Standard Precision

National Labor Relations Board - Board Decisions

May 14, 1993

311 N.L.R.B. 33 (N.L.R.B. 1993)

33
311 NLRB No. 7
STANDARD PRECISION
1 No party has objected to the form of the exceptions.
2 Charging Party Recinos has excepted to some of the judge’s
credibility findings. 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.
3 The judge, early in his decision, inadvertently stated that the
election was held on October 23, 1990. The judge later stated cor-
rectly that the election was held on October 12, 1990, and that the
Certification of Results of Election issued October 23, 1990. We
correct the error.
Accuride Division of Standard Precision, Inc. and J.
Trinidad Ramirez and Theresa Recinos. Cases
31–CA–18605 and 31–CA–18691
May 14, 1993
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On September 16, 1992, Administrative Law Judge
William J. Pannier III issued the attached decision.
Charging Party Recinos, appearing pro se, filed excep-
tions and supporting statements in the form of a letter
requesting an ‘‘appeal.’’1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of Charging Party Recinos’ exceptions
and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order.3
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Gary Freelen Ellison, for the General Counsel.
Fred Long (The American Consulting Group, Inc.), of Los
Gatos, California, and Erick J. Becker, of Costa Mesa,
California, for the Respondent.
Trinidad Ramirez, of Bloomington, California, and Theresa
Recinos, of Hesperin, California, appearing pro se.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Los Angeles, California, on February 6 and
7, and on February 12 and 13, 1992. On April 26, 1991, the
Regional Director for Region 31 of the National Labor Rela-
tions Board (the Board), issued an order consolidating cases,
consolidated amended complaint and notice of hearing, con-
solidating a complaint and notice of hearing issued on March
19, 1991, based upon an unfair labor practice charge filed in
Case 31–CA–18605 on January 9, 1991, with an unfair labor
practice charge filed in Case 31–CA–18691 on March 4,
1991, and alleging violations of Section 8(a)(1) and (3) of
the National Labor Relations Act (the Act). All parties have
been afforded full opportunity to appear, to introduce evi-
dence, to examine and cross-examine witnesses, and to file
briefs. Based on the entire record, on the briefs that were
filed, and on my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Accuride Division of Standard Preci-
sion, Inc. (Respondent), has been a California corporation
with an office and place of business in Ontario, California,
where it engages in the manufacture of metal slides for desks
and office-type furniture requiring sliding doors. In the
course and conduct of those operations, Respondent annually
sells and ships goods or services valued in excess of $50,000
directly to customers or business enterprises located outside
the State of California. Therefore, I conclude, as admitted in
the answer to consolidated amended complaint, that at all
times material Respondent has been an employer engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The parties stipulated that Respondent opened its Ontario
plant in 1987. Since then Respondent has continuously man-
ufactured there a highly specialized door slide for furniture
and computer parts, as well as for cabinets, by cutting raw
material into various lengths and welding brackets which are
then galvanized and assembled into the slides that Respond-
ent ships. To conduct those operations, Respondent’s Ontario
production employees work in three areas: manufacturing,
galvanizing, and assembly. The assembly area, in turn, is
subdivided into ball retainer, rail, D-pak, and assembly line
departments. Leadmen oversee operations in each of those
departments and those leadmen report to the assembly super-
visor who is responsible for all operations in the assembly
area. Until late October 1990 that individual had been Jose
Jiminez. At that time he became supervisor of the accessories
department and was succeeded as assembly supervisor by
Frank Olvera, previously quality assurance supervisor at On-
tario. Olvera still served as supervisor of the assembly area
at the time of the hearing. Further, when Olvera replaced
Jiminez, or shortly thereafter, Alfredo Gallegos became
leadman for the ball retainer department, replacing Danilo
Guerra who had previously been the leadman for that depart-
ment.
During July 1990 one of the employees, Carmen L. Rami-
rez, telephoned a representative of Teamsters, Chauffeurs,
Warehousemen, Industrial & Allied Workers, Local 166,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO (the Union).
That telephone call set in motion an organizing campaign
among Respondent’s Ontario production, maintenance, and
craft employees. It led to the filing of a petition for election
on August 27, 1990, and culminated in an election on Octo-
ber 23, 1990, during which 184 of the approximately 227 eli-
gible employees voted against representation by the Union.
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In response to the Union’s campaign, a meeting of Re-
spondent’s supervisors and managers was conducted in late
August. They were instructed during that meeting about con-
duct in which they could and could not engage during the
preelection period. Those instructions were reinforced by dis-
tribution of a three-page ‘‘LIST OF DO’S AND DONT’S
[sic] FOR SUPERVISORS,’’ enumerating permissible and
objectionable conduct. Thereafter, four or five additional
meetings of supervisors were conducted during the
preelection period by Lupe Cruz, a consultant with American
Consulting Group, which Respondent had retained to conduct
its campaign.
In addition, Cruz conducted periodic meetings—at inter-
vals of 1 week to 10 days—of eligible employees during the
approximately 8-week interval between the petition’s filing
and the election. Given the number of employees in the pro-
posed bargaining unit, and the need to maintain continuing
operations, for each date on which Cruz met with employees,
the latter were divided into groups of between 12 and 20 em-
ployees. Cruz then held a series of meetings, one with each
group of employees each day, at which the same message
was conveyed to employees in each group. Given the need
to speak to several groups of employees, the time available
to meet with each group was limited. As a result, if time re-
mained after Cruz delivered his prepared remarks to a group,
employees in that group could ask questions and make obser-
vations about Cruz’ message.
