The Conolon Corp.

National Labor Relations Board - Board Decisions

Mar 24, 1969

175 N.L.R.B. 27 (N.L.R.B. 1969)

THE CONOLON CORP. 27
The Conolon Corporation and Industrial . Union of
Marine and Shipbuilding Workers of America,
AFL-CIO. Cases 21-CA-7939 and 21-RC-10431
March 24, 1969
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On October 16, 1968, Trial Examiner James R.
Webster issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner further found that the Respondent
had not engaged in certain other unfair labor
practices alleged in the complaint, and
recommended that those allegations be dismissed.
Thereafter, the Respondent and the General Counsel
filed exceptions and cross-exceptions, respectively,
and briefs in support thereof. The Respondent filed
an answering brief to the General Counsel's
cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner except as herein modified.
1. We agree with the Trial Examiner that by
soliciting nonbargaining unit office clericals to
distribute antiunion literature to bargaining unit
employees, Respondent interfered with the clericals'
rights guaranteed by Section 7 of the Act and
thereby violated Section 8(a)(1). We perceive no
substantive difference in the instant situation from
those cases which have held that solicitation of
employees to influence other employees' views on
union activity by an employer or its agents which
necessarily places the solicited employee in a
position where he must reveal his views as to union
activity is coercive and violative of Section 8(a)(1).'
Here, Respondent in response to Union propaganda
containing references to "mini-paychecks",
"mini-skirts" and "hi-boots," conceived the idea of
distributing antiunion literature by girls dressed in
mini-skirts and hi-boots. Volunteers for the
distribution were solicited by the secretary to the
president and vice president from among the office
clericals. Four or five clericals agreed to participate.
Some received free pairs of boots to wear and keep.
The record shows that all the participants agreed to
distribute the literature and were not instructed in
any manner as to the expression of their own
opinions during the distribution. However, because
of Respondent's control over the tenure and working
conditions of the employees involved, its solicitation
of the office clerical's participation in its antiunion
campaign under the conditions described above
placed the employees in the position of declaring
themselves as to union preference just as if they had
been interrogated as to such preference,' and thereby
interfered with their exercise of rights guaranteed by
Section 7 of the Act. The fact that the employees
solicited were not involved in the election is
immaterial. Employees within the meaning of
Section 2(3) do not lose the protection of the Act
merely because they are not part of the bargaining
unit being organized. We also agree with the Trial
Examiner that, by soliciting and utilizing the
clericals in order to influence unit employees to vote
against the Union, Respondent interfered with the
election.
We do not agree with the Trial Examiner,
however, that the Respondent was not responsible
for the conduct of Marilyn Fakler while she was
distributing its literature. Employee Trujillo testified
that during the course of the distribution Fakler
stated to him that if the Union were to win the
election, it would take away all the benefits the
Company had provided. She also stated that if he
wanted a raise, all he had to do was go to Company
President Ashby who would give him a dime
increase. This testimony was corroborated by Union
Representative West and was credited by the Trial
Examiner. Respondent contends that the only
instructions given the girls regarding the handouts
were as to when and where to pass them out and
that any antiunion remarks made were expressions
of personal views and therefore beyond the scope of
their authority. We find this argument without
merit. Respondent made Fakler its agent by
supplying her with antiunion literature, dressing her
in a distinctive costume, and sending her to
distribute Respondent's literature which was
designed to influence the employees to vote against
the Union. The fact that it may not have authorized
her to make the remarks she made is immaterial as
she was acting within the apparent scope of her
authority, no limitations as to such authority were
communicated to the employees, and she performed
in a manner such as to lead employees reasonably to
believe that she was speaking for and on behalf of
the Respondent? We find, therefore, that Fakler's
statements to , Trujillo are attributable to the
'Garland Knitting Mills, 170 NLRB No. 39; Kawneer Company, 164
NLRB No. 138 (TXD); Beiser Aviation Corp., 135 NLRB 399, 400; The
Charles V. Weise Co., 133 NLRB 765, 766.
