Structural Composites Industries

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 729 (N.L.R.B. 1991)

729
304 NLRB No. 93
STRUCTURAL COMPOSITES INDUSTRIES
1 The Respondent 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 evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
2 Member Cracraft agrees that Sunnyvale is distinguishable but in any event
would not rely on that case.
Structural Composites Industries, Harsco Corpora-
tion and Independent Workers of North Amer-
ica. Case 21–CA–26921
August 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On December 19, 1990, Administrative Law Judge
David G. Heilbrun issued the attached decision. The
Respondent filed exceptions and a brief in support, and
the General Counsel filed cross-exceptions and a brief
in support. The Respondent filed an answering brief in
response to the General Counsel’s cross-exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs, and has
decided to affirm the judge’s rulings, findings,1 and
conclusions only to the extent consistent with this De-
cision and Order.
1. The judge found that the General Counsel did not
prove the complaint allegations that the Respondent
violated Section 8(a)(1) by unlawfully threatening em-
ployees with reprisals for engaging in union activity,
and unlawfully interrogating employee Delgado about
his authorization card solicitation. We disagree and
find both to be violations of the Act. As to the former,
the evidence shows that Delgado’s supervisor, Elmore,
commented to employee Rahe that Delgado was
‘‘awful damn close [to a disciplinary suspension] with
all this union bullshit.’’ We disagree with the judge’s
conclusion that this remark amounted only to proof of
abstract animus, but not evidence that actual employ-
ment reprisal of any kind was intended or likely for
those engaging in union activity. On the contrary, this
remark, even though not directed to Rahe, conveyed
the impression that an employee’s union activities
might well result in discipline. We find this linkage
between union activities and employer reprisal to be
violative of Section 8(a)(1). NKC of America, 291
NLRB 683 (1988).
Regarding the second 8(a)(1) allegation, the evi-
dence shows that Elmore called Delgado into a super-
visor’s office and questioned him as to whether he was
soliciting union cards during working time. It appears
that the Respondent did not have a valid no-solicitation
policy in effect pursuant to which it could have legiti-
mately prohibited the solicitation of authorization cards
on the job. Furthermore, the evidence shows that var-
ious employees engaged in solicitation activities on the
job with impunity. Thus, we find that under the cir-
cumstances here—where Elmore questioned Delgado
in a supervisor’s office, and gave no assurances re-
garding possible retaliation—there was a violation of
Section 8(a)(1) in Elmore’s interrogation of Delgado
concerning his solicitation of authorization cards dur-
ing worktime.
The Board’s decision in Sunnyvale Medical Clinic,
277 NLRB 1217 (1985), cited by the Respondent, is
distinguishable.2 In that case, a supervisor questioned
an employee, who, like Delgado, was not an open
union supporter, about her union sympathies as they
were ending a conversation on another matter. The em-
ployee characterized the conversation as friendly and
casual, and her relationship with the supervisor as
friendly. The Board, applying the test enunciated in
Rossmore House, 269 NLRB 1176 (1984), examined
the background, the nature of information sought, the
identity of the questioner, and the place and method of
interrogation, and found no violation of the Act be-
cause the totality of the circumstances revealed that the
interrogation did not tend to restrain, coerce, or inter-
fere with the employee’s rights guaranteed by the Act.
Here, by contrast, Delgado and Elmore had a rela-
tionship which was difficult at best, and Elmore sum-
moned Delgado into, not his own, but a higher level
supervisor’s office for questioning. (Elmore had also
previously demonstrated an inclination toward impos-
ing discipline for minor offenses.) His questioning was
directed solely at Delgado’s union activities, and in-
volved no other work-related business. In this context,
we conclude that this was not the type of casual inter-
action which might be expected to occur between su-
pervisors and employees who work closely together, as
was found in Sunnyvale, but, under all the cir-
cumstances, demonstrated a reasonable tendency to re-
strain, coerce, or interfere with Delgado in the exercise
of his Section 7 rights.
2. We agree with the judge’s conclusion that em-
ployee Delgado was discharged in violation of Section
8(a)(3) of the Act. We note in this regard that the Gen-
eral Counsel established a prima facie case of discrimi-
nation by proving that Delgado was known to the Re-
spondent as a union supporter, that he was identified
as such only a few days before his discharge, and that
his supervisor, Elmore, expressed strong disapproval of
his union activity (as discussed above). We also agree
with the judge that the timing of the discharge is
strongly indicative of animus. Our dissenting colleague
concludes that the Respondent has met its Wright
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
4 Delgado, upon learning that Elmore was responsible for repositioning his
desk in such a way that he would be more visible to Elmore, reacted by stat-
ing agitatedly that he would ‘‘win the war,’’ and ‘‘get even with you,’’ adding
that he believed Elmore lived on Baseline Street in the town of LaVerne, that
that information was ‘‘good to remember’’ and in parting stated, ‘‘just remem-
ber what I said.’’
5 The dissent’s reliance on the existence of a written personnel policy under
which discharge is prescribed for ‘‘threatening . . . other employees or super-
visors’’ is misplaced. The simple fact is that, based on the judge’s discrediting
Hafner, the policy was not applied in Delgado’s case. That it could have been
applied is therefore irrelevant.
