Unimedia Corp.

National Labor Relations Board - Board Decisions

May 10, 1978

235 N.L.R.B. 1561 (N.L.R.B. 1978)

UNIMEDIA CORPORATION
Unimedia Corporation and Automotive Teamsters,
Chauffeurs and Miscellaneous Employees Local
No. 165, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 20-CA-12529
May 10, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On November 23, 1977, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge3 and
to adopt his recommended Order.
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, and
hereby orders that the Respondent, Unimedia Cor-
poration, Auburn, California, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
I The 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 credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 Chairman Fanning and Member Jenkins agree with the Administrative
Law Judge that the layoff of Vivian Wood was violative of the Act.
However, their conclusion rests on their finding that Wood was an
employee-not a supervisor-within the meaning of the Act and that her
layoff for antiunion considerations was therefore violative of Sec. 8(a)3)
and (I) of the Act.
Wood was employed as a lead person in the subassembly department,
and she reported directly to Production Manager Zapper. Wood testified
that she spent 80 percent of her time performing production work, 10
percent doing paperwork, and 10 percent overseeing the setup of other
employees' work. Like other employees, she punched a timeclock and was
paid for overtime, Wood had no authority to suspend, discipline, or
discharge employees, and she could not authorize overtime. Wood did
participate, at the direction of Zapper, in the interviewing of job applicants
and the evaluating of employees. However, based on the uncontradicted
testimony of Wood and Zapper, it is clear that Zapper made all final
decisions as to hiring and evaluating, frequently changed employee
evaluations done in pencil by Wood, and independently reviewed actions
taken by Wood. Zapper also directed Wood as to making work assignments
and determining priority work. Based on the foregoing, Chairman Fanning
235 NLRB No. 215
and Member Jenkins find that the evidence fails to demonstrate that Wood
exercised a degree of independent judgment in regard to directing or
evaluating employees sufficient to establish that she was a supervisor within
the meaning of the Act.
3 Member Murphy adopts the Administrative Law Judge's rationale and
conclusions with respect to Vivian Wood in its entirety in the absence of
exception thereto. Accordingly, she finds it unnecessary to join in fn. 2,
supra.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This case
was heard before me in Sacramento, California, on July
18-21, 1977. The charge was filed February 25, 1977, and
amended March 23, by Automotive Teamsters, Chauffeurs
and Miscellaneous Employees I ocal No. 165, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Union). The complaint issued
April 28, was amended during the hearing, and alleges that
Unimedia Corporation (Respondent) has violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act
(Act), as amended.
The parties were permitted during the hearing to intro-
duce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. Posttrial briefs were filed for
the General Counsel and for Respondent.
1. JURISDICTION
Respondent is a California corporation engaged at a
plant in Auburn, California, in modifying television receiv-
ers for educational and industrial uses. Its annual sales
directly to customers outside California exceed $50,000.
Respondent is an employer engaged in and affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
111. ISSUES
The complaint alleges that Respondent committed vari-
ous verbal acts in violation of Section 8(aX)( in February
and early March 1977; that it discharged five employees '
on February 11, 1977, and four more2 on February 25,
1977, in violation of Section 8(aX3) and (1); and that it has
refused to recognize the Union as the representative of its
production and maintenance employees since February 9,
1977, in circumstances constituting a violation of Section
8(a)(5) and (1).
The answer denies any wrongdoing.
1 Elizabeth Dunford, Vickie Klar, Kenneth Mullins, Mary Pearson, and
Vivian Wood.
2 Steven Currell, William Goff, Steven Hickok, and William Moss.
1561
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Background: As mentioned, Respondent is engaged in
the modification, or "jeeping," of television receivers. It
used only Sony brand receivers, in 9-, 12-, 15-, 17-, and 19-
inch sizes, at relevant times. Its usual source of supply is
Norcal Electronics, Inc., a Sacramento firm.
Respondent came into existence in 1970, manufacturing
fiberglass television consoles in Hayward, California, near
San Francisco. It began to modify receivers in 1971, and
moved to Auburn, in the Sierra foothills, in July 1974. The
founder and corporate president is William J. McLaughlin.
His wife, JoAnn, is vice president and treasurer. The two of
them own all of the Company's outstanding stock. They
also own the plant premises, which they lease to the
corporate entity.
In November 1976, McLaughlin told Graig Zapper,
Respondent's production manager at the time, that he had
moved the Company to Auburn "to get away from the rat
race and the union problems" of the bay area, because of
the lower wage levels around Auburn, and because Auburn
is "such a beautiful area to work in."
Preorganizational chronology: By July 1976, according to
McLaughlin, Respondent had incurred "an ungodly back-
log" of orders, causing concern that it was getting "a bad
name in the industry." It then had 12 or 13 production
employees and, in addition, contracted out most of the
subassembly of printed circuit boards to the Nevada
County Rehabilitation Center, a workshop for the handi-
capped. The subassembly function consists of building
circuit boards and assembling input panels. The produc-
tion process then is completed by assembly employees, who
adapt the "stuffed" circuit boards to standard receivers.
To deal with the backlog, Respondent created the
position of production manager in July, and embarked
upon a plant expansion project a month or two later.
Zapper was hired as production manager. He began an
immediate buildup of the work force, to a peak of 34 on
about December 1, in part by establishing an in-plant
subassembly department in lieu of the arrangement with
the rehabilitation center. The expansion project meanwhile
moved ahead. It was about 90 percent finished by the time
of the hearing, enlarging the floor area from 4,800 to 7,200
square feet and enabling installation of automated sheet
metal equipment.
In November 1976, Respondent engaged Richard
Rhodes, a self-employed business consultant in the nearby
town of Nevada City, to evaluate its fiscal procedures.
Rhodes' examination revealed that Respondent's proce-
dures were "very poor," and on November 12 he submitted
a written report recommending a number of corrective
measures.
Rhodes thereafter was retained as an ongoing financial
consultant, on an hourly basis. He concluded, after delving
3 According to a graph attached to Zapper's analysis, previously
mentioned.
4 According to a report prepared by Rhodes incidental to the NLRB's
investigation of the charge herein.
I Thus, starting in mid-December, Zapper canvassed the country for as
many of this receiver as could be obtained, to meet pending orders; by letter
further into Respondent's situation, that it was in a "very
poor cash-flow position." At or about the same time,
Zapper did an analysis disclosing that the profit margin in
the fiscal year ending October 31 had been only 3 percent
and that two of the lines actually had lost money. Rhodes
consequently recommended, in November or December,
that outside financing be sought to generate operating
capital, and began "driving home the need for a price
increase" as well.