The General Counsel alleges that, in the course of address-
ing Respondent’s employees, Cruz ‘‘impliedly promised an
employee improved terms and conditions of employment if
. . . the Union[] lost the forthcoming election’’ and, further,
‘‘threatened an employee with loss of benefits by stating that
if the Union won the election, Respondent would start nego-
tiations at the very bottom with regard to wages and bene-
fits.’’ To support that allegation, the General Counsel pre-
sented two witnesses: Alfredo Garcia, a former employee of
Respondent, and Theresa Recinos, formerly an assembly op-
erator who had begun working for Respondent on December
1, 1987, at its Santa Fe Springs, California plant and who
had transferred to the Ontario plant in approximately August
1988.
Recinos also testified concerning another of the com-
plaint’s allegations: that in approximately late September
1990, then-Assembly Supervisor Jiminez had unlawfully in-
terrogated her concerning her union sympathies, had created
the impression that her union or other protected activities
were under surveillance, and had threatened her with unspec-
ified reprisals by stating that Respondent was going to get
union supporters like animals. According to Recinos, when
she turned around from her machine one day, she discovered
Jiminez standing behind her. She testified that after exchang-
ing greetings and ‘‘a small work discussion,’’ he had asked
what she thought of the Union and, when she inquired why
he was ‘‘asking me that question,’’ had remarked that one
of the Union’s representatives was riding in a new car
bought with employees’ union dues.
Then, testified Recinos, Jiminez asked again what she
thought of the Union and what her husband, also an em-
ployee of Respondent, thought of it. According to Recinos,
she ‘‘answered him, ‘Nothing,’’’ and Jiminez then asked how
much per hour she and her husband earned and, ‘‘How long
we could handle a strike for, because it’s difficult for the
union to win,’’ adding, ‘‘I feel sorry about ones who have
a house, new car, because the company . . . wants to know
who is with the union.’’ Recinos testified that when she in-
quired concerning how Respondent would learn the identities
of those employees, Jiminez had replied ‘‘that people were
being sent to the union meetings to find out who was in
favor of the union,’’ and that, ‘‘It’s very easy because elec-
tion day, they have to be there representing the union.’’ At
that point, testified Recinos, Jiminez snapped his fingers and
said, ‘‘We’re going to get them like animals.’’ He then left
in response to a call over the public address speaker.
Recinos testified that she mentioned her conversation with
Jiminez during a subsequent preelection meeting conducted
by Cruz. In fact, Cruz acknowledged that, during a
preelection meeting at which he had assured employees that
supervisors could not ask them their opinions of the Union,
Recinos ‘‘raised her hand and said something along the
lines—I don’t know the exact words, ‘Well, it happened to
me.’’’ Recinos further testified that she had made remarks at
other preelection meetings, either disputing assertions made
by Cruz during his prepared remarks or making statements
contrary to Respondent’s position that the employees did not
need representation.
That testimony is significant for the General Counsel,
since Recinos had been, at best, a bit player in the organizing
campaign. She attended periodic meetings of employees con-
ducted by the Union. However, other than being one of the
employees who signed cards authorizing representation by
the Union, there is no evidence that Recinos had participated
actively in what had occurred at the Union’s meetings. More-
over, while she spoke favorably about the Union to some
other employees while at work, Recinos conceded that she
had done so outside of the presence of supervisors and man-
agers. Indeed, as disclosed by her testimony describing her
above-described indifferent response to Jiminez’s asserted in-
quiries, Recinos tried to make certain that Respondent’s su-
pervisors and managers would not learn of her union sym-
pathies. In fact, she testified that when asked by Carmen
Rodriguez to be a union observer during the election, she
had declined because she feared reprisals if Respondent
ascertained that she supported the Union.
Of the 220 eligible employees who cast ballots during the
election on October 12, 1990, only 36 of them cast votes for
the Union. No objections to the election were filed and the
Certification of Results of Election issued on October 23,
1990. So far as the evidence discloses, consistent with those
election results, all union activity ceased thereafter among
Respondent’s employees. One other postelection event of sig-
nificance occurred in late October or early November 1990:
Jiminez was transferred to supervisor of the accessories de-
partment and Olvera replaced him as assembly supervisor.
Since Respondent evaluates all employees’ performance
for possible merit wage increases in June and December of
each year, Olvera became the supervisor responsible for per-
forming the assembly area employees’ evaluations, including
that of Recinos, during December 1990. There are two as-
pects to those evaluations. On a printed form appear cat-
egories labeled quality of work, quantity of work, job knowl-
edge, attitude, and dependability. For each category an em-
ployee’s performance is rated for the preceding 6 months as
having fallen in one of five possible grades: outstanding,
good, satisfactory, improvement needed, and unsatisfactory.
35STANDARD PRECISION
In addition, the form contains sections summarizing attend-
ance and warning notices received by the rated employee.