6 Member Cracraft would have accepted a non-Board settlement rejected by
the majority in a separate ruling. However, for the purposes of forming major-
ity on the issue of Delgado’s termination, she reaches the merits and agrees
with Member Raudabaugh that the termination violated the Act.
1 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
2 Rule of conduct 17. The statement which precedes the list of rules indi-
cates no discretion in handing out discipline, but reads ‘‘[v]iolation of the fol-
lowing rules will result in the discipline specified.’’
Line3 burden of showing that the Respondent would
have discharged Delgado even in the absence of union
activities. We disagree. We assume arguendo that
Delgado’s conduct was in breach of the Respondent’s
rule and that he could have been discharged therefor.4
However, under Wright Line, the question is whether
the Respondent has shown that it would have dis-
charged Delgado therefor. The Respondent presented
no evidence that employees who had threatened super-
visors or other employees in the past had been auto-
matically discharged. Furthermore, the judge discred-
ited Human Resources Manager Hafner’s testimony
that he in fact relied on the disciplinary policy in de-
termining what penalty would be appropriate for
Delgado’s conduct.5 In short, the Respondent has
shown, at most, that it could have discharged Delgado
for his alleged misconduct. It has not established,
through credible testimony, that it would have dis-
charged Delgado in the absence of union activities.6
AMENDED CONCLUSIONS OF LAW
Add the following as Conclusions of Law 3 and 4.
‘‘3. By telling employee Rahe that employee
Delgado was close to being suspended because of his
involvement in union activities, the Respondent en-
gaged in unfair labor practices in violation of Section
8(a)(1) of the Act.
‘‘4. By interrogating employee Delgado as to wheth-
er he had solicited authorization cards during
worktime, the Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Struc-
tural Composites Industries, Harsco Corporation, Po-
mona, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Insert the following as paragraphs 1(a) and (b)
and reletter the subsequent paragraphs.
‘‘(a) Telling employees that by engaging in pro-
tected activities they may be subject to discipline.
‘‘(b) Interrogating employees about their solicitation
of authorization cards during worktime.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
CHAIRMAN STEPHENS, dissenting in part.
I agree with the majority’s reversal of the judge’s
finding that the threat and interrogation did not violate
Section 8(a)(1); however, I disagree with the major-
ity’s finding that Delgado was unlawfully discharged.
While it is clear to me that antiunion animus in part
motivated Delgado’s discharge, I am also persuaded
that he would have been terminated even absent his
union activity.1
Delgado, upon learning that Supervisor Elmore had
moved Delgado’s desk to a location where Elmore
would more readily be able to keep an eye on him,
stated to Elmore that he would ‘‘get even’’ with him,
and that he knew that Elmore lived on Baseline Street
in LaVerne. He added, ‘‘that’s good to know,’’ and
‘‘just remember what I said.’’ The judge rejected the
Respondent’s contention that this threat was serious
and definite enough to justify his discharge, finding in-
stead that Delgado was discharged as a result of his
union activities. For the following reasons, I would
find that the Respondent acted lawfully in discharging
Delgado for threatening a supervisor.
First, although the judge was ‘‘totally unconvinced’’
by Human Resources Manager Hafner’s testimony ex-
plaining that studying the Respondent’s rules of con-
duct led him to an honest conviction that Delgado
should be discharged, it is undisputed that the Re-
spondent had in effect a written personnel policy
which included a mandatory penalty of discharge for
the first offense of ‘‘threatening or intimidating other
employees or supervisor.’’2 Whether or not Hafner’s
testimony is credited, this policy was introduced into
evidence and cannot be disregarded. No evidence was
presented that the policy was not in effect or that em-
ployees were unaware of it, or that it was being ap-
plied to Delgado differently than it had been applied
to past violators. That being the case, I am unable to
conclude that Delgado would not have been discharged
in the absence of union activity. The discharge was ex-
pressly mandated by the Respondent’s personnel pol-
icy.
The judge appears to disregard the policy’s require-
ment of discharge for the first offense of threatening,
as demonstrated by his focus on Delgado’s prior dis-
cipline. He notes that such discipline ‘‘did not leave
731STRUCTURAL COMPOSITES INDUSTRIES
3 Delgado’s prior discipline included reprimands for talking excessively, lack
of productivity, and leaving early for a break.
4 Contrast Evans St. Clair, Inc., 278 NLRB 459 (1986) (employee’s state-
ment to supervisor, ‘‘you’re agitating me to the point where I want to commit
physical violence . . . against you,’’ found sufficiently threatening to justify
his discharge, even though it was made in the context of a conversation about
upcoming election with Syn-Tech Window Systems, 294 NLRB 791 (1989)
(union steward’s pointing finger angrily at respondent’s representative and
threatening him with an unspecified ‘‘problem’’ if employees’ grievances were
not remedied, not sufficiently egregious to remove the protections of the Act
from steward’s presentation of employee grievances).