'Indeed , the offer to provide some of the clericals with boots put those
employees in the most awkward position since to refuse to participate
under those circumstances would appear to be the clearest indication of
prounion sentiment.
'Department Store Food Corp. of Penna., 172 NLRB No. 129 (TXD);
175 NLRB No. 9
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent and that, in the circumstances, they
interfered with, restrained, and coerced employees in
the exercise of Section 7 rights in violation of
Section 8(a)(l) of the Act, and that they, along with
other conduct of Respondent found herein to be
violations of Section 8(a)(1), improperly interfered
with the election.4
2. The Trial Examiner found that Respondent's
reprimand of employee Mitsuko Roberts on
December 14 was a proper enforcement of its
no-solicitation rule since Roberts had distributed
prounion literature on company time in a working
area. We do not agree. On December 13 President
Ashby delivered a speech opposing the Union which
lasted from 3:15 to 3:25 p.m. Night shift employees,
who did not normally commence work until 3:45
p.m , were permitted to punch in prior to the
meeting, but day shift employees, whose normal
quitting time was 3:30 p.m , had not punched out by
the time the speech commenced. Following the
speech, Roberts passed out union literature as she
waited in line to punch out at the time clock. A
supervisor observed the distribution and reported it
to Company officials. The next day Roberts was
summoned to Ashby's office where he reprimanded
her for distributing union literature prior to quitting
time, warned her not to do it again, and placed a
memorandum of the incident in a Company file.
Respondent makes no contention that Roberts
was interfering with either her own or other
employees' work, and, indeed, admits that the time
clock is not within the plant working area.
Moreover, the record shows that on December 15
Respondent had a number of office clericals dress in
distinctive costumes and distribute Respondent's
antiunion literature near the time clock as the
morning shift was punching in.
On the basis of the foregoing we conclude that
Respondent enforced its no-solicitation in a
disparate and discriminating manner to punish
Roberts for her support of the Union and to deter
her from such activities in the future, in violation of
Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Valley Forge Flag Company, 152 NLRB 1550, 1554
'Member Zagona agrees, for the reasons set forth in the decision, that
the Respondent violated Section 8(a)(I) of the Act by its solicitation of
clerical employees He would not rind that this conduct interfered with the
election in the production and maintenance unit, however , nor would he
find the "utilization" of these employees to be 8 (a)(I) or election
interference Moreover , he agrees with the Trial Examiner that the
remarks of Fakler , one of the clericals, were not attributable to the
Respondent since she had no express or implied authority to promise wage
increases or threaten withdrawal of benefits Member Zagona believes that
Fakler' s remarks were, and appeared to be, merely expressions of her
personal opinion Accordingly, he would find that Fakler's conduct did not
violate the Act or interfere with the election
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, The Conolon Corporation, Santa Ana,
California, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein
modified:
1. Insert the following new subparagraphs (e) and
(f) in paragraph I of the Trial Examiner's
Recommended Order, and reletter present
subparagraph (e) as (g):
(e) Soliciting and utilizing employees to threaten
other employees with loss of benefits if the Union
should win the election, and to promise benefits to
persuade them not to vote for the Union.
(f) Disparately and discriminatorily enforcing its
no-solicitation rule in order to deter union activity.
2. The notice is modified by inserting the
following between the fifth and sixth indented
paragraphs:
WE WILL NOT solicit or utilize employees to
convey threats of loss of benefits or promises of
benefit while a representation election is pending.
