Ultra-Sonic De-Burring, Inc.

National Labor Relations Board - Board Decisions

Dec 9, 1977

233 N.L.R.B. 1060 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ultra-Sonic De-Burring, Inc. of Texas and Communi-
cations Workers of America Local 9455, AFL-
CIO. Case 20-CA-1 1915
December 9, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On September 2, 1977, Administrative Law Judge
William J. Pannier III issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief. 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
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, to modify his remedy, 2 and to adopt his
recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Ultra-Sonic De-Burring, Inc. of Texas, Red-
wood City, California, 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 2(a):
"(a) To the extent that it has not already done so,
offer Indiana Lee Zoller and Shirley Holt immediate
and full reinstatement to their former positions or, if
their former positions no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges previously
enjoyed and make them whole for any loss of pay
they may have suffered as a result of the discrimina-
tion practiced against them in the manner set forth
above in the section of this Decision entitled 'The
Remedy.' "
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
233 NLRB No. 165
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
Nor do we find merit in Respondent's contention that, because the
Administrative Law Judge generally discredited the Employer's witnesses
and credited the General Counsel's witnesses, his credibility resolutions are
erroneous or attended by bias or prejudice. N.LR.B. v. Pittsburgh Steamship
Co., 337 U.S. 656 (1949).
We have further considered Respondent's contention that the Adminis-
trative Law Judge has evidenced a bias against Respondent's position. We
have carefully considered the record and the attached Decision and reject
these charges.
We agree with the Administrative Law Judge's finding that a bargaining
order is appropriate to remedy Respondent's unfair labor practices which
have precluded the holding of a free and fair election. It is clear Respondent
embarked upon its course of unlawful conduct on August 6, 1976, and the
Union attained majority status on August 10, 1976. Accordingly, we shall
impose Respondent's bargaining obligation as of the later date. Bandag,
Inc., 228 NLRB 1045 (1977). For the reasons given in his separate opinion in
Beasley Energy, Inc., 228 NLRB 93 (1977), Chairman Fanning would date
the bargaining order prospectively.
2 We shall delete from the second paragraph of "The Remedy" the
following language: "dismissing, if necessary, anyone who may have been
assigned or hired to perform the work which Zoller had been performing
prior to her termination on August 9, 1976, and which Holt had been
performing prior to her termination on August 13, 1976." We shall modify
the recommended Order and notice accordingly.
For the computation of interest see, generally, Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
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 both sides had the
opportunity to present their evidence, the National
Labor Relations Board has found that we violated
the law and we have been ordered to post this notice.
WE WILL NOT create the impression that we are
engaging in surveillance of your activities on
behalf of Communications Workers of America
Local 9455, AFL-CIO, or any other labor
organization.
WE WILL NOT interrogate you regarding your
union activities nor regarding the union activities
of other employees.
WE WILL NOT threaten to cease business
operations if you select Communications Workers
of America Local 9455, AFL-CIO, or any other
labor organization, as your collective-bargaining
representative.
WE WILL NOT tell you that other employees are
being discharged because they have supported or
are supporting Communications Workers of
America Local 9455, AFL-CIO, or any other
labor organization.
WE WILL NOT discharge or otherwise discrimi-
nate against you for engaging in activities on
behalf of Communications Workers of America
Local 9455, AFL-CIO, or any other labor
organization.
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ULTRA-SONIC DE-BURRING
WE WILL NOT in any other manner interfere
with any of your rights which are guaranteed by
the National Labor Relations Act, as amended.
WE WILL offer Indiana Lee Zoller and Shirley
Holt immediate and full reinstatement to their
former positions or, if their former positions no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed, and make them
whole for any loss of pay they may have suffered
as a result of our discrimination.
WE WILL, upon request, recognize and bargain
with Communications Workers of America Local
9455, AFL-CIO, as the collective-bargaining
representative of the employees in a unit of:
All production and maintenance employees
of Ultra-Sonic De-Burring, Inc. of Texas,
including truckdrivers, employed at its Red-
wood City, California, facility; excluding
office clerical employees, professional em-
ployees, guards and supervisors as defined in
the Act,
respecting rates of pay, wages, hours, or other
terms and conditions of employment and, if an
understanding is reached, embody such under-
standing in a signed agreement.
ULTRA-SONIC DE-
BURRING, INC. OF TEXAS
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge: This
matter was heard by me in San Francisco, California, on
April 5, 1977. On November 16, 1976,1 the Regional
Director for Region 20 of the National Labor Relations
Board issued a complaint and notice of hearing, based on
an unfair labor practice charge filed on September 13,
amended on November 15, alleging violations of Section
8(aX1) and (3) of the National Labor Relations Act, as
amended, 29 U.S.C., § 151, et seq., herein called the Act.
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine
witnesses, and to file briefs. Based on the entire record, on
the briefs filed on behalf of the parties, and on my
observation of the demeanor of the witnesses, I make the
following:
I Unless otherwise stated, all dates occurred in 1976.
2 Though the answer admits the allegation in the complaint that
Clarkson was president and general manager of Respondent, Clarkson
FINDINGS OF FACT
I. JURISDICTION
At all times material, Ultra-Sonic De-Burring, Inc. of
Texas, herein called Respondent, has been a Texas
corporation with an office and place of business in
Redwood City, California, where it engages in the business
of cutting and de-burring plates and parts for other
business entities. During the past calendar year, Respon-
dent, in the course and conduct of its business operations
within the State of California, performed services valued in
excess of $50,000 for business firms located within the State
of California, each of which firms purchased and received
goods valued in excess of $50,000 directly from outside the
State of California and/or sold goods valued in excess of
$50,000 directly to customers located outside the State of
California. Therefore, I find that at all times material,
Respondent has been an employer within the meaning of
Section 2(2) of the Act engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
IL. THE LABOR ORGANIZATION INVOLVED
At all times material, Communications Workers of
America Local 9455, AFL-CIO, herein called the Union,
has been a labor organization within the meaning of
Section 2(5) of the Act.
III. ISSUES
1. Whether Respondent, through Robert Clarkson,2
violated Section 8(aXI) of the Act by announcing an
increase in pay rates to encourage employees to abandon
their support of the Union, created the impression that
employees' union activities were under surveillance, inter-
rogated employees regarding their union activities and the
union activities of other employees, and threatened
cessation of business operations if the employees selected
the Union as their collective-bargaining representative.