5 It bears emphasizing that, in the assessment of a Wright Line defense, the
issue is whether the Respondent, applying its standards, would have discharged
the employee, absent his protected activity, not whether Board members be-
lieve that the conduct for which the employee was assertedly discharged
should be treated as a firing offense.
him poised for, or vulnerable to, termination for some
new class of infraction.’’3 A careful reading of the Re-
spondent’s personnel policy and rules of conduct dem-
onstrates that no prior discipline was required before
an employee could be discharged for threatening oth-
ers. Thus, Delgado’s prior discipline for unrelated mat-
ters is irrelevant to his discharge for the offense of
threatening a supervisor.
Second, it is hard to imagine how Delgado’s state-
ments to Elmore would not be construed as a threat.
True, no announcement of what actual harm would
come to Elmore was made, and for this reason the
judge apparently concluded that the threat was too
vague and ambiguous to support the discharge. In my
view, however, no such specificity was required in
order for a reasonable person to interpret this as a
threat.4 A statement of intent to ‘‘get even’’ with
someone, coupled with a statement emphasizing the
speaker’s exact knowledge of the location of that per-
son’s home, implies that some retribution is intended
against persons and/or property. In this workplace at
least, as embodied in the rules of conduct, there was
a policy of zero tolerance for such statements.5
Finally, there is no evidence that other employees
had in the past threatened supervisors (or other em-
ployees) and had been treated more leniently than
Delgado. In fact, nothing was introduced which would
indicate that this rule had ever been violated before
this incident. The absence of evidence concerning past
misconduct resembling that which assertedly underlies
a discharge cuts both ways, of course. It means that an
employer is unable to show that its disciplinary action
is consistent with past actions enforcing its asserted
policy against such conduct; but it also means that
there is no evidence of disparate treatment to con-
tradict evidence of the policy’s actual existence. When,
as here, an employer introduces undisputed evidence of
a published policy that was in existence before the
commencement of protected activities and that unam-
biguously prescribes discharge as the penalty for the
conduct on which the termination in question was ex-
pressly grounded, the Board does not usually ignore
the undisputed evidence for lack of corroboration. See
New York Telephone, 300 NLRB 894, 896 fn. 12
(1990), enfd. mem. (2d Cir. 1991); Azalea Gardens
Nursing Center, 292 NLRB 683, 686 (1989).
In sum, even disregarding Hafner’s testimony about
how he applied the rules to Delgado, we are still left
with a threat, a policy which requires discharge for
threatening, a discharge, and the absence of any evi-
dence of disparate treatment. While the timing cer-
tainly raises suspicion as to whether the discharge was
motivated by union activity, and therefore justifies a
finding that the General Counsel made out a prima
facie case, the Respondent is still entitled, under
Wright Line, to seek to establish that Delgado would
have been discharged even absent his union activity.
On the record before us, and for the reasons set forth
above, I believe the Respondent has shown he would
have been. I therefore dissent.
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.
WE WILL NOT discharge or discipline employees be-
cause they engage in union or concerted activities for
the purposes of collective bargaining or other mutual
aid or protection in the exercise of their rights under
the National Labor Relations Act.
WE WILL NOT tell employees that by engaging in
protected activities they may be subject to discipline.
WE WILL NOT interrogate employees about their so-
licitation of authorization cards during worktime.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Albert Delgado immediate, full, and
unconditional reinstatement to his former position of
employment, without prejudice to his seniority or other
rights and privileges; and WE WILL make him whole,
with interest, for any wages or benefits he may have
lost as a consequence of our discharge of him on June
14, 1989.
WE WILL notify him that we have removed from our
files any reference to his discharge, and that the dis-
cipline will not be used against him in any way.
STRUCTURAL COMPOSITES INDUSTRIES,
HARSCO CORPORATION
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 This proceeding was originally consolidated with Case 21–RC–18512, in
which a secret-ballot election had been conducted August 31, 1989. The order
consolidating cases, dated October 5, 1989, recited that certain challenges and
objections arising from that election could best be resolved after a hearing. In
the course of this hearing, representation case issues were narrowed, however,
by subsequent written submission dated June 5, 1990, John Romero, on behalf
of the Union as Petitioner in that case, withdrew the objections that had re-
mained before a recommended resolution. On this basis I issued an order on
August 3, 1990, severing and remanding Case 21–RC–18512 to the Regional
Director.
2 All dates and months named hereafter are in 1989, unless otherwise indi-
cated.
Robert J. DeBonis, for the General Counsel.
John S. Battenfeld (Morgan, Lewis & Bockius), of Los Ange-
les, California, and David M. Sarkozy, of Camp Hill,
Pennsylvania, for the Respondent.
John Romero, of Colton, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, ADMINISTRATIVE LAW JUDGE. This
case was tried at Los Angeles, California on December 7 and
8, 1989. The charge was filed on July 21, 1989, by Inde-
pendent Workers of North America (the Union), and the
complaint issued September 8, 1989.1 The primary issues are
whether Structural Composites Industries, Harsco Corpora-
tion (the Respondent), discharged Albert Delgado because he
was engaged in union or protected concerted activities for the
purposes of collective bargaining or other mutual aid or pro-
tection, while also interrogating employees regarding their
union activities, threatening employees with discharge or re-
prisals because of their having engaged in union activities
and creating the impression that employees’ union activities
were under surveillance, in violation of Section 8(a)(1) and
(3) of the National Labor Relations Act.
