Unimasco, Inc.

National Labor Relations Board - Board Decisions

Apr 17, 1972

196 N.L.R.B. 400 (N.L.R.B. 1972)

400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Unimasco, Inc. and Miscellaneous Warehousemen,
Drivers & Helpers Local 986, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen &
Helpers of America. Cases 21-CA-9935 and 21-
RC-12122
April 17, 1972
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On January 11, 1972, Trial Examiner Stanley Gil-
bert issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a sup-
porting brief, and General Counsel filed cross-excep-
tions and a brief supporting the cross-exceptions and
answering Respondent's exceptions.
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 Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
to as the Union or Teamsters , the complaint herein was
issued on May 28 , 1971. The complaint, as amended during
the course of the hearing, alleges that Unimasco , Inc., here-
inafter referred to as the Company or Respondent , violated
Section 8(a)(3) and (1) of the Act by discharging Timothy
Denius and Frank Martinez and by constructively dis-
charging Gary Wiseman . The complaint further alleges that
Respondent engaged in other conduct violative of Section
8(a)(1) of the Act. Respondent , by its answer as amended
during the course of the hearing, denies that the discharges
of Denius and Martinez were violative of the Act, that it
constructively discharged Wiseman in violation of the Act,
or that it committed the other unfair labor practices alleged.
In its said answer, Respondent further alleges as a defense
that Denius and Martinez were , at the time of their dis-
charges , supervisors within the meaning of the Act and
contends that , therefore , they were not `employees" pro-
tected under the Act.
By order of the Regional Director for Region 21, dated
August 5 , 1971, the Union 's objections to the election con-
ducted in Case 21-RC-12122 , on May 18, 1971, amon the
employees of the Company were consolidated with Case
2l-CA-9935 for hearing in this proceeding . (Said objections
and the resolutions with respect thereto are set forth herein-
below subsequent to consideration of the issues in Case
21-CA-9935
Pursuant to notice , a hearing was held in Los Angeles,
California , on August 24, 25, and 26, 1971, before this Trial
Examiner . Appearances were entered on behalf of the Gen-
eral Counsel , Respondent , and the Charging Party. Briefs
were received from the General Counsel and the Respon-
dent on October 22 and 21, respectively.
Upon the entire record in this proceeding and my obser-
vation of the witnesses as they testified, I make the follow-
mg:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
Respondent, Unimasco, Inc., Gardena, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's recommended
Order.
IT IS FURTHER ORDERED that the election conducted
on May 18, 1971, in Case 21-RC-12122'be, and it
hereby is set aside , and that Case 21-RC-12122 be,
and it hereby is, remanded to the Regional Director
for Region 21 for the purpose of conducting a new
election at such time as he deems the circumstances
permit the free choice of a bargaining representative.
[Direction of second election and Excelsior fn.
omitted from pulication.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
STANLEY GILBERT , Trial Examiner : Based on a charge filed
on April 8, 1971, as amended on May 6 and 26 , 1971, by
Miscellaneous Warehousemen , Drivers & Helpers Local
986, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, hereinafter referred
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
At all times material herein , Respondent , a California
corporation , with its principal place of business in Gardena,
California, has been engaged in the manufacture of painting
equipment . During the 12-month period preceding the is-
suance of the complaint , which period is representative,
Respondent sold and shipped goods valued in excess of
$50,000 directly to customers located outside the State of
California.
Respondent is, and has been at all times material herein,
an employer engaged in commerce and in a business affect-
ing commerce within the meaning of Section 2(6) and (7) of
the Act.
II THE LABOR ORGANIZATION INVOLVED HEREIN
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Union Organizational Activity
During the latter part of 1970 the employees discussed
the possible value of unionization and, by February 1971,
there was apparently sufficient interest awakened that Mar-
tinez at the request of fellow employees contacted the Un-
ion. Martinez telephoned the Union and spoke with Lou
196 NLRB No. 71
UNIMASCO, INC. 401
Richard, a business representative , who made an appoint-
ment to meet Martinez at the union hall. Martinez met with
Richard in the second week of February and discussed with
him the possible organization of employees in Respondent's
plant . They, made an appointment to meet the following
week (around the latter part of February ) and Martinez
brought with him to the union hall three other employees.
All four signed union authorization cards and discussed the
benefits oforpanization with Richard . He gave each of them
cards to distribute among the other employees . During the
first week of March, the four employees distributed the
cards to their fellow employees and Martinez returned the
signed cards (apparently 14 in number) to the Union. On
March 17, the Union filed a petition for election in Case
21-RC-12122, and it was stipulated that Respondent re-
ceived a copy of the petition on March 18, 1971.
B. The Issues
a. Whether or not Respondent , by discharging Frank
Martinez and Timothy Denius on March 24, 1971, violated
Section 8(a)(3) and (1) of the Act.'
b. Whether or not Respondent constructively discharged
Gary Wiseman on or about April 2 , 1971, in violation of
Section 8(a)(3) and (1) of the Act.
c. Whether or not Respondent inflicted bodily injury on
Wiseman on or about March 30 , 1971, in violation of Sec-
tion 8(a)(1) of the Act.
d. Whether or not Respondent between January and May
1971 interfered with , restrained, and coerced its employees
within the meaning of Section 8(a)(1) of the Act by interro-
ggation, by creating the impression that it would be futile for
the employees to select the Union as their collective-bar-
gaining representative , by threats of reprisal for supporting
t e Union, by promises of increased benefits , and by pro-
mulgating on or about March 23 , 1971, new plant rules and
instituting more severe penalties for infraction of existing
rules.
C. Resolution of the Issues
It was stipulated by the parties that up until March 17,
1971, Denius was a supervisor within the meaning of the
Act. (General Counsel contends that, on March 17, Denius
was demoted from supervisor and became an employee
within the meaning of the Act, while the Respondent con-
tends that Denius was continued in the status of a supervi-
sor until he was terminated on March 24, 1971.) Denius
testified to a number of statements made to him or in his
presence by Francis Moon, president of Respondent, and
by Lamont Abersold, Respondent's shop foreman and an
admitted supervisor, during the time he (Denius) was admit-
tedly a supervisor. During the 2 or 3 months preceding his
discharge, up to March 17, Denius served as assistant shop
foreman to Abersold.
Denius testified that, on January 26, 1971, Moon stated
to Abersold and him that he anticipated a "big year" and
that if there were any "troublemakers" in the shop they
should be terminated. It was in this conversation that Den-
ius was told that he was to serve as assistant shop foreman
to Abersold. The above testimony is credited.