Recinos received the poorest rating given by Olvera in De-
cember 1990, with her quality of work being graded as satis-
factory, but with improvement needed being the grade in
each of the four other categories. As a consequence of that
rating she was denied the merit increase that, Respondent
concedes, she would otherwise have received. The General
Counsel alleges that deprivation of the merit increase had
been motivated by Recinos’s union or other protected con-
certed activity, thereby violating Section 8(a)(3) and (1) of
the Act. In addition to the testimony pertaining to Jiminez’
statements to Recinos and to her asserted comments during
Cruz’s meetings, the General Counsel points for support of
that allegation to certain other facts which are not disputed:
never before had Recinos been rated so poorly and no prior
warnings or other comments had been made to her by Olvera
regarding her asserted deficiencies.
The General Counsel does not rely exclusively upon cir-
cumstantial evidence to support the allegation that depriva-
tion of Recinos’ merit increase had resulted from an unlaw-
fully motivated adverse performance appraisal. The com-
plaint alleges that Olvera had created the impression that her
union or protected concerted activities were under surveil-
lance. That allegation is based upon Recinos’ testimony that,
during December 1990, Olvera
was looking at me too much, hiding at the machines.
What I was never able to understand – why he had to
continue looking at me when I already punched to go
out, it was almost not work time anymore. He was
looking at me suspiciously, as if I were a criminal.
The second aspect of the performance evaluation process
is an employee-supervisor meeting during which the employ-
ee’s performance is reviewed and the written evaluation is
explained. Comments attributed to Olvera by Recinos during
the December 1990 evaluation meeting supply the final ele-
ment in the General Counsel’s argument that her merit in-
crease had been denied unlawfully. She testified that, during
this meeting, when she asked why she had received adverse
marks, Olvera had said
that he had put them down because of my behavior,
negative behavior, towards the company and that my
review was twenty-five cents at that time – twenty-four
cents wasn’t going to be given to me because I had
been involved in union problems.
She further testified that when she ‘‘asked him how he knew
all that about me, Olvera answered that one person he had
complete trust in had told him all of that about me—that I
was in the union,’’ and, moreover, ‘‘That the company peo-
ple knew that I liked good comments that had been said
about the union and that I had been organizing the union.’’
When, testified Recinos, she asked to look at her personnel
file, Olvera had responded, ‘‘There’s nothing in your file.
You’re clean, but you’re being accused of being in with the
union.’’
Both Recinos and Olvera testified that, during that per-
formance evaluation meeting, the latter had promised to
again review Recinos’s performance in another month. In
fact, on January 14, 1991, Olvera met with Recinos and,
showing her the printed form on which he had upgraded her
job knowledge and attitude grades to satisfactory, informed
her that she would receive the increase denied her during the
preceding month. According to Recinos, Olvera also said
‘‘that he was hoping that that which had been done to me
about giving me my raise would act as an experience for me
not to talk about anything or to get into problems,’’ and that
her initial rating ‘‘had been done because of my problem
with the union.’’
The complaint’s final allegation is that Recinos had been
laid off on February 8, 1991, and refused reinstatement there-
after, because of her union or other protected concerted ac-
tivities. During 1990’s final calendar quarter Respondent
began experiencing a loss of business that continued through
January 1991. As a result, Respondent decided that it was
necessary to lay off 12 day-shift and 12 night-shift employ-
ees on February 8, 1991. The General Counsel does not chal-
lenge the legitimacy of Respondent’s motivation for these
decisions.
Selection of the specific employees to be laid off was del-
egated to the supervisors for each area. To guide those selec-
tions, they were instructed to first look to employees who
performance had been unsatisfactory, then to employees with
attendance problems and, lastly, to seniority. Respondent ad-
mits that because of Recinos’s most recent performance eval-
uation, even as upgraded during the preceding month, she
had been selected for layoff as an unsatisfactorily performing
employee. In essence, the General Counsel contends that in-
asmuch as that evaluation had been unlawfully adverse, the
layoff motivated exclusively by it had been unlawful, as
well.
Butressing that contention is testimony by Recinos con-
cerning a meeting with then interim Ontario Human Re-
sources Manager Ted Olea following the layoff’s announce-
ment to day-shift employees, including Recinos. Olea ac-
knowledged that he had made himself available to discuss
with each laid-off employee the basis for his/her selection
and that Recinos had been one employee who had met with
him. During her meeting, testified Recinos, when Olea had
said that her selection had been based on her performance
evaluation, she had
interrupted him, and I told him that it was because of
the union. He said, ‘‘Yes, because of your negative
conduct toward the company.’’ So then I asked him
again, ‘‘So, then it was because of the union?’’ He told
me, ‘‘Yes. I am sorry.’’
So then I asked, ‘‘What possibility was there –
would I have if the company would need people
again?’’ He answered, ‘‘None.’’ They would never call
me again, but that if it was done, I was going to be
one of the last.
In fact, while some of the laid-off employees have been re-
called, Recinos has not been one of them.
To be sure, if the foregoing sequence of events actually
occurred, the General Counsel has established that Recinos
had been unlawfully rated, denied a merit increase and laid
off. However, although Olea acknowledged that, during his
postlayoff announcement meeting with Recinos, she had
mentioned, ‘‘A discussion wherein Olvera asked her what
did she have against the company, and Theresa said that she
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
felt that, at that point, he was talking about the union,’’ Olea
testified that he had cut her off, saying, ‘‘This is not a dis-
cussion about this.’’ He denied having discussed the subject
further and having said anything to her about her engaging
in union activities.
