TRW, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1158 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRW, Inc. and International Union of Electrical, Ra-
dio and Machine Workers, AFL-CIO-CLC. Cases
23-CA-7164 and 23-CA-7185
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On June 29, 1979, Administrative Law Judge
George F. Mclnerny issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
I The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an administrative law judge's resolutions with respect to credibility un-
less the clear preponderance of all of the relevant evidence convinces us that
the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing his findings.
2 In finding that Respondent's suspension of Miranda did not violate Sec.
8(aX4) of the Act, the Administrative Law Judge impliedly stated that such
a finding would be inconsistent with his finding that the suspensions were in
violation of Sec. (aX3). (See the Administrative Law Judge's Decision, fn.
28.) While we do not agree that an inconsistency exists, since the Adminis-
trative Law Judge found that Respondent violated Sec. 8(aX3) in suspending
Miranda, and no exceptions were filed to the failure to find an 8(aX4) viola-
tion, we find it unnecessary to pass on that allegation.
The Adminitrative Law Judge found that Respondent discharged Garza
in violation of Sec. 8(aX3). We agree, but do not adopt the Administrative
Law Judge's rather ambiguous rationale for such a finding. In our opinion
the reason for the discharge, as the Administrative Law Judge appears to
indicate, was clearly pretextual in nature-i.e., not for the reason finally
assigned by Respondent. We note that only 3 working days before her termi-
nation, Garza was told she was not going to be fired, despite her unsatisfac-
tory attendance record, because she was a good employee; and it was only
after she refused to sign the statements given to her by Respondent's attor-
ney that she was discharged
3 In par. I(d) of his recommended Order, the Administrative Law Judge
used the broad cease-and-desist language, "in any other manner." We have
considered this case in light of the standards set forth in Hickmort Foods,
Inc., 242 NLRB 1357 (1979), and have concluded that a broad remedial
order is inappropriate since it has not been shown that Respondent has a
proclivity to violate the Act or has engaged in such egregious or widespread
misconduct to demonstrate a general disregard for the employees' funda-
mental statutory rights. Accordingly, we shall modify the recommended Or-
der to use the narrow injunctive language, "in any like or related manner."
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that Respondent, TRW, Inc.,
Corpus Christi, Texas, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph l(d):
"(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present evidence and examine and cross-exam-
ine witnesses, it has been decided that we have vio-
lated the National Labor Relations Act. We have
been ordered to post this notice and to comply with
its terms.
WE WILL NOT threaten or coerce our employ-
ees because they engage in union activity.
WE WILL NOT interrogate or coerce our em-
ployees because they engage in union activity.
WE WILL NOT discharge, suspend, or otherwise
discriminate against our employees because they
engage in activity protected by Section 7 of the
National Labor Relations Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act.
WE WILL offer Rosie Garza immediate and full
reinstatement to her former job or, if her job no
longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any
other rights and privileges previously enjoyed,
and WE WILL make her whole for any loss of
earnings she may have suffered by reason of her
discharge, plus interest.
WE WILL make Henry Miranda whole, with
interest, for any discrimination suffered by him.
TRW, INC.
DECISION
STATEMENT OF THE CASE
GEORGE F. MCINERNY, Administrative Law Judge: The
charge in Case 23-CA-7164 was filed by International
245 NLRB No. 149
1158
time some employees signed cards indicating their support
for the Union. By April 14 the Company was aware of this
activity and made this awareness known to the employees
by addressing a letter to each employee's home, setting out
the Company's intention to use "every possible legal means
to prevent a union from coming into this plant."
Notwithstanding this, the organizational campaign con-
tinued. On the Monday after the Company's letter was sent.
about 25 employees on their lunch break met with Mendez
in front of the plant, in full view of company officials, and
passed out leaflets to other employees. On April 28 the
Union filed a petition for an election. A hearing was held
on May 16. The election on July 19, under the auspices of
the Board, resulted in the certification of the Union as the
bargaining representative for some of the Company's em-
ployees.' At the time of the hearing, the Union and the
Company were engaged in negotiations for a collective-bar-
gaining agreement.
B. Incidents Involving Henry C. Miranda
Henry C. Miranda was employed by the Company on
January 25, 1978. He started as a resistor processor in the
General Process Resistor (GPR) department, but his work
was not satisfactory, and he was assigned after about a
month and a half as a shipping clerk. He remained in this
job during the period material to the issues in this case.
Miranda was closely connected with the Union's organi-
zational campaign from its inception. His credible testi-
mony shows that he attended the first two meetings at the
motel in Corpus Christi; signed a card at the meeting held
in the first week in April at an employee's home; took a
number of cards from that meeting; passed out leaflets in
part of the plant; helped people sign cards and helped Ray
Mendez in organizing meetings of employees: wore a large
union button in the plant in the period before the election,
and a union T-shirt on the day of the election; and testified
for the Union in the representation hearing. It is true, of
course, that many other employees engaged in similar ac-
tivities. but it does not appear in this record that any other
employees were as deeply involved as was Miranda. In-
deed, Miranda's account of his union activities is indirectly
corroborated in the summary of evidence filed with Re-
spondent's objections to the conduct of the election and to
conduct affecting the results of the election. In this docu-
ment, Miranda is described in one paragraph as "one of the
chief organizers" (for the Union); in another paragraph as
one of the "Union organizers"; and in a third paragraph as
"the chief in-plant Union organizer." It is clear from this
summary of evidence that Respondent viewed the Union's
campaign as suffused with ethnic or racial overtones, and
Miranda's role in the campaign was seen by Respondent as
critical to its eventual outcome. Respondent, then, is not in
a position to claim that Miranda was merely one out of
many union supporters in the plant during the organizing
campaign.
While consideration of Miranda's problems subsequent
to his involvement in the union campaign must certainly
2 Respondent filed objections to conduct by the Union allegedly) affecting
the results of the election, but such were presumably found to be without
ment.
Union of Electrical, Radio, and Machine Workers, AFL-
CIO-CLC, herein referred to as the Union, on July 17,
1978;' and the charge in Case 23-CA-7185 was filed by the
Union on July 31. On September 6 the Acting Regional
Director for Region 23, on behalf of the National Labor
Relations Board, herein referred to as the Board, issued an
Order consolidating these cases, and a consolidated com-
plaint alleging that TRW, Inc., herein referred to as the
Company or Respondent, had violated Section 8(a)(1), (3),
and (4) of the National Labor Relations Act, as amended,
herein referred to as the Act. On September 13 Respondent
filed an answer to the complaint in which it denied the
commission of any unfair labor practices. On September 27
the Acting Regional Director issued an amendment to the
consolidated complaint, alleging certain additional viola-
tions of Section 8(a)(X) of the Act, which allegations have
likewise been denied by Respondent.
Pursuant to notice, a hearing was held on January 29 and
30, 1979, at Corpus Christi, Texas, at which all parties were
represented and had the opportunity to present testimony
or documentary evidence, to examine and cross-examine
witnesses, and to argue orally. Following the close of the
hearing, the General Counsel and Respondent submitted
briefs, which have been carefully considered.
