the subject of unfair labor practice allega-
99 In this connection I have noted the representation election was
scheduled to be conducted on 19 March The timing of both Bermudez
38 For a sample of the oral warning form, refer to U Exh I and 2(a)- and Julia's 4 March disciplines reasonably could have been expected to
(c) impact on the forthcoming election
SORENSON LIGHTED CONTROLS 987
tions, also received written warnings. These other warn-
ings , also apparently were prepared with a black felt-tip
marker and were issued by Bury. Those warnings that
were imposed for failure to meet production standards
were dated between 20 March-22 October 1984.40 They
are summarized as follows:
Romanelli , 27 July 1984 for poor quality. Vilaneuva,
26 September 1984 for excessive talking and low produc-
tion; and 22 October 1984 for talking and doing very
little work.
The General Counsel contends that the warnings to
Colon, Cruz, Diaz, and Maldonado were backdated to
conceal their discriminatory character and to support
Respondent's contention of the propriety of selecting
these employees for the 14 February layoff. The General
Counsel further contends there is no evidence other em-
ployees were disciplined for the same conduct.
Respondent argues that the General Counsel has estab-
lished no prima facie case to support this allegation. I
agree with Respondent.
The General Counsel's prima facie is deficient in two
critical respects. First, the warnings imposed on Roman-
elli and Vilaneuva show that Respondent had warned
employees for their poor production in 1984. The warn-
ings issued to Vilaneuva tend to show Respondent gave
multiple warnings for a single type of infraction. Second,
the evidence is insufficient to conclude, with reasonable
certainty, that the warnings to the alleged discriminatees
were fabricated for Respondent's defense. Concededly, at
the hearing I observed a suspicious degree of similarity
among the disputed warnings, and expressed some reser-
vations of their authenticity.
However, my review of the record in its entirety per-
suades me that the similarities I observed at the hearing
do not affect the validity or probity of those warnings.
The record contains a multitude of warnings (not explic-
itly mentioned in this decision) and other documents ap-
parently prepared by Bury. Those documents convince
me that there is little basis to conclude Bury prepared
the disputed warnings to establish Respondent's defense,
or to justify his own subsequent activity.
Moreover, I have earlier found that there is no evi-
dence Bury had knowledge of the union activity until 13
February. This finding, considered in the light of the
1984 warnings also issued by Bury to employees not os-
tensibly engaged in union activity, leads me to conclude
no substantial basis exists for me to attach sinister intent
to these warnings.
Finally, I can find no evidence that seriously chal-
lenges the accuracy of the basis for which each disputed
warning had been issued. This omission, at least, pro-
vides a valid production reason f'or each of the alleged
discriminatees to have received the disputed warnings.41
40 Other warnings appear in the record I have accorded probative
value only to those that clearly are similai to those imposed on the al-
leged discrimmatees and that preceded the warnings alleged to be dis-
criminatory.
41 There is testimony from credited witnesses that the recipients of the
warnings did not know about them That testimony does not affect my
overall view of this particular allegation
Assuming, arguendo, I am ultimately not sustained in
my conclusion that no prima facie has been established, I
conclude that the 1984 warnings to Romanelli and Vilan-
euva effectively rebuts the prima facie case.
On all the foregoing, I find Respondent's warnings to
Colon, Cruz, Diaz, and Maldonado between 7 January
and 11 February do not constitute a violation of any sec-
tion of the Act.
III. THE REPRESENTATION CASE
A. The Challenged Ballots
The 19 March election resulted in five challenged bal-
lots. This number is sufficient to affect the election's out-
come.
The Board agent who conducted the election chal-
lenged the ballots of alleged discriminatees Colon and
Diaz because their names did not appear on the voter eli-
gibility list. Respondent challenged Bermudez ' ballot be-
cause she had been terminated. The Union challenged
the ballots of Kelly and Y. Stergakis asserting they were
statutory supervisors. These challenges are resolved, seri-
atim , as follows:
1. Colon and Diaz
Disposition of these challenges is governed by my
findings regarding the character of their 14 February
layoffs. I have found the layoffs were discriminatory.