Similarly, Olvera denied that he had mentioned the Union
during the performance upgrade meeting with Recinos on
January 14, 1991. Furthermore, he denied that, during his
performance evaluation meeting with her 1 month earlier, the
subject of the Union had arisen and, moreover, testified that
he had not told Recinos that he did not want a union sym-
pathizer in his work unit. Affirmatively, he testified that dur-
ing the December evaluation meeting, he had allowed
Recinos to look at the grades that he had placed on the print-
ed form and, then, had explained in detail his reasons for
having placed each grade in each category. Although Recinos
denied specifically that Olvera had gone over the ratings on
the form with her, category by category, she testified that the
meeting had lasted ‘‘[f]orty minutes,’’ and its difficult to as-
certain how it could have lasted so long had Olvera not dis-
cussed the grades on the evaluation.
As to the particular reasons for the grade recorded in each
category, Olvera testified that while working in the ball re-
tainer department, the usual department to which she had
been assigned, Recinos’ order would take longer to produce
than they should have taken, and that it took coworkers to
produce, because she would leave her work ‘‘station unat-
tended to go to the rest room or the like.’’ In addition, al-
though there was conflicting testimony regarding the fre-
quency with which Recinos and other ball retainer depart-
ment employees were assigned to work on the assembly line,
and the amount of time spent working in that department
each week, there is no dispute that she did work on the as-
sembly line with some regularity. During those times, testi-
fied Olvera, Recinos worked as part of a crew, but was not
able to maintain the speed needed, and the speed of the rest
of the crew, with the result that she too frequently removed
parts from the line so that she would not be overwhelmed
with parts needing work. As a result of these performance
deficiencies, testified Olvera, he had assigned an improve-
ment needed grade for her quantity of work and had ex-
plained to her the foregoing reasons for having done so.
As for the category job knowledge, he testified that, in
contrast to other employees when assigned to work on the
assembly line, Recinos never went ‘‘to check the drawing
board’’ before beginning work, thereby depriving herself of
the opportunity ‘‘to enhance [her] job knowledge or product
knowledge of what it is you’re making and what it is you’re
doing—to learn about our products.’’ According to Olvera,
when working on the assembly line, Recinos also lacked the
familiarity with the presses that other operators possessed,
with the result that she was not sufficiently proficient in op-
erating them and could not keep up with the rest of the crew.
With respect to the improvement needed grade for attitude,
Olvera testified that he had two complaints about Recinos
and that he had voiced both to her during the December
evaluation meeting. First, he felt that there had been exces-
sive friction among the ball retainer department employees
and that it had been engendering disharmony. Second, he tes-
tified that he felt, and told Recinos, that she had disregarded
his requests that she actively participate in festive gatherings
of employees that Respondent had periodically organized
during worktime to promote positiveness among the workers:
‘‘there were several of these festive gatherings, and, I be-
lieve, on a few occasions, she actually walked right by me
. . . and headed for the exit,’’ thereby being positioned ‘‘a
good distance away from the gathering that we had,’’ to exit
as soon as it was officially quitting time.
Finally, Olvera testified that he had marked improvement
needed for dependability because Recinos had a total of 7.0
points under Respondent’s attendance standards: ‘‘as she was
aware, she was over the verbal warning level, and I pointed
out to her that one more point and she would be at the first
written warning level.’’
Olvera agreed that, during the evaluation meeting, he had
promised that he would again evaluate Recinos in another
month and, in fact, he did so. He testified that, ‘‘I try to be
a motivator and I had seen some improvement, a slight im-
provement in her attitude.’’ That is, testified Olvera, ‘‘I felt
she was doing her part to try to display more of a—as far
as with the other ladies,’’ and, ‘‘The friction had definitely
been dying down.’’ He further testified that he had observed
that in the area of job knowledge, ‘‘it looked like she was
trying to do a little more with the product knowledge or
learning more about the product knowledge.’’ Nevertheless,
testified Olvera, ‘‘she definitely still needed to pick up her
speed as far as working on the line’’ and ‘‘her attendance—
the record was still at the same level.’’ As a result, he testi-
fied, ‘‘I decided that it would be reasonable to grant her the
merit increase, hoping that she would continue to improve
her overall performance.’’
Olvera testified that he did not see continued improvement
in Recinos’ performance after she had been granted the merit
increase in January 1991. Thus, when he had been obliged
during the following month to select employees for layoff,
he regarded her performance as continuing to be unsatisfac-
tory and, accordingly, within the first above-enumerated cat-
egory for layoff selection. She was not alone. Also selected
were Silvia Eseberra, who had two improvement needed
marks on her most recent appraisal; Rosalba Martinez, who
had three improvement needed marks on her most recent ap-
praisal; and, James Claudio, who had two improvement-
needed marks on his most recent appraisal. Significantly,
while Martinez and Claudio had accumulated higher attend-
ance warning notice points than Recinos—8.5 and 9.5 points,
respectively—Eseberra had only 2.0 such points.
III. DISCUSSION
Unlawful motivation is not erased by the mere existence
of a legitimate reason for choosing an employee for layoff.