Denius further testified to a conversation with Abersold
at the beginning of February. His testimony with respect
thereto is as follows:
A. Lamont Abersold asked me if I would eat lunch
with him, and called me into his office and we went
in-we were eating our lunch, and Lamont Abersold
said to me-he asked me if I knew what the problem was
in the shop.
He said it seemed to him there was an awful lot of
troublemakers in the shop, and he felt there was a lot
of agitators , and he asked me if I had any idea as to why
and what the problem was.
I told him that I felt the majority of the guys felt that
it was poor wages , and used Scott Terflinger as an
example . I stated that "If you are going to pay a man
$1.80 an hour , you are going to et $1 .80-an-hour's
worth of work from him .' I said, You should give a
man some type of incentive," and Lamont said he
didn't know anything about that.
He asked me again if I knew who the troublemakers
were, and he asked me if I had any idea as to whether
somebody was trying to organize a union in the shop,
and I told him I did not.
Abersold also testified to the conversation and his testimo-
ny is not in conflict with that of Demus in any material
respect except with reference to a union . He denied that he
asked Denius if "somebody was trying to organize a union
in the shop ." Denius' testimony is credited.
Denius further testified , as did Martinez, that at the be-
ginning of February there was a conversation between Ab-
ersold and Martinez in which Abersold asked Martinez if he
were a "troublemaker" to which Martinez made no re-
sponse. Abersold denied this testimony . The testimony of
Denius and Martinez is credited that Abersold did make
such an inquiry of Martinez. While the term "trouble-
maker," considered solely in the context of the incident in
which it was used, would not appear to be particularly
meaningful , the inquiry must have been reasonably con-
stured by Martinez to be an interrogation of whether or not
he was stirring up dissatisfaction with terms and conditions
of employment among his fellow employees and an interest
in obtaining union representation . The record discloses that
not only was there considerable discussion for months prior
thereto among the employees about the value of obtaining
union representation in which Martinez participated but
also that he had voiced to management dissatisfaction with
vacation benefits , that there were quite a number of confer-
ences with him at his work station among the employees
(which Moon testified he observed) and that there was dis-
satisfaction among the employees with respect to the terms
and conditions of employment (which Denius reported to
Moon and Abersold and of which they were apparently
aware). Abersold's inquiry of Martinez as to whether he was
a troublemaker must be viewed in context with these facts.
Consequently , it is concluded that it was an inquiry into his
protected activities and constituted interference , restraint,
and coercion within the meaning of Section 8 (a)(1) of the
Act.'
Denius further testified with respect to a meeting of su-
ervisors held on February 3, 1971. His testimony is as
follows:
A. Mr. Moon started the meeting by stating that he
wanted to know what the problems were in the shop.
2 It is noted that there was considerable discussion in the shop prior thereto
about the value of union organization and it appears that Demus had ex-
pressed to others in management , at least to Moon, that he did not approve
of unionization . Therefore , it is likely that such a question was raised between
the two supervisors . In any event, Demus was the more impressive of the two
witnesses as to this conflict in their testimony
1 In order to resolve this issue , it is necessary to resolve the further issue 3 As set forth herembelow, the defense that Martinez was a supervisor at
of whether or not Martinez and Denius, or either of them, were supervisors the time and, therefore, not within the protection of the Act is found to be
within the meaning of the Act at the time they were discharged. without ment.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He said it seemed to him that morale was down awfully
low with the men , and he wanted to know what the
problem was , and he said that as near as he could figure
from the gatherings of the men and the way they were
bunching together, and he spoke specically of a
group, a majority of them men in the shop always ate
Lunch together it seemed , and they seemed to be really
hostile towards the company , and he said that he
thought maybe they were trying to organize the union,
and he turned to me-I was sitting on the end of his
sofa that faces his desk , and he turned to me first and
he said, "Tim, do you know what the problem is," so
I stated to him I felt that the majority of the men felt
it was poor wages, poor working conditions , unsafe
conditions and inadequate tools.
According to Deniusr testimony , he then cited the wages
paid to Terry Cates as an example . Denius' testimony con-
tinues as follows:
THE WITNESS After we finished talking about Terry
Cates , why, he says, "Well , it seems to me we've got an
awful lot of problems in the shop ," and he said, "I want
to know who the troublemakers are, and who the agita-
tors are ," and he says , "If any of you three guys find
out who they are, I want them terminated immediate-
ly," and he says,-he pointed toward the southwest
comer of the building , and leaned back in his chair,
and he says, "I know that son -of-a-bitching Mexican in
the corner is a troublemaker here."
Moon , in testifying regarding the February 3 meeting,
admitted that he made reference to troublemakers, that he
wanted to know who they were and wanted them terminat-
ed. He denied that he made any reference to the Union or
any reference to a "Mexican ." The above-quoted testimony
of Denius with respect to the meeting of February 3 is
credited . Said testimony is considered in resolving the issues
in this proceeding, particularly the discharges of Martinez
and Denius . It is inferred from the record that by the use
of the word "Mexican" Moon was referring to Martinez.
Denius testified to a conversation that he , his brother
Rodney , and Abersold participated in during the third week
of February . His testimony is as follows:
A. I had taken my television set down to Lamont
Abersold's house to have it repaired-it was on a Sat-
urday,-and my brother and I had gone down there
and I had left the TV and Lamont Abersold , my broth-
er and I were sitting in Lamont Abersold 's garage
drinking beer and talking , and as usual the conversa-
tion was directed around to Unimasco , and Lamont
Abersold said to my brother and I that he knew that
Mr. Moon was anticipating a lar gge year , a big year with
a lot of orders, and if my brother and I worked real
hard with him and seen to it that the work was done,
that he would see to it that we would both get raises.
My brother said to him, "Well , how much of an
increase in pay do you think I would get if we had a
union in the shop," and Monte [Abersold ] said to him,
"Why, you guys will never get a union in the shop," and
then we went on to discuss some of the other things at
Unimasco , and then the conversation went on to other
things, just this and that , and we got in Monty's car and
went to another guy's house.
Q. Was your brother , Rodney Denius , employed by
Unimasco at that time?
A. Yes, he was .4
4 While Demus was a supervisor at the time of this incident, it appears that
his brother, Rodney, was an employee within the meaning of the Act
In testifying with respect to the above-mentioned conver-
sation , Abersold corroborated the above-quoted testimony
of Denius, but denied that any of the participants in the
conversation mentioned the word union. While the above-
quoted testimony is credited, particularly that Abersold
made the statement, "Why, you guys will never get a union
in the shop," nevertheless it is concluded that said testimony
will not support a finding that Respondent, by Abersold s
said statement, violated the Act (contrary to General
Counsel's contention). Said statement could well have been
reasonably construed as no more than an opinion of the
Union's ability to attract adherents.5 In view of the circum-
stances in which the conversation occurred and the relation-
ship between the participants, it is concluded that
Abersold's expression of said o inion could not reasonably
have interfered with, restrained, or coerced Rodney Denius
within the meaning of Section 8(a)(1) of the Act.