On the entire record, including my observation of the de-
meanor of witnesses and after consideration of briefs filed by
General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation engaged in the man-
ufacture of composite pressure vessels and structures at a fa-
cility in Pomona, California, where it annually sells and
ships goods and products valued in excess of $50,000 di-
rectly to customers located outside the State of California.
On these admitted facts I find that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and that the Union is a labor organi-
zation within the meaning of Section 2(5).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Summary Case Description
Albert (Red) Delgado was employed in Respondent’s ship-
ping and receiving area from September 1987, to June 14,
1989. He worked day shift under the immediate supervision
of Chuck Green. Delgado openly engaged in pro-company
activity among employees during a Teamsters Union organiz-
ing effort in 1987. That effort did not succeed, however by
early 1989 Delgado had come to believe that unionization
would be beneficial after all.
Beginning around May 1989, he was instrumental in orga-
nizing activities supportive of the Union’s desire to represent
Respondent’s production and maintenance employees at two
separate, but adjoining, industrial facilities in Pomona. By
this time Rick Elmore had been hired as Respondent’s mate-
rial control supervisor, with the direct intention of higher ex-
ecutives that he bring a more intense and effective manage-
ment style to the shipping and receiving area, including its
associated stockroom. In mid-June 1989, a specific alterca-
tion arose between Elmore and Delgado, the result of which
led to Delgado’s discharge after a day of deliberation by
management. This act, plus related events preceding it, es-
sentially comprise the case.
B. Basis of Analysis2
Delgado testified that beginning around February, he
began talking with other employees about having a union for
collective representation. He identified pay, general working
conditions, and safety as subjects of conversation among em-
ployees at this time. Delgado testified that he informed
Green of these sentiments at an early time, and repeatedly
afterwards informed this supervisor of such sentiments.
In early April, Elmore orally warned Delgado about mak-
ing too much idle talk with other employees. He repeated a
similar oral warning in early May. On May 23 he and Green
broadened this warning by orally reprimanding each material
control employee for excessively idle talk and continuing
lack of productivity. On the next day a specific incident led
to yet another reprimand of Delgado only. He had com-
menced a morning break early for the purpose of starting
food preparation. Elmore observed Delgado’s early departure
from his work station, the upshot being a written warning
issued to Delgado by Green.
Around very late May, possibly early June, John Romero
made contact with several of Respondent’s employees rel-
ative to their interest in having a union. After preliminary
discussion near Respondent’s premises, Romero conducted a
off-site meeting on June 7. It was attended by Delgado, his
fellow inventory control colleague Norm Harris, truckdriver
Chris Nuhfer, maintenance department employee John Rahe,
and others. Delgado and Rahe both obtained a supply of au-
thorization cards at this meeting. On the following day of
June 8, they both secured signatures on many of their cards
by soliciting among employees. Delgado testified that before
the day was over, he was called into an office by Elmore,
who stated that a report of his passing out cards on work
time had reached management and he was to be questioned
about it. Elmore testified that Delgado denied having done
so. Delgado’s version of this discussion is that he avoided
any direct answer, following which Elmore said that he could
be fired on the spot for signing people. Delgado took off
work on Friday, June 9, and went with Romero to the
NLRB’s Regional Office in West Los Angeles. The author-
ization cards were submitted there in support of the Union’s
representation petition.
On June 9 a physical reorganization of the stockroom was
completed after having been commenced early that week. By
this time Harris had gone on medical leave, however a rear-
rangement of the desks ordinarily used by Harris and
733STRUCTURAL COMPOSITES INDUSTRIES
Delgado in the course of their work was done. Delgado par-
ticipated in the repositioning, which basically involved a re-
turn of his desk and that of Harris’ to their former positions
relative to viewlines from the supervisors’ inner office. After
Delgado left the facility on Monday, June 12, Elmore and
Green realized that the configuration would not provide ei-
ther of them with easy observation of Delgado. They re-
versed the desk positions, resulting in Delgado’s desk being
directly in view of both supervisors through a window.
On the morning of June 13, Delgado arrived considerably
before starting time as was his custom. He testified that on
seeing the configuration of desks, he approached Elmore ask-
ing why his had been changed back. Delgado recalled that
Elmore said it was so he could be watched ‘‘like a hawk.’’
Delgado replied in rising emotion that it was harassment be-
cause he was fighting for the Union and employees’ right to
organize.
Elmore’s version is that Delgado had approached scowl-
ingly and, referring to the desk arrangement, demanded to
know if this was so Elmore could ‘‘keep a close eye’’ on
him. Elmore replied straightforwardly that it was, and upon
this Delgado agitatedly said he would ‘‘win the war’’ and
‘‘get even with you,’’ adding that he believed Elmore lived
on Baseline Street in the neighboring community of La
Verne. Elmore testified that Delgado said that his knowledge
of Elmore’s residence location was ‘‘good to remember,’’
and after seeming to leave the office how he turned back to
add ‘‘just remember what I said.’’