Upon the entire record in this case, including the exhib-
its, testimony, my observation of the witnesses and their
demeanor, and the arguments and briefs, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, the answer admits, and I find that
Respondent is a Delaware corporation with a plant located
at Corpus Christi, Texas, which is engaged in the manufac-
ture of resistors. In the year prior to issuance of the com-
plaint herein, a representative period, Respondent pur-
chased goods and materials valued at over S50,000 directly
from suppliers located outside the State of Texas. Respon-
dent is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In the spring of 1978, the Union began organizing the
employees at Respondent's Corpus Christi plant. Beginning
in mid-March, there were two meetings at a local motel, at
which Ray Mendez, the Union's international representa-
tive, told employees about the Union. In the first week of
April a meeting was held at an employee's house, at which
I All dates herein are in 1978, unless otherwise specified.
TRW, INC. 1159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recognize the Company's attitude of opposition to its em-
ployees' unionization and its perception of Miranda's role
in that process, the undisputed evidence shows that Miran-
da encountered difficulties with supervisors over his work
performance at least I month before his first brush with the
Union. Supervisors Henry Ponce and Casey Eidukonis both
testified at some length about difficulties they had with Mi-
randa in the first weeks of his employment and the prob-
lems they encountered in placing him in a job which he
could perform to their satisfaction. In accordance with Re-
spondent's policy, Miranda was given a written evaluation
on February 25, showing that management considered him
"marginal" in a number of categories, particularly in the
area of "attitude." He was noted by Eidukonis as not pay-
ing sufficient attention to the quality of his work, as lacking
a sense of urgency, and as disliking criticism. On the other
hand, this same employee review noted that he was hard-
working, ambitious, knowledgeable, and bright, and that he
showed promise of becoming a "very fine employee."
Miranda's difficulties in achieving satisfactory job per-
formance continued into the period of his union activity.
Notes were placed in his personnel file on March 20, April
5, and April 14, indicating a continuation of negligent or
careless working habits and allegations that he spent too
much time talking, thereby disrupting the work of others.
On April 3 Eidukonis tried to "counsel" Miranda on his
shortcomings and informed him that if he showed no im-
provement, he would be terminated. This session was me-
morialized by Eidukonis in a note placed in Miranda's per-
sonnel file together with a handwritten reply by Miranda,
denying allegations of inattentiveness and lack of urgency.
Despite this warning, another incident occurred on April
20 when Miranda was observed by Ponce allegedly neglect-
ing his job. In the resulting discussion, Miranda accused
Ponce of harassing him and asked to see the company's
personnel administrator. They proceeded to the personnel
office, but apparently never got to see anyone there. Ponce
testified that while they were waiting Miranda said that he,
Ponce, was in trouble; that the Union was backing up Mi-
randa; and "they" were going to get Ponce. Ponce further
stated that this was said in front of two witnesses, but those
witnesses did not testify at this hearing. Miranda did not
deny this statement. However, Ponce did not impress me as
a credible witness. In particular, his denial that he knew
there was a union campaign going on in the plant indicates
either that he was totally unobservant of activities around
him or that he was not telling the truth. In either case, his
testimony is necessarily less than credible. Miranda struck
me as more credible, and his testimony impressed me as
more reflective of the inherent probabilities of the situation,
based on the actions of people during a union organization
campaign. On the other hand, I find that the evidence
shows Miranda to be a somewhat intractable and arrogant
employee, who could be and probably was, given to intem-
perate outburst under criticism, and to boasting of his close
involvement with the Union. Thus, I generally credit Mi-
randa's testimony with regard to his conversations with his
supervisors, Ponce and Eidukonis, concerning the Union.
At the same time, I recognize that his early problems with
his supervisors were of his own making.
The first of his conversations with Eidukonis took place
after Miranda began wearing an oval-shaped button identi-
fying him as a member of the in-plant committee. Eidu-
konis asked what the button was, and Miranda told him.
Two days after that incident, Eidukonis came up to Mi-
randa at his work station and asked him if he knew any-
thing about the Union. Miranda replied that he could not
talk about the Union on company time, but Eidukonis said,
"Come on, you can talk to me." Miranda again declined to
talk, and Eidukonis said they just did not need a union
there.
Later, in about the third week in April, Eidukonis, ac-
cording to Miranda's testimony, asked him if he was a paid
union plant. Eidukonis, in his version of this incident, avers
that it was Miranda who volunteered that he had organized
the Union at Texas Instruments in Austin, and that he was
a paid union plant. I do not credit Eidukonis. His testimony
with respect to the chair incident, discussed below, was con-
tradicted not only by employee Oralia Garcia, but by Re-
spondent's own witness, Personnel Director John Allen.
This, together with his demeanor while testifying, leads me
to discredit his testimony except where corroborated by
others.
On July 19, the day of the election, Eidukonis com-
mented to Miranda on union-sponsored T-shirts in an ob-
scene way. On the same day Eidukonis said to Miranda,
"All along I've told you that there's no money here and that
we aren't going to negotiate with the IUE or any other
union." Miranda replied that the day was not over and that
that was not going to keep them from trying.
A few days after the election, Eidukonis came up to Mi-
randa and informed him that he, Eidukonis, was a better
union buster than La Mountain.' Finally, Eidukonis again
approached Miranda at his work station after the election
and told him that they had better get out the picket signs,
that they were going to have a strike.
Miranda also testified about two incidents involving
Ponce. The first occurred on the day after the representa-
tion case hearing when Ponce came up to Miranda and told
him he was a "union worm and that ever since the Union
started, he was a pain in the ass."
In another conversation a few days later, Ponce told Mi-
randa to get some union hospitalization because he was
going to lose an arm or a leg. When Miranda said that he
already had hospitalization with the Company, Ponce told
him to get some more.
There was additional conflicting testimony about threats
to take out a "peace bond" between Ponce and Miranda
talk about a near miss with an automobile in the company
parking lot; and allegations concerning Miranda's cursing
at and impudence toward Ponce. I do not feel it necessary
to make any findings or conclusions on these matters. I
have already found that Miranda was not a very good em-
ployee, and certainly not a paragon of good manners and
restrained behavior, but any findings in regard to these inci-
Fran La Mountain was a staff employee of TRW from California who
was brought in to the Corpus Christi plant dunng the union campaign. He
gave a number of talks to groups of employees, and helped to organize and
conduct policy work teams and various company policies. Miranda testified
that La Mountain told employees that there would "always" be strikes and
picket lines if the Union got in. This, however, was denied by John Allen. I
do not credit Miranda in this instance and do not find that La Mountain
made the statement attributed to him.
1160
on the specific points of Miranda's performance, since he,
himself, admitted that he did not, and could not, perform
the assigned work in the allotted time. However, the scope
of these assignments was viewed quite differently by Eidu-
konis, who stated that, despite Miranda's inexperience and
lack of training, the work was well within his capabilities,
and Miranda, whose testimony conveyed the impression
that he was overwhelmed by the Augean nature of the as-
signments, particularly the inventory. It is evident from Mi-
randa's testimony that he had not the slightest idea of how
to proceed with the inventory, and the results, as described
by Eidukonis, show that to be the fact.
On Tuesday June 20 Eidukonis called Miranda into his
office and suspended him for the remainder of the week.9
Miranda asked him why, but Eidukonis did not want to
talk about it, so Miranda left the plant.
C. The Incident Involving Rosie Garza
Rosie Garza worked for the Company in 1977, quit in
November of that year, and was rehired on March 9, 1978,
in the company's carbon department.' The Company's at-
tendance record on Garza, as corroborated by her own tes-
timony," shows that she was absent four times in April.' At
this time Garza's supervisor, Katherine Veselka, felt that
Garza did not fully understand the Company's attendance
policy, so she asked the personnel administrator, Mary
Peerman, to speak to her about it. Peerman, Veselka, and
Garza met in the employees' lunchroom and Peerman ex-
plained the policy to Garza. The latter had no question but
stated that she did not really understand the policy because
"they changed it all the time." Garza was given a verbal
warning at this time for excessive absenteeism.