If that legitimate reason is merely a pretext designed to con-
ceal unlawful motivation, or if a respondent fails to show
that it would have made the layoff selection for a legitimate
reason absent an employee’s union or protected concerted ac-
tivity, then there would be a violation of the Act. Here, how-
ever, to establish the existence of unlawful motivation the
General Counsel relies almost exclusively upon the testimony
of Garcia and, more particularly, upon that of Recinos. In the
final analysis, that reliance is misplaced.
The General Counsel’s case began to unravel in connec-
tion with those two individuals’ testimony regarding what
Cruz had said during the preelection meetings. Garcia had
been one of the employees who had been selected for layoff
on February 8, 1991. Before that, he had once been a
37STANDARD PRECISION
leadman, but had been demoted by Respondent. He admitted
that he was not happy about having been demoted or laid
off. As an objective proposition, adverse, though lawful, per-
sonnel action can lead an individual to tailor his testimony
to injure the position of the employer that administered it.
See, e.g., Douglas Aircraft Co., 307 NLRB 536 (1992). As
he testified that appeared to be the course that Garcia was
pursuing. Indeed, his disdain for Respondent surfaced ex-
pressly when, in the course of describing purported remarks
by Cruz, Garcia testified, ‘‘We’re going to work the same as
always, he would say hypocritically, as a family.’’ (Emphasis
added.) I do not credit Garcia’s descriptions of Cruz’ state-
ments during the preelection meetings.
That left Recinos as the lone witness supporting the Gen-
eral Counsel’s allegations that, during those preelection meet-
ings, Cruz had impliedly promised improvements if the em-
ployees rejected the Union’s representation and had threat-
ened to start at the very bottom in any negotiations concern-
ing wages and benefits. Before discussing her testimony, it
is worth mentioning specifically that, in the circumstances, it
is objectively unlikely that Cruz would have made statements
to employees that violated the Act. As shown by the above-
mentioned meetings with supervisors and managers, as well
as by the three-pages of ‘‘DO’S AND DONT’S’’ distributed
to them, Respondent had taken steps to ensure that the elec-
tion would be conducted in an atmosphere free of objection-
able, much less unlawful, conduct. American Consulting
Group had been retained to aid Respondent in its campaign
and Cruz, its consultant, had a relatively extensive back-
ground in these matters, both as a union official and as a
representative of employers. Given those facts, it seems un-
likely that he would have cavalierly obliterated all Respond-
ent’s efforts for an unobjectionable campaign by baldly mak-
ing unlawful remarks.
Of course, despite his experience, Cruz could have done
so inadvertently. If so, that was not reliably demonstrated by
the testimony of Recinos. In fact, during direct-examination
she testified to neither the promise nor the threat alleged in
the complaint. Rather, in generalized testimony, unspecific as
to particular meeting, she testified that Cruz made ‘‘many
threats,’’ saying ‘‘that there was a possibility that, if the
union were to win, the plant could be closed or cut benefits,
hours, strikes.’’ As it turned out this deficiency in the Gen-
eral Counsel’s proof was corrected during cross-examination
when Recinos was taken through Cruz’ meetings, one by
one. In the course of responding to those questions, she did
testify that during the second meeting Cruz had said that if
the Union won the election, ‘‘They were going to negotiate
from below,’’ that is, ‘‘From minimum wage,’’ and, further,
‘‘That if the union were to lose, there were going to be many
changes, good changes.’’
The subject of changes, testified Recinos, had been dis-
cussed in two subsequent meetings: ‘‘That if the union lost
there were going to be changes,’’ and, in the final preelection
meeting, ‘‘That we had very good benefits, paid days, sick
days, that if the union lost, there were also going to be a lot
of changes, that we’re going to see them.’’ Recinos also tes-
tified that at that last meeting, Cruz had renewed discussion
of Respondent’s negotiating posture should the Union win
the election:
That if the union won, everything was going to change
because everything was going to go downhill.
. . . .
Because everything was going to go downhill, it was—
they were going to sit down and negotiate and the com-
pany was going to take away some—some benefits that
we had.
Her testimony, however, was not convincingly advanced.
As questioning progressed, it became increasingly obvious
that Recinos had no memory whatsoever concerning what
Cruz had actually said. Instead, it was evident that she was
simply making up and attributing statements to him that con-
formed to her own preconceptions and beliefs about Re-
spondent’s attitude toward the Union and, also, that fortified
her own opinion as to why she had been poorly evaluated
and laid off. For example, she testified that Cruz had con-
ducted meetings once a week. But, she went on to describe
13 such meetings during the but 8-week period that had
elapsed between the filing of the petition and the election.
She accused Cruz of having made ‘‘many threats,’’ including
possible plant closure and loss of employment. Yet, no alle-
gations of such assertedly numerous threats are included in
the complaint as a result of her descriptions of Cruz’ state-
ments to the General Counsel during the precomplaint inves-
tigation. Of greater consequence, save for the unreliable Gar-
cia, not one other employee corroborated Recinos’s descrip-
tions of repeated offending statements by Cruz. Yet, had he
made them, especially if done so during the course of his
prepared remarks to each group of employees, it seems un-
likely that they would not have been heard by other employ-
ees, given the fact that Cruz conducted a total of approxi-
mately 50 meetings with small groups of employees from a
complement of over 200 eligible employees.
Her unreliability was further demonstrated by Recinos’
testimony pertaining to other allegations of the complaint.