2. Whether Respondent discharged Indiana Lee Zoller
on August 9 and Shirley Holt on August 13, refusing
thereafter to reinstate them, because of these employees'
membership in or activities on behalf of the Union or
because these employees had engaged in other concerted
activities for the purposes of collective bargaining or other
mutual aid or protection, thereby violating Section 8(aX3)
and (I) of the Act.
3. Whether the unfair labor practices in which Respon-
dent may have engaged are so serious and substantial in
character and effect as to warrant entry of a remedial order
requiring Respondent to recognize and bargain with the
Union.
testified that he was vice president and general manager. This disparity.
however, is not significant. for Respondent admits that Clarkson has been a
supervisor and agent of Respondent at all times material herein.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Events of August 6
In August, Respondent employed de-burring employees
Indiana Lee Zoller, Shirley Holt, Carol Trejo, and
Georgette "Gigi" Bristol at its Redwood City facility. Also
employed there were machine operator Robert Jenkins,
truckdriver Thomas Cushing, saw employee Jon Town-
send, and Vincent M. Trapp, who did cutoff work. In
addition, David DiGiovanni was working there, as he had
been doing during summer vacations and during Christmas
and Easter breaks for a number of years. At the time of the
hearing, DiGiovanni was employed by Respondent, per-
forming "mostly saw operations." 3
On the evening of August 5, the Union conducted a
meeting, attended by several of Respondent's employees, 4
at the Marble Lodge, a bar located near Respondent's
plant. Zoller had been the employee who had contacted the
Union and had arranged for this meeting, although Holt
had assisted her in notifying the other employees of the
time and place of the meeting. While Zoller had been
absent from work during the week of August 2 through 6,
due to laryngitis and bronchitis, she had been persuaded to
attend the meeting by Holt notwithstanding her illnesses.
On Friday, August 6, Zoller's doctor released her to
return to work the following Monday. On that same
Friday, several events occurred at Respondent's plant.
Respondent concedes that during the morning, Clarkson
had told Trejo and Holt, the only de-burrers working that
day, that Respondent had decided to raise the top pay rates
for the classifications of its employees. 5 Clarkson testified
that he had first considered doing so in June and that he
had made the final decision to do so during the first week
after Respondent had reopened following its July 5
through 19 annual 2-week vacation shutdown. According
to Clarkson, the increased rate was made effective for the
next full payroll period, which began on July 29.
In arguing that these increases were unlawful, the
General Counsel points primarily to the proximity of their
announcement to the Union's meeting and to the "small
plant doctrine" as the basis for inferring employer
knowledge that the meeting had been conducted. Yet, the
fact that a plant is small does not compel a finding of
employer knowledge of employees' union activities. See
ABC Body Works, Inc., 201 NLRB 833 (1973); Bulk
Haulers, Inc., 200 NLRB 389, 393 (1972). Nor does
proximity of employer action to union activity compel a
finding that there is a nexus between the two. See
discussion, Bloom/Art Textiles, Inc., 225 NLRB 766, 767-
768 (1976).
Clarkson's announcements of the increased rates came
the morning immediately after the Union's meeting.
Consequently, a quite short timespan fell between these
3 Also employed were Lindy Rolich, an admitted supervisor within the
meaning of Sec. 2(1 1) of the Act, as well as Clarkson's wife and son.
4 Holt, Trejo, Trapp, Townsend, Cushing, Jenkins, and Zoller. The
Union's president. Ellis Crandall, and John Martinez, union shop steward at
the telephone company, represented the Union at the meeting.
s While other top classification rates were raised, only the de-burrers
were being paid top rate with the result that only they benefited immediately
from this increase. The General Counsel argues, in his brief, that Trejo had
received two raises that morning. However, the only testimony regarding a
two events, thereby raising some doubt that Clarkson could
have learned of the meeting so quickly (see Placke Toyota,
Inc., 215 NLRB 395, 399 (1974)); a conclusion only
strengthened by the employees' testimony that they had
attempted to conceal their union activities from Respon-
dent. Furthermore, in cross-examining Clarkson, the
General Counsel secured an admission that on August 6,
Trapp had divulged to Clarkson that a union meeting had
occurred the preceding evening. In doing so, the General
Counsel appeared satisfied with Clarkson's placement of
this disclosure as occurring at approximately 1 p.m.
Consequently, it is somewhat difficult to find that the wage
increases were accorded as a result of information not
transmitted to Clarkson until approximately 3 hours after
the increases were announced.
When he testified, Clarkson conveyed the impression of
a none-too-subtle individual who would react quickly and
directly to adverse information. Indeed, his conduct that
afternoon following Trapp's disclosure of the meeting, as
described infra, confirms that impression. He promptly
broached both Holt and Trejo concerning the meeting in a
manner which the former characterized as "upset" and the
latter described as both "forceful" and "upset." By
contrast, both de-burrers described his demeanor during
the morning as being friendly. Having observed Clarkson
during the hearing, and in view of his conduct once he
learned of the Union's campaign, I find it highly unlikely
that he would have been able to restrain himself during the
morning and calmly resort to the "fist inside the velvet
glove" type of unfair labor practice had he known of the
meeting. Finally, while Clarkson chose not to announce the
increased rates until they were conferred on August 6, he
testified that it had always been his practice to delay
announcements of increases until the date of employee
receipt. The General Counsel did not dispute his assertion
that this had been his practice and, accordingly, Clarkson
acted in conformity with past practice in delaying an-
nouncement of the increases until August 6.
Therefore, I find that a preponderance of the evidence
fails to establish that Respondent's announcement of wage
rate increases on August 6 was intended to dissuade the
employees from supporting the Union. I shall recommend
that this allegation of the complaint be dismissed.
As noted above, at approximately I p.m. on the
afternoon of August 6, Trapp disclosed to Clarkson that
there had been a union meeting on the preceding evening.
Clarkson also admitted that during this conversation Trapp
had said that he believed that one of the Union's officials
was a friend of Zoller.
Later that afternoon, Clarkson approached Holt, within
Trejo's range of hearing, and (testified Holt) said that he
had heard that there had been a union meeting the
preceding evening and, when she inquired as to the source
second raise is that of Trejo, that Clarkson told her "about my other raise."