Nuhfer testified that on the morning of June 13 he was
still in his car prior to the 8 a.m. starting time and Delgado
approached him around 7:30 a.m. Delgado said he ‘‘had
some words’’ with Elmore, but there being no witnesses
Elmore had nothing he could do. Subsequently Delgado had
appeared at Nuhfer’s home with papers he hoped to have
signed, but when the request was declined ‘‘bad blood’’
arose between the two of them. Nuhfer even contacted police
about what seemed as a threat of family harm from Delgado.
Nuhfer added that his original involvement with the Union
ended after attending two meetings. He had asked pointed
questions on the prospect of a labor organization’s finances
and decisions over strike action, resulting in his being asked
to leave and not participate further.
Elmore felt severely threatened by the asserted remarks,
and immediately spoke with his superior Bill West and with
Paul Hafner, Respondent’s human resources manager.
Elmore was directed to write a memorandum of the incident,
while Hafner undertook a review of personnel policies rel-
ative to employee conduct. Meanwhile, Delgado sought and
obtained a meeting with Hafner to protest the perceived har-
assment. With Hafner’s blessing he carried his complaint to
Vice President and General Manager Ed Morris. When these
contacts were essentially inconclusive, Delgado returned to
work under assignment by Elmore.
Late that morning Elmore called Delgado into the office
of West, where with these three persons present Elmore stat-
ed that Delgado was being suspended for the threatening re-
mark. A debate ensued over whether the action was on such
stated grounds or because Delgado had undertaken union ac-
tivities. Delgado soon left under such suspension, but was
telephoned the next day by Elmore. This supervisor advised
that speaking from West’s office again, he now informed
Delgado that upon final consideration of events, he was
being discharged for the same previously stated reason.
The personnel policies on which this action was grounded
exist as a formally written, nine-page ‘‘Rules of Conduct’’
document, last approved for effectiveness in 1985 by Morris.
The introductory policy statement to the list of rules reads
as follows:
The Company must establish certain mandatory
guidelines designed to safeguard the best interest of all
its employees. SCI employees, therefore, are expected
to conduct themselves in accordance with the rules and
regulations set forth herein and with common courtesy
and recognition of generally understood organizational
and social standards.
In addition, to ensure fair treatment and protect the
jobs and safety of all employees, SCI must establish
rules and regulations for unacceptable employee behav-
ior.
Enumerated types of ‘‘unacceptable behavior’’ included of-
fense number 17—threatening or intimidating other employ-
ees or supervisor for which immediate discharge is the speci-
fied discipline, and offense number 26— stretching breaks or
otherwise wasting time for which a progressive discipline se-
quence of oral warning, written warning, 3-day suspension
and 10-day suspension is specified.
On June 8, Respondent had distributed a letter to employ-
ees signed by Morris. In pertinent part, this letter read:
We have learned that a union may be starting an or-
ganizing drive here, and that employees may be asked
to sign union authorization cards.
I want you to know that the Company is strongly op-
posed to any effort to unionize our employees. We also
want you to be fully informed about union authoriza-
tion cards, because in the past some union organizers
have not told the truth about them. Sometimes employ-
ees are told that the only purpose of signing a card is
‘‘to receive more information.’’ And some employees
have complained about being coerced into signing a
card. We hope that does not happen here, but want you
to be knowledgeable in case it does.
. . . .
What are your rights?
You have the right to sign a card if you choose to
do so, and you have an equal right to refuse to sign
a card. But before you make that decision, you should
understand that it is an important legal commitment.
From the viewpoint of your own personal interests, as
well as the interests of the Company, I recommend that
you not sign a card.
As to evidence bearing on the issue of a true motivation
for Delgado’s discharge, he testified that at some time in
June he had entered the company lunchroom for coffee as
Manufacturing Supervisor Robert (Rob) Robinson was con-
ducting a meeting with assembled employees. Delgado only
heard scattered antiunion remarks by Robinson, but recalled
that these included reference to himself as ‘‘a guy . . . orga-
nizing it.’’ Robinson testified about the episode, fixing it as
occurring on June 8 as he fulfilled instructions to imme-
diately inform Spanish-speaking employees about Morris’
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Rahe disclosed on cross-examination that he really knew Delgado was at
the NLRB that day, meaning actually to draw out from Elmore whether
Delgado had been caught up in the ‘‘rash’’ of disciplinary suspensions occur-
ring earlier that week.
4 The transcript is corrected p. at 250, L. 6 as requested by Respondent in
an unopposed motion, by changing the date June 19 to the date June 13.
letter to all employees issued that day. Robinson recalled that
he had assembled about a dozen such employees in the
lunchroom just before the end of the day shift, and had ar-
ranged for an interpreter to translate his reading of the entire
letter. He testified to noticing Delgado enter the lunchroom
at some point for coffee, and to asking that he please leave
because of the meeting in progress. Robinson denied having
made any utterance that would associate Delgado with the
Union’s organizing effort.