WE WILL NOT disparately or discriminatorily
enforce our no-solicitation rule in order to deter
union activity.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER, Trial Examiner: This case, with all
parties represented, was heard in Santa Ana, California,
on July 30 and 31, 1968, upon a complaint of the General
Counsel and answer of The Conolon Corporation, herein
called Respondent or Employer,- and on an order
consolidating cases issued by the Regional Director for
Region 21 of the National Labor Relations Board. The
complaint was issued on April 2, 1968, on a charge filed
on February 7, 1968 The complaint alleges that
Respondent discriminatorily denied overtime work to
employees and threatened, restrained and coerced
employees by a disparate enforcement of a no-solicitation
rule, by changes in its bonus program, by promises of
increased benefits, by causing employees to distribute
antiunion literature, and by other promises and threats,
thereby violating Section 8(a)(I) and (3) of the National
Labor Relations Act, herein called the Act. The order
consolidating cases was issued on April 15, 1968, and
directed hearing on Petitioner's objections Nos 2, 3, 4, 8,
9, 12, and 13 A substantial portion of the conduct
objected to is also alleged in the complaint to be unfair
labor practices.
Briefs have been filed by the General Counsel and the
Respondent and have been carefully considered. Upon the
entire record and my observation of the witnesses, I
hereby make the following-
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a California corporation with place of
business in Santa Ana, California, and is engaged in the
business of manufacturing fishing rods. Respondent
THE CONOLON CORP. 29
annually manufactures , sells, and causes to be shipped
directly to customers located outside the State of
California products valued in excess of $50,000.
Respondent is 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 LABOR ORGANIZATION INVOLVED
Industrial Union of Marine and Shipbuilding Workers
of America , AFL-CIO, herein called the Union or the
Petitioner , is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES AND
OBJECTIONS TO THE ELECTION
A. Introductory Statement and Issues
Pursuant to an order of the Board issued on September
20, 1967, a second representation election was conducted
on December 15, 1967, in a unit of employees of
Respondent consisting of approximately 318 eligible
voters The conduct alleged to be unfair labor practices
and that complained of in the Petitioner's objections to
the conduct of the election occurred during the months of
November and December 1967
The issues are
1 Whether on December 14, 1967, Respondent denied
overtime work to employee Laurence T. Jones because he
was wearing a union insignia or because there was a
shortage of material.
2. Whether on December 14, 1967, employee Joe
Whitney was not permitted to make up time lost as a
result of his absence, and if so, whether the reason
permission was not granted was because Whitney had
worn a union insignia or because no work station was
available
3. On December 13 or 14, 1967, did Respondent
enforce a no-solicitation rule in a discriminatory manner.
4 Did Respondent illegally interfere with union
activities of employees by promising an employee a
promotion, by promising employees that it would conduct
a wage survey and make further wage increases, and by
making changes in its production bonus program.
5 On December 15, 1967, the day of the representation
election, did Respondent illegally solicit and utilize office
employees to distribute antiunion literature?
6 Did Respondent on December 15, 1967, through an
office employee, promise a wage increase and threaten
employees with loss of benefits in the event the Union
won the election?
B Distribution of Antiunion Literature by Office
Employees on December 15, 1967
During the election campaign, the Union distributed
literature containing references to "mini paychecks,"
"mini skirts" and "hi boots." In response to this theme,
Respondent conceived of the idea of distributing antiunion
literature by girls dressed in mini skirts and high boots.
The task of finding volunteers for this distribution was
given to Mary Clyde, secretary to President Howard
Ashby and Vice President Robert Barrie. Four or five of
the office clericals volunteered The office clericals are not
in the bargaining unit involved herein.
The election was scheduled for 2 to 5 p.m, on
December 15, 1967. The first shift starts at 7 a.m. and
terminates at 3.30 p.m.; the second shift starts at 3:45
p.m. The clericals distributed literature at the beginning of
the first shift, during the lunch period from 11 30 a m to
12.30 p m., and again at the beginning of the second shift.