Garza's attendance record was acceptable in May, but in
June she incurred four absences and was given a written
warning, the second stage of the Company's disciplinary
procedure.' Then Garza was out for 2 days on the 17th and
18th of July and was late on the 19th.
On the morning of July 21,14 Garza's supervisor, Saenz,
spoke to her in the employees' lunchroom about her absen-
teeism. He said he had enough grounds to fire her but he
' Eidukonis' testimony places the suspension as having been announced in
John Allen's office on Monday, the 19th. However, Eidukonis' written re-
port, allegedly contemporaneous with the event, states that there was a con-
ference with Allen on Monday but the suspension occurred on Tuesday.
Allen, who on the whole seemed rather detached for these day-to-day events,
did not mention any interview with Eidukonis and Miranda. I thus credit
Miranda's version of the second suspension.
t0 Albert Saenz, manager of the carbon department, testified that Garza
had had attendance problems during 1977, but this was not corroborated or
otherwise verified.
i" It is apparent that the company's attendance record on Garza has been
altered in the copy which was received in evidence. There is white space over
the days from July 20 through part of the 22nd. and the notations in the
column headed "remarks" for the 24th and 26th are obviously an overlay.
concealing something else which was underneath in the original.
12 Tardiness, or taking time off during a shift, was counted by Respondent
as an absence, just as if an employee had missed a full day.
i" The warning letter is dated June 23, the day of Garza's fourth absence,
but her attendance record notes that the warning was actually given on the
26th.
14 Saenz originally testified that this meeting took place on the 24th, and it
was not until his memory was refreshed by Garza's discharge letter that he
recalled that it was on the 21st.
dents, particularly those which took place long after the
time of the events described in the complaint, would have
no effect on the issues presented either by the complaint or
by Respondent's defense.
Eidukonis went on military leave from about April 21 to
June 12. On June 13 Miranda reported to work, having
been absent on the 12th, and engaged in some banter about
the Union with Eidukonis on his way to his work station.
Following this encounter, Eidukonis told Miranda to move
his work materials back to where they were before some
air-conditioning work required him to relocate. Miranda
began to comply, but when he started to move a chair,
Eidukonis yelled at him to stop.4 Miranda at first did not
hear Eidukonis. The latter became furious and accused Mi-
randa of disobeying his order. Miranda then demanded that
they go and see John Allen. They proceeded to Allen's of-
fice, and Miranda went in while Eidukonis went to another
room. Miranda began to explain his version of the incident
when Eidukonis walked in and said that he wanted Miran-
da suspended.' Allen, seeing that both men were angry and
wrought up, suspended Miranda, informing him that he
would investigate the matter and advise him of the out-
come. Allen testified that he talked to two people who had
witnessed the incident between Eidukonis and Miranda,
but he was not asked the results of those conversations, nor
were the two eyewitnesses called to testify in this proceed-
ing.6
Miranda was suspended for the remainder of that day,
June 13, June 14 and 15, and returned to work on Friday,
June 16.1 During the time of the suspension, Eidukonis had
a conversation with Allen at which it was decided that Mi-
randa needed a schedule. According to Eidukonis, the sug-
gestion that Miranda be given a schedule originated with
Allen, who indicated that they were managing things badly
(with respect to Miranda.)'
On his return to work on the 16th, Miranda was pre-
sented with a list of tasks to perform, within stated time
limits, on that day. Eidukonis testified in some detail about
Miranda's failure to meet what he considered established
and reasonable time limits, and about the fact that, on
checking the inventory, which was one of the assigned
tasks, he found numerous and egregious errors in the work
which Miranda had done. It is unnecessary to go into detail
' My conclusions on this incident are based on the credited testimony of
Miranda as corroborated by Oralia Garcia as to the incident in the shop, and
by John Allen with respect to the conclusion in his office.
5 Eidukonis' version was that he took Miranda to see John Allen and that
he, Eidukonis, explained to Allen what had occurred and "suggested" that it
was time to suspend Miranda for insubordination and refusal to carry out a
work order. This version is so obviously at variance with the credited testi-
mony of Miranda and Allen that I cannot credit it, nor can I credit much of
what Eidukonis said on other matters, unless it is corroborated by other
testimony or independent facts in this record.
These circumstances tend to support my conclusion that this incident
occurred substantially as testified to by Miranda.
7 Miranda testified that he returned to work on Friday the 16th. This was
corroborated by Allen, although the latter referred to it as a 2-day suspen-
sion. Eidukonis testified that Miranda returned on Thursday the 15th.
Again, I credit the testimony of Miranda and Allen and find that the suspen-
sion lasted from Thursday the 13th, at whatever time it occurred, until Fri-
day the 16th.
s This version of events was not corroborated by Allen, who did not men-
tion the conversation but indicated that the schedule was Eidukonis' idea.
TRW, INC. 1161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not going to because she was a very good employee,
and there were very few people who could run the machines
as accurately as she. He said again that he was not going to
let her go and was not going to fire her, concluding, rather
plaintively, that he always did favors for his employees and
he expected them to pay him back, which they never did.
Later that day, after lunch, Saenz came up to Garza and
told her to follow him. Pete Martinez, a technician in the
carbon department," was with him. They proceeded to the
front office. There they were met by Respondent's attorney,
Michael Kendrick, Jr.
There is, as might be expected, considerable variance in
the testimony as to what occurred then. Garza stated that
there were no introductions and that Kendrick opened the
conversation without ceremony by saying "now let me
start." Saenz testified that Kendrick stated his name, said
he was the company lawyer, and that he was gathering
information to get a new election. He mentioned the union
T-shirts, then told Garza that she did not have to say any-
thing, that nothing would happen to her, it was in total
confidence, and the Company would not disclose whatever
was said. They would take a written statement and she had
the choice of signing or not signing it. Nothing would hap-
pen to her and she would not get fired. Martinez testified
that after he, Saenz, and Garza arrived at the office where
the meeting took place, Kendrick walked in, identified him-
self to Garza, said he was the company lawyer and that
they were trying to get a new election, then began talking
about the T-shirts. In response to a series of leading ques-
tions by Respondent's counsel, Martinez finally stated that
Garza was told she did not have to talk to Kendrick if she
did not want to. Kendrick himself did not testify.
Based on my observation of these witnesses, and the later
conduct of Kendrick in this situation, I find that Garza's
version reflects more accurately the actual events. Saenz
was an untrustworthy witness with a faulty memory as
noted in his testimony on the July 21 interview with Garza.
Martinez' testimony, elicited as the result of a number of
leading questions, is entitled to no weight.
Thus, I find that Kendrick did not identify himself as the
company's lawyer and, more significantly, gave Garza no
assurances that no reprisals would be visited on her whether
or not she voluntarily cooperated with him. It appears that
Garza cooperated with Kendrick to the extent that she did
discuss an incident where an employee had told her that she
and other employees who had purchased T-shirts bearing a
union message would be reimbursed by the Union. In fact,
Garza had checked this rumor and found it to be untrue.