Respondent applied to the two Auburn banks for loans
and to Norcal Electronics for relaxation of its $80,000
credit limit. Both loan applications were rejected, Rhodes
seeing Respondent's small profit margin as the reason, but
Norcal raised the credit limit to $130,000. Whether or not
on Rhodes' recommendation, it also was decided that the
payroll had become excessive, so attrition was permitted to
lower it by nine in December.
Complicating the picture, Respondent received unofficial
but authoritative word in December that Sony was to
discontinue production of its 9-inch receiver. The Sony 9
inch, while not Respondent's most popular adaptation,
figured in about 17 percent of dollar sales in the just ended
fiscal year,3 and in about 30 percent of numerical sales in
the last calendar quarter of 1976. 4 Although official notice
of the discontinuance was not to be received from Norcal
until February 2, 1977, Respondent began preparing for
the eventuality in December.5
By late December, Rhodes had evolved from a financial
consultant to an active participant in management general-
ly. He told McLaughlin at that point that the Company
was "out of hand," and that consideration should be given
to reorganization and layoffs. He felt, among other things,
that the subassembly department was underproductive and
that it might be well to restore that function to the
rehabilitation center, which seemingly had done it more
economically. On December 31, Rhodes and McLaughlin
worked up a new organization chart, reallocating manpow-
er and responsibility among Zapper, Karol Freed, the chief
engineer, and David Rigg, just hired as materials manager.
The chart was implemented January 2.
As January progressed, Rhodes testified, "It really
became more and more apparent that the company was in
very bad financial condition"-that it was "rapidly going
downhill." It was known by then, he continued, that
November and December "had not been very good
months," and he and McLaughlin "may have had prelimi-
nary discussions" concerning the trend's persistence
through January even though final figures were not in.
January invariably is a poor month, according to
McLaughlin.
At length, on January 25, Rhodes and McLaughlin
decided to lay off five assembly and subassembly employ-
ees as of Friday, January 28. Selection of the five was made
January 27, after consultation with Zapper, Freed, and
Rigg, and the move proceeded as planned. There is no
contention that this layoff was improper.
of January 5, 1977, he informed Respondent's customers of the discontin-
uance and the attendant possibility that "orders may be delayed." As it
turned out, enough were found not only to meet existing orders, but also to
accept new ones as late as February. In addition, quoting from Rhodes'
testimony, McLaughlin "was looking for alternatives to the 9-inch as early
as December."
1562
UNIMEDIA CORPORATION
McLaughlin recalled that Rhodes thought the layoff
necessary because of the cash flow situation and argued for
the liquidation of the subassembly department, while he
regarded the loss of the 9-inch Sony as the overriding
consideration and favored retention of subassembly in the
belief that its "constructive" possibilities had not been
exhausted. The cash situation suffered additional aggrava-
tion on January 27, according to Rhodes, when Norcal
Electronics lowered Respondent's credit limit from
$130,000 to $120,000. This assertedly forced Respondent
into a pay-on-delivery posture as a practical matter, the
new limit already having been exceeded.
On January 28, following the layoff, McLaughlin pre-
sided over a meeting of the remaining employees, during
which he led them on a tour of the plant, spoke of new
products being developed, and talked expansively of
Respondent's fine future. He depicted the layoff as elimi-
nating "dead wood," and, characterizing those remaining
as "the cream of the crop," assured them that their jobs
were secure-that there would be no more "weeding out."
McLaughlin tempered his enthusiasm, however, citing the
loss of the 9-inch Sony as a troublesome circumstance and
cautioning that there probably would be no raises for a
year or so. Rhodes did not attend this meeting.
The organizational activity: The prospect of a year
without raises did not sit well with the employees. The
Union was contacted and an organizational meeting was
held February 4 in an Auburn restaurant, attended by 12
employees and 3 officials of the Union. Also in the
restaurant at the time, but not attending, were Zapper and
Rigg. One of the Union's officials, Arthur Rose, told
Zapper before the meeting that Zapper could not attend
because he was a part of management.
Rose presided over the meeting, which lasted about 2
hours. He described the structure of the International
Brotherhood of Teamsters, said that the Union could
obtain improved wages and benefits for Respondent's
employees, and explained organizing procedures. Authori-
zation cards eventually were distributed, Rose stating that,
by signing, the employees would be authorizing the Union
to represent them. He elaborated that the Union would
demand recognition from Respondent on the basis of
cards, and that the cards also would be used to support an
NLRB election petition. Rose urged that the employees, in
addition to signing cards, perfect their memberships in the
Union at the earliest opportunity. He said that those
joining before a ratification vote on a bargaining contract
with Respondent would have to pay only $20 to join-a $6
initiation fee, plus a first month's dues of $14-as against
the customary $100.
The authorization cards, all identical, were in this form:
Authorization for Representation Under the
National Labor Relations Act
I, the undersigned employee of
COMPANY
authorize Teamsters Organizing Committee, Division
of Local 165, Sacramento, affiliated with
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS, to repre-
sent me in negotiations for better wages, working
conditions, fringe benefits and job security.
This authorization supersedes any similar authority
previously given to any person or organization.
My Signature
DO NOT PRINT
My Address Phone
STREET
City Dept.
Date Present Wage
THIS CARD IS STRICTLY CONFIDENTIAL
All 12 in attendance signed and turned in cards during
the meeting. They were Ronald Bizzell, Steven Currell,
Elizabeth Dunford, William Goff, Steven Hickok,6 Vickie
Klar, Betty Montgomery, William Moss, Michael New-
man, Mary Pearson, Stuart Walmsley, and Vivian Wood.
Another, Kenneth Mullins, signed and turned in a card on
February 7. 7 His signature was solicited by Wood, who
told him that, by signing, he would be designating the
Union as his representative.
On February 7, the Union sent this letter of demand to
Respondent:
Automotive Teamsters, Chauffeurs & Miscellaneous
Employees, Local Union No. 165, 716 - 19th Street,
Sacramento, Calif., 95814, has been authorized by a
majority of your employees to represent them for the
purposes of collective bargaining on wages, hours and
working conditions in the following unit:
UNIT EMPLOYEES: All production, assemblers, tech, etc.
EXCLUDING: Guards, management personnel, clerical
and supervisors as defined by the National Labor
Relations Act.
We hereby offer to submit the authorization cards
signed by your employees to an impartial person for
examination and count. We respectfully request that
your company recognize this Union as exclusive repre-
sentative of the employees as authorized and that
negotiations on the terms and conditions of a collective
bargaining agreement commence at the earliest possible
date.