Accordingly, the challenges to their ballots should be
overruled (Lake Shore, 219 NLRB 1091 (1975); Crown
Distributors, 210 NLRB 881 (1974).)
2. Bermudez
As I have found Bermudez was discriminatorily dis-
charged in violation of Section 8(a)(3) and (1) of the Act,
I now find she is eligible to vote in the election (Our-
Way, Inc., 238 NLRB 209, 236 fn. 4 (1978).
3. Kelly and Y. Stergakis
Kelly was a maintenance employee. He generally
worked alone. When assistance was needed, Kelly asked
his supervisor for it. No party proffered any other factu-
al details of Kelly's job functions, duties, and responsibil-
ities.
Indeed, the Union seems to have abandoned its chal-
lenge to Kelly's ballot. The Union's brief contains no ar-
gument in support of the Kelly charge.
Because the record is devoid of any evidence that
Kelly possessed, or exercised, any indicia of supervisory
authority, I shall recommend the challenge to his ballot
be overruled.
Y. Stergakis testified in a calm, direct, responsive, and
candid manner. She claimed she was promoted to "Mar-
garet's" job some time in January or February.
Y. Stergakis credibly testified the greatest portion of
her workday is consumed by making samples and small-
lot orders. She acknowledged that she occasionally dis-
tributes parts and work to other assembly employees, but
this is done pursuant to Dina's instructions. Sometimes,
Stergakis has trained other employees in assembly oper-
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ations. Stergakis' distribution of work and employee
training appear to be sporadic. At the 19 March repre-
sentation election, Stergakis served as Respondent's offi-
cial observer.
No employee who testified identified Stergakis as his
or her supervisor. Delgado, however, claimed that Ster
gakis does the same work as Dina , and Bermudez testi-
fied Stergakis assigned work like "Margaret."
I place little probative value to this part of Delgado's
and Bermudez ' testimonies . Delgado was generalized
concerning Stergakis, whereas Stergakis was more spe-
cific; and Bermudez actually said no more than Stergakis
herself acknowledged about her participation in work as-
signments. The comparison to "Margaret" is not particu-
larly probative because there is no evidence, or stipula-
tion, that Margaret was a supervisor. The burden is on
the party alleging supervisory status to prove its exist-
ence. Commercial Movers, 240 NLRB 288, 290 (1979);
Thayer Dairy Co., 233 NLRB 1383 (1977).
I find no persuasive evidence that Stergakis possessed,
or exercised, any indicia of supervisory authority. Train-
ing of employees does not necessarily confer supervisory
status. Also, occasional distribution of work assignments
and parts, especially under supervisory direction, is not
enough to warrant a finding that the individual who per-
forms such functions is a supervisor. See Mid-State Fruit,
186 NLRB 51, 52 (1970).
On all the foregoing, I find Y. Stergakis was not a su-
pervisor and was eligible to vote. I shall recommend the
challenge to her ballot be overruled.
B. The Objections
1. Respondent's objections
Respondent filed two objections to conduct affecting
the election results.
First, Respondent objected that an eligible voter was
permitted to handle the ballot of voter-employee John
Patterson, to fold the ballot, and drop it into the ballot
box.
The evidence pertaining to this objection is substantial-
ly unrefuted. Patterson, an eligible voter, marked his
ballot in the privacy of the voting booth. He exited the
booth in a confused state. He held his ballot in his hand.
The ballot was not folded.
Patterson ignored the ballot box. He began to leave
the polling area . The Board agent who conducted the
election, and the observers, attempted to gain Patterson's
attention Their efforts failed. Patterson walked toward
the door that led out of the polling area . There, Patter-
son met another eligible voter, T. Stergakis,42 who had
already voted and was about to leave the area . Patterson
recognized T. Stergakis as a friend. He gave his ballot to
T. Stergakis, who glanced at the ballot, folded it, and
dropped it into the ballot box.