For example, as described above, she testified that, prior to
evaluating her performance in December 1990, Olvera had
been ‘‘looking at me too much, hiding at the machines.’’ In-
deed, based upon that testimony, the General Counsel con-
tends that Olvera’s asserted conduct had constituted surveil-
lance of Recinos’s union or statutorily protected activity: ‘‘as
the date of Recinos’ performance review neared, it was clear
in Recinos’ mind that Olvera[] . . . was observing more than
the mere job performance of an employee.’’ Yet, that argu-
ment, as well as the impression of Olvera’s conduct that
Recinos appeared to be trying to create when she testified,
is specifically contradicted by her own prehearing affidavit in
which she stated, ‘‘Around the beginning of December 1990,
I noted that Olvera was looking at me, watching me a little
more closely and frequently. I didn’t put any importance to
that because the supervisors always did that around the time
of the review.’’
There is simply no evidence that union activity had been
continued by any of Respondent’s employees, including
Recinos, once the representation proceedings had been com-
pleted in October 1990. Neither is there evidence of any
other type of protected concerted activity having been pur-
sued by employees into December 1990. Further, there is no
evidence that Recinos, particularly, had engaged in any union
or protected activity following the election. Nor, for that
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
matter, is there evidence upon which to base an inference
that Respondent would likely have believed her to have been
engaging in any such activity. Given the absence of such evi-
dence, there is no basis for concluding that Recinos could
have genuinely believed that union or other statutorily pro-
tected activity was under surveillance during December 1990.
In any event, a preponderance of the credible evidence fails
to show that Respondent actually did so.
In arguing that Recinos had been discriminatorily denied
a merit pay increase and, later, laid off, the General Counsel
relies heavily on her descriptions of statements that she had
assertedly made during Cruz’ preelection meetings as evi-
dence of protected activity about which Respondent had
knowledge. However, while she described repeated remarks
that she had made to Cruz, contesting and challenging asser-
tions that he was making during those preelection meetings,
there was no credible corroboration by other employees for
her descriptions of those repeated remarks. More signifi-
cantly, as described above, Recinos had taken pains to con-
ceal from Respondent that she was supporting the Union, de-
clining even to serve as the Union’s observer during the elec-
tion. Given her care in that respect, it seems most improbable
that she would have engaged in the diametrically opposite
conduct of publicly making statements to Respondent’s con-
sultant that would have shown clearly that she was sympa-
thetic to the Union or, at least, that she did not share Re-
spondent’s views about unionization.
Turning to another area, Recinos’ description of Jiminez’
statements, during their above-described conversation at her
work station, tends to seem facially believable. After all,
Cruz acknowledged that Recinos later reported that Jiminez
had questioned her union sympathies and, thereafter, she re-
peated that report in Jiminez’ presence. However, Jiminez
testified that there had been only a single private conversa-
tion with her about the Union. That conversation, testified
Jiminez, had consisted solely of Recinos questioning the ef-
fect of the election’s outcome on employees and, moreover,
whether employees were obliged to vote in the election. He
testified that he had referred her to Respondent’s literature
with regard to her first question, assuring her that ‘‘every-
thing was going to be normal, as usual’’ after the election,
and, as to her second question, had said only, ‘‘Well, you’re
not obliged to vote, but what single vote couldn’t make a
difference for either side.’’
As Recinos testified, moreover, it became increasingly ob-
vious that she harbored great bitterness toward Jiminez, re-
ferring to him as a ‘‘hypocrite-traitor.’’ So bitter toward him
was she that initially—and, as it turned out, falsely—she de-
nied that she and her family had at one time socialized with
Jiminez and his family. But, subsequently, pictures were pro-
duced of the two families socializing during the 1980s. In
fact, Recinos ultimately agreed that, for her, the previous
friendly relationship had not begun souring until 1989, when
she took offense at Jiminez’ criticism of her work output at
time when she had an injured finger. She referred generally
to additional incidents that served to heighten her antipathy
toward him. As a result, it is not at all unlikely that she sim-
ply took advantage of Cruz’ assurance that supervisors could
not question employees’ union opinions and tried to make
trouble with Respondent for Jiminez by accusing him of hav-
ing done so. She then repeated and embellished that accusa-
tion in her affidavit and when she testified so that her case
against Respondent would be strengthened.
Certainly, Jiminez’ version of their conversation tends to
be supported by the fact that one of her admitted questions
to Cruz had pertained to whether employees were obliged to
vote in the then upcoming representation election: ‘‘Like if
someone didn’t want it—if I was called to vote and I didn’t
want to, an example.’’ Her admitted concern about that sub-
ject with Cruz tends to support a conclusion that she might
have been disposed to also ask others, such as Jiminez, about
it. More significantly, there is no evidence that, during the
course of her reports to Cruz, she had ever mentioned
Jiminez’ purported statements that Respondent was infiltrat-
ing union meetings and intending to retaliate against union
sympathizers ‘‘like animals.’’ Such statements are significant
and, given Recinos’ obvious perceptiveness when she testi-
fied, it seems unlikely that she would simply have ignored
them and not included them in her reports to Cruz, had
Jiminez truly uttered them.