Respondent received the letter February 9. Its comple-
ment at that time, management and nonmanagement in all
categories, consisted of 24 people. Of the 13 card signers,
counsel stipulated during the hearing that all but Vivian
Wood were in the demand unit, Respondent contending
and the General Counsel disagreeing that Wood was a
supervisor and thus out. Four of the nonsigners-
7 Mullins inadvertently dated his card January 7 instead of February 7.
ADDRESS
6 Hickok's name is erroneously spelled Hickock in the transcript.
1563
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McLaughlin, Zapper, Freed, and Rigg-indisputably were
supervisors. A fifth nonsigner, Kevin McLaughlin, plainly
was outside the unit as the son of the sole shareholders. 8 It
is clear, leaving unresolved the disputed status of several
other nonsigners, plus Wood, that a majority of the
employees in the demand unit had signed before the
demand.9
The allegedly unlawful February 11 layoff. On Friday,
February 11, Respondent laid off another five employees-
Elizabeth Dunford, Vickie Klar, Mary Pearson, and Vivian
Wood, all subassemblers, plus Kenneth Mullins, an assem-
bler and sheet metal worker. The subassembly department
thus was eliminated, although, as will be seen, Klar
returned to work the following Monday and continued to
do some subassembly work. This layoff is alleged to have
been unlawful.
Those being laid off learned of their selection at or about
10 a.m. on February II, when Zapper called them to his
office in a group to give them their final checks and letters
of recommendation. He told them the layoff was occa-
sioned by an overstock of subassembly parts, and that they
were invited to an employee meeting afterwards for
particulars. Their checks and letters had been hurriedly
prepared that morning. McLaughlin recalled that "it was a
very hurried day because we had so much work that we
had to get done"; JoAnn McLaughlin, enlisted to assist,
testified of its being a "very busy" morning; and Zapper
remembered that the shortness of time "caused errors in
some of the checks" and prevented some of the letters of
recommendation from being done by the time he had
summoned the employees to his office.
In addition to the checks and letters, this notice, drafted
in rough by McLaughlin the night before, was prepared
and posted the morning of February 11:
February 11, 1977
TO ALL EMPLOYEES:
UNIMEDIA has experienced additional delays in
changing over to a replacement nine-inch model for the
SMT-9 and UMT-9 Series. We have experienced
similar delays in getting the new ULT Series into
production. We presently find ourselves with an inven-
tory of subassemblies (2 months) sufficient for phase
out of the present SMT/UMT 9 and the present UMT
17 and UMT 19. We plan to discontinue the UMT-12
series shortly and have announced the discontinuance
of the UMT-15.
In order to prevent the small profit factor we have
experienced recently from going negative, we unfortu-
8 A conclusion disputed by Respondent during the hearing, but conced-
ed in its brief. See, generally. Cerni Motor Sales, Inc., 201 NLRB 918 (1973);
Parisoff Drive-In Market, Inc., 201 NLRB 813 (1973).
9 In patent disregard of the stipulation of counsel, and without explica-
tion, Respondent contends in its brief that Bizzell should be excluded. It
further contends in its brief, on an expectation-of-recall theory, that those
laid off January 28 should be included. That issue was not litigated, the
plain sense of the stipulation being to remove those people from consider-
ation. Because of the conclusivity to be given stipulations, these contentions
are rejected. E.g., The Kroger Co., Houston Division, 211 NLRB 363, 364
(1974).
s0 On February I , early in the morning, Rose and another union official
nately must implement an additional cut back in the
PC assembly area.
We appreciate your support and hope you under-
stand the present predicament which is created by
Sony's policy of cutting products that we use from their
product line without prior notice.
We are desperately looking for alternate stable
sources of product to prevent repeat situations in the
future.
We have prepared letters of recommendation for
employees that will be laid off and have marked their
personnel files for rehire.
Sincerely yours,
William J. McLaughlin
The employee meeting mentioned by Zapper convened
in late morning of February 11. It lasted about 30 minutes,
with Rhodes doing most of the talking. He used no notes.
Rhodes introduced himself as Respondent's financial
adviser, then declared that this latest layoff was an
economic move necessary to give the engineering depart-
ment time to get new product lines together. He stated that
the action also was indicated by an overstock of subassem-
bly parts, by the loss of the Sony 9-inch, and by Respon-
dent's "very critical economic times" in general. He then
embarked upon a detailed recital of economic data,
speaking of "lagging" accounts receivable, a lack of
purchase orders, the $10,000 credit reduction imposed by
Norcal, and a reputed $30,000 deficit incurred in the
November-through-January quarter.
Rhodes' recital, however, was not one of unrelieved
bleakness. To forestall employee "bolting and running," as
he put it, he mentioned new products that were being
developed, voiced the hope that there would be no more
layoffs, and "stressed very strongly the fact that the
company would survive."
The union situation surfaced about halfway through the
presentation, when Rhodes called attention to the Union's
demand letter and read a telegram received from the
Union that morning.' 0 After stating that the layoff had
nothing to do with the demand and acknowledging the
employees' right to organize, Rhodes declared that he saw
the Union as "a problem" since, in his opinion, Respon-
dent was in no financial condition to pay union wage and
benefit levels. Building on that theme, he proclaimed that
Respondent would not accept a union, that there are legal
ways to avoid doing so. He elaborated that Respondent
could "roll over and die," emerging as a research-and-
development or engineering laboratory with no production
employees, or could use an all salaried production crew.
sought to meet with McLaughlin at the plant. They had learned the day
before that another layoff was in prospect, and they told McLaughlin of
their concern that Respondent not commit unfair labor practices. McLaugh-
lin would have none of it, peremptorily demanding that they leave. In the
same vein, the Union sent this telegram, received by Respondent the
morning February I I:
Please be informed that any action you may take regarding your
employees and our members could possibly be an unfair labor practice,
and could result in a prison term, a fine, or both. We recommend that
you consult a labor attorney before taking any action.
1564
UNIMEDIA CORPORATION
One way or another, he reiterated, the Company would
"survive this crisis."
A question-and-answer period followed, during which
Kenneth Mullins reminded McLaughlin of his cream-of-
the-crop remark and assurances of job security on January
28, and asked what had happened. McLaughlin replied:
"The Union happened." Rhodes quickly interjected that
McLaughlin meant it takes money to pay legal fees to fight
unions, and that that was the reason for the layoff.