She did not explain what she meant by this. Nor did the General Counsel
see fit to develop any further testimony concerning the possibility that she
had received two raises from Respondent on August 6 nor concerning the
explanation afforded her for receiving a second raise that day, assuming that
is what she meant by this comment. In these circumstances, the General
Counsel has failed to develop a sufficient record to warrant the conclusion
that Trejo received two raises on August 6 or to show that a second raise, if
afforded her, resulted from unlawful considerations.
1062
ULTRA-SONIC DE-BURRING
of his knowledge, retorted: "Nevermind. I heard you and
Lee instigated it." While Clarkson denied having said that
Holt and Zoller were "ringleaders," he agreed with her
recitation of his remarks which Holt had described as
preceding the accusation. Further, Trejo testified that she
had overheard Clarkson telling Holt that he had learned of
the meeting and accusing her of instigating it. Nor did
Clarkson deny having then asked what had taken place at
the meeting, having inquired as to the identities of the
employees who had attended it, and having told Holt that
he would fight her "to the bitter end" and that she had
better become satisfied with Respondent's conditions of
employment (during the conversation, Holt had listed a
number of matters which had given rise to employee
dissatisfaction), because if she was not happy, she should
quit. Clarkson was not a convincing witness. Moreover, the
comment about Zoller and Holt being "ringleaders" is
consistent with both the uncontroverted portions of this
same conversation and with Clarkson's other antiunion
activity in this matter. I credit Holt's account that Clarkson
had accused her and Zoller of instigating the Union's
campaign.
Having finished with Holt, it is undisputed that Clarkson
next spoke with Trejo, telling her that he knew about the
Union's meeting, that he would fight "you on this all the
way," and that he felt that she should come to him if she
had any complaints. It is likewise uncontroverted that later
that afternoon, when Holt went to Clarkson's office to pick
up her paycheck, Clarkson had asked her if she had
decided what she was going to do and she had replied that
she "would be back unless he told me otherwise."
A dispute did arise, however, regarding Clarkson's
comments during a meeting in his office at approximately
4:30 p.m. that day. In attendance were Rolich, Jenkins,
Townsend, Clarkson, and Clarkson's wife. Jenkins was the
only witness called by the General Counsel to describe
what had been said during the meeting, although he had
not remained for its entirety. He testified that Clarkson had
said that he had heard about the Union, knew all about it
and did not mind that the employees had gone to the
meeting, but "would fight it," "would be against it," and "if
he had to, he would close the place down." Both Clarkson
and his wife denied that Clarkson had threatened closure.
However, Clarkson agreed that he had said that he was
aware that there were union activities in progress, and that
"I was opposed to it and would fight it." He also conceded
that the subject of closure had arisen, but testified that
Townsend had raised it by asking whether the plant would
close if the Union became the bargaining representative.
Clarkson testified that he had replied that "it would not be
my intention to close, but the unions do, on occasion, cause
companies to go broke."
To corroborate Clarkson's account of the closure
remark, Respondent chose not to call Townsend, who
assertedly had initiated discussion of the subject. Instead, it
called Trapp, whose sympathies had been made evident by
his report to Clarkson of the Union's meeting. He denied
that Clarkson had threatened, at any time during the
meeting, to close the plant if the Union was successful in its
campaign. However, while his testimony corroborated that
of Clarkson in this respect, it controverted it in another
regard, for Trapp denied that Clarkson had indicated what
his "attitude" would be if the employees persisted in
attempting to have a union represent them. Clarkson, of
course, had testified that he had said that he "was opposed
to it and would fight it." Only when pressed further
regarding this matter on cross-examination did Trapp
ultimately concede that Clarkson had said that he "would
fight the union to keep them out if I can." His obvious
reluctance to attribute an antiunion comment to Clarkson,
coupled with his voluntary disclosure of his fellow
employees' union activities, lead me to believe that Trapp's
concern with promoting Respondent's interests renders his
testimony untrustworthy. The closure statement is the only
portion of this conversation which is in dispute. In all other
respects, Clarkson's recitation of his comments conforms
with that of Jenkins. As noted above, Clarkson appeared to
be a direct individual. As subsequent events disclose, he
was not reluctant to resort to interference with employment
relationships in his efforts to thwart the employees' desire
for representation. In these circumstances, I do not credit
his denial that he told the assembled group that afternoon
that he would close the plant if he viewed it to be necessary
in his campaign to "fight" the Union. Nor do I credit the
support for his denial provided by his wife and by Trapp.
Therefore, I find that in his conversations of August 6,
Clarkson did create the impression that employees' union
activities were under surveillance, did interrogate employ-
ees regarding their own union activities and those of other
employees, and did threaten cessation of business opera-
tions to prevent the Union from becoming the employees'
collective-bargaining representative. By such comments,
Respondent violated Section 8(aX I) of the Act.
B. The Discharge of Indiana Lee Zoller
Zoller was terminated, assertedly for absenteeism,
shortly after she reported for work on Monday, August 9.
Clarkson testified that on Tuesday, August 3, Swiss Tech, a
customer whose order Zoller had been filling, had tele-
phoned to inquire if the order would be shipped as
scheduled on August 9. According to Clarkson, when he
replied that Respondent would be unable to make
shipment on schedule, Swiss Tech had canceled the order.
At this point, Clarkson testified, "I made up my mind if she
wasn't there on Wednesday, she was all through." Of
course, Zoller did not report for work on Wednesday,
August 4.
To buttress this defense, Respondent raised a number of
factors which were either conceded by the General
Counsel's witnesses or were not disputed: During her entire
period of employment with Respondent, Zoller had always
had drinking and absence problems; Clarkson had spoken
to her about her absences; other employees had been
discharged and denied wage increases on the basis of
excessive absence; when a shortage of work occurred early
in 1975, Respondent had selected Zoller for layoff on the
basis of her excessive absences and, while it did rehire her
in mid-1975, it did so only after Holt had assured Clarkson
that Zoller had "overcome the problem" and had "straight-
ened out"; notwithstanding Holt's assurance, Zoller's
absence and drinking problems had continued through the
remainder of 1975 and throughout 1976 until her dis-
1063
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge; in 1976, Zoller had missed 140 hours of work, 12.15
percent of her scheduled worktime, until the date of her
termination, including the day that employees were to
return from the 2-week annual vacation; on occasion,
Zoller had complained to other employees of having
hangovers and being shaky; and, Respondent was encoun-
tering customer complaints regarding delays in shipments
of merchandise.