Before the first shift, the girls distributed literature in
the vicinity of Respondent's timeclock and at the service
entrances. The mini skirts were furnished by the girls and
Respondent purchased boots. The girls wore signs which
stated, "Yes on mini, no on union"; "be sharp, vote no",
and "look sharp, vote no." During the lunch hour, they
passed out pictures of James Drury, the star in the
television program, The Virginian On the back of the
pictures was the phrase, "Vote no." Also, a picture of
James Drury was stapled to the card or sign that each girl
was wearing and across their backs were the words, "The
Virginian says vote no " As they made these distributions
at noon in the cafeteria area, they were instructed to say
"Would you like a picture of James Drury9 The Virginian
says to vote no "
The references in Respondent's literature to James
Drury was prompted by a card distributed earlier by the
Union to the effect that Drury had made a statement that
he belongs to a union. Before Respondent passed out
pictures of Drury, it checked with him on the matter and
regarding a reference to him in its literature
At approximately 3 p.m., the girls went to the two
entrance gates to distribute literature to employees
reporting for the second shift They also distributed
pictures of James Drury with the same statement to
employees that they had made during the noon recess
Union Representative Charles West with three other
union representatives also distributed literature at plant
entrances at intervals during the day of the election.
The Board has held that the act of soliciting employees
to influence other employees against a union or for a
union constitutes an interference with their rights
guaranteed by Section 7 of the Act and a violation of
Section 8(a)(1) of the Act' In the instant case Respondent
sought and obtained volunteers and from among
employees not involved in the pending election; yet I
cannot find that these two factors warrant a departure
from the general rule Although the volunteers were not
directed to influence other employees verbally, they were
directed to do so by the wearing of antiunion signs and by
the distribution of antiunion literature. I find that by the
soliciting and utilizing of employees to influence other
employees against the Union, Respondent has violated
Section 8(a)(1) of the Act and has improperly interfered
with the election, although the employees solicited and
utilized were outside the bargaining unit
C Alleged Coercive Statements by an Office
Employee
Employee Albert Trujillo, Jr., got off work on the first
shift at 3:30 p m on December 15. He had voted in the
election at about 2 p m. After getting off work, he went to
the gate and conversed with the girls handing out
literature there on behalf of Respondent and with the
union representatives who were there handing out
literature on behalf of the Union He was there from
approximately 3:30 to 4 p m While there, Union
Representative Pat Daniels asked clerical Marilyn Fakler
why she did not want a union and if she thought the
employees were making enough money Fakler replied
that if the Union got in, it would take away all the
'Decision, Inc, 166 NLRB No 41
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company's benefits and would spoil the relationship
between the Company and the employees and that the
Union does not care about anyone except itself From
remarks made during the discussion, she formed the
impression that Trujillo thought the only way he could get
a higher wage was through the Union. She told him that
if he wanted a raise, all he had to do was to go into Mr.
Ashby's office and he would give him a dime raise
anytime.
The only instructions the clericals received regarding
the handouts were as to when and where to pass out
literature given them, and in connection with the picture
of Drury they were told to ask employees if they would
like a picture of James Drury and to tell them that the
Virginian says to vote no.
Although these girls were passing out literature at the
request of and on behalf of Respondent, they were still
employees of Respondent and free to express their
personal views for or against the Union. Marilyn Fakler
had no express or implied authority to assure anyone of a
wage increase or of a withdrawal of benefits, she was
doing no more than expressing her opinion, which had
been solicited by Union Representative Daniels. I find
that her remarks are not attributable to Respondent and
that Respondent has committed no unfair labor practice
or interfered with the election thereby.'
D The Dental of Overtime to Jones and Denial of
Makeup Time to Whitney
Laurence Jones was employed by Respondent as a
specialty man handling custom-built and quality fishing
rods. In November 1967, Jones went into the office of
Vice President Barrie to complain about his wages and
progress with Respondent following his return to his job
in the summer of 1967, after a tour of military service.