Rahe testified to more than his organizational activities in
assistance of Delgado, recalling that on or about June 9 he
had made a chance inquiry to Elmore about Delgado’s
whereabouts that day. Rahe asked if Delgado’s seeming ab-
sence was related to certain disciplinary suspensions imposed
earlier that week to which Elmore assertedly replied in the
negative but added that ‘‘he’s awful damn close with all the
union bullshit.’’3
Regarding postdischarge evidence,4 Harris testified that on
a date he believed was June 13, Delgado had telephoned him
at home to state that he had ‘‘got into it’’ with Elmore, and
told this official that he would ‘‘get yours’’ because Delgado
knew where he lived. Harris also recalled Delgado saying
that his remark could not be proven, because no one else was
present at the time.
C. Contentions
General Counsel contends that on acceptance of evidence
favorable to its case, the record as a whole shows a discrimi-
natory basis for the discharge of Delgado. General Counsel
points to a failure of Respondent to call Morris as a witness,
and thus benefit from a predictable denial that Delgado told
Morris on June 13 that he could bring a union into the plant.
General Counsel also claims that the Morris’ letter of June
8 constitutes animus by its strong statement of opposition to
unionism. General Counsel asserts further that the timing of
Delgado’s discharge establishes a causal connection between
it and his union activities, plus that Rahe’s testimony bolsters
the causal link. Finally General Counsel contends that
Delgado’s claimed utterance regarding Elmore’s place of res-
idence, even assuming it were made, is harmlessly ambigu-
ous on its face as well as being a provoked reaction.
On the independent 8(a)(1) allegations, General Counsel
contends that interrogating Delgado about soliciting union
cards during working hours is coercive in the absence of a
no-solicitation rule, or of one that was not being uniformly
enforced. On a second issue of this category, the argument
is made that Elmore’s summarizing remark to Delgado on
June 8, and his crude warning of consequences as made to
Rahe on June 9, were both impermissible threats of adver-
sity. As to the final allegation relative to creating the impres-
sion of surveillance, General Counsel contends here that
statements of both Elmore and Robinson showed how Re-
spondent was so fully informed about, or obsessively con-
cerned with, Delgado’s union activities that a reasonable as-
sumption would be such activities were in fact under surveil-
lance.
Respondent contends that its discharge was fully legiti-
mate, and that any contrary view would improperly rest
largely on the unreliable testimony of Delgado himself. Be-
yond this infirmity Respondent asserts that no convincing
knowledge of Delgado’s predischarge union activities has
been shown, and evidence of animus on Respondent’s part
is also lacking. Respondent contends that in any instance
Delgado’s angry reaction to Elmore constituted a plain threat
of physical violence under applicable case law, and was rea-
sonably taken seriously under the circumstances and given
the background against which it was uttered.
As to 8(a)(1) allegations faced, Respondent contends that
the creation of an impression of surveillance accusation is in-
sufficiently supported by the evidence. On this point Re-
spondent argues that Elmore’s investigation of the subject of
soliciting cards was a valid inquiry, and could not reasonably
have suggested a deliberate scheme or intention to literally
spy on employees’ legally guaranteed conduct. Respondent
applies the same argument to testimony by Delgado that
Robinson gratuitously identified him as a union activist,
pointing again to its urging that Delgado be disbelieved and
in any event that no corroboration has been attempted for the
episode. Concerning alleged threats of reprisal, Respondent
contends here that Delgado’s unbelievable testimony coupled,
with the same characteristic being warranted as to Rahe’s,
leaves this portion of the complaint utterly without proof.
D. Credibility
This case is well suited for application of a long-estab-
lished principle pertaining to the testimony of witnesses. In
NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d
Cir. 1950), the court wrote:
It is no reason for refusing to accept everything that a
witness says, because you do not believe all of it; noth-
ing is more common in all kinds of judicial decisions
than to believe some and not all.
This principle has been subsequently approved by the Board,
subject to its scrutiny as to correct application. Edwards
Transportation Co., 187 NLRB 3, 4 (1970); Wilco Energy
Corp., 246 NLRB 851 fn. 1 (1979).
Of the several major witnesses my assessment upon close
evaluation of their demeanor leads to a largely mixed deter-
mination of credibility. In some regards the discrediting of
one witness is also influenced by a strong inclination to cred-
it another where direct conflict of testimony exist between
the two, or where failure to contradict another undermines
veracity.
Delgado impressed me as one difficult to fully believe
concerning his overall description of happenings. He testified
rather contrivedly and seemed to be describing what was
convenient to his case not necessarily what had truly oc-
curred. I discredit his attribution of a statement by Elmore
on June 8 about Respondent’s power to abruptly fire him for
obtaining authorization cards from employees, and I discredit
his denial of uttering a reference to Baseline Street in the
community of La Verne when excitingly speaking with
Elmore on June 13. What I credit most prominently from
Delgado’s testimony is that he consistently and increasingly
identified himself as an advocate for unionism at the plant
735STRUCTURAL COMPOSITES INDUSTRIES
5 Because I have so fully discredited Delgado’s excessive claims of con-
versational content, I give no weight to Respondent’s failure to call Morris as
a witness, particularly where the point not contradicted as to his personal dis-
cussion with Delgado has been credibly contradicted by both Elmore and
Hafner as part of the same context.
in conversations taking place routinely with Green during the
first half of 1990.