Rhodes ended the meeting by saying that Respondent
wanted the employees to rethink their feelings about union
representation over the weekend, then devote the first hour
of work Monday morning to reexamining their sentiments
collectively. "
Moments before the meetingjust described, McLaughlin
and Rhodes summoned Betty Montgomery, Respondent's
most senior employee, to McLaughlin's office, where, as
McLaughlin remembered, "we kind of presented the
speech to her that we [later] presented to the rest of the
employees." In so doing, Rhodes told Montgomery that
Respondent was financially unable to deal with a union,
and McLaughlin told of a friend whose business had gone
broke allegedly because of a union.'2 Rhodes showed
Montgomery some "facts and figures" purporting to depict
Respondent's economic distress, adverted to the problems
posed by the loss of the Sony 9-inch, and said that
Respondent's doors "could be closed" because of the
Union. 13
And February 11, after the employee meeting, Zapper
heard JoAnn McLaughlin report to her husband that she
had just returned from a market where a number of the
employees had gathered, and that it appeared that they
were "all against us." She asked: "What's going to happen,
Bill? Are we going to lose the company?" McLaughlin
replied that he did not think so; that Respondent had
"various options," one of which would be to "cut back to
the bone and allow our accounts receivable to wash over us
while we wait out this union problem." 14
The record is in conflict concerning the deliberations
that preceded the February 11 layoff. Rhodes testified that
he and McLaughlin seriously considered the idea during a
meeting of the two on Friday, February 4. The meeting had
been prompted, he continued, by verification that Respon-
dent had incurred a November-through-January deficit
exceeding $30,000 and was "losing money in virtually every
phase of business," and by the February 2 receipt of
" This credited version of the meeting is an amalgam of the nmutually
reinforcing testimony of Zapper. Steven Currell, Elizabeth Dunford, Steven
Hickok, Vickie Klar, Betty Montgomery, Kenneth Mullins, Mary Pearson.
and Vivian Wood.
Rhodes admittedly stated that Respondent "would operate in virtually
any form that it had to to exist, even if that meant limiting production" or
using management "out there on the line." He asserts, however, that those
remarks were in the context of Respondent's overall economic dilemma, not
the union situation. rhis, of course, does not square with his professed
concern, when addressing himself to the economic picture, that he hold
forth a sufficient prospect of job security to keep the employees from
"bolting and running."
Rhodes denies saying that Respondent would not accept a union, or that
he linked the layoff to Respondent's need of money to fight the Union. That
the latter point was made is indicated not only by the preponderance of
testimony about the meeting, but also by McLaughlin's admittedly saying
during the meeting that "it costs lots of money to contest labor disputes," by
Respondent's thereafter posting notices on the bulletin board detailing the
Norcal's "official" notification about the Sony 9-inch
receiver. That "was the first time," Rhodes averred, "that I
really became cognizant of the fact that, without a 9-inch
television set, Unimedia would be in a lot of trouble." It
had become apparent, he elaborated, that Respondent's
"livelihood virtually demanded that we secure additional 9-
inch sets."
On February 7, after thinking on it over the weekend,
Rhodes stated, he and McLaughlin decided to eliminate
the subassembly department on February 11, and to tell
Zapper, Freed, and Rigg on February 8. The supervisors
were told on February 8, according to Rhodes, and he and
McLaughlin began plans that same day for an all-employee
meeting on February II enabling Rhodes to explain the
Company's action.
Rhodes denies knowing of the union activity when the
decision was made, stating that his first knowledge came
with news of the Union's demand letter.
McLaughlin's testimony of the prelayoff deliberations,
although doubtless intended to coincide with and reinforce
that of Rhodes, succeeded only occasionally. He testified at
one point. consistently with Rhodes, that they contemplat-
ed the decision on February 4 and that it was "finally
made" on February 7; and that major considerations were
the "quite shocking" revelation of the $30,000 deficit and
formal word that "the 9 was dead." McLaughlin further
testified, however, that Rhodes recommended elimination
of the subassembly department because of an overstock of
subassembly parts as revealed by an inventory purportedly
done by Zapper February 2-a notable omission from the
Rhodes version.
McLaughlin testified elsewhere that he and Rhodes met
"about a week" after the January 28 layoff and that the
decision to effect a second layoff "must have been [made]
at that meeting," there being no intimation that the process
spanned two meetings separated by a weekend; and yet
elsewhere that the decision was made on February 8. The
discrepancies multiplied and worsened with McLaughlin's
assertion that Zapper and the other supervisors first were
told of the decision on February 4, then that it was on
February 7, then that "I'm not clear on my dates," and
finally: "I don't recall a meeting with Mr. Zapper." At still
another point, McLaughlin testified that Zapper, Freed,
and Rigg "were told about the layoffs" during a manage-
ment meeting the morning of February 11. McLaughlin.
mounting legal expenses of the antiunion effort. and by McLaughlin's
uncontrovertedly hewing to that theme in conversations with Steven
Hickok, detailed below.
12 Similarly, in two instances in November 1976, McLaughlin told
Zapper about the labor problems of a friend in the bay area. McLaughlihn
vowed both times that there was "no way" he would allow a union in hi,
plant.
'3 That Rhodes made the remarks attributed to him is based on
Montgomery's credible and uncontroverted testimony
14 Zapper is credited that this exchange occurred, the denials of the two
McLaughlins notwithstanding. As will be shown later, McLaughlin's
credibility was badly flawed much of the time. Nor was Mrs. McLaughlin
particularly convincing. She testified that her husband never discussed his
attitude towards unions with her before February II, and that she did not
know what his attitude was. While this perhaps is possible, it is so unlikely in
the circumstances as to suggest that her paramount concern while testifying
was not the truth. Zapper's testimony, in contrast, was believable because of
his overall demeanor and its richness of detail.
1565
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
like Rhodes, denies knowledge of the union activity when
the decision was made.15
The point of sharpest evidentiary conflict surrounds an
alleged management meeting on February 10. Zapper, the
General Counsel's principal witness, testified that
McLaughlin, Rhodes, Freed, Rigg, and he met in
McLaughlin's office that day-he could not recall if
morning or afternoon-in reaction to the Union's demand,
received February 9. McLaughlin and Rhodes deny that
there was such a meeting. Freed, as is later developed,
tends to corroborate Zapper. Rigg did not testify.
Zapper testified that Rhodes opened the meeting by
saying that he supposed everyone knew by then about the
Union's letter, after which the letter was discussed.
McLaughlin presently wondered aloud who the "perpetra-
tor" might be, as Zapper recalled, triggering a round of
speculation concerning those for and against the Company
vis-a-vis the Union. Zapper continued that various names
"were tossed back and forth," with McLaughlin expressing
the belief that Betty Montgomery "probably wasn't in-
volved," and that Stuart Walmsley probably was not either,
"because he was almost like a member of the family."
The meeting eventually focused upon possible alterna-
tives, according to Zapper, with Freed suggesting that
Respondent might become a research-and-development
operation, and "farm out the [production] work." Zapper
stated that someone else raised the idea of production tasks
being done by management personnel, and that Rhodes
advocated laying off as many as possible who might vote
for the Union, expanding that, if "handled properly," it
would appear as "an extension" of the January 28
economic layoff. Another alternative, that of recognizing
the Union, received lip service, according to Zapper.