1. Promulgation of amended plant rules
It appears from the testimony of Moon and Abersold
that on March 18, 1971, after Respondent received the
Union 's petition for an election, the two had a conference.
It is inferred from their testimony that a decision was made
to amend the plant rules and make the penalties more severe
in reprisal for the employees' interest in obtaining union
representation and in order to discourage adherence to the
Union . Respondent contends that the decision to make such
amendments had been arrived at in order to overcome prob-
lems with the employees with respect to attendance and
laxity in attention to duties . It is the Trial Examiner 's opin-
ion that the amendments were largely motivated by the
receipt of the Union's petition . It appears that the timing
was more than a mere coincidence . The amendments were
announced and posted on March 23. Testimony that the
amendments had been drafted prior to March 18 is not
credited . It is inferred that the preparation of the
amendments after receipt of the petition caused the delay
between the receipt of the petition on March 18 and promul-
gation of the amendments on March 23.
On March 23 , Moon called a meeting of the employees
in which he announced chan ges in the plant rules and a
drastic penalty (termination) for violations . Later in that
day, Respondent posted a notice that infraction of certain
rules would result in immediate termination .6
Respondent contends that at the meeting of March 23
Moon announced a rule (which was not contained either in
the previous plant rules or in the posted notice) to the effect
that leaving the plant at any time without permission would
be grounds for immediate termination . In support of this
contention , Respondent introduced testimony (to that ef-
fect) of Moon, Abersold , and William Miller, who appar-
S There is no basis for inferring that it was either a threat to resort to
unlawful means to prevent union organization or to refuse to recognize and
bargain with the Union should it obtain majority representation.
6 The notice reads as follows-
March 23, 1971
The work atmosphere in the shop has reached a state of anarchy. There-
fore, any further infraction of the following Company Rules will result
in immediate termination
I. Unauthorized absence or lateness.
2 Failure to clock in or out at lunch time or in the morning or evening.
3. Refusing or arguing about work assignments.
4. Any un-necessary yelling or shouting or disruption of work.
5 Not remaining in one 's work area.
6. Taking out tools from the tool crib without a tool chip.
/s/ Lamont Abersold /s/ F A. Moon
Lamont Abersold, Shop Foreman F. A. Moon, President
UNIMASCO, INC. 403
ently is also a supervisor . Miller was an unconvincing wit-
ness who displayed a hazy recollection and had to be led.
The testimony of General Counsel's witnesses that no such
rule was announced at the meeting was more convincing
than that of Respondent 's witnesses to the contrary. (The
matter of this rule is of importance since it appears that the
next day Martinez and Denius were dis- charged for violat-
ing such a rule.)
In view of the finding that the promulgation of the
amendments to the rules and the announcement 7 of the
severe penalty of dismissal for infractions of such rules were
in a large part in reprisal for employees' interest in obtaining
union representation and in order to discourage adherence
to the Union, it is concluded that said action (on March 23,
1971) violated Section 8(a)(1) of the Act as contended by
General Counsel.
2. The discharge of Martinez and Denius
One of the benefits enjoyed by employees was an af-
ternoon break of 20 minutes. On March 24, Martinez and
Denius punched out at the commencement of the afternoon
break, left the plant premises in an automobile and, when
they returned, punched in. Their time records disclose that
there was a lapse of 19 minutes between the time they
punched out and punched back in. Martinez and Denius
credibly testified that immediately after their return Ab-
ersold discharged them "for leaving the premises without
permission." It appears from their credited testimony that
prior to March 24 they were never required to obtain per-
mission for leaving the premises during afternoon breaks,
although they frequently did so, and were never reprimand-
ed for failing to obtain permission 8
Moon testified to the incident of the discharges of Marti-
nez and Denius as follows:
A. I heard the return-to-work horn sound during the
break time, and at the same time I saw Martinez and
Denius-I saw two employees drive back around the
back of our building very fast, and they came in the
back door and it turned out to be Timothy Denius and
Frank Martinez.
I asked Abersold if he had given them permission to
leave, and he said no, and I said, "Well, you can't have
that. You will fire them immediately for leaving the
plant without permission ." This was directly-directly
aaunting [sicrthe. speech I had made the day before.
They were supervisors and they were supposed to set
an example. In its brief Respondent sets forth addition-
al reasons for their discharges? It appears from Moon's
testimony that the additional reasons were mere after-
7 While the penalty of dismissal of some rules was set forth in preexisting
rules there is no showing that it was previously enforced and it appears that
subsequent to March 24 the penalty of dismissal was withdrawn for viola-
tions which earned the penalty of dismissal.
s This testimony was, in effect , corroborated by the testimony of
Respondent's witnesses that the requirement to obtain permission was insti-
tuted on March 23.
9 The additional reasons as set forth in the brief are as follows:
Mr. Denius had a poor record with respect to absenteeism and tardiness.
The day before his discharge he was given a written reprimand for
excessive absenteeism . In January 1971 Mr. Martinez was reprimanded
by Mr. Moon , president of the Respondent . He was told at that time that
his work was getting slower and slower ; that he was setting a bad
example for the men as a supervisor and if he didn't improve he would
have to be replaced.
It is noted that the testimony elicited in support of the additional reasons is
not convincing.
thoughts and that there is no basis for inferring that he
considered the additional reasons at the time he in-
structed Abersold to terminate the two men.
Respondent alleges as an affirmative defense that Marti-
nez and Denius were, at the time of their discharges, super-
visors within the meaning of the Act and, therefore, were
not protected thereunder.
Martinez, who at the time of his discharge had been an
employee of Res ondent for 19 years, was appointed to the
position of shop foreman in the middle of 1967 which posi-
tion he held for a little more than a year. He stepped down
from that position at his request but assisted the newly
appointed shop foreman for a brief period in the assump-
tion of his duties. However, it appears that the shop foreman
did not remain very long and, instead of another shop fore-
man being appointed, the plant was divided into sections
and Martinez supervised the machine shop. At that time,
Abersold supervised "fabricating" and other men super-
vised other sections of the shop. It further appears that
about the middle of 1969 Abersold was made shop foreman.