42 Sister-in -law of alleged supervisor , Y Stergakis This family rela-
tionship is irrelevant to the disposition of the objection
There is no evidence that any voter waiting to cast a
ballot saw, or could have seen, how Patterson voted. T.
Stergakis testified she did see Patterson's vote.43
There is no evidence to show that any observer sought
to prevent T. Stergakis from depositing Patterson's ballot
into the ballot box, or complained about that action be-
tween the time Patterson's ballot was dropped into the
box and issuance of the tally of ballots. Also, there is no
evidence that any party refused to sign the tally of bal-
lots.
Respondent cites A. G. Parrott Co., 255 NLRB 259 fn.
3 (1981), and General Photo Products, 242 NLRB 1371
(1979), in support of this objection. I agree that those
cases are broad authority for invalidating a ballot that
somehow reveals the identity of the voter. In General
Photo, the Board commented ". . . the secrecy of the
ballot is viewed as outweighing the voter's intent."
I find Respondent's reliance on the cited precedent is
misplaced. In my view, both the holdings of these cases,
and the quoted language from General Photo were in-
tended to establish conditions that render ballots void. I
find nothing in those cases that expresses an intention to
extend those principles to the entire election so that the
whole event could be declared void. This, of course, is
the result intended by Respondent's objection. This ob-
jection confuses identification of the voter with disclo-
sure of the vote. The cited precedent, I conclude,
reaches only the former issue.
Respondent's citations do not declare it is objection-
able per se for a particular employee's vote to become
public. By analogy, when a challenge to a single ballot
that is determinative of the election outcome is over-
ruled, the voter's choice becomes public information.
That fact alone, does not invalidate the election. To the
contrary, such a ballot actually will be dispositive of the
election. Lemon Drop Inn, 269 NLRB 1007, 1009, 1025
(1984).
If the foregoing analysis is ultimately not sustained, the
relevant scenario of events persuades me that the elec-
tion should not be declared void because T. Stergakis
handled Patterson's ballot and saw how it was marked.
It is important to note that T. Stergakis already had
cast her ballot when Patterson delivered his unfolded
ballot to her. There is no evidence that Stergakis told
anyone how Patterson voted before the folded ballot was
deposited into the ballot box. Apparently, the ballot was
placed into the box without challenge or objection made
by the parties' designated election observers or by the
Board agent . These events show that Patterson's ballot
was commingled with all other ballots the instant it was
deposited into the ballot box. No evidence was produced
to show Patterson's ballot had any distinguishing or
other identifying symbols on it. His ballot was counted,
together with all other unquestioned ballots.
43 At the hearing, the Union objected to disclosure by T Stergakis of
how Patterson voted . I overruled that objection On reconsideration, I
hereby reverse that ruling . The Union 's objection is now sustained. Ac-
cordingly , I hereby strike from the record the question and answer about
how Patterson voted . Research and analysis of the issue persuade me that
how Patterson voted is irrelevant in the particular circumstances of the
instant case
SORENSON LIGHTED CONTROLS 989
The above facts convince me that neither Patterson's
identity, nor how he voted, actually had been betrayed
before issuance of the tally of ballots. Thus, even if Re-
spondent's interpretation of the cited cases is correct, the
present circumstances do not reflect the conditions that
require setting aside the election. All the probative evi-
dence demonstrates is that the secrecy of Patterson's
ballot was breached only after the ballots were count-
ed.44 In this context, the fact T. Stergakis handled Pat-
terson's ballot and saw how he voted could not have af-
fected the election results.
On all the above, I find no merit to Respondent's first
objection and shall recommend it be overruled.
Respondent's second objection claims "one eligible
voter is literate only in the Laotia n language" and the
Respondent's request that election materials be printed in
the Laotian language was denied.
The record shows Respondent asked that the Board
notice of election contain a translation into the Laotian
language.45 This was not done.
Apparently, only one of the eligible voters is Laotian.
That employee, P. Ly, testified that Sypher instructed
him in the election procedures. Ly said he needed no
further assistance to vote. At the hearing, Ly was asked
to read aloud the English version of the election notice.