Barrie told him that progress was being made and that
jobs were opening up and that if Jones put his nose to the
grindstone and did a good job and if he would also
attempt to learn the business by reading magazines
relating to the industry, he had a future with Respondent
Jones also told him that he had attended union meetings
because he was interested in hearing both sides of the
story and that at the time he had no feelings one way.or
the other; that he liked the Company and the people he
worked with and was looking for information before he
cast his ballot. Barrie told Jones that Jones had influence
among the employees and that if he were for the
Company, he would move up in position.'
On December 14, 1967, the day before the election, one
of the employees brought some white shirts to the plant
with the words "Vote yes" on the back of each. About 2
p.m., Jones put on one of the shirts Employees Danny
Gorospe and Joe Whitney also wore these shirts that day.
This attracted the attention of other employees and
supervisors. Barrie came to Jones and said, "I see you've
made up your mind." Jones replied that he had no other
choice at that time Shortly after that, Supervisor Handler
came to Jones and told him that he was to leave that day
at 3 30 p m.; that there was no overtime for him because
no rods were being sent out from the specialty
department. Jones replied that he had worked for
'There is some conflict in testimony as to instructions given the girls and
as to Fakler' s remarks to Trujillo The testimony , as found above,
impressed me as the most plausible
'1 do not find that Barrie asked Jones to use his influence to persuade
other employees against the Union
Respondent for a long time and knew what was going out
and that he was being sent home because he was wearing
the union shirt. Jones became very upset and near the end
of the work shift, he asked for and received permission to
talk with Vice President Barrie. Barrie calmed him down
and stated to Jones that he had the wrong idea and that
he was being sent home because of production; that there
was a shortage of materials with which to construct the
metal cases in which the specialty rods were packaged;
that there was no point in producing the rods if they could
not be packaged and shipped. He also told Jones he would
like to see him take the shirt off.
Regarding the cases in which the specialty rods are
packaged, Barrie testified that the last order for the
material used for these cases was received on June 23,
1967, and that the next receipt of a shipment was on
January 23, 1968. Yet, Jones worked overtime on Friday,
December 15, and on each day of the following week
except Friday, December 22, in fact, Jones consistently
worked overtime. Thus, I cannot accept Respondent's
contention that Jones was denied overtime on the day of
December 14, 1967, because of a shortage of packaging
materials which condition was not remedied until January
23, 1968 I find that he was discriminatorily denied
overtime work on December 14, 1967 It is noted,
however, that he did receive overtime pay for an hour and
a half that day, which was for the time spent in Barrie's
office before he clocked out I also find that Barrie's
statement to Jones that he would move up in position if
he were for the Company constitutes interference,
restraint and coercion within the meaning of Section
8(a)(l) of the Act and an interference with the election.
Employee Joe Whitney was employed as an oven
loader. On the morning of December 14, he was ill and
arrived at work at 12 o'clock noon. He observed employee
Danny Gorospe wearing a union shirt and asked him if he
had any more. Gorospe referred him to Jones who
informed him where another shirt was located During the
afternoon break at about 2 p.m Whitney got one of the
shirts and put it on. He was observed a short time later by
Ashby who stated "I hope that makes you feel better;
Joe." About 10 or 15 minutes later, Supervisor Handler
came in and told Whitney, "You punch out at 3.30."
Respondent has a policy of permitting employees, in
some instances, the opportunity to make up hours that
they have missed from work. The use of this policy is not
encouraged since it would in turn encourage tardiness on
the part of employees, but due to Respondent's need for
productivity, it permits makeup hours where there is a
work station available following the end of an employee's
regular shift. Such a work station usually does not exist
where second-shift employees takes over all available work
stations in a particular department
Although Whitney was told that he was to punch out at
the end of his shift at 3:30 p m. and has never before been
told to do so, on the other hand, he has never at any time
made up hours that he has lost During the 17-month
period from July 1966 to December 14, 1967, Whitney
was late on 13 occasions without any of the time being
made up. In his department there is a second shift and no
work station was available to him on December 14 Also
there is no evidence that he requested or contemplated
making up hours lost on December 14 I find that there
was no denial of make-up hours to Whitney on December
14, 1967, and therefore no unfair labor practice or
interference with the election in this connection. There is
no evidence of any denial of overtime or makeup time to
Danny Gorospe.