It also appears from the record that Martinez worked
alone in the machine shop and on occasions one or two men
were assigned by Abersold to work there with him. Based
on credited testimony, it appears that for a considerable
period prior to his discharge Martinez did not exercise any
supervision over the one or two men who sporadically
worked with him in the machine shop or made the assign-
ment of said men into or out of the machine shop.
It appears from the record that starting in 1968 or 1969
a chart of the supervisors of the various sections of the plant
was posted by management and that it contained the name
of Martinez as supervisor of the machine shop. However, it
further appears that sometime after it was posted a line was
drawn through Martinez' name . Denius testified that he
attended a supervisory meeting in June 1970 at which Mar-
tinez was not present and that at the meeting Moon an-
nounced that Martinez was no longer a supervisor. This
testimony was denied by Moon and Abersold. Denius fur-
ther testified that when the meeting was over Abersold
scratched out Martinez' name on the supervisory chart, that
he and Miller were present when this occurred, that Miller
asked Abersold why he had done so, and that Abersold
replied that Martinez was no longer a supervisor. Abersold
denied that he drew a line throuMartinez' name on the
supervisory chart and Miller testified that Martinez himself
did it himself which Martinez denied.
As stated hereinabove, Miller was not a convincing wit-
ness and the Trial Examiner is of the opinion that little
weight can be given to his testimony. Demus and Martinez
were the more convincing witnesses with respect to the an-
nouncement of Martinez demotion from supervisory status
and with respect to how his name was stricken from the
supervisory chart. Furthermore, the testimony of Martinez
and other General Counsel 's witnesses that Martinez did
not exercise any supervisory authority after June 1970 and
attended no meetings of supervisors after said date is cred-
ited. Abersold and Moon testified that Martinez did attend
a meeting of supervisors in the beginning of 1971. However,
it is noted that Moon testified that he-reprimanded Marti-
nez in January 1971 for not attending supervisory meetings,
and that Martinez denied he received such a reprimand.
Martinez' denial is credited, but it is inferred from Moon's
testimony that Martinez had not been attending meetings of
su ervisors. Further, as to the testimony of Abersold and
Moon that Martinez attended a supervisors' meeting in Jan-
uary or February 1971, it is noted that Moon testified that
supervisors' meetings were held after 5 o'clock and the time-
cards would indicate the presence of supervisors at such
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meetings . However , the timecards of Martinez for the peri-
od in question were not introduced by Respondent, al-
though they were in the hearing room . Consequently, it is
found that Martinez did not attend any supervisors' meet-
ings after June 1970.
It is further noted that the chart of the supervisors which
had been posted in the shop by management remained post-
ed for a considerable period of time with Martinez' name
deleted therefrom by the line drawn through it. It is reasona-
ble to assume that the notice was intended to advise employ-
ees of who their supervisors were . If the deletion of
Martinez' name from the notice had been inappropriate, it
appears reasonable to assume that Respondent would have
taken some action to correct the misinformation conveyed
by said deletion of Martinez ' name . Respondent offered no
explanation of why such action was not taken.
Based on the above findings , it is concluded that Marti-
nez was not a supervisor within the meaning of the Act at
the time of his discharge on March 24, 1971 , but that, rather,
he was an employee within the meaning of the Act.
As to whether Denius was a supervisor or em ployee with-
in the meaning of the Act at the time of his discharge on
March 24, 1971, it is noted that the parties stipulated that
he was a supervisor up to March 1p8 , 1971. The issue is
whether or not on that date he became an employee within
the meaning of the Act . General Counsel contends that he
was demoted at that time and Respondent contends that he
continued in the status of a supervisor.
There is no dispute in the record that on March 18 Ab-
ersold had a conversation with Denius in which he told him
to cease acting as his assistant shop foreman and to confine
himself to working in the sheet metal department . There is
a contradiction in the testimony , however, as to what was
stated by Abersold . Demus' testimony as to the conversa-
tion at that time is as follows:
A. Mr. Abersold told me-he called me into his of-
fice and Mr . Abersold told me that Mr . Moon told him
to inform me that I would no longer be working as a
supervisor , that I wasn't needed, and he said that Mr.
IVroon said that there was no parts coming in at that
time, that I wouldn 't-that there was a slowup, that I
wouldn 't be needed anymore as a supervisor and that
I was supposed to go over and work in the sheet metal
department and spray painting.
I asked Monty why-I asked him what I had done
wrong. I asked him if I wasn 't doing my job as supervi-
sor, and Monty said to me, "Well , it seems to me you
are doing a lot of screwing off lately," and I asked him,
"What do you mean," and he says, "Well, I see you all
over the shop ." He says , "First, you are back there
talking to Frank Martinez and then you are across the
shop talking to someone else, and then over in another
part of the shop with someone else , and it seems to me
you are just not doing your job. You are just screwing
off a lot," and then he says, "What are you doing back
there talking to Frank ," and I told him, I says, "I go
back to see Frank to check on parts and see if he has
them completed or not for jobs on machines ," and he
says, "Well , I think you are back there stirring up trou-
ble with him too."
I told him, I says, "Mr. Moon told me I was not
supposed to work at all, that I was supposed to do
ust-see to it that the work was done and being per-
formed correctly and done on time , that I wasn't sup-
posed to work at all. I was just supposed to supervise
and he didn 't want me doing anything manual."
Monty says to me, "Well, you don 't have to worry
about that anymore ." He says, "All I know is you are
supposed to go to work in the sheet metal department."
So that was the end of the conversation.
Abersold testified that as of the first part of March Den-
ius was "in charge of paint , sheet metal and final assembly"
and that "he had roughly seven or eight men" under him.
Abersold's testimony as to his conversation with Denius on'
March 18 , is as follows:
A. Mr. Denius mentioned that the guys didn't have
much to do, and their morale was going down due to
the fact that they didn't have parts and they couldn't
assemble the machines, and that's when I told him to
go over into sheet metal because once we did get the
parts in, then we would be ready for the sheet metal
work, but at that time, the sheet metal work was be-
hind.
Q. Would you restrict yourself to what you told Mr.
Denius on that occasion.
A. That's when I told him that it would probably be
a week before the parts would come in or maybe long-
er. There was no way of telling.
I asked him then if he would go over to sheet metal
until the parts came in, and then I told him that I would
watch final assembly.
Denius testified that Abersold did not tell him that the
change in his work assignment was only temporary.