He had no trouble complying with that request. In fact, I
was impressed that he appeared remarkably fluent and
articulate in accomplishing that task. Ly was tested re-
garding his comprehension. In general , his grasp of word
meanings was good. However, he did not understand the
meaning of some words. Those words did not involve
the election mechanism. Ly did not claim he failed to un-
derstand the nature, purpose, or mechanics of the elec-
tion.
An objecting party has the duty to furnish supporting
evidence. Houston Natural Gas Corp., 198 NLRB 1003
(1972), enfd. 478 F.2d 467 (5th Cir. 1973), rehearing
denied 480 F.2d 924 (5th Cir. 1973), Berea Publishing Co.,
140 NLRB 516 (1963). I conclude the scant evidence
that shows Ly did not understand each and every word
of the election notice is, in the entire circumstances, in-
sufficient to support Respondent's second objection. (See
Sanitas Service Corp., 262 NLRB 1369, 1378-1379 (1982).)
Accordingly, I find no merit to this objection and shall
recommend it be overruled.
2. The Union's objections
The Union filed four election objections.
The first objection asserted several grounds for setting
aside the election. Objection 1(a) relied on the layoffs of
Colon, Cruz, Diaz, and Maldonado; Objection 1(b) as-
serted Bermudez' discharge; Objection 1(c) was based on
the unlawful interrogation; Objection 1(d) alleged the
threat of plant closure; and Objection 1(e) claimed Re-
44 If it is ultimately determined I correctly allowed T Stergakis to
reveal how Patterson voted, that revelation, too, occurred long after the
count of ballots
45 A multilingual notice was produced , apparently in English , Spanish,
Portuguese , Polish, and Italian (see R Exh 7)
spondent unlawfully threatened employees with property
loss.46
Objections 1(a)-1(d) are coextensive with the unfair
labor practice allegations that I have found to have
merit. Clearly, the unlawful layoffs and discharge consti-
tute conduct that affects the election results. According-
ly, I find objections 1(a) and (b) have merit. See Electric
Hose Co., 262 NLRB 186 (1982).
Conduct that independently violates Section 8(a)(1) of
the Act, a fortiori, interferes with representation elec-
tions. DePaul Community Health Center, 221 NLRB 839,
848 (1975), and cases cited therein. I have found that Re-
spondent engaged in unlawful interrogation and unlaw-
fully threatened plant closure. Accordingly, I find merit
to union objections 1(c) and (d).
The Union presented no evidence in support of Objec-
tion 1(e). I find there is no merit to this objection.
The Union's second objection asserts that Respond-
ent's independent 8(a)(1) violations destroyed the desired
laboratory conditions for conduct of Board representa-
tion elections. This objection is coextensive with the
unfair labor practice findings. Accordingly, I find merit
to union objection 2.
Union objection 3 complained that two supervisors
voted and such conduct intimidated employees into
voting against union representation. This objection as-
sumes there is merit to the Union's challenge to the bal-
lots of Kelly and Y. Stergakis. Inasmuch as I have found
that neither of these employees is a supervisor within the
meaning of the Act,47 there can be no merit to this ob-
jection. I find the evidence is insufficient to support
union objection 3.
Finally, the Union's fourth objection asserts that a
ballot was improperly counted in a situation when the
intent of the voter who marked it was speculative. I con-
clude the Union produced no evidence to support this
objection. Accordingly, I find Objection 4 has no merit.
Summarizing , I find:
Merit to union objections 1(a)-(d) and 2; and no merit
to union objections 1(e), 3, and 4.48
C. Recommended Disposition of the Representation
Case
On the foregoing discussion of the challenged ballots
and objections, I recommend
1. The overruled challenged ballots of Bermudez,
Colon, Diaz , Kelly, and Y . Stergakis be opened and
counted , and a revised tally of ballots be issued.
2. If the revised tally of ballots shows a majority of
votes in favor of union representation , a certification of
representative should be issued.