It was obvious that Olvera, who had replaced Jiminez as
assembly supervisor with little more than a month to go be-
fore evaluations were due in December 1990, would have
needed to confer with Jiminez to properly evaluate assembly
area employees for the full 6-month period that concluded
during that month. Indeed, Olvera acknowledged that he had
spoken with Jiminez specifically about Recinos, testifying
that Jiminez had said that she was ‘‘a slow worker’’ and
took ‘‘an inordinate amount of’’ breaks. Yet, in her seeming
haste to tie Jiminez as closely as possible to her evaluation—
and thus to connect his purported earlier remarks to her as
a union sympathizer against whom Respondent was sup-
posedly disposed to retaliate—she stated in her prehearing
affidavit that, during the evaluation meeting, Olvera had said,
with reference to the evaluation form, ‘‘that it had been
signed by Mr. Jiminez.’’ She repeated that assertion when
she testified: ‘‘He said to me, ‘Mr. Jiminez made your re-
view out, and he signed it.’’’ However, examination of the
evaluation form produced during the hearing, and identified
by Recinos as the one that she had signed during the Decem-
ber meeting with Olvera, discloses that it bears the signature
of Olvera. At no place on it does Jiminez’ signature appear.
At first blush that discrepancy might appear not particu-
larly significant. However, as set forth above, Recinos testi-
fied to repeated remarks by Respondent’s officials concern-
ing her union support as the reason for her adverse evalua-
tion and layoff. Indeed, according to Recinos, Olvera and,
later, Olea virtually fell over themselves making remarks
about her union sympathies as the reason for those adverse
personnel actions: during the evaluation meeting in Decem-
ber 1990, during the reevaluation meeting in January 1991,
and during the meeting that followed the layoff announce-
ment on February 8, 1991. Yet, as described above, there had
been initial and ongoing admonitions during the preelection
period to Respondent’s officials concerning statements that
could and could not lawfully be made to employees. Both
Olvera and Olea appeared to be intelligent individuals who
were sufficiently perceptive to appreciate, against that back-
ground of instruction, that they would injure Respondent’s
interest—and, in turn, their own—by giving voice to admis-
sions of animosity toward the union sympathies of an em-
ployee as the reason for personnel action taken against her.
Neither Olvera nor Olea appeared so reckless.
39STANDARD PRECISION
In sum, I do not credit Recinos and, consequently, con-
clude that there is no credible evidence of unlawful state-
ments by Respondent’s officials, nor of ones expressing ani-
mus as the motivation for her adverse evaluation and subse-
quent layoff. To be sure, Recinos’ lack of candor does not
preclude absolutely a conclusion that her evaluation, and her
subsequent layoff arising as a result of it, had been unlaw-
fully motivated. After all, the ultimate question as to those
personnel actions centers on Respondent’s actual motivation
for them, Norris/O’Bannon, 307 NLRB 1236 (1992), and
cases cited therein, not on the veracity of Recinos. Since
Olvera and Olea credibly testified that the layoff selection
had been based solely on her most recent performance eval-
uation, notwithstanding its upgrade in January 1991, and in-
asmuch as the objective evidence supports that testimony, the
crucial question here is whether there is evidence that Olvera
had evaluated her on some basis other than her work per-
formance. A preponderance of the evidence does not support
such a conclusion.
Recinos had never received so adverse an evaluation as the
one given to her by Olvera on December 12, 1990. However,
not only did Recinos, herself, not actually dispute Olvera’s
testimony that she was slow when working on the assembly
line, but leadman Gallegos and ball retainer operator Elvira
Aguayo confirmed Olvera’s assertion that she was slow. In
fact, Aguayo testified, and Recinos was never called to deny,
that Recinos had worked slowly in the ball retainer depart-
ment and, moreover, had said that she did not like working
on the assembly line because, ‘‘It was too heavy, to quick
for her.’’ Nor did Recinos dispute Olvera’s testimony that,
prior to Olvera’s evaluation, operators ordinarily checked
drawings before beginning work on the assembly line, but
that she had failed to take such action to familiarize herself
with the work that she would be doing.
With regard to the attitude category, Recinos did not con-
tradict Olvera’s testimony about friction among the ball re-
tainer department employees. In fact, called upon during
cross-examination to name the other workers involved in that
friction, Olvera promptly did so. While Respondent produced
every document sought by the General Counsel, some during
the course of the hearing, at no point was evidence adduced
showing that the identified ball retainer department employ-
ees had been rated any differently from Recinos concerning
that attitude problem described, and complained about, by
Olvera.
The interesting aspect of her grade in that particular cat-
egory was Recinos references to statements by Olvera con-
cerning her negative attitude toward Respondent. She por-
trayed that statement as, and may have truly perceived it to
mean, a reference to her union sympathies. However, she did
not contest Olvera’s description of requests that she partici-
pate in the periodic festive gatherings intended to improve
among employees ‘‘positiveness that we all share together as
a company.’’ Her uncontroverted failure to do so could logi-
cally be construed as demonstrating the negative attitude to-
ward the company that Olvera acknowledged having pointed
out. Of course, some might not concur in that characteriza-
tion and might even dispute the value on esprit de corps of
such gatherings. But, that decision is a business one, not
open to evaluation by the Board nor by its administrative law
judges. See Norris/O’Bannon, supra.