According to credite testimon , it appears that after the
above conversation with Abersold, Denius informed vari-
ous employees that he was no longer their supervisor and
when they sought instructions he referred them to Abersold
and stated that he was no longer a supervisor. It is inferred
from this credited testimony that Demus must have under-
stood from his conversation with Abersold that he was no
longer vested with supervisory powers. It further appears
from credited testimony that in the few days that he was
employed between March 18 and his discharge on March
24 he did not exercise any supervisory powers.
With respect to the contradiction in the above testimony
of Denius and Abersold, Denius was the more convinc-
ing witness of the two and, therefore, his testimony is cred-
ited.10
It is concluded, based on the above findings, that at the
time of his discharge on March 24, 1971, Denius was an
employee within the meaning of the Act.
Based on credited testimony, it appears appropriate to
infer that Moon and Abersold strongly suspected Martinez
of stirring up employees' discontent with their terms and
conditions of employment and of interesting them in union
representation. It further appears appropriate to infer from
credited testimony that Moon , because of Denius' apparent
sympathy with the employees' grievances and because of his
association with Martinez, suspected Denius of favoring
union representation."
While it is well established that an employer may lawfully
discharge an employee for any reason, howsoever unjustifi-
able, as long as it is not discriminatory, nevertheless, the
lack of merit in the reason advanced for the discharge may
be considered in determining whether or not a discriminato-
ry motive existed. Both Martinez and Denius were appar-
ently well qualified workmen. Martinez had been in
Respondent's employ for 19 years and for a period of over
10 The above-credited testimony with respect to Dennis ' reaction to his
conversation with Abersold in informing employees that he was no longer a
supervisor supports this finding . It would appear that if Abersold 's testimony
is the correct version of what was stated, that Dennis ' assignment to sheetme-
tal work was to be only temporary , Demus would not have reacted as he did.
11 It is noted that, according to his credited testimony, Dennis did sign a
union authorization card shortly after he was demoted
UNIMASCO, INC. 405
a year had, as above noted, held the job of shop foreman.
Denius, who had been employed for a period of 3 years,
must have been considered as well qualified since just 2 or
3 months before his discharge he was appointed assistant
shop foreman to Abersold. Moon's testimony clearly re-
veals that he discharged them for leaving the plant on their
20 minute afternoon break without permission. It is inferred
from Moon's testimony that he either believed that he had
expressly promulgated such a rule verbally the previous day
or that he thought such a rule was implicit in the rules which
were announced. The penalty of termination for the break-
ing of such a rule would appear, in the circumstances, to be
rather drastic. It is noted that the penalty of dismissal for
violating similar rules (as posted on March 23) was reduced
shortly thereafter. Furthermore, there is no showing that the
violation of similar rules prior to March 23 was punished by
dismissal. In any event, whether the rule against leaving the
plant without permission was promulgated on March 23 or
created at the time Moon decided to discharge Martinez
and Denius, it was violative of Section 8(a)(1) of the Act 12
and, therefore, termination for the violation of said rule is
violative of Section 8(a)(3) and (1) of the Act. Ertel Manu-
facturing Corp., 147 NLRB 312, 323. It is further concluded
that Moon, despite the fact that both men were well qual-
ified workers, utilized the aforesaid rule about leaving the
plant because he suspected Martinez and Denius of union
activity. This further supports the finding that their dis-
charges were violative ofSection 8(a)(3) and (1) of the
Act.
3. Respondent's conduct with respect to Gary Wiseman
General Counsel contends that Respondent violated Sec-
tion 8(a)(1) of the Act by Abersold inflicting bodily injury
on Wiseman in order to discourage him from adhering to
the Union, and that several days later Respondent construc-
tively discharged Wiseman in violation of Section 8(a)(3)
and (1) of the Act. In support of said contentions, General
Counsel relies on the testimony of Wiseman. Wiseman testi-
fied to a conversation he had with Abersold on March 30,
1971, as follows:
A. I had just come in from break and there was
obvious tension in the air, couldn't talk to no one and
so forth, and I finally asked Mr. Abersold what ev-
eryone was so uptight about, and he said,. "For no
reason," and I asked if it was because of the union, or
because of the parts shortage, and he said, "I don't
believe I need to answer that."
I said, "Is it because of the union, or can we antic-
ipate layoff," and that was what I was most concerned
about, was a layoff, and he said that everyone in the
shop knew what it was about, so I inferred from his-
MR. LERTEN: I object to what the witness inferred.
TRIAL EXAMINER : Sustained.
Q. (By Mr. Greaves) Just state what was said.
A. Okay. I asked what was wrong with the union,
and he looked at me and he said, "So, you're one of
those," and I asked what he meant by that, and he said,
"You will find out soon enough," and he turned around
and walked away back to his office.
12 For the reasons set forth hereinabove.
13 In arriving at the conclusion that Martinez and Denius were employees
within the meaning of the Act and thus were within the protection afforded
"employees" thereunder , the Trial Examiner, has not failed to consider the
fact that neither suffered a reduction in pay at the time of his demotion. This
factor was not considered sufficiently persuasive to overcome the other fac-
tors on which the conclusion is based.
Abersold was questioned about the above -quoted testimony
of Wiseman and, in effect, denied all of said testimony.
Wiseman further testified that shortly after the conversa-
tion he was asked by Abersold to assist him in a welding
operation during which his finger was burned and a ring he
was wearing was damaged. Wiseman's testimony with re-
spect to said incident is as follows:
A. Yes. I was working at the one machine and he
called me over to a different one. He held up a small
piece of steel maybe three inches by three inches by
one-half or three-quarters of an inch thick . He had a
welding hood in his hand , and he said, "I want you to
hold this ." I asked if he was oing to weld it . At first
he said yes, and I said I would like to have a pair of
gloves , and he had a weldin rod in his hand at the time
he held it out , and he says , `How would you like to be
lit up by this," and I just looked at him and he says,
"You don't need any gloves ." I said, "If you're going
to weld to it, I need a pair of gloves."
Then he said he wasn't going to weld to it, he was
going to use it as a guideline and be welding clear up
front.
A. So, I again requested gloves and he said I didn't
need them, he was going to be welding clear up front,
so I went ahead and held the piece, and he started
putting his helmet down, so I looked away, and that's
when he struck an arc right across my wedding ring.
Q. What happened, if anything, after that?
A. Well, I moved pretty quickly. It burnt the side of
my hand at the same time, and he raised up, raised the
helmet from over his face and he laughed.
Q. After you were burned, did Mr. Abersold attempt
to help get you medical attention?
A. No. I went to the restroom. I was going to try to
get the ring off and he came in there. I was running
water over my hand trying to get the ring off, and
asked if he had anything for a burn and he said no, they
had nothing, and he wanted to know what I was doing,
and I told him I was trying to get the ring off, and I kept
doing this.