I find Rahe to be a witness of excellent demeanor, pal-
pably honest-seeming and anxious to be truthful. On this
basis I credit his testimony of Elmore having remarked omi-
nously on June 9 that Delgado’s absence from work that day
could be related to unwanted steps towards another effort at
unionizing the plant.
Elmore himself was a generally unimpressive witness.
While I do believe his righteously recalled testimony of
Delgado having intimated sinister awareness of Elmore’s
general home location, I consider much of the rest of
Elmore’s offerings as contributed in self-interest. He simply
failed to impart a persuasive impression, and compounded
this trait by suspect hesitancy at key junctures of his testi-
mony.
Hafner is another witness for whom I have a mixed view.
I generally accept his several routine denials of Delgado hav-
ing claimed union activities as a reason for his increasingly
turbulence experiences early and into mid-June, however I
doubt and reject Hafner’s testimony as to following a fair ap-
plication of Respondent’s disciplinary policy to Delgado’s
actual behavior.
Robinson was the most impressively believable witness of
all who appeared. His version of the single episode in which
he was involved was presented assuredly and thoroughly,
giving rise in the process to a confident willingness to credit
him fully. I thus reject the claim that when meeting with as-
sembled employees on June 8 he had, in any direct or indi-
rect way, intimated that Delgado was thought of as being in-
volved in union activities.
Green, on the other hand, was largely unconvincing, a de-
meanor evaluation that is applied most significantly to dis-
crediting his denials of having prior knowledge that Delgado
grew increasing likely to become active in union activities as
the months of 1989 passed.
E. Analysis
Under Wright Line, 251 NLRB 1083 (1980), affd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
approved in 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 decision 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.
Here, the credited evidence is that Delgado was generally
known to Respondent’s agents as a supporter of unionism.
This had been in Green’s awareness for many months, and
his close working relationship with Elmore would impute
such knowledge to that highly placed supervisor. A signifi-
cant factor in such general knowledge is that Delgado had
actively campaigned for a pro-company result on the union
question in 1987, thus displaying a capacity for action and
visible inclination in collective-bargaining matters well be-
yond the norm for most industrial employees. On a specific
basis this employer knowledge is even more vivid as with re-
ports of Delgado’s card-passing on June 8, and Elmore’s
harsh remark to Rahe the following day indicative of a dis-
like of those supporting union activities.
Elmore’s credited utterance also provides evidence of em-
ployer animus toward union activities. I do not, contrary to
General Counsel’s contention, find this in any way estab-
lished from the Morris letter of June 8. On the contrary this
letter, both the quoted portion above and the letter in its en-
tirety as evidence of record, is fully within permitted expres-
sion of views under Section 8(c).5 However the letter does
have significance as to its timing, and, more importantly, for
the fact that it cannot from its terms be clearly disconnected
from what Respondent may have thought about Delgado’s
apparent initiation of union activities. It is not convincing for
Respondent to assert that the Morris letter was in response
to a vaguely known ‘‘aerospace’’ union, yet make no ref-
erence to this factor, let alone that it issued the very day Re-
spondent learned about Delgado’s suspected involvement.
Neither do I find that a claimed inconsistency as to no-solici-
tation rules provides a basis for showing employer animus.
While General Counsel has successfully demonstrated from
the credible testimony of Rahe that until a point in time after
the mid-summer election he had randomly promoted and sold
his farm products generally throughout the plant and on
working time without distinction, it is not persuasive to anal-
ogize from this earnest sideline to more structured selling or
soliciting.
However the flurry of mild discipline experienced by
Delgado prior to his discharge was occasioned not by imper-
fect administration of a no-solicitation rule, but instead was
rooted in the pure fact that Elmore was commissioned to,
and inclined toward, a more assertive style of management.
To achieve this he invoked more stringent prohibitions
against casual talk between employees, and gave this empha-
sis by direct rebukes in the nature of oral warnings. Similarly
his reprimand of Delgado for a serious abuse of break privi-
leges reflected this same new management style.
But the issue remains whether General Counsel has never-
theless established a prima facie case even given a showing
of recent discipline against Delgado. I conclude that this
threshold burden has been met. The knowledge that Delgado
was identified only scant days before his discharge as a
chief, if not sole activist, for a new drive toward unionism
is significant. The Rahe testimony defeats Respondent’s sce-
nario of Elmore having no knowledge of Delgado being in-
volved in some form, if not soliciting on worktime, of union
activities. It is coupled with Elmore’s strong dismay at the
prospect, and the timing of how this employee of established
service with Respondent was suddenly terminated. This suffi-
ciently permits the inference of unlawful discrimination hav-
ing been Respondent’s motiving reason to act as it did.
Respondent’s burden of showing that the same result
would have obtained even absent Delgado’s union activities
has not been met. The cryptic, certainly mouthy, nature of
Delgado’s remark to Elmore is not to be minimized, however
it is as a basic matter vague and ambiguous. Supposedly Re-
spondent’s persistent dissatisfaction with Delgado existed for
a variety of reasons in April and May. But no significiant
action occurred until his commencement of union activities.