Garza testified that Kendrick prepared three different draft
statements for her to sign. While preparing the statements,
Kendrick left the room, and in his absence Saenz urged her
to sign, saying that nothing would happen to her and that
all they were asking her to do was to sign the papers.
Finally, after Garza had objected to the language of the
first two statements, she became concerned about how her
participation in this discussion would appear to her fellow
workers, that they might feel she was turning her back on
them. Thus, when the third statement was presented to her,
15 Martinez had served as the Company's observer at the July 19th elec-
tion.
she said she was embarrassed about being called out of her
department. She told Kendrick that she was not turning her
back on the Union. Kendrick replied that "embarrassing is
when I'm going to subpoena you-I'm going to go and pull
you out of (the) carbon department and take you to court,
and then you'll have to justify, then that's embarrassment."
At this point Garza asked him if he was a lawyer, and he
responded that he was the lawyer for TRW. She then told
him that she was not signing any papers. He concluded the
meeting by saying "Get the hell out of here. I don't like
union members anyway."' 6
Saenz testified that the meeting lasted a quarter to a half
hour but that it seemed longer. At is conclusion Saenz ac-
companied Garza, who was crying, back to their depart-
ment. He told her not to start her machines because she
could not work in her condition, but warned her not to tell
anyone what had just taken place. Garza's immediate su-
pervisor, Kathy Veselka, asked her if she wanted to leave,
or if she wanted to talk about it after work, but Garza
declined both offers.
According to Respondent's records, Garza was 15 min-
utes late on July 24. Garza denied this. In the light of the
demonstrated inaccuracy of the Company's attendance rec-
ords (with regard to Dora Ramco and Sharon Tovar, as
noted below) and the fact that my own observation shows
that Garza's attendance record was altered in some way, I
make a finding at this point that she may have been late on
the 24th.
However, on July 26 Garza called in sick. She spoke to
Veselka, who informed her that she needed to come in and
that if she did not there was nothing they could do for her.
She did not come in, and Veselka, Saenz, Allen, and Peer-
man sat down and discussed the situation, as a result of
which the decision was made to discharge Garza. A termi-
nation letter was prepared and dated that day, July 26. All
of those involved (except Peerman, who did not testify
about this incident) denied that the Kendrick interview had
anything to do with their decision.
Garza reported for work on July 27 and was escorted to
Allen's office by Veselka. Allen read the termination letter,
then added that he wanted to apologize to her for what
"Mr. Kendrick did to you." Allen stated that he had no
knowledge of what happened that day and he was sorry.
Garza said that she had a feeling that she was going to be
fired because she would not sign the statements for Ken-
drick. Allen only replied that he was "just really, truly,
sorry that had happened." Garza then left.
D. Analysis and Conclusions
I. The Company's attendance and disciplinary policies
A determination of the issues presented by the discharge
of Rosie Garza and the suspensions of Henry Miranda de-
pends, first, on a study of the Company's written personnel
and attendance policies; second, on a review of the prac-
16 Saenz did not mention most of this conversation in his testimony. He did
describe Kendrick saying "Go on, get out, I don't like union people any-
way," but described him as "kind of laughing," he had a "grin on his face."
Martinez did not testify about this incident.
1162
When all these efforts have failed, the attendance policy
directs supervisors to inform offending employees of their
impending termination if excessive absenteeism is not cor-
rected. Finally, if the attendance problem is not corrected
"within the next month", the "employee will be appropri-
ately terminated (e.g. quit, leave of absence, suspension." or
termination)."
All of this shows that while the company's expectations
for its employees' level of attendance may have been high,
the enforcement of the policy in that regard was to be car-
ried out in as humane and enlightened a fashion as possible
through communication, counseling, and adequate and
timely warnings.
As a practical matter, the achievement of these stated
goals depended on the desire and the ability of manage-
ment, particularly the personnel administrators, to see that
the system worked, and also on the accuracy and candor of
line supervisors in reporting fully and honestly on the at-
tendance records of those employees under their charge.
As to the first of these factors, Mary Peerman testified
that up to the time she succeeded to her present duties as
personnel administrator in February 1978, the attendance
policy was not enforced as strenuously as it was from that
date up to the time of the hearing in this matter. Her testi-
mony implies, but does not directly state, that she instituted
stricter enforcement of the policy after she assumed her
present position.'9 Pursuant to this policy, Peerman testified
that she posted a "Policy Reminder" on the employees' bul-
letin board in their lunchroom sometime in April, May, or
June 1978.1 She also testified as to the teams which were set
up during the month of June to study various aspects of the
Company's policies, including the attendance policy. While
this might indicate that there was some lack of understand-
ing of the existing policy, it is more likely that the policy
study committees were established as a part of the compa-
ny's effort to persuade its employees not to vote for the
Union."
With respect to the second factor, Mary Peerman testi-
fied that she could not tell whether the company's policies
were consistently enforced with regard to a number of em-
ployees identified by her and by company records as having
been discharged for excessive absenteeism. Indeed, it is
clear that enforcement of the attendance policy depended
entirely on the judgment of the line supervisors who had the
responsibility for filling out daily attendance reports. Possi-
bly, these reports could be cross-checked against daily pro-
" I note that this is the only place that the word "suspension" occurs in
the company's personnel or attendance policies.
1 However. employee Elizabeth Villareal testified that the policy was
strictly enforced under Peerman's predecessor, Armando Alvarez.
2o This was disputed by employee Olivia Martinez. who testified that the
policy reminder was not posted until after Garza was discharged. The actual
time of the posting is not significant in Garza's case, because it is clear that
the policy was explained to her in April during her interview with Peerman
and Veselka in the employees' lunchroom.
12 There is no allegation in the complaint that this activity violated the
law. In any event, no one who served on the attendance policy committee
testified at this hearing. There is no way. therefore. that I can infer anything
about the attendance policy from the mere fact that an attendance policy
committee was created and functioned during the summer of 1978. I have
not considered a document which was received in evidence purporting to be
a copy of notes from an attendance policy work team committee in this
decision.
tices followed by the Company's officials and supervisors in
implementing those written policies; and, third, on an
analysis of the application of the Company's policies and
practices to individual employees.
The Company's "Statement of Personnel Policy" was a
part of a packet of documents issued to all new or rehired
employees at the time of Garza's reemployment in March
1978.'7 As described by Personnel Administrator Mary
Peerman, the document contains a general description of
the Company's pesonnel policies including a reminder, in
bland and general terms, of the employee's duty to notify
his supervisor on those occasions when "it will be necessary
for an employee to be absent because of illness, family
emergencies, or other valid reason." In addition to general
policies on performance, salary reviews, promotions and
transfers, staff reductions and safety, the document empha-
sizes the Company's encouragement of mutual lines of com-
munication between employees and managers with the end
that mutual understanding of problems and goals will pro-
duce the "desired operational and employee relations im-
pact."
However, recognizing that discipline and order are neces-
sary to a "well organized and efficient workplace," and that,
guided by general standards of "fairness and reasonable-
ness," a disciplinary procedure will be invoked for em-
ployee misconduct consisting of a counseling, or "coach-
ing" step, a written warning, and, finally, termination. The
personnel office is expected to participate in this procedure.
Appended to the statement of personnel policy given to
knew employees was a document entitled "Attendance Pol-
icy." The fact that the Company found it appropriate to
issue a separate document on this subject is indicative of its
importance to management. This policy defines absentee-
ism as occurring when an employee is absent from the job
"for any reason," that is, when an employee is absent for
all, or any part, of a scheduled shift. Tardiness, for any
reason, is defined as absenteeism. Excessive absenteeism is
clearly defined as occurring when an employee is absent or
tardy more than two times in any one calendar month.