I asked again if I couldn't see a doctor and get some-
thing for it, and he said, "You can take care of that
when you get off, which is just a matter of a few min-
utes anyway."
Q. What else, if anything, happened that afternoon?
A. Well, when I was trying to get it off and asking
for something to put on it, and he said no, that he didn't
have anything, and he wanted to know how bad it was.
He asked once how bad it was, and I said it was burnt,
and he said he had nothing to put on it.
Q. Did Mr. Abersold at any time apologize to you for
what happened?
A. No.
Abersold testified (with respect to the incident in which
Wiseman's finger was burned) that he was "tacking"14 on
that occasion and requested Wiseman to hold one of the
pieces so that he could fasten the two pieces together with
an electric torch. Abersold further testified as follows:
A. It struck an arc, and as I struck the arc, I felt him
mp back and when I raised by hood up, he burned
his finger, so I looked at his finger and it was-you
could see where it was black so I told him to go wash
14 It appears that tacking consists of spot welding, that is putting in welds
to hold two pieces together rather than to firmly fasten them together.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it off, so he went in the restroom and washed his hand
off.
Q. Did you aim that arc at Mr. Wiseman's hand?
A. No, sir.
Q, What did you aim it at?
A. At the piece I was welding to the frame.
Q. How far away was that?
TRIAL EXAMINER • How far away from his hand was
the point at which you were welding?
THE WrrNess Probably, roughly five inches.
THE WITNESS And, you could see where it was black
and a spark had rolled down there and when I saw that,
that's when I told him to go wash his hand, wash it off.
Abersold further testified as follows:
Q. Did you look at Mr . Wiseman's ring and finger?
A. Yes, sir.
Q. What did you see?
MR. GREAVES Objection, Your Honor. When did he
look at the finger?
Q. (By Mr. Lerten) Did you look at it immediately
after Mr. Wiseman said his finger was burned?
A. I looked at it but I didn't look at it that close. I
wanted him to go wash it off so I could see how bad
it was burned.
Q. When you looked at it immediately after Mr.
Wiseman said his finger was burned, what did you see?
A. I seen a spark about as big as a pinhead had rolled
underneath the ring which would have caused it to
burn his finger because of the ring holding that piece
of slag there.
If it had hit just his finger and rolled off-
Q. When you told Mr. Wiseman to go wash off his
hand, did he say anything?
A. No, he went in and washed his hand off.
Q. Didn't say anything?
A. No, just said he got burned, that's all.
Q. After Mr. Wiseman had washed off his hand, how
long was it after that that he came back and-well, that
he came back?
A. I would say probably two or three minutes.
Q. Did you look at his finger at that time?
A. Yes.
Q. What did you see?
A. I seen a burnt place on his finger, looked like it
was about, oh, probably 1/8 of an inch in diameter, and
then there was a place there on the ring, a little identa-
tion where it looked like a spark had hit ring, hit his nng
and burned into his finger.
Q. Did you examine the ring at that time?
A. No, I paid more attention to his finger than I did
to the ring.
Q. Did you and Mr. Wiseman have any conversation
after he came back from washing his finger?
A. He asked me what I was going to do about the
rin .
6. What did you say?
A. I told him I would talk to Mr. Moon about it. I
didn't know whether our insurance would cover it or
not.
Q. Was that the whole conversation during this inci-
dent?
A. As near as I can remember, yes.
Q. You don't recall anything else?
A. No.
Q. During this incident involving Mr. Wiseman
when you and he were welding together, did you, at any
time , ask Mr. Wiseman how would he like to be lit up,
or words to that effect?
A. No, sir.
Q. When you told Mr. Wiseman to "Hold this piece
of metal ," did you tell him where to hold it?
A. I told him to hold it on the end, which he did.
Q. During this incident , did you, at any time, laugh?
A. No, sir.
Q. During this incident, did Mr . Wiseman ask you if
you had anything for a bum , or words to that effect?
A. I told him we had a first aid kit in the stockroom.
Q. Did he ask you, or did you just volunteer [sic]
that?
A. I told him . I says, "You'd better go get the first
aid kit we have in the stockroom and use it."
Q. Did Mr. Wiseman ask to see a doctor after he was
burned?
A. No, sir.
Q. Did you apologize to Mr . Wiseman because he
was burned at any time?
A. No, I just said I was sorry to see that he got
burned.
Of the two witnesses , Abersold was the more convincing
and, therefore , his above-quoted testimony is credited. The
General Counsel contends that Abersold burned Wiseman's
ring and finger deliberately by directing the electric arc
against the ring. It appears , however, from the credited
testimony of an expert witness , that in the circumstances an
arc could not have been created between the electrode and
the ring since the ring was not grounded , it is necessary to
have a completed circuit in order to achieve an arc , and the
circuit cannot be completed unless the metal against which
the intended arc is directed is grounded . It follows, there-
fore , that , since the circuit could not have been completed
if the electrode had been aimed at the ring on Wiseman's
finger , the injury to his finger and damage to the ring was
not deliberately inflicted . Furthermore , it appears from the
testimony of said expert witness that the damage to the ring
could not have been the result of an arc against it but was
caused by a spark or a piece of burning slag (which it is
inferred flew against Wiseman 's ring and finger accidental-
ly) .
did not return to work the following day but did
return the next succeeding day. It appears from credited
portions of the testimony of Wiseman and Abersold that
Wiseman asked to be compensated for the damage to his
ring on two occasions , that Abersold after checking with
Moon told him that he did not think the Company would
compensate him but that he could file a claim with the
insurance company . It further appears that the second time
he was denied compensation from the Company for his rind,
he told Abersold that he was quitting his job. Abersold s
testimony denying that he, in effect , told Wiseman that "the
same thing could happen again or worse and then he
wouldn 't have any job anyway" is credited . It is concluded
that Wiseman quit his job in anger over Respondent's refus-
al to compensate him for damage to his ring and not, as
General Counsel apparently contends , in fear that Respon-
dent would again inflict physical injury upon him.
Further, it appears that there is no basis for finding that
the Respondent had any discriminatory motive in its con-
duct in the above-mentioned events which precipitated
Wiseman 's decision to quit his job.
It is concluded that General Counsel has failed to sustain
his burden of proof of the allegation that Respondent viola-
ted Section 8(a)(1) of the Act by inflicting personal injury
UNIMASCO, INC. 407
on Gary Wiseman. It is further concluded that General
Counsel has failed to sustain the burden of proof of the
allegation that Respondent constructively discharged Gary
Wiseman in violation of Section 8(a)(3) and (1) of the Act.