The perhaps most significant category supporting the law-
fulness of Olvera’s evaluation is the one pertaining to de-
pendability. Recinos immediately preceding evaluation, the
one prepared by Jiminez in June 1990, reveals that she had
accumulated 4.0 attendance points. But, as set forth above,
she had accumulated 7.0 such points by the time of Olvera’s
evaluation. Since Respondent calculates those points by half
points, that means that Recinos had been involved in six at-
tendance infractions during the time between the two evalua-
tions. Moreover, in that connection, she displayed a further
lack of candor. On August 22, 1990, she had been given a
verbal attendance counseling—in effect, a warning—because
of the points that she had accumulated by that date. She tes-
tified initially that she had accumulated no additional attend-
ance points thereafter. However, during cross-examination, it
was pointed out that she had 7.0 points by December 1990,
but that the counseling listed her total points as having been
6.5 as of August 22, 1990. Confronted with these undisputed
point totals, Recinos conceded that she had, in fact, commit-
ted a further attendance infraction between the counseling
and Olvera’s evaluation. In addition, her rapid accumulation
of attendance infraction points during the 6-month period be-
tween June and December 1990 tends to objectively show
that Recinos’ performance had been deteriorating since the
preceding June evaluation.
In the foregoing circumstances, a preponderance of the
credible evidence supports Respondent’s position that
Recinos had been lawfully evaluated in December 1990.
Moreover, that she had been upgraded 1 month later does not
undermine the evidence that her selection for layoff had been
objectively made for lawful reasons. The upgrade had been
somewhat tentative, with Olvera’s testimony tending to show
that it had been based more on hope than reality. Her most
recent evaluation, even as upgraded, brought her within the
ambit of Respondent’s first category of employees to be se-
lected for layoff: an employee whose performance had been
unsatisfactory. Similarly situated employees were also placed
in that category and laid off. To be sure, as the General
Counsel argues with respect to some facets of Respondent’s
defense, there may be gaps in certain aspects of the evidence.
But, a ‘‘[r]espondent’s defense does not fail simply because
not all the evidence supports it, or even because some evi-
dence tends to negate it.’’ Merillat Industries, 307 NLRB
1301 (1992). Therefore, I conclude that a preponderance of
the credible evidence does not support the allegations that
Respondent unlawfully withheld a merit pay increase from
Recinos and unlawfully laid her off 2 months later.
That brings the matter back to where it started: with Cruz’
remarks to employees during the preelection meetings. None
of his testimony about what he had told them discloses an
implied promise of benefits if they rejected representation by
the Union. However, with regard to any negotiations that
might occur should the Union prevail in the election, Cruz
testified that he had told the employees,
as far as negotiations are concerned, I said, ‘‘Negotia-
tions are a give-and-take situation.’’
I know I was getting feedback that some people were
saying they were going to get a ten-dollar-an-hour raise,
and a lot of people were believing that. And I said
something along the lines, ‘‘Yeah, that can be true, but,
on the other hand, you could stay the same or you
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
could even lose.’’ I would say things like, ‘‘If the union
starts at the top, we’ll start at the bottom.’’
. . . .
I said that if the union were to ask for a five-dollar-
an hour increase, as far as their first proposal, that there
would be nothing wrong with the company offering a
five-dollar-an-hour decrease. I said, ‘‘If they start at the
top, we would start at the bottom an find a common
ground.’’
Present as an observer at Cruz’ meeting had been Olea.
With regard to the subject of what Cruz had said about nego-
tiations, Olea testified:
When the subject was talked about, to the best of my
recollection, it was posed: if we had an election and the
union won the election, we would have to negotiate in
good faith and bargain in good faith, and everything
would start at the table. Now you could either lose
wages or benefits or you could gain wages and benefits,
or you could remain the same.
None of the foregoing statements ‘‘[c]ould reasonably
have been understood as a threat of loss of existing bene-
fits.’’ Lear-Siegler Management Service, 306 NLRB 393
(1992). Nor did they contain ‘‘the seed of a threat that the
employer will become punitively intransigent in the event the
union wins the election.’’ Coach & Equipment Sales Corp.,
228 NLRB 440 (1977). Rather, they relate any possible de-
crease of wages and benefits—as well as any possible in-
crease of them—to ‘‘the normal give and take of negotia-
tions.’’ Taylor-Dunn Mfg. Co., 252 NLRB 799, 800 (1980),
enfd. 810 F.2d 638 (9th Cir. 1982). Employers are permitted
to ‘‘reasonably communicate[] the views that a union cannot
compel concessions in negotiations and that a union cannot
guarantee the retention of all present benefits because such
benefits are subject to negotiations.’’ Pillod of Mississippi,
275 NLRB 799, 800 (1985). Inasmuch as there is no credible
evidence of other unlawful threats or promises by Cruz, there
is no basis for concluding that the foregoing statements vio-
lated the Act because they were veiled threats to withdraw
existing benefits in the context in which they were uttered.
Therefore, I conclude that a preponderance of the credible
evidence does not support the allegations of unlawful state-
ments attributed to Cruz during September and October
1990.
CONCLUSION OF LAW
Accuride Division of Standard Precision, Inc. has not vio-
lated the Act in any manner alleged in the consolidated
amended complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
It is hereby ordered that the consolidated amended com-
plaint be, and it hereby is, dismissed in its entirety.