This policy appears clear and unambiguous, but the pol-
icy is less clear when it deals with the consequences to em-
ployees of transgression of the absenteeism rules. In those
cases there are four alternatives which "may be appropri-
ate," including the obvious, that the Company and the em-
ployee must "solve the problem." The other alternatives are
an employee leave of absence, voluntary quit, or involun-
tary termination. Further, the policy appears to contem-
plate a process based on counseling and designed to un-
cover and to remedy the cause or causes for such absences.
The employees' supervisors are expected to initiate and ex-
plore ways to minimize absenteeism, as well as to inform
employees when their absenteeism reaches the point where
"corrective action is essential." In this area, as well as in
more general circumstances, the advice and assistance of
the personnel department is expected in the resolution of
problems.
I While there is no evidence that Miranda received the same packet of
documents on his hire in January. it is not unreasonable to infer, which I do.
that he underwent the same orientation and received the same documents at
that time.
1163TRW, INC.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duction records, but there is no evidence that this was ever
done.
At this point, having outlined the attendance policy and
the one variable admitted by Respondent's witnesses to be
possible in the system, it is necessary to analyze the actual
functioning of the policy as revealed by the evidence in this
case.
It is apparent from the testimony that despite the empha-
sis in the written attendance policy (and the testimony of
John Allen) on remedial action in the nature of counseling
and attempts to identify the causes of absenteeism, very
little of that was done. It is clear from all the evidence that
the attendance policy was viewed in literal terms by the
supervisors who testified, as well as by Mary Peerman. It is
true that Peerman did spend some time with Rosi Garza
and Kathy Veselka in April, and Albert Saenz met with
Garza alone in July, but this time was spent in explaining
what the policy was and what the consequences of disre-
garding it would be, rather than in explaining and trying to
find a solution to the causes for Garza's absences. There is,
however, no evidence that, in this regard, Garza was treated
any differently than other employees.
It remains to consider the enforcement of the policy in
view of the dependence of enforcement on accurate and
complete information and in the light of the fact that the
policy was applied with little reference to its preventive or
remedial aspects.
Rosie Garza testified that in her opinion there was no set
policy on attendance. She said she had never seen any writ-
ten rules on attendance or discipline and, while Peerman
had explained the rules to her, she had previously received
different interpretations. She had concluded that she would
not be terminated because of her absenteeism since the
company allowed others to miss days and did not fire them.
On the other hand, she noted that some other employees
missed only I or 2 days and were fired.
In connection with her testimony on the former group,
Garza mentioned the names of Dora Ramos, Mary Trigo,
and Frances Silva, all of whom worked in her department
and were frequently tardy or absent and were not termi-
nated.22
Dora Ramos was not called as a witness, but, her attend-
ance and employment records were introduced. These show
that Ramos was hired on March 8, 1977, as a resistor pro-
cessor. She was given four wage increases between that time
and her departure on April 24, 1978, to take another job in
Houston. Two of these increases were based on salary re-
views, and two were general wage increases. Her attend-
ance record for the year 1977 shows that she was absent
(either tardy, absent, or took time off during her shift) infre-
quently until August, when she was absent four times. Then
in September she was absent five times, in October, three
times, in November, five times and in December, three
times. The attendance record for 1977 shows no warnings
nor any indication that she was counseled about absentee-
ism. In January 1978 Ramos was absent five times, in Feb-
ruary, four times, and in March, three times. At this point,
the record shows that she received a verbal warning for
absenteeism for the first time. However, in April Ramos
22 Garza did admit that Ramos was terminated after July 27.
missed 2 days and was late twice up to the 19th, and on the
20th she was issued a written warning. As noted above, she
left the company's employ on April 24 to take another job.
In spite of her absenteeism, Ramos was rehired by the
company in the same job on July 24. From this point, her
attendance record shows no absences through the remain-
der of the year. Unaccountably, her employment record
shows that Ramos was discharged in October 28 for "exces-
sive absenteeism."
Elizabeth Villareal, who rode to work with Ramos from
October 1977 to February 1978, testified that they were
frequently late during that time. Her attendance record,
however, does not match that of Ramos, nor does Ramos'
record indicate the number of times Villareal testified they
both were late. Villareal's attendance record also shows
three absences in February 1978 and three in July.
Respondent submitted no evidence with respect to Mary
Trigo and Frances Silva. Thus, Garza's testimony that they
were frequently tardy or absent without being terminated
stands undenied.
In addition to those employees named by Garza as re-
ceiving different treatment from her, there was testimony
about, and reference to, other examples of departures from
the company's attendance policies. Olivia Martinez, an em-
ployee in the evaporation department, not only testified
that the reminder on the attendance policy was not posted
until after Garza's discharge, but also testified as to her own
absentee record, indicating that she was absent, aside from
an excused 5-day medical leave, five times during July 1978
and received no warning. In addition, Martinez testified
that she was absent three times in January 1978 and 5 days
in March and received no warnings. I find Martinez to be a
credible witness, and, in addition, it appears from the rec-
ord that Respondent's counsel had her attendance record
available, and used it during cross-examination, but did not
see fit to introduce it into evidence. Thus, I infer and find
that the record, if introduced, would have corroborated
Martinez' testimony as to her absenteeism record.
Maria Cabrera, an employee in Respondent's tan film
department, testified credibly that in August 1978 she and
her supervisor had discussed another employee in that de-
partment, one Becky Medina, who had missed 27 days out
of 1 year." Medina had not been discharged, and there is
no evidence that she had ever been given a warning. Mary
Peerman indicated only that she could not place Medina's
name.
Lina Longoria, who was employed by Respondent from
February 1976 to January 1979, testified that in October
1977 she had asked her supervisor, Dorothy Anderson, for
a medical leave of absence, which is permitted under the
Company's policy. However, in this case it was denied, and
Longoria was given a written warning on November 21,
1977, for excessive absenteeism. Longoria's testimony be-
came somewhat confused as to dates and times on cross-
examination. so that I have not credited her version of
events. However, the documents show that she was given a
written warning, as noted, on November 21, 1977, for ex-
" It is not clear whether they were talking about calendar year 1978 or a
full 12 months prior to the conversation. In either case, that number of
absences would result in at least 2 months with more than two absences, and
very probably more than 2 months.
1164
terminated after she undertook her present duties in Febru-
ary 1978, that all had been given the prescribed verbal and
written warnings before their termination. While I found
Peerman to be, generally. a credible witness, I also feel that
her memory was, demonstrably, not accurate when mea-
sured against the company's records in the cases of Sharon
Tovar and Dora Ramos, and totally blank in the case of
Becky Medina. Thus, I cannot credit her generalized state-
ment relative to the company's specific treatment of the 13
employees terminated between February 27 and December
27. 1978. Since the employment records reveal only that the
employees were terminated for excessive absenteeism, with
no indication of the scope or extent of such absenteeism, or
how, or even whether, the Company's disciplinary policy
was implemented in each case, I do not find these records
helpful in arriving at a determination of the issue involving
the application of the policies to individual employees.
That determination must then be made on the basis of
the evidence outlined above. That evidence shows that the
policy relative to attendance was well publicized and was
understood, uniformly, by all employees. even those like
Garza, who needed additional instruction on its meaning.