Notwithstanding these matters, a number of other
factors tend to support the conclusion that Respondent has
raised the above-enumerated factors simply to vilify Zoller
and in an effort to conceal the fact that it discharged her
because of its suspicion, based upon Trapp's report of
Zoller's friendship with one of the union officials at the
August 5 meeting, that Zoller had instigated the organizing
campaign. For example, as set forth above, Clarkson made
a series of statements on August 6 which disclosed his
hostility toward the Union. As found above, several of
these statements were unlawful, thereby demonstrating
that Respondent was not loath to resort to unlawful
conduct in its effort to prevent unionization of its
employees. Indeed, both Clarkson's threat of closure
during the late afternoon meeting of August 6 and
his
earlier suggestion to Holt that she should quit if she was
not happy are evidence of his willingness to go beyond
mere words and resort to the employment relationship, if
need be, as a vehicle for preventing representation of
Respondent's employees.
While on August 6 Clarkson had also accused Holt of
being a "ringleader" in the organizing campaign,
his
accusation appears to have been intended as a means of
eliciting a disavowel by her, rather than being an
accusation based upon facts brought to his attention which
had given rise to a belief that she had been, in fact,
a
"ringleader." Thus, his comment was designed as a
technique for obtaining information. See, e.g., South Shore
Hospital, 229 NLRB 363 (1977). It was intended to place
Holt "in the position of declaring [herself] as to union
preference just as if [she] had been interrogated as to such
preference ... .. The Conolon Corporation, 175 NLRB 27
(1969), modified 431 F.2d 324 (C.A. 9, 1970), cert. denied
401 U.S. 908 (1971).6 Consequently, so far as the record
discloses, prior to August 9, the single employee who had
been brought to Clarkson's attention as being a possible
link to the Union was Zoller. This, of course, resulted from
Trapp's disclosure that one of the Union's officials at the
August 5 meeting was a friend of Zoller.
7 On the very next
6 The threats found lacking by the court of appeals in Conolon are
provided in the instant case both by Clarkson's other comments to
Holt
during the same conversation and by his comments to other employees
during the course of that same afternoon. Moreover, the
subsequent
termination of Zoller made plain what would happen to those who
became
"ringleaders."
I Respondent points out in its brief that both Trejo and Jenkins
had
voiced strident criticism of Respondent's employment conditions on
August
6. From this, Respondent argues, in essence, that if Respondent
were bent
upon retaliating against union supporters, these two employees
would be
choices at least as logical as Zoller and, accordingly, the absence
of any
discriminatory conduct directed against them demonstrates that Respon-
dent was not unlawfully motivated in terminating Zoller. Yet, "a
discrimina-
tory motive, otherwise established, is not disproved by an employer's
proof
that it did not weed out all union adherents." Nachnman Corporation
v.
N.L.R.B., 337 F.2d 421, 424 (C.A. 7, 1964). "A violation of the Act does
not
need to be wholesale to be a violation." N.L.R.B. v. Puerto Rico
Telephone
working day, Zoller was discharged. This proximity
between the disclosure of Zoller's protected concerted
activity and her termination "strongly suggests a causative
relationship between the two and is, as we have said,
sufficient to establish a prima facie case .... " Union
Camp Corporation, Building Products Div., 194 NLRB 933
(1972), enfd. 463 F.2d 1136 (C.A. 5, 1972). Moreover, as
discussed infra, when Holt then picked up the mantle of
leadership left by the departed Zoller, she too was then
discharged and Clarkson frankly told at least one employee
that her termination had resulted, at least in part, from her
union activity. In these circumstances, the unique status of
Zoller on August 9, the timing of her discharge in relation
to Trapp's disclosure, and the subsequent termination of
Holt when she commenced distributing authorization cards
all serve to support the General Counsel's contention that
Zoller's discharge was the product of unlawful motivation.
Respondent's defense serves only to confirm that
conclusion, for it is simply illogical. If, as Clarkson
asserted, the Swiss Tech order had been canceled on
August 3 - and thereby lost due to Zoller's absence - one
wonders what he could have hoped to achieve by waiting I
more day to see if Zoller would report for work. If the
order was already lost, surely her appearance on August 4
would not restore the situation and Clarkson did not see fit
to explain what he had hoped her return would accomplish.
Furthermore, confronted with Swiss Tech's inquiry, Clark-
son made no effort to contact Zoller to ascertain when she
would be returning. Yet, he admitted that he had contacted
her in the past to inquire about her absences. Surely if the
Swiss Tech account was as significant as he attempted to
portray it, Clarkson would have made an effort to find out
if Zoller would be available to work on it during the
remaining 3 days of the week, rather than meekly
relinquish further business relationships with this customer.
After all, delivery of the order was not due until August 9.
Assuming that Swiss Tech did cancel its order on August
3, the evidence raises doubt that Respondent is being
candid in attributing that cancellation to Zoller. Since at
least June, Respondent had been receiving written and
telephonic complaints from Varian, a major customer,
about delays in deliveries, both to it and to its suppliers. As
Clarkson conceded that Zoller had not been working on
either Varian's orders or those of its suppliers, it would
appear that these delivery delays were a problem attribut-
able to Respondent's operation, rather than simply one
which was attributable to Zoller. Yet, this is precisely what
Company, 357 F.2d 919, 920 (C.A. 1, 1966). Moreover, the situation of Trejo
and Jenkins was quite different from that of Zoller. While they
had
criticized employment conditions, so far as the record discloses, there was
no indication that, in contrast to Zoller, Respondent would have felt
that
they had converted their dissatisfaction into action to obtain representation.
Consequently, though critics, they posed no apparent threat to Respondent.
Moreover, there is no evidence that their employment records left them
vulnerable as was the case with Zoller. By selecting Zoller for termination,
Respondent, in reality, achieved three objectives. It disposed of
the
employee who then appeared to be the leading proponent of unionization.
It
would be in good position to defend itself against any
charge of
discrimination by using Zoller's employment record as a shield. It could
serve notice on other union supporters of the potential consequences
of
continuing their support; i.e., "Support the Union and lose your job."
Hambre Hombre Enterprises, Inc., d/b/a Panchiros, 228 NLRB 136, 137
(1977).