3. If the revised tally of ballots results in a majority
vote against union representation or results in a tie vote,
46 Other union objections, numbered 1(f)-1(h), had been withdrawn
before the issues were referred for hearing
47 In so concluding , I render no conclusion as to the substantive ment
of this objection if either, or both, of these individuals are held to be su-
pervisors
48 Because the conduct of the meritorious objections occurred after
the date the petition was filed and before the election date, these objec-
tions may be used to set aside the election if necessary Ideal Electric Co,
134 NLRB 1275, 1278 (1961)
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
then the election results should be set aside based on the
meritorious union objections 1(a)-(d), and a rerun elec-
tion be conducted at a time deemed appropriate to the
Board 's Regional Director.
On the basis of above findings of fact and on the entire
record in the case, I make the following
CONCLUSIONS OF LAW
1. Sorenson Lighted Controls, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 317, United Food and Commercial Workers
Union, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time production and
maintenance employees, including tool and die makers,
assemblers , inspectors, shipping and receiving employees,
and maintenance employees of the Respondent employed
at its 75 Locust Street, Hartford, Connecticut location;
but excluding all office clerical employees, and all
guards, professional employees, and supervisors as de-
fined in the Act constitute a unit appropriate for collec-
tive-bargaining purposes within the meaning of Section
9(b) of the Act.
4. Bury, on 14 February, interrogated Delgado regard-
ing union activities; and solicited Delgado to engage in
surveillance of union activities of other employees, both
in violation of Section 8(a)(1) of the Act.
5. Bury, on 18 February, interrogated Bermudez re-
garding union activities, threatened removal of work and
plant closure , and solicited Bermudez to engage in sur-
veillance of union activities of other employees, all in
violation of Section 8(a)(1) of the Act.
6. Bury, on 20 February, violated Section 8(a)(1) of
the Act by interrogating Bermudez about her attendance
and testimony at a Board representation hearing.
7. Tones, on 14 February, interrogated Delgado and
Ayala regarding which employees signed union cards;
and impliedly threatened the plant would close if the
Union won an election, both in violation of Section
8(a)(1) of the Act.
8. Respondent discriminated against P . Colon, L. Cruz,
L. Diaz, and A. Maldonado, in violation of Section
8(aX3) and (1) of the Act by laying them off on 14 Feb-
ruary 1985 and by failing to reinstate them after that
date.
9. By discharging W. Bermudez on 4 March 1985, Re-
spondent discriminated against employees in violation of
Section 8(a)(3) and (1) of the Act.
10. The written warning imposed on Julia Nieves on 4
March 1985 was discriminatory and a violation of Sec-
tion 8(a)(3) and (1) of the Act.
11. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
12. Respondent 's warnings to Colon, Cruz, Diaz, and
Maldonado between 7 January and 11 February 1985 do
not constitute a violation of any section of the Act.
13. There is no merit to either of the election objec-
tions filed by the Respondent.
14. Union objections 1(a)-(d) and 2 have merit.
15. There is no merit to union objections 1(e), 3, and 4.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, I shall recom-
mend that it be ordered to cease and desist therefrom
and take certain affirmative action necessary to effectuate
the purposes of the Act.
Respondent shall be ordered to offer Bermudez,
Colon, Cruz, Diaz, and Maldonado immediate and full
reinstatement to the former position held by each or, if
that position is not available, to a substantially equivalent
position of employment without prejudice to her seniori-
ty or other rights, privileges, and benefits.
Respondent shall also be ordered to make whole Ber-
mudez, Colon, Cruz, Diaz, and Maldonado for any loss
of wages each may have suffered by payment to her of
the sum she would have earned but for the discrimina-
tion against her, with interest thereon to be computed in
the manner described in F. W. Woolworth Co., 90 NLRB
289 (1950), and Florida Steel Corp., 231 NLRB 117
(1977).49 Further, Respondent shall be required to pre-
serve and make available to Board agents, on request, all
pertinent records and data necessary to analyze and de-
termine whatever backpay may be due to each of these
discriminatees
Respondent also shall be ordered to remove from its
files any reference to Bermudez' 4 March discharge and
any reference to Julia's 4 March warning. Respondent
shall be ordered to notify each of these employees that
this has been done and that evidence of Bermudez' un-
lawful discharge and Julia's unlawful warning will not be
used as a basis for future personnel actions against them.