The evidence also shows that the enforcement of the attend-
ance policy was less than clear. I can accept the fact that
enforcement, particularly after the time that Peerman took
over in February 1978, did follow the established guide-
lines, but even during this period it is evident that there was
a significant variance between Peerman's statement of the
policy and its actual implementation. Peerman herself ad-
mitted as much, and it goes without saying that if informa-
tion did not reach her attention, she could not act on it.
The evidence shows that several employees were fre-
quently tardy or absent and were not disciplined or termi-
nated. Respondent introduced no evidence to rebut this tes-
timony concerning employees Olivia Martinez., Mary Trigo,
Frances Silva, and Becky Medina.
The rehire of Dora Ramos and the unusual employment
circumstances of Sharon Tovar indicate not only that ex-
ceptions to the attendance policy could be, and were, made,
but also that the records which the company witnesses indi-
cated were relied on were not, in fact, accurately main-
tained. This latter statement is born out by comparing the
attendance records of Dora Ramos and Elizabeth Villareal
with the credible testimony of Villareal concerning her tar-
diness and that of Ramos.
Finally, the Company's treatment of Linda Longoria
shows another variation in approach. If the disciplinary
procedure had been applied in Longoria's case, she, like
Garza, would have been discharged for continued excessive
absenteeism after receiving a written warning. However,
she received a "last" written warning but was not termi-
nated. The August 7 warning mentioned that Longoria had
"consistently exceeded the Company's policy," and noted
that her absenteeism had continued (from November 1977)
to be excessive. Since her attendance record was not intro-
duced, there is no way Longoria's record of absences can be
compared to Garza's.
It is then fair to conclude that Respondent's disciplinary
policy was not administered in an inflexible, or even in a
uniform manner. The preponderance of evidence submitted
by the General Counsel shows exceptions, excused ab-
cessive absenteeism, totaling 23 occasions between Febru-
ary 22 and November 21, 1977, and she was warned that if
she exceeded company policy, it "could lead" to her termi-
nation. Thus far, this action appears in accordance with the
company's attendance policy. However, on August 7, 1978,
Longoria was given another written warning indicating
that, although she had received a verbal warning, and a
written warning in November, she had "consistently ex-
ceeded" the company policy and that after the November
warning, her "absenteeism has continued to be excessive."
She was then advised that "this is your last written warning
notifying you that if you continue this pattern and are ab-
sent more than twice in any calendar month, it will be
grounds for termination."
Mary Peerman testified concerning one Elsa Rodriquez,
who was absent 7 days in May 1978. Peerman pointed out
that Rodriquez had been granted a leave of absence for 5 of
those days, adding that the Company's policy allowed
leaves of absence when an employee encountered a per-
sonal crisis, or was "medically ill", or in cases of hospital-
ization. These leaves must be applied for far ahead of time
and are not counted on attendance records. An examina-
tion of Rodriquez' attendance record shows that with the 5-
day leave of absence in May deducted she was absent only
on two other occasions. However, it is also noted that she
was absent three times in July and received a verbal warn-
ing on July 25, but she was absent four times in March and
apparently received no discipline.
Peerman also testified about an employee named Sharon
Tovar. The latter was hired on May 19, 1978, under
extraordinary circumstances. She had recently moved from
California and was still involved there in a difficult and
personally distressing custody fight over her children. As a
result, Tovar was hired with express permission to take such
time off as might be necessary to move her children to
Texas and settle the custody question in California. Her
attendance record shows that she had seven absences in
June and six in July, at least some of which had to do with
the custody problem. By August 2, however, the problem
apparently had been resolved, because on that date Tovar
was given what is described as a verbal warning, indicating
that further excessive absenteeism would not be overlooked
and would result in a written warning.
Following the verbal warning, according to Peerman's
testimony, Tovar continued her excessive absenteeism, re-
ceived a written warning, and then was discharged for ab-
senteeism. Curiously, however, as in the case of Dora Ra-
mos, Tovar's attendance record shows only two absences in
August and none from then on. There is no record of any
warnings, nor of her termination, on the attendance record,
and Tovar's employment record is not among those sub-
mitted by Respondent as showing those employees dis-
charged for excessive absenteeism.
In addition to the individual cases here considered, Re-
spondent offered the testimony of John Allen and Mary
Peerman concerning their understanding of the attendance
and disciplinary policies and the actual functioning of the
policies. Peerman, in addition, testified concerning the per-
sonnel records of 20 employees allegedly terminated from
August 1976 to December 1978 for excessive absenteeism.
She stated, at least insofar as those employees who were
TRW. INC. 1165
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sences, and variations from the stated system of verbal
warning, written warning, and inevitably, discharge. In-
deed, in the face of all this evidence, Respondent has not
shown one instance, other than Garza's situation, where
this sequence was followed. One only needs to contrast the
implementation of the disciplinary procedure with respect
to the two individuals involved in this case to conclude that
the written procedure was enforced in a subjective and er-
ratic manner.
Miranda received only one written warning, on April 21,
which, however, is not characterized either as "verbal" or
"written", but which threatens discharge for substandard
performance. Then, when alleged substandard performance
occurred, he was not discharged, but suspended. Garza, on
the other hand, was processed through the formal steps, but
there is no evidence in this record, other than Peerman's
unsubstantiated testimony (which carries the burden of her
fallible memory), that anyone else was treated in the same
way.
2. Findings and conclusions on Miranda
Miranda's testimony, which I have credited, shows sev-
eral instances of interrogation and threats by supervisors.
With regard to Eidukonis, I find that he asked Miranda if
he knew anything about the Union a few days after Miran-
da began wearing a union committee button while at work.
Eidukonis pressed his question, indicating that Miranda
could talk to him about the Union. I also find that Eidu-
konis asked Miranda what the union committee button was
and that Miranda told him what it was. I do not find, how-
ever, that there are any allegations in the complaint or the
amendment to the complaint which seem to allege that
these incidents involve violations of the law. However, there
is an allegation charging Eidukonis with asking an em-
ployee "if he was a member of the Union." In view of this,
and the fact that Eidukonis' conversations with Miranda
were fully litigated at the hearing and dealt with in the
parties' briefs, I find that Respondent engaged in unlawful
interrogation through this conversation, in violation of Sec-
tion 8(a)(l) of the Act.
The next incident is alleged in the complaint to have
occurred on or about April 13, 1978, but is identified in
Miranda's testimony as being the third week in April. At
this time, Eidukonis came up to Miranda and asked him if
he was a "paid union plant." I have credited Miranda's
version of this incident and not credited Eidukonis' version.
In addition, this sort of accusation or interrogation is con-
sistent with Respondent's view of Miranda as the chief, or
one of the chief, union organizers in the plant, and as one of
the authors of a union campaign based in large measure on
pan-Hispanic solidarity rather than more traditional eco-
nomic considerations. I might note at this point that the
Company viewed this conduct as objectionable with refer-
ence to the Board-conducted election, was never repri-
manded nor disciplined for that conduct, if, in fact, he had
done the things the Company claimed he did. I thus find
this incident to be unlawful interrogation and another vio-
lation of Section 8(a)(l ) of the Act; Consolidated Accounting
Systems Inc., 225 NLRB 93 (1976).
On July 19, the day of the election, Eidukonis said to
Miranda that there was no money and that the Company
was not going to negotiate with the IUE or any other union.