4. Other allegations in the complaint
The complaint alleges violations of the Act which are not
mentioned in General Counsel's brief, although it contains
recitals of facts which might be related to said allegations.
It appears that on April 8 Moon called a meeting of
employees and supervisors in the shop and told them that
there would be an election in the plant . It does not appear
that in his statements made at said meeting (as to what
might result from the election) he violated Section 8(a)(1) of
the Act."
There is testimony recited in the brief with respect to a
conversation between Moon and Cates toward the end of
April. It appears from credited testimony that about a
month after Denius was discharged Moon appointed Cates
to fill the vacant supervisory position of assistant foreman
which had been previously held by ^Denius , but stated that
he could not give Cates a raise until "after the union trouble
was settled ." It is inferred from Cates' credited testimony
that at the time the above-quoted statement was made to
him with respect to a raise he had been convbrted to a
supervisor within the meaning of the Act. Therefore, said
statement is found not to have been violative of the Act,
since it cannot be found that it interfered with , restrained,
or coerced him in the exercise of protected activities as an
employee within the meaning of the Act.16
There is also a recital in General Counsel 's brief of testi-
mony with respect to two conversations between Steve Fer-
ron, an employee , and Abersold in the second week of May
1971. As to the first conversation , Ferron testified that when
Abersold was passing out literature for the Company he
asked Ferron if he "really wanted the union to come in" to
which he responded that he "really couldn 't tell." Abersold
denied that he made such an inquiry of Ferron . With respect
to this incident, Ferron was the more convincing of the two
witnesses and, therefore , his testimony is credited . It is con-
cluded that in the context of the entire record the inquiry
interfered with , restrained , and coerced him, and , therefore
constituted unlawful interrogation in violation of Section
8(a)(1) of the Act.
The second conversation was initiated by Ferron's asking
Abersold about his (Ferron 's) work classification, in the
course of which conversation Ferron inquired about the
possibility of a pay increase . Ferron testified as follows:
A. I asked him why I hadn't received a raise and he
said , "Well, ["]-he said that he couldn 't do anything
about that , that he was in the middle , you know, and
he couldn't say either way what happened , but if I
wanted to work full time that summer-I was only
working times-working parttime , and they had frozen
my hours so I could not work full time, and I asked him
if this condition would continue and he said it would,
but it could change and there was a possibility that ti
could be a raise later on , depending on how things
15 Moon recited three alternative results, none of which can be reasonably
construed as a statement which "interfered with , restrained or coerced" the
employees. He also stated that the Union in a plant as small as Respondent's
would be "senseless ." This would appear to be a statement of opinion pro-
tected by Sec. 8(c) of the Act.
16 In the circumstances it appears unnecessary to resolve the issue of
whether the statement would have been unlawful if it had been made to an
employee.
turned out, but I put two and two together for myself.
s s
Q. (By Mr. Greaves) Is that all you recall about the
conversation?
A. Yes.
Q. Now, during this conversation, did Mr. Abersold,
or did he not say that your raise depended on how the
election came out?
MR. LERTEN: Objected to as leading. The witness has
already accounted the conversation, Mr. Trial Examin-
er.
TRIAL EXAMINER• Objection overruled. The witness
has indicated his recollection is exhausted.
You may answer.
THE WITNESS. Yes, he did.
TRIAL EXAMINER: I'm sorry, I didn't hear you.
THE WITNESS- Yes, he did.
TRIAL EXAMINER- What did he say?
THE WITNESS. He stated it would depend on how the
forthcoming election would turn out, whether or not-
TRIAL EXAMINER- You first testified that it was-that
he said it depended on how things turned out-
THE WITNESS: He was referring to the election.
TRIAL ExAMINER: Did he use the word "election," or
did he-
THE WITNESS: Election.
TRIAL EXAMINER -word "thing?"
THE WITNESS: Election.
TRIAL ExAMINER• Is this because you understood him
to mean "election," or do you definitely recall that he
used the word "election?"
THE WITNESS: Election.
TRIAL EXAMINER It's now your recollection he said
"election?"
THE WITNESS: Yes, sir.
On the other hand, Abersold testified as follows with respect
to Ferron's inquiry about a raise:
A. I told him that due to the fact he was working
there part-time, some weeks he was only putting in 15
hours a week. I told him I didn't think he would get a
raise until later on.
Q. Did you say that whether or not he would get a
raise would depend upon how things turned out, how
the election turned out, or words to that effect?
A. I told him that if the production went up, and we
had been having some trouble for quite some time, and
I told him if production would increase, I imagined
everybody would get a raise later on.
Q. Did you say anything about an election?
A. No, sir.
D
Q. Did you ever, at any time, tell Steve Ferron
whether or not he got a raise depended on how the
election turned out at Unimasco, or words to that ef-
fect?
A. No, sir.
With respect to this incident, Abersold was the more con-
vincing of the two witnesses 17 and, therefore, his version of
what was said is credited. Consequently, it is concluded that
r/ It appears that Ferron 's recollection was faulty and that the reference
to an election to which he testified was l ikely an inference which he drew
without an apparent reasonable basis therefor.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there is no basis for finding that Respondent violated Sec-
tion 8(axl) of the Act by statements made to Ferron in the
course of the aforesaid conversation.
W. THE OBJECTIONS TO THE ELECTION
On or about May 25, 1971, the Union filed objections to
the election held on May 18, 1971. The objections are as
follows:
1. Between the date of the filing of the petition [March
17, 1971] and the day of the election [May 18, 1971]
the Employer discharged three employees because
they engaged in activities on behalf of the Petitioner.
2. Between the date of the filing of the petition and the
day of the election the Employer interrogated em-
ployees concerning their union activities and the un-
ion activities of their fellow employees.
3. Between the date of the filing of the petition and the
day of the election the Employer threatened employ-
ees with reprisals because of their union activities
and smypathies.
By the acts and conduct aforesaid and by other acts,
conduct and threats the Employer interfered with the
free choice of the employees in the election and the
election should be set aside.
With respect to Objection 1, it has been found here-
inabove that two employees (Martinez and Denius)
were discriminatorily discharged within the material
period. Although it has also been found hereinabove
that the third employee (Wiseman) was not discrimina-
torily discharged, nevertheless, it is concluded that, in
material substance , Objection 1 is sustained by the rec-
ord.