Further, Respondent shall be ordered to post an ap-
propriate notice.
Finally, Respondent shall be ordered to refrain from,
in any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of their Sec-
tion 7 rights.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edso
ORDER
The Respondent, Sorenson Lighted Controls, Inc.,
Hartford, Connecticut, its officers , agents , successors,
and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their union ac-
tivities.
(b) Soliciting employees to engage in surveillance of
the union activities of other employees and to report
those activities to it.
(c) Threatening removal of work and plant closure if
the Union wins a representation election.
49 See, generally, Isis Plumbing Co, 138 NLRB 716 (1962)
60 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
SORENSON LIGHTED CONTROLS 991
(d) Interrogating employees about their attendance and
testimony at Board representation hearings.
(e) Interrogating employees about which employees
signed union authorization cards.
(f) Discriminating against employees by discharge,
layoff, or warning, in violation of Section 8(a)(3) and (1)
of the Act.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section '7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to W. Bermudez, P. Colon, L. Cruz, L. Diaz,
and A. Maldonado immediate and full reinstatement to
their former positions at its Hartford, Connecticut facili-
ty and, if their former positions do not exist, to a sub-
stantially equivalent position without prejudice to their
seniority or other rights, privileges, and benefits; and
make each whole, with interest, for any loss of pay she
may have suffered as a result of Bermudez' 4 March
1985 discharge and the 14 February layoff of the other
named discriminatees. The backpay computations shall
be made in accordance with the formula described,
supra, in the remedy section.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Remove from its files any reference to Bermudez' 4
March discharge and Julia Nieves' 4 March warning and
forthwith notify each of these discriminatees this has
been done and that evidence of their unlawful discipline
will not be used as the basis for future personnel actions
against her.
(d) Post at its Hartford, Connecticut facility copies of
the attached notice marked "Appendix."5 t Copies of the
notice, on forms provided by the Regional Director for
Region 39, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
IT IS FURTHER ORDERED that the instant cases be sev-
ered and the representation case (Case 39-RC-581) be
remanded to the Regional Director for Region 1 of the
al If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
Board for action consistent with the recommended dispo-
sition of the representation case.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT question our employees about their ac-
tivities on behalf of Local 317, United Food and Com-
mercial Workers Union, AFL-CIO or their activities on
behalf of any other union.
WE WILL NOT ask our employees to engage in surveil-
lance of union activities of other employees or to report
those activities to us.
WE WILL NOT threaten to close our plant if a union
wins an election and the right to bargain collectively
with us on behalf of any of our employees.
WE WILL NOT question our employees about their at-
tendance and testimony at hearings of the National
Labor Relations Board.
WE WILL NOT ask our employees who among them
signed union authorization cards.
WE WILL NOT discriminate against our employees by
discharging them, laying them off, or giving them warn-
ings because they engage in union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any of our employees in the ex-
ercise of any of the rights guaranteed by the National
Labor Relations Act as described at the top of this
notice.
WE WILL offer immediate and full reinstatement to
Wanda Bermudez , Paula Colon, Lodia Cruz, Lydia Diaz,
and Alba Maldonado, to their former jobs at our Hart-
ford, Connecticut plant or, if their former jobs do not
exist , to substantially equivalent jobs without prejudice
to their seniority or other rights, privileges, and benefits;
and WE WILL make each of these employees whole, with
interest, for any loss of pay she may have suffered as a
result of our discrimination that occurred when we dis-
charged Wanda Bermudez on 4 March 1985 and laid off
the other employees on 14 February 1985.
WE WILL remove from our records all references to
the 4 March discharge of Wanda Bermudez and the writ-
ten warning that we gave to Julia Nieves on that same
day; and WE WILL immediately advise each employee in
992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
writing that we have done so and will also advise them
that the discharge and warning will not be used against
them for disciplinary purposes in the future.
SORENSON LIGHTED CONTROIS,INC.