Since I credit Miranda's version of this incident, I find it to
be a further violation of Section 8(a)(l); N.L.R.B. v. Sky
Wolf Sales, 470 F.2d 827 (9th Cir. 1972). Similarly, Eidu-
konis' warning to Miranda after the election that he was a
better "union buster" than La Mountain, and his prediction
of a strike, I find to be further violations of Section 8(a)(1).14
The first incident between Miranda and Ponce, where the
latter called him a "Union worm," I find not to be violative
of the Act but certainly indicative of an attitude of dislike
and hostility toward Miranda himself, as well as the Union.
However, the second incident, wherein Ponce told Miranda
to get some additional insurance because he was going to
lose an arm or a leg, carries a clear threat of violent reprisal
for Miranda's union activities, and thus I find an additional
violation of Section 8(a)(1) of the Act; Jones Motor Corn-
pan), A Division of Allegheny Corporation, 202 NLRB 123
(1973).
As Respondent aptly notes in its brief, the motive of the
employer is the controlling factor in situations involving
employee discharge, or suspension." I do not, however,
view the instances of conduct of Ponce, Eidukonis, or Re-
spondent's attorney as simple, isolated, or innocuous. In
support of this conclusion, I note Respondent's initial re-
sponse to its employees' union activity as indicative of fun-
damental, if lawful, opposition to such activity. Further, the
statements of Eidukonis and Ponce to Miranda must be
evaluated in the context of Respondent's perception of Mi-
randa's activities with the Mexican-American employees
and the extraordinary expression of hostility voiced by Re-
spondent's counsel in his interview with Garza. Finally, it is
noted that in Miranda's case there was no reference what-
ever to Respondent's disciplinary procedure, nor is there
any explanation why these procedures were so elaborately
developed in Respondent's defense to the allegations con-
cerning Garza, yet do not seem to have applied at all in
Miranda's situation.
Turning then to Miranda's first suspension, as noted
above, I have credited Miranda's version of the incident.
His story was corroborated as to the incident itself by the
testimony of Oralia Garcia. Eidukonis' version was not cor-
roborated. Although John Allen stated that he had investi-
gated the incident and discovered two eyewitnesses, those
witnesses did not testify, leaving me to infer that, if they
had testified, there testimony would have been adverse to
the interests of Respondent.
Then, Miranda's version of the events in Allen's office is
corroborated by Allen, and that version is substantially dif-
ferent from that advanced by Eidukonis. The facts are that
Eidukonis did not explain the incident to Allen, as he testi-
fied, but entered Allen's office while Miranda was trying to
explain things to Allen, and demanded that Miranda be
suspended.
In these circumstances, I find that Respondent's stated
reason for the suspension was a pretext and that Respon-
dent's real motive was to get Miranda out of the plant dur-
4 I do not view Eidukonis' expression to Miranda concerning the union T-
shirts to be other than an indication of the former's dislike of, and hostility
toward, the Union.
a N.L.R.B. v. Brown et al., d/b/a Brown Food Store, 380 U.S. 278 (1965).
1166
count of his activities on behalf of the Union and were in
violation of Section 8(a)(3) of the Act.?8
3. Findings and conclusions on Garza
Unlike Miranda, Rosie Garza was not seen by Respon-
dent as being in a leadership role in the Union's organiza-
tional campaign. However. in the period immediately after
the election, when the Company was searching for some
legitimate means for setting aside the results of the vote.
Garza was propelled into a position where her sympathy
for the Union was exposed to the company's notice whether
she wished it or not. It is evident from her description of the
meeting with Kendrick that she equivocated. She did not.
at the outset, announce her union loyalty and then halt the
proceedings. She allowed the questioning by Kendrick.
Even though she was unaware of his identity, the time and
place of the interview, the circumstances of her presence
there, and the nature of the interrogation would have made
it clear to her that she was involved in an effort on behalf of
management.
Yet she talked and allowed Kendrick to draft three differ-
ent statements reflecting his interpretation, as the Compa-
ny's advocate, of what she had said. Then, when her scru-
ples finally overcame whatever motivation impelled her
cooperation and she announced that she was embarassed
and was not turning her back on the Union. Kendrick's
frustration was natural and understandable. At this point.
however. he lost control of himself and of the situation.
bullying Garza with threats to embarrass her "in court" and
concluding the interview in insulting terms by ordering her
out, capping the whole unedifying performance with the
remark that he did not like union members anyway.
The facts show not only that Garza was not given the
appropriate procedural assurances prior to the start of this
interrogation, but that Kendrick's conduct would have ne-
gated their effect and would have turned a lawful inquiry
into an unlawful and coercive situation. Thus. I find a vio-
lation of Section 8(aXI) in the failure to follow the proper
procedures at the outset of the interrogation, Johnnie's
Poultry Co. and John Bishop Poulro Co., Successor, 146
NLRB 770 (1964); and a further violation of Section
8(a)(1), when the interview degenerated into a threatening
and coercive situation, tending to interfere with Garza's
free exercise of her rights under the Act, N.L.R.B. v.
Ambox, Incorporated, 357 F.2d 138 (5th Cir. 1966).
The impact of this uncivil and abusive conduct by Ken-
drick was noted and commented on not only by Garza her-
self, who left the interview in tears; but also by Saenz, who
in an unguarded remark described the meeting as seeming
longer than it was; by Veselka; and by Allen, who, while
terminating Garza, went to great pains to express his sym-
pathy and his personal abhorrence of this kind of conduct.
while at the same time emphasizing that the incident had
nothing to do with Garza's termination.
All of this, of course, raises the question of Respondent's
motive in discharging Garza on June 26, the third workday
12 In view of this finding. I specifically do not find that Mlranda's suspen-
sions derived in any way from his appearance at. or testimony given n, the
representative case hearing in May 1978. As I have noted. the logic points in
an entirely different direction.
ing this preelection period, because of his activities on be-
half of the Union.26
The second suspension flowed consequentially, as well as
chronologically, under either Respondent's or the General
Counsel's version of events. The first story told by Miranda
and that told by Eidukonis are fairly close in that both
agree that Miranda was, in a sense, on trial; that he was
given a series of tasks to perform on a schedule: and that he
did not perform these tasks to the satisfaction of Eidukonis.
The reason advanced by Eidukonis for this admittedly nov-
el procedure was that he and Allen felt that Miranda
needed a "schedule." However, there is no indication in the
record that Miranda's work between April 20, when he re-
ceived a warning, and June 13, when he was suspended not
for poor work habits, but for "insubordination", was any-
thing other than satisfactory.2 Respondent offered no evi-
dence as to the volume or quality of Miranda's work during
this period (nor subsequent to the second suspension), for
that kind of test administered at that time does not appear
to be causally related to contemporary deficiencies in per-
formance. This factor, coupled with the admissions by Re-
spondent that this type of work test had never been used
before, and that Miranda had had no experience in, and
had received no training in, the tasks assigned, leads me to
the conclusion that Respondent's motive for instituting this
test was not to improve Miranda's work habits by assigning
him to a schedule, nor to test his ability to perform given
assignments within a prescribed time limit, but to get him
out of the plant during this period.
As I have noted, Eidukonis' testimony, with regard to the
genesis of the schedule for Miranda and his confusion
about the circumstances of the second suspension, leads me
to discredit his testimony generally. Thus, I do not credit
his statements, that tasks assigned were well within Miran-
da's capabilities; that others had performed the same tasks
more quickly and accurately; and that Miranda's actual
accomplishments were so badly done as to be valueless.