THE CONOLON CORP. 31
E. Application of No-Solicitation Rule
Respondent prohibits solicitation in working areas
during working hours, but the wearing of insignia
indicating an employee's allegiance was not prohibited On
December 15, 1967, some employees wore insignia for the
Union and some against the Union.
Evidence was adduced that on two occasions employees
were warned about passing out union literature On
December 14, Barrie was informed by Supervisor Handler
that employee Mitsuko Roberts had passed out union
literature on the prior day, December 13, as she was
waiting in line to punch out at the timeclock On
December 14, Roberts was told to report to the office,
and she was informed by Ashby that she had been
observed passing out union literature prior to quitting
time; that this was a violation of Company rules. She
expressed her thought that it was not a violation of
Company rules because she had finished her work for the
day. She had attended a speech given by President Ashby
from 3:15 p m to 3:25 p.m. She was warned by Ashby
not to do this again and a note about the incident was
placed in a Company file.
On December 15, 1967, Joe Whitney was passing out
union literature near the timeclock. As he started walking
toward the work area with literature in his hand, Ashby
stated to him, "You know better than that, Joe. Get out
of here and don't come back with that paper."
I find that in each of these occasions Respondent was
warning employees against distribution of union literature
on Company time and in working areas. Although
Roberts had ceased work, she had not punched out, and
Whitney was warned against distributing literature inside
the plant after he had punched in. I do not find that there
has been any discriminatory application of the
no-solicitation rule
There is no evidence that supervisors nor employees
distributed antiunion literature on Company time and
property
F Changes in Production Bonus and Promise of
Wage Increase
Respondent has given production or incentive bonuses
to its employees coinciding with its shutdown for
Christmas holidays for approximately 15 years, but the
General Counsel contends that in December 1967,
Respondent changed the method of computing the bonus
and thereby violated the Act
On October 6, 1967, President Ashby addressed a
meeting of employees and informed them as to the basis
for computing and distributing the bonus to be paid in
December if production goals were met.
Over the years , Respondent has computed bonuses by
different methods, but in 1965 and 1966 it paid all
employees a bonus of 1 day's pay based on the plant's
achievement of its production goal. In December 1967, the
bonus was also based on the plant ' s achievement of its
production goal, but was distributed among the employees
on a percentage basis based on each employee's individual
earnings , thus, taking into account absences and individual
production , some employees , therefore , received more pay
and some received less. Respondent had used a similar
method for distribution of bonus in 1957 and 1958.
The Board has held that the institution of a higher
bonus ceiling resulting in extra earnings to employees in
the face of a representation election constitutes an unfair
labor practice ' In the instant case we do not have an
increase in the bonus itself, but a change in the method by
which it is prorated among employees Rather than being
distributed equally to all employees based on rate of pay
only, it was prorated based on an individual's own
earnings as determined by his rate of pay, attendance and
production. I cannot find that a bonus distribution based
on these considerations and consistent with a method of
distribution that had been utilized in prior years was
intended to dissuade employees from support of the Union
or constitutes interference, restraint or coercion within the
meaning of Section 8(a)(1) of the Act or an interference
with the election. Furthermore, I cannot find that the
timing of the announcement regarding the bonus was an
unfair labor practice or an interference with the election
since Respondent has traditionally given bonuses to
coincide with its Christmas shutdown. The election
happened to have been set in the same month as the
production bonus.
At a meeting of employees on November 2, 1967,
President Ashby told the employees that a wage survey
had been made and that they would receive a wage
increase of 10 cents an hour effective October 28, 1967,
and that a change in classifications of some of the
employees would also be made. The giving of the wage
increase in November 1967, is not alleged as an unfair
labor practice nor as an interference with the election. The
Petitioner acknowledges in objection number 9 that such
increases had been a practice in prior years. Ashby also
stated, however, that another survey would be made
sometime after the first of the year, and if necessary, wage
rates would be changed again.