This timing is strongly indicative of animus. Further,
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 I note Respondent’s development of evidence that Elmore’s car was van-
dalized in July, however no proof exists to connect this act to Delgado or to
buttress the assertion that he was prone to violence.
7 Under New Horizons, interest is computed at the ‘‘short-term Federal rate’’
for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C.
§ 6621.
8 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 objec-
tions to them shall be deemed waived for all purposes.
Elmore’s profane disgust when associating Delgado to union
activities, as Rahe credibly testified he did, is in striking con-
trast to what otherwise manifested as a controlled, almost
prim, management style in which every facet of an employ-
ment setting had its place. Given that Elmore concededly
knew, from earlier advice of Green, that Delgado had pre-
viously supported Respondent’s resistance to the Teamsters
drive, I consider the tone and nature of this specific response
to be, in a bare sense, another indicator of animus. This
seems particuarly plain when it is noted how Elmore now
self-servingly claims Delgado to have been the worst among
his work group. I am mindful that Respondent explains how
application of the California Labor Code compelled it to first
only suspend Delgado pending further consideration of the
matter. At this point the focus shifts to Hafner and I am to-
tally unconvinced that he has advanced a truthful explanation
of how studying Respondent’s rules of conduct led him to
a honest conviction that Delgado should be discharged. That
is also aside from the fact that prior discipline against
Delgado was a mixed situation, which did not leave him
poised for, or vulnerable to, termination for some new class
of infraction. The facts thus known to Hafner were only the
cryptic reference that possible unspecified retaliation against
Elmore might occur. The context was, after all, only the po-
sitioning of a desk in the workplace, Delgado, while perhaps
possessed of some quirky personal values, had not shown a
disclination towards purposeful and reliable work efforts,
which is why the desk was even placed in its final position.
I have considered cases authorities cited by Respondent on
the 8(a)(3) issue, and find them each distinguishable or insuf-
ficiently controlling of this particular fact situation. Evans St.
Clair, Inc., 278 NLRB 469 (1986), was a unique fact situa-
tion not suited as precedent here. Purolator Products, 270
NLRB 694 (1984), was a case of such major proportions that
it is not an appropriate comparison. While Moore Co., 264
NLRB 1212 (1982), is a respectable citation to advance, the
fact remains that Moore was a extremely dense fact situation
of considerable interpersonal background between partici-
pants, that is insufficiently comparable to the analysis here.
Accordingly, my application of the Wright Line doctrine is
to conclude that Delgado’s discharge was impermissibly un-
lawful under the Act.6
I reject General Counsel’s case insofar as individual
8(a)(1) violations are claimed. As to threat of reprisal I deem
the remark of Elmore to Rahe on June 9 as only proof of
abstract animus, but not evidence that actual employment re-
prisal of any kind was intended or likely for those engaging
in union activity. Relatedly Elmore’s questioning of Delgado
whether he solicited on work time is privileged when so lim-
ited. Respondent’s citation of Consolidated Edison Co., 280
NLRB 338 (1986), and Rossmore House, 269 NLRB 1176
(1984), correctly emphasize the doctrine that an employer is
free to investigate whether union solicitations are an im-
proper interference to necessary business function. The epi-
sode in Robinson’s meeting in the lunchroom with employ-
ees did not result in credited evidence that this supervisor did
anything more than urge Delgado away from his own legiti-
mate group activity. Thus in all instances the allegations of
the complaint respecting independent 8(a)(1) violations either
fail as to a rationale or fail for lack of proof.
CONCLUSIONS OF LAW
1. Structural Composites Industries, Harsco Corporation, is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. By discriminatorily discharging Albert Delgado on June
14 because of his union and concerted activities for the pur-
poses of collective bargaining or other mutual aid or protec-
tion, Respondent engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I find it necessary to order it to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent unlawfully discharged Al-
bert Delgado, I shall recommend that Respondent be required
to offer him reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position, and
make him whole for any loss of earnings he may have suf-
fered as a result of the discrimination against him. Backpay
shall be computed as set forth in F. W. Woolworth, 90
NLRB 289 (1950), with interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).7
Disposition
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, Structural Composites Industries, Harsco
Corporation, Pomona, California, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Discharging employees or otherwise discriminating in
regard to their hire, tenure of employment, or any term or
condition of employment because they engage in union or
concerted activities for the purposes of collective bargaining
or other mutual aid or protection.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Albert Delgado immediate and full reinstatement
to his former position, or if that position no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or other rights and privileges previously enjoyed,
and make him whole for any loss of earnings he may have
737STRUCTURAL COMPOSITES INDUSTRIES
9 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
suffered as a result of the discrimination against him in the
manner set forth in the remedy section of this decision.
(b) Remove from its files any reference to the unlawful
discharge, and notify Albert Delgado in writing that this has
been done and that this disciplinary action will not be used
against him in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Pomona, California, copies of the
attached notice marked ‘‘Appendix.’’9 Copies of the notice,
on forms provided by the Regional Director for Region 21,
after being signed by Respondent’s authorized representative,
shall be posted by Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by 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 Respondent has taken
to comply.