Zapper recalled that McLaughlin favored Rhodes' layoff
idea, echoing Rhodes that it would eliminate union votes
should there be an election. With that, Zapper continued,
he and Rigg were told to inventory subassembly stocks that
evening, and the meeting ended seemingly without a final
decision.
As indicated, Zapper received significant corroboration
from Freed that the meeting took place and that it
approximated Zapper's description. Freed, one of Respon-
dent's witnesses, testified on cross-examination, before
retreating into a shell of resolute and self-impeaching
nonremembrance, that there was a management meeting
after the union demand, "to determine what its [Respon-
dent's] position should be with respect to the employees'
interest in a union," and that they "possibly" discussed
1s McLaughlin's testimony was punctuated by an overnight recess. Upon
resuming the second day, he testified that he had had memory problems the
day before because he had neglected to take medication for a "high blood
pressure condition." The discrepancies in his testimony, however, were not
confined to the first day. Further, absent confirmation by competent
medical authority, it would be inappropriate to give less than full face value
to the first-day record he made.
IF Freed explained his claimed inability to recall this way: "I don't
usually remember a lot of details of things that are not related to engineering
and electronics. It's a peripheral thing and I have a memory of relevances. If
something is not really important to me and not really relative, it exists, it
happens, and it's gone. That's essentially it."
17 There is no evidence that the January 28 layoff was accompanied by
comparable turmoil.
"who among the employees wanted the Union and who
didn't."
In augmentation of their denials concerning the meeting,
Rhodes and McLaughlin testified that Rhodes visited the
plant only briefly the morning of February 10, and then in
the company of another Rhodes client, a plumber by the
name of Dan Wheat. McLaughlin, although "rather frus-
trated" at "taking the time out to entertain somebody from
the outside"-"we had a lot of things happening at
Unimedia"-supposedly took Wheat on a quick tour of the
plant, after which they all journeyed to the site of a new
home McLaughlin was building, to discuss some work
Wheat was to do.
Then they returned to the plant, so the story goes,
whereupon McLaughlin briefly showed the Union's letter
to Rhodes, beyond earshot of Wheat, after which Rhodes
and Wheat departed at about lunchtime. Wheat, called by
Respondent, corroborated Rhodes and McLaughlin. That
afternoon, according to Rhodes, he called on Respondent's
corporate attorney about the Union's demand, but did not
return to the plant. Neither Rhodes' appointment book nor
his February billing of Respondent reflects a February 10
meeting.
Zapper is credited regarding the February 10 meeting,
and Rhodes and McLaughlin perforce are discredited in
their renditions of prior deliberations leading to an earlier
layoff decision. As noted before, Zapper's demeanor was
convincing and his testimony rich in persuasive detail.
Freed's corroboration, although spare, must be given
especial weight because of his manifest reluctance and
eventual refusal to say anything that might redound to
Respondent's detriment,I beyond which Rhodes' and
McLaughlin's stories of prior deliberations are flawed by
inconsistencies on fundamental matters, McLaughlin in
particular betraying a dearth of testimonial reliability.
Finally, the turmoil on February II dealing with the
paperwork component,s 7 coupled with McLaughlin's
rough drafting of the notice to employees just the night
before, suggests a freshly minted decision.18
There is no dispute that McLaughlin, Rhodes, Zapper,
Freed, and Rigg met in McLaughlin's office the morning of
February 11, in advance of the layoff. It was at this
meeting, according to McLaughlin at one stage of his
testimony, that Zapper, Freed, and Rigg "were told about
the layoffs." Consistent with that, Zapper testified that he
tendered a written inventory report he and Rigg had
prepared the night before, and that Rhodes announced,
after looking at it, that a layoff of the subassembly
department, plus Mullins, "would be in order." 19 Rhodes
1i This is not to ignore the alibi involving Wheat, or the voids in Rhodes'
appointment book and February billing. The Wheat alibi, if credited,
accounted only for the morning of February 10, whereas Zapper could not
recall if the meeting was morning or afternoon; and Rhodes exuded far too
much sophistication to leave a self-incriminating "paper trail." Although
now practicing his livelihood in a small town, Rhodes has had years of high-
level corporate experience-with Bechtel Corporation, in a division respon-
sible for its business ethics worldwide, as controller for Dart Industries, and
as controller for Boise Cascade Corporation.
t9 The implication being that the inventory showed an overstock of
subassembly parts. Zapper credibly testified in explanation of the docu-
1566
UNIMEDIA CORPORATION
or McLaughlin also announced-this being undisputed-
that there would be an employee meeting later in the
morning at which Rhodes would justify the layoff.
They then discussed Respondent's "ongoing need" for
some subassembly work, according to Zapper, and he
recommended retention of Vivian Wood, the most senior
subassembler. McLaughlin excepted to that, prompting
Zapper to mention Vickie Klar, she having had both
assembly and subassembly experience. McLaughlin
agreed, instructing Zapper, as Zapper recalled, to "catch
her in the parking lot before she gets out and have her
report to work Monday morning."
Zapper testified that, in this same meeting, speculation
arose anew about the union sentiments of particular
employees, with Freed saying he would speak with Steven
Hickok to ascertain his views.
McLaughlin's version of this meeting differs from Zap-
per's in two notable respects. He testified telling Zapper to
have Klar "come back sometime next week and we'll see if
we could find work for her," but that he had nothing
specific in mind and envisioned her coming in "the latter
part of the week." McLaughlin further testified that the
Zapper-Rigg inventory was dated and turned in February
2, and was a basis for the supposed earlier deliberations
between him and Rhodes, even though his pretrial affidavit
gives a February II date for the inventory. Trying to
reconcile the discrepancy, McLaughlin stated that, in
photocopying the original of the inventory, that portion of
the margin bearing the date was not reproduced, and that
the original later was lost. The February II date in his
affidavit consequently "was an oversight on my part," he
continued.
Rhodes had little to say about the meeting except to say
that it was "very short," to acknowledge its undisputed
elements, and to mirror McLaughlin regarding the Klar
matter. Freed contributed nothing of substance other than
to deny that he spoke of seeking Hickok's sentiments. Rigg,
to repeat, did not testify.
Zapper's version of the meeting is credited. Apart from
the credibility considerations previously raised, there was a
telltale lack of meaningful corroboration among McLaugh-
lin, Rhodes, and Freed about the meeting. Additionally,
McLaughlin's attempted reconciliation of the date discrep-
ancy regarding the inventory was lame beyond belief; and,
as will be seen, Zapper was verified by ensuing events-
Klar did return to a waiting job the next Monday, and
Freed did interrogate Hickok.