With respect to Objection 2, it has been found here-
inabove that Respondent did unlawfully interrogate
Ferron approximately a week prior to the election and,
therefore, Objection 2 has been sustained.19
With respect to Objection 3, the record will not sus-
tain a finding that the Company threatened employees
with reprisals because of their union activities and sym-
pathies. Therefore, it is concluded that Objection 3 is
without merit.
The aforesaid objections to the election filed by the
Union also refer generally to "other acts, conduct and
threats." It has been found hereinabove that on March
23 the Company promulgated amendments to its plant
rules in violation of Section 8(axl) of the Act which,
it is found, interfered with the election. Therefore, this
general objection is found to be meritorious.
In view of the above findings with respect to the
objections to the election, it is concluded that the Em-
ployer interfered with the exercise of the freedom of
choice of the employees in the selection of a bargaining
agent and it will, therefore, be recommended that the
election of May 18, 1971, be set aside and a new elec-
tion held at an appropriate time to be fixed by the
Regional Director.
V. THE EFFECT OF THE I UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of the Respondent set forth in
section III, above, occurring in connection with its opera-
tions set forth in section I, above, have a close, intimate, and
is Although it has been found hereinabove that Martinez was unlawfully
interrogated , said unfair labor practice occurred prior to the date of the filing
of the petition for an election.
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
mg and obstructing commerce and the free flow thereof.
VI THE REMEDY
It will be recommended that the Respondent be ordered
to cease and desist from engaging in the unfair labor prac-
tices found herein and take certain affirmative action, as
provided in the recommended Order below, designed to
effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged Frank Martinez and Timothy Denius, it will be
recommended that Respondent be ordered to offer them
immediate and full reinstatement to their former jobs or, if
their jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges. It will be further recommended that Respondent
be ordered to reimburse Martinez and Denius for any loss
of pay they may have suffered as a result of their discrm ina-
tory discharges in the manner set forth in F. W. Woolworth
Company, 96 NLRB 289, 291-293, together with 6-percent
interest thereon in accordance with Isis Plumbing & Heating
Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and upon
the entire record of the cases, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) and (1) of the Act
by discharging Frank Martinez and Timothy Denius on
March 24, 1971.
4. Respondent violated Section 8(a)(1) of the Act by the
following conduct:
(a) Unlawfully interrogating Frank Martinez at the be-
ginning of February 1971 and Steve Ferron during the sec-
ond week of May 1971, and
(b) Promulgating amendments to its plant rules on March
23, 1971, in reprisal for its employees engaging in activities
protected under the National Labor Relations Act, as
amended, and in order to discourage adherence to the Un-
ion.
5. The General Counsel has failed to sustain the burden
of proof that Gary Wiseman was constructively discharged
by the Respondent in violation of Section 8(a)(3) and (1) of
the Act.
6. The General Counsel has failed to sustain the burden
of proof of the allegations of violations of Section 8(a)(1) of
the Act other than those specifically found hereinabove.
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
Respondent, Unimasco, Inc., its officers, agents, succes-
sors, and assigns, shall:
19 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 its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
UNIMASCO, INC.
1. Cease and desist from:
(a) Discouraging membership in the Miscellaneous Ware-
housemen , Drivers & Helpers Local 986 , International
Brotherhood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America, or any other labor organization, by
discriminating against its employees in regard to hire and
tenure of employment or any other term or condition of
employment.
(b) Unlawfully interrogating employees with respect to
their protected activities.
(c) Promulgating amendments to its plant rules in reprisal
for its employees engaging in protected activities or in order
to discourage them from adhering to the Union.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights under Section
7 of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Offer to Frank Martinez and Timothy Denius imme-
diate and full reinstatement to their former jobs or, if their
jobs no longer exist , to substantially equivalent positions,
without prejeudice to their seniority or other rights and
privileges.
(b) Make Martinez and Denius whole for any loss of pay
suffered by them by reason of their discriminatory dis-
charges in the manner set forth in the section hereinabove
entitled "The Remedy."
(c) Immediately notify Frank Martinez and Timothy
Denius , if presently serving in the Armed Forces of the
United States, of their right to full reinstatement, upon ap-
plication after discharge from the Armed Forces , in accord-
ance with the Selective Service Act and the Universal
Military Training and Service Act.
(d) Upon request , make available to the Board or its
agents for examination and copying all payroll and other
records containing information concerning Respondent's
backpay obligation under this recommended Order.
(e) Post at its place of business in Gardena , California,
copies of the attached notice marked "Appendix."20 Copies
of said notice on forms furnished by the Regional Director
for Region 21, after being duly signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof and maintained by
it for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are custom-
arily posted . Reasonable steps shall be taken by Respondent
to insure that said notices are not altered , defaced, or cov-
ered by any other material.
(f) Notify the Regional Director for Region 21, in writing,
within 20 days from the date of the receipt of this Decision,
what steps Respondent has taken to comply herewith."
The allegations that Gary Wiseman was constructively
discharged in violation of Section 8(a)(3) and ( 1) of the Act
are hereby dismissed.
The allegations of violations of Section 8(a)(1) of the Act
which have not specifically been found hereinabove to have
been sustained are hereby dismissed.
It having been found that certain of the objections to the
election filed by the Petitioner in Case 21-RC-12122 are
20 In the event that the Board 's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
21 In the event that this recommended Order is adopted by the Board after
409
meritorious, it is recommended that the election of May 18,
1971, be set aside and a new election be held at an appropri-
ate time to be fixed by the Regional Director.
exceptions have been filed , this provision shall be modified to read : "Notify
the Regional Director for Region 21, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in the Miscella-
neous Warehousemen, Drivers & Helpers Local 986,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any other
labor organization, by discriminating against our em-
ployees in regard to hire and tenure of employment or
an.Z* other term or condition of employment.
W E WILL NOT unlawfully interrogate employees with
respect to their protected activities.
WE WILL NOT promulgate amendments to our plant
rules in reprisal for employees engaging in activities
protected under the National Labor Relations Act, as
amended, or in order to discourage them from adhering
to the Union.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of rights
under Section 7 of the Act.
WE WILL offer to Frank Martinez and Timothy Den-
ius immediate and full reinstatement to their former
jobs or, if their jobs no longer exist, to substantially
equivalent positions, without prejudice to their semon-
ty or other rights and privileges, and make them whole
for any loss of pay suffered by them by reason of their
discriminatory discharges.
WE WILL notif immediately Frank Martinez and Ti-
mothy Denius, ifpresently serving in the Armed Forces
of the United States, of their right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
UNIMASCO, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
an one.
is notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 849 South Broadway, Eastern Co-
lumbia Building, Los Angeles, California 90014, Telephone
213-688-5229.