Respondent contends that it was aware that the Federal
minimum wage was to be changed on February 1, 1968,
and it anticipated that this would occasion a further
change in its wage rates In November 1967, Respondent
considered the possibility of making a wage increase that
would take into account the change in the Federal
minimum wage law due in February 1968. A majority of
Respondent's wage committee felt that the additional
increase should be made in November along with the
increase being given then, but since the representation
election was pending, the president and vice president of
Respondent overruled the committee on the grounds that
any further increase would be a departure from past
practice and would make it vulnerable to an unfair labor
practice charge. Respondent chose to postpone any further
increase until the effective date of the new law
Thus, Respondent contemplated making another wage
increase in early 1968, and although Ashby did not
expressly promise that this would occur, the only
accounting for his announcement to them of another
survey within such a short period was to convey to
employees the expectation of a further increase I find that
by this announcement made while the representation
election was pending, Respondent violated Section 8(a)(1)
of the Act and interfered with the election.'
Prior to 1967, Respondent had a practice of giving each
employee a turkey at Christmas. In 1966 some employees
requested that the turkey be given at Thanksgiving rather
than at Christmas. This was put to a vote of the
employees and a majority voted to continue to have the
turkey given at Christmas. In 1967, it was suggested that
the employees might prefer a ham instead of a turkey.
This was put to a vote on November 8, 1967, with a slight
'Noma Liles Corp. 170 NLRB No 142
'Northwest Engineering Company, 148 NLRB 1136, enfd 376 F 2d 770
(C A D C ), Iowa Pork Company, Inc, 148 NLRB 1242
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority of the employees preferring a ham to a turkey
Respondent then decided to give the employees a choice of
ham or turkey. I cannot find that there has been any
unfair labor practice or interference with the election in
connection with Respondent's Christmas gifts to
employees in 1967
G Objections to the Election
The petitioner did not offer any evidence independently
of the General Counsel as to the matters alleged in its
objections to the election. Most of the matters set forth in
the objections were also alleged to be unfair labor
practices, and I find that Respondent did interfere with
the results of the election by conduct found herein to
constitute unfair labor practices.
IV THE EFFECT OF Till; UNFAIR LABOR PRACTICES
UPON COMMERCE
Those activities of Respondent set forth in section Iii,
found to constitute unfair labor practices, occurring in
connection with its business operations as set forth in
section I, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following.
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act
3 By denying overtime to Laurence Jones on December
14, 1967, because of his union activities, Respondent
discriminated against him in regard to hire and tenure of
employment, thereby discouraging membership in the
Union and thereby engaging in an unfair labor practice
within the meaning of Section 8(a)(1) and (3) of the Act.
4 By soliciting and utilizing employees to influence
other employees against the Union, Respondent has
engaged in an unfair labor practice within the meaning of
Section 8(a)(1) of the Act
5. By conveying to employees the expectation of a
further wage increase in the near future, while a
representation election was pending, Respondent has
engaged in an unfair labor practice within the meaning of
Section 8(a)(l) of the Act.
6. By promising an employee that he would move up in
position if he were for the Company, Respondent has
engaged in an unfair labor practice within the meaning of
Section 8(a)(1) of the Act
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
8. By the conduct of the Respondent described above in
paragraphs 3, 4, 5, and 6, Respondent has improperly
affected the results of the representation election
conducted on December 15, 1967.