As indicated, Freed and Hickok had a conversation
shortly after the meeting just described, Freed asking why
the employees wanted union representation. Hickok men-
tioned low pay, mandatory overtime without notice, and a
cutback in unspecified benefits. Freed responded that he
opposes unions because they "put people in a box" that
precludes advancement based on merit, and that he had
quit some jobs for that reason. 20
ment, however, that it disclosed an insufficient inventory to meet some
pending orders, and that some of the overstocks pertained to lines being
discontinued.
20 Hickok is credited concerning this conversation, Freed's denials
notwithstanding. Hickok imparted testimonial sincenty, while Freed, as
mentioned, was singularly unimpressive in that regard.
21 Dunford's version of this conversation is credited. Mrs. McLaughlin
Also as indicated, Zapper informed Klar as she was
leaving the plant following the employee meeting that,
while it had been necessary to lay off the entire subassem-
bly department, she was to return to work the next
Monday. She did return, was put to work, and stayed on
the payroll until April 27, when there was a general layoff
of 5 or 6 weeks. She continued to do some subassembly
work, although less than before, as did employees who had
worked before in other areas.
In early March, Elizabeth Dunford, one of those laid off
February II, had a conversation with JoAnn McLaughlin
in an Auburn grocery store. Dunford said that the layoff
had been difficult for her because she was going through a
divorce and had a young son to support. Mrs. McLaughlin
responded that, if the employees had been "more patient"
and not "tried to get a union in," "things would have
worked out" and the employees "could have had better
working conditions or more pay."2 '
The allegedly unlawful February 25 layoff: On Friday,
February 25, there was yet another layoff. It affected four
employees-Steven Currell, William Goff, Steven Hickok,
and William Moss-and, like that of February II, is
alleged to have been unlawful. It reduced Respondent's
complement to about the prebuildup level of the preceding
July.
The decision was made February 15, to be implemented
February 18, during a meeting of McLaughlin, Rhodes,
and Freed in Rhodes' Nevada City office. McLaughlin and
Freed had been in Los Angeles the day before, exploring
with the Hitachi people the feasibility of a substitute for the
Sony 9-inch receiver. It was that trip's reputed failure that
triggered the decision, according to Rhodes and McLaugh-
lin, although Rhodes assertedly urged a further cutback on
the more general ground that Respondent was "going
down the drain" because back orders "were virtually
nonexistent" and the Company was "strapped for cash." It
was agreed to reduce the crew to pre-Zapper proportions,
Rhodes suggesting selection by seniority because "we're
probably treading on some thin ice" in light of the union
ferment.
Zapper was not privy to this decision, apparently having
lost favor with McLaughlin. Rhodes long since had told
McLaughlin that Zapper "wasn't heavy enough" for the
responsibilities of his position. And, anticipating the
February 25 layoff, Respondent was to discharge Zapper
on February 21, McLaughlin observing at the time that
Zapper had "fostered an environment" conducive to the
union problem by failing to communicate properly with the
employees. 22
The February 18 implementation date later was discard-
ed when Respondent's corporate attorney "panicked"-
Rhodes' term-and advised consultation with someone
more expert in labor law. A Sacramento law firm conse-
quently was consulted on February 18, purportedly advis-
ing that, in all the circumstances, the layoff would be all
admits to a conversation with Dunford in a grocery store, but denies that
she linked the layoff to the union situation. Dunford evinced sincerity under
oath, whereas Mrs. McLaughlin's testimony suffered from evasiveness and
indulgence in self-serving implausibilities of the sort mentioned in an earlier
footnote.
22 Zapper's discharge is not alleged to have been unlawful.
1567
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right. With that, February 25 was settled upon, with
seniority to govern. Rhodes had "pushed" for February 21,
but was overruled by McLaughlin, who wanted a chance to
speak individually with the chosen four first. Explaining,
McLaughlin testified that, "in the event that we would
have to call anybody back, I wanted them to know exactly
why they were being laid off." McLaughlin accordingly
called each of the four to his office on Monday and
Tuesday before February 25. He related to them the by
then hoary saga of economic woe, and avoided any
mention of the union situation.
On February 14-the day before this latest layoff
decision, and in keeping with Rhodes' parting words at the
February 11 all-employee meeting-the employees had
been granted an hour at the start of work to review their
feelings about the Union. They decided quickly and with
apparent unanimity that they still wanted representation, a
sentiment conveyed to Rhodes at or about 9 a.m. Rhodes'
only response was that he would pass the word to
McLaughlin, who was in Los Angeles with Freed. Later
that same day, the Union filed a petition for election with
the NLRB. 23
Zapper credibly testified that, in the last few days of his
employment, McLaughlin asked him "once a day, maybe
more," who was for and who against the Company, and
what kind of information Zapper had received in that
regard. Zapper credibly testified, as well, of a conversation
on or about February 18 with McLaughlin in which
McLaughlin said of William Goff, one of those to be laid
off on February 25: "I really think he's one of the
troublemakers; one of the individuals who is out to get us,
and one of the ones who is against us." 24
On February 25, incidental to laying off Hickok,
McLaughlin voiced the hope of recalling him in perhaps 3
months, after things had "picked up." McLaughlin repeat-
ed the litany concerning Respondent's economic plight,
then stated that the Union had come at a "bad time,"
considering the other problems, and that Respondent
"needed money to fight the Union." 25 About a week later,
in a telephone conversation, McLaughlin expressed sur-
prise that Hickok had cited "union activities" as the reason
for discharge on his application for unemployment bene-
fits. Hickok said that the Union had advised him to do
that, adding: "Bill, you've got to admit that the Union
played a big part in all this." McLaughlin admitted that,
"indirectly," that was true, explaining that the Union "had
hit us at a bad time" and that Respondent "needed money
to fight" it.26
On April 27, as previously mentioned, Respondent laid
off all of its remaining production and maintenance
employees for 5 or 6 weeks. The primary reason was the
inability of its supplier of transformers to keep it in supply.
23 Case 20-RC-14077. Processing of the petition was "blocked" at the
time of the hearing because of the present proceeding.
24 McLaughlin's denials that he said this and that he interrogated Zapper
about the emplcyees' union feelings are discredited for the reasons
previously stated in crediting Zapper's word over his.
25 This is based on Hickok's credible and uncontroverted testimony.
2" This is based on Hickok's credible and uncontroverted testimony.