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ULTRA-SONIC DE-BURRING
Clarkson attempted to do - to attribute blame for the
delays in Varian deliveries to Zoller:
. . . In as small an operation as we are, we do not
have adequate scheduling time. Any burden that is
created by one person being gone is directly felt on
everything, and even though she was not working
directly on those jobs at that time - after vacation -
on some of the earlier complaints she was, but even
though she was not working on them directly after that,
yes, it would have a direct effect because somehow,
some way, somebody would have to try to take up the
slack.
The fallacy in this testimony arises when the Varian
complaints are compared to Zoller's attendance record
from April to Varian's first written complaint on June 17,
which is presumably the period during which the delays in
deliveries were disturbing Varian. During this period,
Zoller missed but 4 hours of work during each of two pay
periods. In these circumstances, it is difficult to explain
how the delayed deliveries of which Varian complained
could be attributed to Zoller's attendance. Respondent
made no effort to do so. Similarly, from June 17 until July
2, the last day of work prior to Respondent's annual
shutdown, Zoller missed not a single hour of work.
Accordingly, she could hardly be blamed for delivery
delays that led Varian to transmit a second written
complaint to Respondent on July 8. While she was absent
for a significant period after the shutdown, it is obvious
that no one had been assigned to perform her work on the
Swiss Tech order, since that was the order that Respondent
purportedly was unable to complete. Yet, the clear
implication of Clarkson's above-quoted testimony is to
attribute fault with the delayed Varian deliveries to her
absences. In sum, this testimony serves to demonstrate a
tendency on Clarkson's part to attribute problems to Zoller
for which she was not responsible. Consequently, it casts
considerable doubt upon Clarkson's testimony that Zoller
was at fault for the loss of the Swiss Tech account.
Of course, it is true that Zoller was a day late in returning
from the 2-week shutdown and, by this point, Clarkson had
received Varian's July 8 letter of complaint. Presumably,
therefore, he would have been most concerned about the
absence of any employee that might occasion further
delivery delays. Yet, when she did report on July 21,
Clarkson merely told her that "I thought it was inexcusable
to take off for two weeks and then still not make it back to
work on the day after vacation." While not exactly soft-
spoken words, Clarkson's admonition contains no warning
that further absences would be met with disciplinary
action, though one would expect an employer faced with
the complaints of a major customer about delayed
deliveries to issue exactly such a warning to an irregularly
present employee. Clarkson did claim that he had warned
Zoller periodically that her absences might force him to
terminate her. However, in so testifying, he carefully
confined these warnings to her early years of employment.
He made no contention, and there is no evidence that, he
issued similar warnings to her during the period following
her reemployment in mid-1975.
Several additional points are pertinent to Zoller's August
2 to 6 absence. First, there is simply no objective evidence
that a decision to terminate her had been made prior to
Trapp's disclosure on August 6. The entire defense rests
upon Clarkson's testimony and, as found above, he was
virulently opposed to unionization of Respondent's em-
ployees. Moreover, he was not a persuasive witness when
he testified regarding the reasons for Zoller's and Holt's
discharges. Secondly, the loss of the Swiss Tech order
would presumably have been supportable by documenta-
tion, even if no more than business records showing the
order itself and the existence of merchandise in inventory
that had been prepared for shipment but had not been
shipped because of the cancellation. Yet, no documenta-
tion was presented to support Clarkson's testimony
regarding this business transaction. Nor was any Swiss
Tech official subpenaed to corroborate Clarkson. By
contrast, to support Clarkson's testimony regarding an
ancillary incident in March, Respondent summoned a
witness who had to travel approximately 100 miles to the
hearing. This willingness to provide corroboration for the
latter point but not for the purported loss of the Swiss Tech
account, which assertedly precipitated the decision to
terminate Zoller, raises some doubt as to the veracity of
Clarkson's testimony concerning the cancellation.
Third, Zoller had been absent for an entire week in
August. Thus, notwithstanding the clear implication of
Respondent's evidence regarding her drinking problem, the
duration of her absence alone indicates that it was not
attributable to a simple hangover. Moreover, Clarkson
acknowledged that a message had been received by
Respondent early in the week concerning the fact that
Zoller would be absent. In addition, earlier that same year
Zoller had been absent for a prolonged period due to
laryngitis and bronchitis, the two ailments with which she
had been afflicted in early August. At that time, both
Clarkson and his wife had spoken with Zoller and Mrs.
Clarkson acknowledged that Zoller had advised them of
the nature of her illnesses. This conversation occurred in
circumstances that had initially led Clarkson to question
the validity of Zoller's absence excuse. s Yet, he apparently
was satisfied with her explanation, for he admitted that he
had made no effort either to confirm the nature of Zoller's
illness or to require her to provide a doctor's excuse for her
absence.
Zoller had been employed by Respondent since 1969.
Save for the 6-month interruption in her employment in
1975, Respondent had tolerated whatever drinking and
absence problems she may have suffered. Even assuming
that she had, in fact, been selected for layoff in 1975 due to
these problems, the fact is that she had then worked
continuously for Respondent for the year prior to her
August 9 termination and had been employed initially for
over 5 years until the shortage of work presented an
external circumstance that had led to her layoff. Conse-
quently, whatever her problems, Respondent had tolerated
them for quite an extended period. "[Aln employer who
I The Clarksons had encountered Zoller at the Marble Lodge.
1065
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
freely tolerates such conduct may not suddenly find it
offensive only when committed by an employee who
exercises his rights to engage in concerted activity." Apico
Inns of California, Inc., d/b/a Holiday Inn ofAmerica of San
Bernardino, 212 NLRB 280 (1974), enfd. as modified 512
F.2d 1171 (C.A. 9, 1975). See also Shasta Fiberglass, Inc.,
202 NLRB 341 (1973). Moreover, the situation in the
instant case appears to involve much more than simple
toleration, for there is no dispute that the quality of Zoller's
work remained satisfactory, that she was never criticized,
and that employees whose attendance records were
significantly better than that of Zoller were terminated, and
in one case denied a wage increase, during the same period
that she was retained.
Therefore, I do not credit Clarkson's testimony concern-
ing his reasons for terminating Zoller, but rather find that
she was discharged because Respondent was attempting to
prevent representation of its employees and because she
had been linked with the Union and was viewed as being
most likely responsible for its organizing campaign.