Thus, I cannot find that the tasks assigned to Miranda were
within the capabilities of an untrained employee inexperi-
enced in these particular jobs; and I cannot find that he did
not accomplish the tasks in either a timely or accurate fash-
ion. Having already concluded that the motivation of Re-
spondent in this matter was not, as asserted, to improve
Miranda's work habits or performance, I conclude further
that the outcome was foreordained and that the entire
scheme was designed to produce the result which it did, and
was really a pretext designed to assure, by a show of legiti-
macy, that Miranda was off the premises for an additional 4
days during the union election campaign.
Thus, I find that both suspensions of Miranda, the first
from June 13 through June 16, and the second from June 20
through June 23, were administered by Respondent on ac-
:2 If Respondent had suspended Miranda because it felt he was making
improper appeals to racial prejudice, this might have been a different case,
but, it did not.
2 Eidukonis was absent on military leave for much of this period. but.
presumably, Ponce was present during this period. There is no evidence that
Miranda operated without any supervision dunng this period.
TRW. INC 1167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after the interview. The evidence shows that Garza had a
poor employment record, that she had received a verbal
and a written warning, and that in that month of July she
had already been absent a number of times, which was con-
sidered excessive by Respondent's standards. At the same
time, it appears from an analysis of Respondent's attend-
ance and disciplinary policies that Garza's discharge for
being absent on the 26th was not inevitable nor even in
accordance with what the evidence in this case shows to be
Respondent's actual, as opposed to theoretical, enforcement
of its attendance policy. The evidence rather shows a num-
ber of exceptions to this policy, including failures by line
supervisors to report absences, written warnings, and then
final written warnings, and numbers of absences with no
action taken. In the face of the credited and undisputed
evidence submitted by the General Counsel, Respondent
has not shown one single instance, other than Garza's situ-
ation, where the policy was applied as it was in her case.
Further, if one goes beyond the attendance policy, or,
rather the implementation of the disciplinary policy in cases
involving attendance, a comparison of the treatment of
Garza with that accorded Miranda shows that the disciplin-
ary procedure was highly idiosyncratic in dealing with var-
ious manifestations of employee deficiency.
Finally, in his interview with Garza on the morning be-
fore the Kendrick meeting, Saenz assured Garza that she
was a good employee and that he was not going to fire her,
despite his unhappiness with her attendance record. Even
after this, when Garza allegedly was late on the morning of
the 24th,29 neither Veselka nor Saenz spoke to Garza or
gave her any warning that the end was near. This was true
even on the morning of the 26th when Veselka cautioned
Garza but gave her no intimation that she was to be dis-
charged for failing to come in on that day.
In all these circumstances, then, I cannot find that Garza
would have been discharged because of her failure to report
for work on July 26. Looking further into the question of
Respondent's motivation, I note the antiunion conduct of
Respondent's supervisors, Ponce and Eidukonis, toward
Miranda and, especially, Kendrick's remarks to Garza,
which must be viewed as derivative of Respondent's atti-
tude. Allen's disclaimer is not convincing. Indeed, despite
the fact that I have generally credited Allen's testimony, I
specifically do not credit his denial that the Kendrick inci-
dent had anything to do with the discharge. It is clear that
he had been advised of the details of that incident. It is also
clear that he was consulted on the discharge. Allen was a
relative newcomer in Respondent's management heirarchy
at Corpus Christi. He wryly commented on his arrival at
the outset of the Union's campaign. The Union had won
the election on July 19 in spite of Respondent's announced
opposition and hostility. as shown by its treatment of Mi-
randa. It is most unlikely that Allen, who had not con-
ducted Respondent's campaign against the Union alone,
would undertake making the decision to fire Garza without
any consultation or guidance from his own supervisors
within the Company or, in this case, from legal counsel.
Thus, I do not credit Allen's denial that the Kendrick inci-
n As noted above, I am suspicious of this allegation, but, in the absence of
anything more than suspicion, I treat it as if it may have happened.
dent had nothing to do with Garza's discharge. In so find-
ing, I infer and find that the matter was, in fact, discussed
between Allen and other representatives of Respondent,
and, further, that Garza's conduct with Kendrick was a
factor in those discussions. As a result I conclude that, but
for the Kendrick incident, Garza would not have been dis-
charged. Since Respondent's dominant motivation was, at
least in part, unlawful, I find that Garza's discharge was a
violation of Section 8(a)(3) of the Act. Shattuck Denn Min-
ing Corporation (Iron King Branch), v. N.L.R.B. 362 F.2d
466 (9th Cir. 1966); N.L.R.B. v. Long Island Airport Limou-
sine Service Corp., 468 F.2d 292 (2d Cir. 1972); N.L.R.B. v.
Circle Binderv. Inc., 536 F.2d 447 (Ist Cir. 1976).
IV. IHE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom, and to take certain affirma-
tive action, including the reinstatement of Rosie Garza, to-
gether with backpay, and the payment to Henry Miranda
of a sum of money equivalent to that not paid him on ac-
count of his suspensions in June 1978, together with interest
thereon, to be computed in the manner prescribed in F. W.
Woolworth Compan, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977).?
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Union of Electrical, Radio, and Ma-
chine Workers, AFL CIO-CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By interrogating its employee, Henry Miranda, Re-
spondent has violated Section 8(a)(1) of the Act.
4. By threatening an coercing its employees, Henry Mi-
randa and Rosie Garza, Respondent has violated Section
8(a)(1) of the Act.
5. By suspending Henry Miranda because of his activity
on behalf of the Union, Respondent has violated Section
8(a)(l) and (3) of the Act.
6. By discharging Rosie Garza because of her activities
on behalf of the Union, Respondent has violated Section
8(a)(!) and (3) of the Act.
7. The aforesaid are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this matter, and pursuant to the
provisions of Section 10(c) of the Act, I hereby issue the
following recommended
ORDER'
Respondent, TRW, Inc., Corpus Christi, Texas, its offi-
cers, agents, successors, and assigns, shall:
I See, generally, Isis Plumbing & Heaing Co.. 138 NLRB 716 (1962). The
General Counsel has requested that interest be computed at 9 percent and
has submitted a supplementary brief in support thereof. The Board has re-
jected this contention, The Bariairic Clinic 241 NLRB 830 (1979).
3l In the event no exceptions are filed as provided b Sec. 102.46 of the
1168
(b) Make Henry Miranda whole for the discrimination
suffered by him in the manner described above in the sec-
tion entitled "The Remedy."
(c) Post at its Corpus Christi. Texas. facility copies of the
attached notice marked "Appendix."" Copies of said no-
tices, on forms provided by the Regional Director for Re-
gion 23. after being duly signed by Respondent's represent-
ative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that such
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 23. in writ-
ing, within 20 days from the date of this Order, what steps
have been taken by Respondent to comply herewith.
3 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted b) Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board
I. Cease and desist from:
(a) Threatening or coercing employees because they en-
gage in union activity.
(b) Interrogating and coercing employees because they
engage in union activities.
(c) Discharging or suspending employees because they
engage in union activity.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Offer Rosie Garza immediate and full reinstatement
to her former or, if her job no longer exists, substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed, and make
her whole for any loss of earnings she may have suffered by
reason of her discharge, plus interest, in the manner de-
scribed above in the section entitled "The Remedy."
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
TRW. INC. 1169