9 Respondent did not deny makeup hours or overtime
work to Joe Whitney or to Danny Gorospe on December
14, 1967. In the fall of 1967, Respondent did not promise
employees a new production bonus, and did not enforce a
no-solicitation rule in a disparate and discriminatory
manner, and did not, through an office employee, promise
wage increases or threaten loss of benefits
10 Except by the conduct referred to in paragraph 8,
above, Respondent did not interfere with the results of the
election conducted on December 15, 1967, by other
conduct alleged in Petitioner's objections
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
which I find necessary to remedy and to remove the
effects of the unfair labor practices and to effectuate the
policies of the Act
It will be recommended that Respondent make
Laurence Jones whole for any loss of pay suffered by
reason of the denial of overtime work to him on
December 14, 1967, by payment to him of a sum of
money equal to the difference between the wages he would
have received from Respondent absent the discrimination
and the amount he actually did receive, with interest
thereon at 6 percent per annum as prescribed in Isis
Plumbing & Heating Co,Inc , 138 NLRB 716
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
RECOMMENDED ORDER
The Conolon Corporation, its officers , agents,
successors , and assigns, shall
I Cease and desist from
(a) Discouraging membership in Industrial Union of
Marine and Shipbuilding Workers of America, AFL-CIO,
or any other labor organization, by denying overtime
work to employees or otherwise discriminating against
employees in regard to their hire and tenure of
employment or any term or condition of employment
(b) Soliciting and utilizing employees to influence other
employees against the Union.
(c) Conveying to employees the expectation of a wage
increase in the near future, while a representation election
is pending
(d) Promising employees promotions or other benefits if
they are for the Company rather than the Union
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act
2. Take the following affirmative action which is
designed to effectuate the policies of the Act.
(a) Make Laurence Jones whole for any loss of earnings
he may have suffered as a result of the discrimination
against him in the manner set forth in the section of this
Decision entitled "The Remedy "
(b) Preserve and, upon 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.
(c) Post at its Santa Ana, California , plant, the
attached notice marked "Appendix "" Copies of said
notice to be furnished by the Regional Director for
'in the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
THE CONOLON CORP. 33
Region 21, after being duly signed by an authorized
representative of Respondent, shall be posted by
Respondent immediately upon receipt thereof and
maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or
covered by any other material
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the receipt of this
Recommended Order, what steps Respondent has taken to
comply herewith '
IT IS RECOMMENDED that paragraphs 8, 11, and 13 of
the complaint be dismissed.
IT IS RECOMMENDED that the election which was
conducted in a unit of Respondent's employees on
December 15, 1967, be set aside and that a new election
be directed at an appropriate time by the Regional
Director for Region 21 It is recommended that the
Petitioner's objections 2, 4, and 8, and all parts of
objection 3, except that pertaining to the denial of
overtime to Laurence Jones, and all parts of objection 12,
except that pertaining to soliciting and utilizing employees
to influence other employees against the Union, be
overruled.
Appeals, enforcing an Order " shall be substituted for the words "a
Decision and Order "
'In the event that this Recommended Order is adopted'by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 21, in writing , within 10 days from the date of this Order, what
steps it has taken to comply herewith "
our employees , by denial of overtime work to
employees or by discriminating in any manner in regard
to hire or tenure of employment or any term or
condition thereof.
WE WILL NOT solicit or utilize employees to influence
other employees against the Union.
WE WILL NOT convey to employees the expectation
of a wage increase in the near future while a
representation election is pending.
WE WILL NOT promise employees promotions or
other benefits if they are for the Company rather than
the Union
WE WILL make Laurence Jones whole for any loss of
pay suffered by reason of our discrimination against
him.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of the
rights to self-organization , to form labor organizations,
to join or assist the above-named or any other labor
organization , to bargain collectively through
representatives of their own choosing , to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to
refrain from any or all such activities, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section
8(a)(3) of the National Labor Relations Act
All of our employees are free to become or remain, or
refrain from becoming or remaining , members of the
above-named or any other labor organization.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that
WE WILL NOT discourage membership in Industrial
Union of Marine and Shipbuilding Workers of
America, AFL-CIO , or any other labor organization of
Dated By
THE CONOLON
CORPORATION
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California 90014, Telephone
688-5229.