C. The Discharge of Shirley Holt
Clarkson agreed that on the morning of Wednesday,
August 11, he had asked what Cushing thought about the
Union. In light of the preceding unlawful comments of
August 6 and the unlawful discharge of Zoller on August 9,
I find that the surrounding circumstances of this interroga-
tion establish the coercive context requisite for a finding
that the question violated Section 8(a)(1) of the Act.
Following her discharge, Zoller gave blank authorization
cards to Holt, who then distributed them to Trejo, Jenkins,
Townsend, and Trapp. All save Trapp returned signed
cards to her. On Friday, August 13, Holt was terminated,
with Clarkson telling her that she had started a hate
campaign against de-burrer Bristol which had made it
impossible for the latter to get the necessary cooperation to
perform her job. Clarkson did not controvert Holt's
testimony that, in response, she had disputed his assertion
that she had been making trouble for Bristol.
Respondent contends that following Zoller's discharge,
Holt had led a campaign of giving Bristol the "cold-
shoulder treatment" because Holt had suspected Bristol of
having informed Clarkson of the Union's meeting. Holt
had acknowledged that she had believed this to be the case
and that she had voiced her suspicions to other employees.
Moreover, it is clear that Clarkson did become concerned
about Bristol's situation, for he mentioned the matter to
both Holt and Cushing, assuring them that Bristol had not
divulged such information to him. Yet, Respondent's
defense collapses beyond this point.
The only specific incident advanced by Respondent of
Holt's silent treatment was one which occurred on August
11. Initially, it should be noted that I have some doubt
regarding the candor of Respondent's three witnesses -
Clarkson, Bristol, and DiGiovanni - in relating what took
place that day without embellishment. Clarkson testified
that he had called Bristol for information about a
9 While Respondent presented evidence that Holt had been considered a
troublemaker by some of her fellow employees, Clarkson denied being
aware of that reputation. Consequently, her reputation could not have been
a factor in his discharge decision and it can only be concluded that
customer's order on which Holt had been working. He
claimed that, after a short period of silence, Bristol had
reported that Holt would not answer her. He testified that
he then had instructed Bristol specifically to tell Holt that
he wanted an answer as the customer was on the telephone,
but, following another short silence, Bristol had again
reported that Holt would not answer her. The testimony of
DiGiovanni, allegedly present in the room with Bristol and
Holt, did not correspond to that of Clarkson's with respect
to a second effort to elicit this information from Holt.
Instead, he testified simply that Bristol had asked Holt
three successive times "when a certain batch of parts were
going to be done from the backroom." At no point did
DiGiovanni describe Bristol as having mentioned that it
was Clarkson who wanted this information, though, of
course, Clarkson had purportedly instructed Bristol to
make this clear to Holt. Bristol's testimony corroborated
neither Clarkson nor DiGiovanni. In contrast to the latter,
she testified that she had merely called thrice to Holt from
across the room. She did not assert that she had divulged to
Holt her reason for calling. In contrast to Clarkson, she
testified that after having received no response from Holt,
she had merely reported to Clarkson that Holt would not
answer. She made no mention of Clarkson instructing her
to advise Holt of the reason why she wanted Holt to
answer nor did she claim that she had made a second series
of efforts to call to Holt pursuant to Clarkson's direction.
Holt did acknowledge having heard Bristol calling, but
contended that her machine was so noisy - a contention
not denied by Respondent's witnesses and apparently
verified by Respondent's counsel prior to the hearing -
that she had not realized what Bristol had wanted. The fact
is that both Holt and Bristol conceded that they had not
gotten along from virtually the inception of the period
when they had both become employed by Respondent. 9
This seemingly was apparent to Clarkson, for while he did
speak with Holt about the incident on Thursday, August
12, he admittedly confined his remarks to the assurance
that Bristol had not been the "stool pidgeon" and to an
appeal for Holt to cooperate with Bristol. His own
recitation of what he had told Holt discloses that he neither
reprimanded her, as would be likely had she, in fact,
prevented him from providing information sought by a
customer, nor did he warn her of any adverse consequences
should she persist in ignoring Bristol, as would have been
likely had such conduct been interfering with performance
of Bristol's job. Moreover, this conversation appears to
have ended the matter so far as Clarkson was concerned -
at least until Respondent was faced with the need to
provide a valid defense to Holt's termination.
To support Respondent's defense that Holt had been
terminated for continuing to refuse to cooperate with
Bristol, the latter testified:
Thursday, the following day, it was the same procedure
again: Not talking to me, not giving me any of the
information I needed, so I just didn't even bother with
Respondent elicited this evidence in an effort to cast Holt in the least
favorable light, as had been the case with much of the evidence presented
about Zoller, in the hope that Respondent's position would thereby be
enhanced.
1066
ULTRA-SONIC DE-BURRING
it, and told Mr. Clarkson that I could not get any
information and did not bother with it.
She claimed that it was this treatment that had led her to
tender her resignation on the following day, and Clarkson
testified that it was the submission of Bristol's resignation
that had led him to decide to terminate Holt. Yet, in
contrast to the very precise description of the August 11
incident which she advanced, Bristol made no effort to
describe with precision any instances thereafter on which
she had unsuccessfully sought to obtain information from
Holt. Nor did she specify what information she would need
to perform her job that Holt would possess. Both women
were de-burrers and, thus, presumably performed parallel,
rather than sequential, functions. At no point was it made
clear how information in Holt's possession would be
needed by Bristol. Indeed, the information which she had
sought from Holt on August I I had been sought at
Clarkson's request and had been needed by him, not by
Bristol.
In addition to the longstanding "cool" relationship
between Holt and Bristol, the former had ceased speaking
to Bristol before the Union's meeting that precipitated the
chain of events at issue in the instant case. Thus, Bristol
testified that Holt had been ignoring her "off and on pretty
regularly ... for maybe two weeks before that." Yet, there
is no evidence that Bristol had been unable to perform her
job prior to August 12. Nor did Bristol explain why she had
chosen to force the issue on August 13. In short,
Respondent's evidence in connection with Holt's discharge
is so vague, and concerns a matter of such longstanding
duration, that it simply will not serve to support a finding
of lawful motivation.