27 Klar is credited agaiast McLaughlin's denial that this was said. Klar
was a convincing witness, and the circumstance of her being on the payroll
when she testified would be something of a deterrent against fabrication
adverse to Respondent's interests. McLaughlin's assertion that "the word
In June, a few days after the resumption of operations,
McLaughlin and Klar had a conversation in McLaughlin's
office, during which he stated, with reference to the
February layoffs, that he thought Respondent had "gotten
rid of all the culprits." 27
B. Conclusions
The alleged violations of Section 8(a)(3) and (1): It is
concluded that the layoffs of both February 11 and 25 were
motivated by antiunion considerations, and therefore
violated Section 8(a)(3) and (1).28
The decision concerning the February 11 layoff was
made and implemented within 2 days after receipt of the
Union's demand letter, and Zapper's credited description
of the decisionmaking process explicitly establishes that
antiunion considerations were dispositive. Equally explicit,
McLaughlin cited "the Union" when asked during the
February 11 employee meeting why his earlier assurances
of job security no longer applied, to which Rhodes injected
his no less damning clarification that the layoff was
dictated by the need for money to fight the Union.
Further, while the January 28 layoff would indicate some
economic dislocation, the record suggests tactical manipu-
lation, after the Union's demand, to create artificial signs
of distress. The layoff and recall of Klar on the same day,
for instance, revealed a purposeful smokescreen, as did the
deception about an overstock of subassembly parts when
the Zapper-Rigg inventory was to the contrary, and as did
McLaughlin's February 11 comment to his wife that one of
Respondent's options was to "cut back to the bone and
allow our accounts receivable to wash over us while we
wait out this union problem."
In addition, except for the falsely claimed subassembly
overstock, the economic factors allegedly compelling the
February 11 layoff-the loss of the 9-inch Sony, the
November-through-January deficit, Norcal's reduction of
the credit limit, etc.-were plainly evident before the
January 28 layoff, yet did not prevent McLaughlin's
promising job security to those who survived it. As
McLaughlin candidly acknowledged on February 11, the
only new circumstance was "the Union."
Other factors, as well, point to unlawful motivation,
among them McLaughlin's vow never to have a union in
the plant and his "culprits" remark, JoAnn McLaughlin's
grocery store remark to Dunford that "things would have
worked out" had the employees not "tried to get a union
in," and the prodigal disregard of the oath by Respondent's
witnesses.
The timing of the February 25 layoff decision was
incriminating, too, coming only a day after: (a) the
employees' February 14 revelation to Rhodes that they still
'culprits' isn't in my vocabulary" did not ring true, particularly in view of the
manifold indicia of his testimonial unreliability.
28 Assuming without deciding that Vivian Wood, laid off February I 11,
was a supervisor, her layoff nevertheless violated Sec. 8(aXl) because it was
"motivated by a desire to discourage union activities in general among the
employees" rather than by a concern that she, as a claimed supervisor, had
abetted the organizational drive. Heck's Inc., 170 NLRB 178, 184, fn. 8
(1968). See also General Nutrition Center, Inc., 221 NLRB 850, 858-859
(1975); Fairview Nursing Home, 202 NLRB 318, fn. 2 (1973); Krebs and King
Toyota, Inc., 197 NLRB 462, 463, fn. 4 (1972); Pioneer Drilling Co., Inc., 162
NLRB 918, 923 (1967).
1568
UNIMEDIA CORPORATION
desired union representation and (b) the Union's filing for
an NLRB election. And, just as McLaughlin had made
assurances of job security on January 28, Rhodes remarked
at the February I I employee meeting-only 2 workdays
before the decision concerning the February 25 layoff-
that he hoped there would be no more layoffs.
The only intervening circumstance that might have
invalidated Rhodes' remark, aside from the untoward
developments of February 14 relating to the Union, was
McLaughlin's and Freed's reputedly fruitless trip to Los
Angeles. There is no reason to believe, certainly, that the
various economic indicators pretextuously cited in support
of the February II layoff somehow had alchemized from
lead to gold in the meantime. Had the Los Angeles trip
truly been freighted with such profound implications,
however, it is unlikely that Rhodes would have played on
the employees' hopes in that manner only 3 days before.
Moreover, McLaughlin twice told Hickok, with reference
to the February 25 layoff, that it had been dictated by a
need for money to fight the Union. Finally, McLaughlin's
antiunion vow and "culprits" remark, mentioned above,
and the self-serving propensities of Respondent's witnesses,
are as relevant to the February 25 layoff as to that of
February I Ith.
The alleged violation of Section 8(a)(S) and (1): It is
concluded that Respondent, by failing to honor the
Union's demand for recognition in the circumstances of
this case, also violated Section 8(aX5) and (1).
By February 7, the Union had achieved a clear card
majority, whereupon it demanded recognition in what was
essentially a production and maintenance unit. The de-
mand unit was appropriate, and there was nothing in the
content of the cards or in the manner of their solicitation to
invalidate the majority for recognitional purposes. 29 Be-
yond that, by unlawfully laying off nine people, comprising
all but four of the card signers, Respondent destroyed any
possibility of, and forfeited its right to, an NLRB election
as a valid test of employee sentiment on the issue of union
representation.
A bargaining-order remedy therefore is necessary and
proper to protect the employees' right of representation,
and Respondent's disregard to the Union's majority-
backed demand consequently violated Section 8(a)(5) and
(1). E.g., Randall P. Kane, Inc., d/b/a The Catalyst, 230
NLRB 355 (1977); Donn Products, Inc., & American Metals
Corporation 229 NLRB (1977); Four Winds Industries, Inc.,
228 NLRB 1124 (1977); Hambre Hombre Enterprises, Inc.,
d/b/a Panchito's 228 NLRB 136 (1977); Jimmy Dean Meat
Company, Inc., of Texas, 227 NLRB 1012 (1977); Trading
Port, Inc., 219 NLRB 298 (1975).
The alleged independent violations of Section 8(a)(1): The
complaint alleges that, in February 1977, McLaughlin,
29 The Union's offer of a reduced fee for those joining to the time of a
contract-ratification vote-i.e., sometime after any representation election-
was not an invalidating inducement. N. L. R. B. v. Savair Manufacturing Co.,
414 U.S. 270 (1973); Certain-Teed Products Corporation v. N.LR.B., 562
F.2d 500 (C.A. 7, 1977).
30 Regardless of the legality of the layoffs, it is no defense that the March
remarks of McLaughlin to Hickok and of JoAnn McLaughlin to Dunford
occurred after Hickok and Dunford had been laid off As stated in Little
Rock Crate & Basket Co., 227 NLRB 1406 (1977), each dischargee
"remained a statutory 'employee' within the meaning of Section 2(3) of the
Act, as the Board has long held that that term means 'members of the
Rhodes, or both, unlawfully told employees that Respon-
dent would not permit them to have union representation,
that it would go out of business or contract out work rather
than recognize the Union, that it had laid off employees to
have money with which to fight the Union, that their union
activities had impaired their job security, and that it would
lock them out if they did not withdraw their designation of
the Union to represent them.