Conversely, all of the affirmative factors which support-
ed my finding that Zoller had been terminated for unlawful
considerations equally support such a finding with regard
to Respondent's motivation for discharging Holt. In
addition, Jenkins testified that late on the afternoon of
Friday, August 13, Clarkson had told him that Holt had
been terminated because "he thought she was the instigator
of the union; started the trouble. Plus, she would not talk
to Gigi." Though Clarkson denied having told Jenkins that
he had terminated Holt because of her union activities, he
admitted having spoken with Jenkins that afternoon and
admitted having told him that Holt had been fired. He did
not explain what had motivated him to discuss the matter
with Jenkins nor did he explain why he would see fit to tell
an employee that another employee had been fired, but
refrain from explaining his motivation for doing so as well.
In these circumstances, and in view of my basic feeling that
Clarkson was not a credible witness, as supported by the
objective evidence and by Respondent's failure to present
evidence sufficient to support Clarkson's testimony in
other areas, I credit Jenkins' account of this conversation.'0
s0 Though Holt, like Zoller, attempted to conceal her activities from
Respondent, she had given an authorization card to Trapp. He, of course,
had seen fit to inform Clarkson of the Union's meeting and of Zoller's
friendship with one of the Union's officials. It is, therefore, a fair inference
that he would similarly have informed Clarkson of Holt's activity as well.
ii Respondent urges that the card of Jon Townsend should not be
counted as he did not personally authenticate it. Yet. Holt testified that she
Therefore, I find that Respondent terminated Holt
because she had succeeded Zoller in spearheading the
Union's organizing campaign and that Respondent thereby
violated Section 8(aX3) and (I) of the Act.
D. The Remedial Bargaining Order
With respect to the bargaining order sought by the
General Counsel as a remedy for Respondent's unfair
labor practices, Respondent argues both that no evidence
has been presented to show that the unit is appropriate and
that the evidence fails to disclose that the Union represent-
ed a majority of the employees in that unit. The General
Counsel contends that a production and maintenance unit
is the one which is appropriate in the instant case. "It is
well established that a unit of all production and mainte-
nance employees is presumptively appropriate in the
absence of cogent reasons to the contrary." Rembrandt
Lamp Corporation, 128 NLRB 905, 906 (1960). Moreover,
in the case of Respondent, such a unit encompasses all of
its employees at the Redwood City facility. Thus, for this
reason as well, the unit advanced by the General Counsel is
presumptively appropriate. Greene Construction Company,
and Tecon Corporation, ajoint venture, 133 NLRB 152, 153
(1961). As Respondent has adduced no "cogent reasons"
showing that, in the circumstances of its operation, a
production and maintenance unit embracing all employees
at its Redwood City facility is inappropriate, I find that the
unit is appropriate.
Including discriminatee Zoller, Respondent employed 11
nonsupervisors at the Redwood City facility between
August 5 and 10 (Holt, Trejo, Bristol, Jenkins, Cushing,
Townsend, Trapp, DiGiovanni, Sandra Clarkson, and the
Clarksons' son). As Mrs. Clarkson works in the office, she
would appear to be an office clerical employee, excluded
from the unit. Even, however, were she included in the unit
as, for example, a plant clerical employee, the Union
possessed authorization cards signed by six of the employ-
ees and, accordingly, represented a majority of the
employees in the unit."
The cards clearly designate the Union as the collective-
bargaining representative of the card signers. There is no
evidence that any misrepresentations were made to them
when their signatures were solicited. However, the record
does disclose that although most of the cards were signed
on August 9 and 10, they were backdated to August 5,
pursuant to instructions originating with an official of the
Union. Respondent contends that this should invalidate
these cards. However, while certainly not a practice to be
condoned, the backdating of the cards does not affect the
fact that by signing them, the employees sought to obtain
representation by the Union. To deprive them of represen-
tation merely because the cards are misdated would be to
sacrifice substance for form and, more importantly, to
advance Respondent's goal, sought through unfair labor
had given Townsend a blank card which he had returned to her 10 or 15
minutes later. IT Ihe Board will also accept as authentic any authorization
cards which were returned by the signatory to the person soliciting them
even though the solicitor did not witness the actual act of signing." McEwen
Manufacturing Company and Washington Industries, Inc., 172 NLRB 990,
992 (1968). Therefore, I count Townsend's card notwithstanding the fact
that he did not personally authenticate it.
1067
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices, of depriving them of representation. In the
circumstances of the instant case, it is clear that all of the
cards had been signed by August 10 and, accordingly, a
much better solution than leaving the employees unrepre-
sented is to make the bargaining obligation effective as of
that date.
Among the unfair labor practices committed by Respon-
dent were a threat of closure and the discharges of the two
successive leading proponents of unionization. A threat of
closure is sufficient to render impossible the conducting of
a free and fair election. The Great Atlantic & Pacific Tea
Company, Inc., Birmingham Division, 210 NLRB 593 (1974).
The effect of action directed to the principal union
adherents, particularly their discharges, "is pervasive in its
effect as it simultaneously restrains (or eliminates) the
organizational activity of those already committed to the
Union, while warning others that dire consequences may
attach to them if they come to the Union's support." Motel
6, Inc., 207 NLRB 473 (1973), enfd. by unpublished
decision dated November 14, 1974, 94 LRRM 2368 (C.A.
9). Therefore, the magnitude of Respondent's unfair labor
practices warrants issuance of a remedial bargaining order.
Respondent, however, argues that most of these unfair
labor practices predated the signing of most of the cards,
on August 9 and 10, thereby demonstrating that "such
action could not have dissipated the union's majority." Of
course, Holt's termination occurred after all of the cards
were signed and that, alone, would warrant issuance of a
bargaining order. See Hambre Hombre Enterprises, Inc.,
supra. Furthermore, the Board has not been reluctant to
issue bargaining orders based upon unfair labor practices
occurring prior to attainment of majority. See Bookland
Inc., 221 NLRB 35 (1975). The fact that majority support is
retained despite unlawful discharges does not serve to
shield employers from issuance of remedial bargaining
orders. See John C. Carey Milling Company, 218 NLRB 916
(1975); The Great Atlantic & Pacific Tea Co., supra. In
essence, Respondent is basing its argument upon subjective
considerations, while the test for determining whether a
bargaining order should issue is an objective one. See
Broadmoor Lumber Company, 227 NLRB 1123, fn. 16
(1977), and cases cited therein. Therefore, I find that the
timing of Respondent's unfair labor practices does not
nullify the need for issuance of a bargaining order to
remedy them.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section IV,
above, occurring in connection with Respondent's opera-
tions, described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes
12 It is settled that a statement such as that made by Clarkson to Jenkins
following Holt's discharge on August 13 is a violation of Section 8(aX)() of
the Act. New Castle Lumber and Supply Co., Division of Peter Kuntz Co., 203
NLRB 937, fn. 1 (1973); Carolina Quality Concrete Co., 193 NLRB 463, 469
(1971). Although this comment was not alleged to be a violation in the
complaint, it was "part and parcel of [Respondent's) persistent antiunion
campaign," was "fully litigated at the hearing," and was a matter concerning
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. Ultra-Sonic De-Burring, Inc. of Texas is an employer
within the meaning of Section 2(2) of the Act, engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Communications Workers of America Local 9455,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By creating the impression that employees' union
activities were under surveillance, by interrogating employ-
ees regarding their union activities and the union activities
of other employees, by threatening cessation of business
operations if the employees selected the Union as their
collective-bargaining representative, and by telling an
employee that another employee had been discharged
because she had engaged in union activities, 12 Ultra-Sonic
De-Burring, Inc. of Texas has violated Section 8(aX1) of
the Act.
4. By discriminatorily discharging Indiana Lee Zoller
and Shirley Holt, Ultra-Sonic De-Burring, Inc. of Texas
violated Section 8(aX3 ) and (1) of the Act.
5. A unit appropriate for collective bargaining is: All
production and maintenance employees of Ultra-Sonic De-
Burring, Inc. of Texas, including truckdrivers, employed at
its Redwood City, California, facility; excluding office
clerical employees, professional employees, guards and
supervisors as defined in the Act.
6. At all times material since August 10, Communica-
tions Workers of America Local 9455, AFL-CIO, has been
the exclusive collective-bargaining representative of the
employees in the above-described unit within the meaning
of Section 9(a) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act and
have rendered the holding of a fair election unlikely,
thereby warranting issuance of a bargaining order to
remedy the effects of these unfair labor practices.
8. Ultra-Sonic De-Burring, Inc. of Texas did not violate
the Act by announcing on August 6, that the top pay rates
of employee classifications were to be raised.
THE REMEDY
Having found that Ultra-Sonic De-Burring, Inc. of Texas
has engaged in certain unfair labor practices, I shall
recommend that it be ordered to cease and desist therefrom
and that it take certain affirmative action to effectuate the
policies of the Act.
which "Respondent had ample opportunity to offer, and in fact did offer,
evidence ... ." Seemingly, therefore, the Board deems such situations to
require provision of an appropriate remedy. Alexander Dawson, Inc., d/b/a
Alexander's Restaurant and Lounge. 228 NLRB 165, 166 (1977); cf. GTE
Automatic Electric, Inc., 196 NLRB 902 (1972). Contra: Medicine Bow Coal
Company, 217 NLRB 931, fn. 2 (1975); Richman-Gordanan Stores, Inc., 220
NLRB 453, fn. 1 (1975).
1068
ULTRA-SONIC DE-BURRING
To the extent that it has not already done so,13 Ultra-
Sonic De-Burring, Inc. of Texas will be required to offer
Indiana Lee Zoller and Shirley Holt immediate reinstate-
ment to their former positions of employment or, if those
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, dismissing, if necessary, anyone who
may have been assigned or hired to perform the work
which Zoller had been performing prior to her termination
on August 9, and which Holt had been performing prior to
her termination on August 13. Additionally, Ultra-Sonic
De-Burring, Inc. of Texas will be required to make Zoller
and Holt whole for any loss of earnings they may have
suffered by reason of their unlawful terminations, with
backpay to be computed on a quarterly basis, making
deductions for interim earnings, and with interest to be
paid at the rate of 7-percent per annum. F. W. Woolworth
Company, 90 NLRB 289 (1950); Florida Steel Corporation,
231 NLRB 651 (1977).
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 14
The Respondent, Ultra-Sonic De-Burring, Inc. of Texas,
Redwood City, California, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Creating the impression of surveillance of employees'
union activities, interrogating employees regarding their
union activities and the union activities of other employees,
threatening cessation of business operations if employees
select a labor organization as their collective-bargaining
representative, and telling employees that other employees
have been terminated because they are active in supporting
a labor organization.
(b) Discharging or otherwise discriminating against
employees with regard to their hire or tenure of employ-
ment or any term or condition of employment for engaging
in activities on behalf of a labor organization or for
engaging in activity protected by Section 7 of the Act.
(c) In any other manner interfering with, restraining or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
13 While the record discloses that Shirley Holt was reemployed by
Respondent on March 14. 1977, it is unclear whether her reemployment
constituted reinstatement. See Colorflo Decorator Products. Inc. 228 NLRB
408 (1977).
14 In the event no exceptions are filed as provided by Sec. 102.46 of the
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
(a) To the extent that it has not already done so, offer
Indiana Lee Zoller and Shirley Holt immediate and full
reinstatement to their former positions of employment,
dismissing, if necessary, anyone who may have been hired
to perform the work that they had been performing prior to
the dates on which they were terminated, or, if their former
positions no longer exist, to a substantially equivalent
position, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of pay
they may have suffered as a result of the discrimination, in
the manner set forth above in the section of this Decision
entitled "The Remedy."
(b) Preserve and, make available to the Board or its
agents all payroll and other records necessary to compute
the backpay and reinstatement rights set forth in "The
Remedy" section of this Decision.
(c) Upon request, recognize and bargain with Communi-
cations Workers of America Local 9455, AFL-CIO, as the
collective-bargaining representative of the employees in the
appropriate unit of all production and maintenance
employees of Ultra-Sonic De-Burring, Inc. of Texas,
including truckdrivers, employed at its Redwood City,
California, facility; excluding office clerical employees,
professional employees, guards and supervisors as defined
in the Act, respecting rates of pay, wages, hours, or other
terms and conditions of employment and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(d) Post at its Redwood City, California, facility, copies
of the attached notice marked "Appendix." 15 Copies of the
notice, on forms provided by the Regional Director for
Region 20, after being duly signed by Respondent's
authorized representative, 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. Reasonable steps shall be taken by
Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps Ultra-Sonic De-Burring, Inc. of Texas has taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges that Ultra-Sonic
De-Burring, Inc. of Texas announced an increase in pay
rates on August 6, to encourage employees to abandon
their support of the Union.
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
15 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1069