The complaint further alleges that, in February, Freed
unlawfully interrogated an employee concerning his and
his fellow employees' union activities, and that, in early
March, McLaughlin and JoAnn McLaughlin told employ-
ees that the February layoffs had been caused by their
union involvement.
Summarizing the credited evidence, Rhodes declared in
the February 11 employee meeting that Respondent would
not accept a union; that it could "roll over and die,"
emerging in a different form, to avoid the Union; and that
the February I layoff had been prompted by a need for
money to fight the Union. McLaughlin stated in the same
meeting that his January 28 assurances of job security no
longer applied because of "the Union."
Also on February II 1, before the employee meeting,
Rhodes told Betty Montgomery that Respondent's doors
"could be closed" because of the Union; and Freed, after
previously stating his intention to learn Hickok's views
about the Union, asked Hickok why the employees wanted
union representation.
On February 25 and again in early March, McLaughlin
told Hickok, in explanation of the layoffs, that Respondent
needed money to fight the Union; and, in early March,
JoAnn McLaughlin told Dunford in a grocery store that
"things would have worked out" had the employees not
"tried to get a union in."
It is concluded, based on the foregoing, that Respondent
independently violated Section 8(a)(1) substantially as
alleged.30
CONCLUSIONS OF LAW
1. By its layoffs of February 11 and 25, 1977, as found
herein, Respondent violated Section 8(aX3) and (1) of the
Act.
2. By failing to recognize the Union as the exclusive
collective-bargaining representative of its employees in the
appropriate production and maintenance unit after Febru-
ary 9, 1977, as found herein, Respondent violated Section
8(aX5) and (I) of the Act.
3. By telling its employees that it would not accept a
union; that it would "roll over and die," emerging in a
different form, to avoid the Union; that its doors "could be
closed" because of the Union; that the layoffs of February
working class generally,' including 'former employees of a particular
employer.'
In concluding that JoAnn McLaughlin's remarks to Dunford are binding
on Respondent, consideration is given to her coownership of all of
Respondent's outstanding stock, her spousal relationship with its chief
executive officer, and her position as corporate vice president and treasurer,
the aggregate of which would lead an employee to believe she was speaking
and acting for the Company. Cf. N. LR.B. v. Gerbes Super Markets, Inc., 436
F.2d 19, 21 (C.A. 8, 1971); Sprouse-Reitz Co., Inc.. 199 NLRB 943, fn. 2
(1972); American Door Company, Inc., 181 NLRB 37, 43 (1970).
1569
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11 and 25 had been prompted by a need for money to fight
the Union; that earlier assurances of job security no longer
applied because of "the Union"; and that "things would
have worked out" had the employees not "tried to get a
union in"; and by interrogating an employee why its
employees wanted union representation, all as found
herein, Respondent in each instance violated Section
8(a)(l) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue this recommended:
ORDER 31
The Respondent, Unimedia Corporation, Auburn, Cali-
fornia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Laying off or otherwise discriminating against em-
ployees because of the union activities of some or all of
them.
(b) Refusing to recognize Automotive Teamsters, Chauf-
feurs and Miscellaneous Employees Local No. 165, Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive
collective-bargaining representative of its employees in this
appropriate unit:
All production and maintenance employees of Unime-
dia Corporation at its plant in Auburn, California,
excluding office clerical employees, professional em-
ployees, guards, and supervisors as defined in the Act.
(c) Telling its employees that it would not accept a
union; that it would "roll over and die," emerging in a
different form, to avoid the Union; that its doors "could be
closed" because of the Union; that the layoffs of February
I and 25 had been prompted by a need for money to fight
the Union; that earlier assurances of job security no longer
applied because of "the Union"; and that "things would
have worked out" had the employees not "tried to get a
union in"; and from interrogating employees why they
want union representation.
(d) In any other manner interfering with, restraining, or
coercing employees in their exercise of rights under the
Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, recognize and bargain with the above-
named labor organization as the exclusive representative of
the employees in the above-described unit concerning their
wages, hours, and other terms and conditions of employ-
ment; and, if an understanding is reached, embody it in a
signed document if asked to do so.
(b) Offer to the nine people unlawfully laid off on
February 11 and 25, 1977, immediate and full reinstate-
ment to their former jobs or, if any such jobs no longer
exist, to substantially equivalent jobs, without prejudice to
their seniority and other rights and privileges, and make
them whole for any loss of earnings and/or benefits
suffered by reason of the unlawful layoffs.32
(c) Preserve and, upon request, make available to the
Board, or its agents, for examination and copying, all
payroll records and reports, and all other records necessary
for determination of the amounts owing under the terms of
this Order.
(d) Post at its plant in Auburn, California, copies of the
attached notice marked "Appendix." 33 Copies of said
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 custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure 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 the Respondent has taken to comply herewith.
31 All outstanding motions inconsistent with this recommended Order
hereby are denied. 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.
32 Backpay and interest thereon to be computed in the manner
prescnbed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
33 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity except
to the extent that the employees' bargaining
representative and employer have a collective-
bargaining agreement which imposes a lawful
requirement that employees become union mem-
bers.
WE WILL NOT lay off or otherwise discriminate
against employees because of the union activities of
some or all of them.
WE WILL NOT refuse to recognize Automotive Team-
sters, Chauffeurs and Miscellaneous Employees Local
No. 165, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
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UNIMEDIA CORPORATION
the exclusive collective-bargaining representative of our
employees in this appropriate unit:
All production and maintenance employees of
Unimedia Corporation at its plant in Auburn,
California, excluding office clerical employees,
professional employees, guards, and supervisors
as defined in the Act.
WE WILL NOT tell our employees that we will not
accept a union; that we will "roll over and die,"
emerging in a different form, to avoid the Union; that
our doors "could be closed" because of the Union; that
the layoffs of February 11 and 25, 1977, were prompted
by a need for money to fight the Union; that our earlier
assurances of job security no longer apply because of
"the Union"; and that "things would have worked out"
had the employees not "tried to get a union in"; and WE
WILL NOT interrogate employees why they want union
representation.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in their exercise of rights
under the Act.
WE WILL, upon request, recognize and bargain with
the above-named labor organization as the exclusive
representative of the employees in the above-described
unit concerning their wages, hours, and other terms and
conditions of employment; and, if an understanding is
reached, embody it in a signed document if asked to do
so.
WE WILL offer to the nine people unlawfully laid off
on February 11 and 25, 1977, immediate and full
reinstatement to their former jobs or, if any such jobs
no longer exist, to substantially equivalent jobs, without
prejudice to their seniority and other rights and
privileges; and make them whole for any loss of
earnings and/or benefits suffered by reason of the
unlawful layoffs.
UNIMEDIA CORPORATION
*U. S. I)O ER:I tNM FZN I 'R N I IN () I ICEt U--281-49
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